Dalton v. Pataki (11 A.D.3d 62, 2004)

OPINION OF THE COURT

Mercure, J.

These consolidated actions have their roots in a prior Court of Appeals decision holding that defendant Governor lacks the authority to unilaterally execute tribal-state compacts with Indian tribes to allow casino gaming on Indian reservations (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801 [2003], cert denied 540 US 1017 [2003]). The Court concluded that the negotiation of such compacts involves issues affecting the health and welfare of state residents, implicating policy choices that lie solely within the province of the Legislature (id. at 822-823). In 2001, the Legislature enacted a bill which, among other things, authorizes the Governor to enter into four tribal-state compacts for the operation of casino gaming activities at up to six facilities on Indian lands (see L 2001, ch 383, part B) pursuant to the Indian Gaming Regulatory Act (hereinafter IGRA) (25 USC §§ 2701-2721; 18 USC §§ 1166-1168). As relevant here, part C of the law also permits the Division of the Lottery (hereinafter Division) to license and implement the operation of video lottery gaming at several parimutuel racetracks; part D of the law authorizes the Division to participate in a multistate lottery.

Plaintiffs, a group of citizen taxpayers, two state legislators, nonprofit organizations and an unincorporated association opposed to the spread of gambling, commenced these actions seeking a judgment declaring parts B, C and D of chapter 383 of the Laws of 2001 to be unconstitutional. Supreme Court granted defendants’ cross motions for summary judgment dismissing the complaints and declared that parts B, C and D are constitutional and in conformance with federal law. Plaintiffs now appeal, asserting that these provisions violate NY Constitution, article I, § 9, which generally bans gambling in the state with certain exceptions. Plaintiffs argue in the alternative that parts B, C and D were enacted in violation of the “message of necessity” provision of the NY Constitution, which requires that a bill in final form be on legislators’ desks for “at least three calendar legislative days [before] final passage, unless the governor . . . shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon” (NY Const, art III, § 14).

Addressing the latter argument first, we conclude that the Governor’s message of necessity satisfied the constitutional obligation. The message of necessity indicates that “[b]ecause the bills have not been on your desks in final form for three calendar legislative days, the Leaders of your Honorable Bodies have requested this message to permit their immediate consideration.” It states that the “facts necessitating an immediate vote on the bills” are that the “bills are necessary to enact certain provisions of law.”

Although the message is brief, we note that “[i]t is the Governor who must express the opinion that an immediate vote is desirable. The facts on which [the Governor] forms that opinion must satisfy [him or her]” (Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Commn., 30 NY2d 207, 219 [1972], appeal dismissed 409 US 1031 [1972]). Here, the message of necessity is reasonable and conforms to other such messages that have been upheld in the past (see Nor wick v Rockefeller, 70 Misc 2d 923, 931-934 [1972], affd without op 40 AD2d 956 [1972], affd without op 33 NY2d 537 [1973] [upholding a message of necessity that stated “(b)ecause the bill in its final form has not been on your desks three calendar legislative days the Leaders of your Honorable bodies have requested this message to permit its immediate consideration”]; see also Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Commn., supra at 219-220; Matter of Joslin v Regan, 63 AD2d 466, 468-469 [1978], affd 48 NY2d 746 [1979]). We note that “[t]he Legislature could [have said that] the time for consideration was too short. It did not say that, but accepting the Governor’s certificate and considering the proposal in the time available, it passed it” (Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Commn., supra at 220). Given that the message of necessity “literally and reasonably conforms with [the] constitutional requirements” (id. at 220), we will not intervene to nullify the act.

Turning to the substance of plaintiffs’ arguments, we will first address plaintiffs’ challenges to part B of chapter 383 of the Laws of 2001. As explained in depth below, IGRA both “preempts] the field in the governance of gaming activities on Indian lands” (S Rep No. 100-446, 100th Cong, 2d Sess, at 6, reprinted in 1988 US Code Cong & Admin News, at 3071, 3076) and sets forth a mechanism by which states may exert some measure of control over gambling on Indian lands (see Seminole Tribe of Fla. v Florida, 517 US 44, 58 [1996]). We determine that, pursuant to IGRA, a state may enter into tribal-state compacts permitting particular class III, casino-type gaming activities on tribal lands if the state permits any person to conduct those particular gaming activities for any purpose, including a charitable purpose. That a compact permits a certain game to be conducted in a manner that is otherwise inconsistent with state law will not render it invalid if the game is not completely prohibited. Because New York permits the gaming activities at issue here for charitable purposes, subject to heavy regulation, the gaming is properly the subject of a tribal-state compact.

Next, regarding part C of chapter 383 of the Laws of 2001, we conclude that video lottery gaming, as implemented by the Division, constitutes a valid, state-operated lottery and, thus, falls within the exception of such lotteries from the general ban on gambling in NY Constitution, article I, § 9 (1). We agree with plaintiffs, however, that the requirement in part C that a portion of video lottery terminal (hereinafter VLT) vendor fees be dedicated to breeding funds and enhanced purses violates the constitutional mandate that “the net proceeds” of state-operated lotteries “be applied exclusively to or in aid or support of education in this state as the [Legislature may prescribe” (NY Const, art I, § 9 [1]). Moreover, we find that severing the portion of part C directing reinvestment does not cure the constitutional defect because severance would result only in an inflated vendor fee. Thus, while we conclude that video lottery gaming itself is a “lottery” within the meaning of NY Constitution, article I, § .9, we must modify Supreme Court’s order to declare the entirety of part C of chapter 383 to be unconstitutional due to the impermissible revenue distribution scheme set forth therein.

Finally, we conclude that plaintiffs’ challenges to part D of chapter 383 of the Laws of 2001 are meritless. New York retains sufficient control over the operation of the multistate lottery within its borders to meet the constitutional requirement that lotteries be “operated by the state” (NY Const, art I, § 9 [1]). Contrary to plaintiffs’ further argument, the net proceeds generated by the multistate lottery remain in New York and are dedicated “exclusively to or in aid or support of education in this state” as required by NY Constitution, article I, § 9 (1). Thus, part D is constitutional.

Although plaintiffs also advance a number of policy-laden arguments before us, courts are not concerned with questions of legislative policy. While we determine that parts B and D of chapter 383 are constitutional and, generally speaking, video lottery may constitute a valid lottery within the meaning of that term in NY Constitution, article I, § 9, our inquiry in this case is limited to the constitutionality of the challenged legislation.

I. Tribal-State Compacts

An understanding of both this state’s historical approach to gambling, as well as the legislative history of IGRA and its interplay with state law, is essential to an analysis of the issues raised in connection with part B of chapter 383 of the Laws of 2001. Accordingly, we first examine the statutory and constitutional background of the case and then address the merits of plaintiffs’ challenge to part B.

A. IGRA

1. Statutory Provisions

The stated purpose of IGRA is “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments” (25 USC § 2702 [1]). The statute also provides a federal regulatory framework to shield such gaming “from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly” (25 USC § 2702 [2]; see 25 USC § 2702 [3]). Congress enacted IGRA upon a finding that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by [flederal law and is conducted within a [s]tate which does not, as a matter of criminal law and public policy, prohibit such gaming activity” (25 USC § 2701 [5]).

The statute divides gaming into three categories that are subject to differing levels of regulatory oversight depending on the type of gaming within each category. Class I gaming consists of “social games solely for prizes of minimal value or traditional” tribal games (25 USC § 2703 [6]). Class I gaming on Indian lands is within the exclusive jurisdiction of Indian tribes (25 USC § 2710 [a] [1]). Class II gaming includes bingo and card games that are either expressly authorized or not explicitly prohibited by the state and legally played in the state (25 USC § 2703 [7] [A]). Class II gaming is defined to exclude “any banking card games, including baccarat, chemin de fer, or blackjack (21), or . . . electronic or electromechanical facsimiles of any game of chance or slot machines of any kind” (25 USC § 2703 [7] [B]). Class II gaming on Indian lands is within the jurisdiction of the Indian tribes, subject to the provisions of IGRA, if “such Indian gaming is located within a [s]tate that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by [f]ederal law)” (25 USC § 2710 [b] [1] [A]; see 25 USC § 2710 [a] [2]).

Class III gaming, the type of gaming permitted by part B of chapter 383, is defined as “all forms of gaming that are not class I gaming or class II gaming” (25 USC § 2703 [8]). Class III gaming is the most heavily regulated of the three categories of gaming and is lawful on Indian lands only if three conditions are met. First, the gaming activities must be authorized by an ordinance or resolution of the governing body of the Indian tribe (see 25 USC § 2710 [d] [1] [A] [i]). Second, like class II gaming, class III gaming activities are permitted on Indian lands “only if such activities are . . . located in a [sjtate that permits such gaming for any purpose by any person, organization, or entity” (25 USC § 2710 [d] [1] [B]). Finally, class III gaming must be “conducted in conformance with a [tjribal-[sjtate compact entered into by the Indian tribe and the [sjtate” (25 USC § 2710 [d] [1] [C]). The compacting requirement “allows states to negotiate with tribes that are located within their borders regarding aspects of class III Indian gaming that might affect legitimate state interests” (Artichoke Joe’s Cal. Grand Casino v Norton, 353 F3d 712, 716 [2003]; see 25 USC § 2710 [d] [3] [C]). Although states are required under IGRA to negotiate in good faith upon receiving a request to enter into negotiations with an Indian tribe (see 25 USC § 2710 [d] [3] [A]), nothing in the statute compels a state to accept a proposed compact (see 25 USC § 2710 [d] [7] [B] [vii] [describing the procedure to be followed by the Secretary of the Interior to permit class III gaming on state lands where a state does not consent to a compact]; 25 CFR part 291 [same]). Moreover, compacts will take effect only if approved by the Secretary of the Interior (see 25 USC § 2710 [d] [3] [B]).

Here, plaintiffs assert that while state laws, including constitutions, do not normally apply on Indian lands because Congress has exclusive authority over Indian affairs unless it vests such power in the states (see McClanahan v State Tax Commn. of Ariz., 411 US 164, 170-171 [1973]), IGRA provides that all state laws regarding gambling apply on Indian lands. Specifically, plaintiffs note that IGRA makes “all [s]tate laws pertaining to the licensing, regulation, or prohibition of gambling, including but not limited to criminal sanctions applicable ... in Indian country in the same manner and to the same extent as such laws apply elsewhere in the [s]tate” (18 USC § 1166 [a] [emphasis added]). Plaintiffs’ argument fails, however, because the term “gambling’-’ excludes “class III gaming conducted under a [t]ribal-[s]tate compact approved by the Secretary” (18 USC § 1166 [c] [2]). That is, under 18 USC § 1166, state laws regulating gambling do not apply to class III gaming otherwise permitted under IGRA. Class III gaming is allowed on Indian lands by IGRA if, as relevant here, it is “conducted in conformance with a [t]ribal-[s]tate compact” (25 USC § 2710 [d] [1] [C]) and “in a [s]tate that permits such gaming for any purpose by any person, organization, or entity” (25 USC § 2710 [d] [1] [B] [emphasis added]).

Plaintiffs argue in the alternative that New York does not “permitt ] such gaming”—i.e., casino gambling—and, thus, the condition contained in 25 USC § 2710 (d) (1) (B) is not met here. Plaintiffs point to a ban on commercialized gambling—as opposed to gambling for charitable purposes—in NY Constitution, article I, § 9 as evidence that New York does not permit the type of casino gaming that is to be authorized in the four tribal-state compacts contemplated by part B of chapter 383. Defendants counter that because the NY Constitution permits class III gaming for some purposes, New York cannot unilaterally prohibit such gaming on Indian lands. Indisputably, the term “permits such gaming for any purpose by any person, organization, or entity” defines the scope of class III games in which Indians may engage and that a tribal-state compact may address (see Artichoke Joe’s Cal. Grand Casino v Norton, supra at 720-723; United States v Santee Sioux Tribe of Neb., 135 F3d 558, 563-564 [1998], cert denied 525 US 813 [1998]; Citizen Band Potawatomi Indian Tribe of Okla. v Green, 995 F2d 179, 181 [1993]; United States v Santa Ynez Band of Chumash Mission Indians of Santa Ynez Reservation, Cal., 33 F Supp 2d 862, 863 [1998]). While that term may be susceptible to more than one interpretation, a review of the legislative history of IGRA convinces us that defendants have the better argument regarding the meaning of the term.

2. Legislative History of IGRA

Our review of the background of IGRA necessarily begins with California v Cabazon Band of Mission Indians (480 US 202 [1987]). Congress developed IGRA in response to Cabazon (see S Rep No. 100-446, 100th Cong, 2d Sess, reprinted in 1988 US Code Cong & Admin News, at 3071), a case addressing California’s regulation of bingo games conducted by Indian tribes on reservation land. Ruling that the tribes were not required to adhere to state regulation of the games (see California v Cabazon Band of Mission Indians, supra at 211-212), the US Supreme Court began its analysis by reaffirming the long-settled principle that “Indian tribes retain attributes of sovereignty over both their members and their territory . . . and that tribal sovereignty is dependent on, and subordinate to, only the [f]ederal [government, not the [s]tates” (id. at 207 [internal quotation marks and citations omitted]; see New Mexico v Mescalero Apache Tribe, 462 US 324, 332 [1983]). Nevertheless, the Court explained, state law may apply on Indian lands if Congress expressly so provides or, in the absence of express congressional consent, where state law is not preempted (see California v Cabazon Band of Mission Indians, supra at 207, 215-216).

The Court concluded that the particular statute at issue, Public Law 280 (Pub L 83-280, 67 US Stat 588 [1953]), did not make California law applicable to bingo played on Indian lands. The Court explained that Public Law 280 drew a distinction between “criminal/prohibitory” laws and “civil/regulatory” state laws, stating:

“if the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the [s]tate’s public policy” (California v Cabazon Band of Mission Indians, 480 US at 209).

After noting that in addition to bingo, California permits a substantial amount of gambling activity—including a state lottery, pari-mutuel horse betting and various card games—the Court determined that “California regulates rather than prohibits gambling in general and bingo in particular” (id. at 211), despite a prohibition in the California Penal Code on bingo for noncharitable purposes. In addition, after balancing the interests of the federal government and Indian tribes against the state’s interest in regulating high-stakes bingo played on Indian lands, the Court concluded that California law was preempted by Public Law 280, explaining that “[s]tate regulation would impermissibly infringe on tribal government” (id. at 222).

While Cabazon involved a different statute than that before us, the case remains instructive. Congress enacted IGRA, in part, to clarify that courts should not engage in the balancing test used by the US Supreme Court to determine whether state law is preempted with respect to gaming on Indian lands. In this regard, the Select Committee on Indian Affairs report on IGRA indicates that “in the final analysis, it is the responsibility of the Congress, consistent with its plenary power over Indian affairs, to balance competing policy interests and to adjust, where appropriate, the jurisdictional framework of regulation of gaming on Indian lands” (S Rep No. 100-446, 100th Cong, 2d Sess, at 3, reprinted in 1988 US Code Cong & Admin News, at 3071, 3073). Congress also incorporated into IGRA a modified version of the prohibitory/regulatory distinction articulated in Cabazon. Under the statute, “courts will consider the distinction between a [s]tate’s civil and criminal laws to determine whether a body of law is applicable, as a matter of [fjederal law, to either allow or prohibit certain activities” (S Rep No. 100-446, 100th Cong, 2d Sess, at 6, reprinted in 1988 US Code Cong & Admin News, at 3071, 3076).

The report discusses in depth the requirement that class II gaming be permitted if “located within a [s]tate that permits such gaming for any purpose by any person, organization or entity” (25 USC § 2710 [b] [1] [A])—language which also appears in the portion of the statute relating to class III gaming and defines the scope of class III gaming that a tribal-state compact may address, as noted above. The report makes clear:

“The phrase ‘for any purpose by any person, organization or entity’ makes no distinction between [s]tate laws that allow class II gaming for charitable, commercial, or governmental purposes, or the nature of the entity conducting the gaming. If such gaming is not criminally prohibited by the [s]tate in which tribes are located, then tribes, as governments, are free to engage in such gaming” (S Rep No. 100-446, 100th Cong, 2d Sess, at 12, reprinted in 1988 US Code Cong & Admin News, at 3071, 3082).

The report thus demonstrates that with respect to class II gaming, “Congress intended to permit a particular gaming activity, even if conducted in a manner inconsistent with state law, if the state law merely regulated, as opposed to completely barred, that particular gaming activity” (United States v Sisseton-Wahpeton Sioux Tribe, 897 F2d 358, 365 [1990]). Although the report expressly addressed language in 25 USC § 2710 (b) (1) (A) relating to class II gaming, the identical phrase—providing that gaming may be located only in “a [s]tate that permits such gaming for any purpose by any person, organization or entity”— appears in section 2710 (d) (1) (B) with respect to class III gaming. Inasmuch as the same word or phrase used in different parts of a statute will be presumed to have the same meaning throughout in the absence of an indication of an intent to the contrary (see McKinney’s Cons Laws of NY, Book 1, Statutes § 236, at 401), we agree with defendants that under IGRA, class III games that are not prohibited are properly the subject of negotiation in tribal-state compacts even if those games are heavily regulated and permitted to be played only by charities (see Mashantucket Pequot Tribe v State of Connecticut, 913 F2d 1024, 1029-1030 [1990], cert denied 499 US 975 [1991]; Coeur d’Alene Tribe v State, 842 F Supp 1268, 1274-1275 [1994], affd 51 F3d 876 [1995], cert denied 516 US 916 [1995]; see also Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 842 [2003], supra [Read, J., dissenting] [“IGRA mandates that, if a state allows any class III gaming by any person, a tribe may seek to conduct the same games on its lands”]).

Plaintiffs’ interpretation—that the term “such gaming” in the phrase “permits such gaming for any purpose by any person, organization, or entity” should be read to mean “gaming for commercial purposes”—renders 25 USC § 2710 (d) (1) (B) incoherent. If “such gaming” is read to refer to gaming for a particular purpose, as “commercialized gambling” refers to gambling for the purpose of commercial gain, the phrase “for any purpose” would be rendered meaningless. Because “[i]t is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]), plaintiffs’ interpretation must be rejected. We agree with defendants that the phrase “such gaming” refers to the antecedent term “class III gaming”—a type of gaming defined by the rules of the particular games contained therein, rather than by the purpose for which the games are played, such as for profit or for charity. Again, this interpretation is consistent with the legislative history of IGRA, which indicates that the relevant inquiry is whether a particular game is criminally prohibited, not whether the game is played for commercial, charitable or governmental purposes (see S Rep No. 100-446, 100th Cong, 2d Sess, at 12, reprinted in 1988 US Code Cong & Admin News, at 3071, 3082).

Defendants err, however, in asserting that simply because any class III gaming is allowed by a state, all class III gaming is properly the subject of a tribal-state compact. While the Select Committee on Indian Affairs report explains that tribes are prohibited from operating bingo—a class II game—in the five states which criminally prohibit the game, the report analyzed other class II games, such as card games, separately, stating that such games “are permitted by far fewer [s]tates” (S Rep No. 100-446, 100th Cong, 2d Sess, at 11-12, reprinted in 1988 US Code Cong & Admin News, at 3071, 3082). We find the report’s differing treatment of specific games within a gaming class significant inasmuch as it is indicative of a congressional intent that courts look to state law to determine whether particular gaming activities are permitted (see Cheyenne Riv. Sioux Tribe v State of South Dakota, 3 F3d 273, 278-279 [1993]; Mashantucket Pequot Tribe v State of Connecticut, supra at 1029; Coeur d’Alene Tribe v State, supra at 1276-1280; Lac du Flambeau Band of Lake Superior Chippewa Indians v State of Wisconsin, 770 F Supp 480, 487-488 [1991], appeal dismissed 957 F2d 515 [1992], cert denied 506 US 829 [1992]; see also Saratoga County Chamber of Commerce v Pataki, supra at 843 n 10 [Read, J., dissenting]; cf. Rumsey Indian Rancheria of Wintun Indians v Wilson, 64 F3d 1250, 1258-1259 [1994], amended 99 F3d 321 [1996], cert denied 521 US 1118 [1997] [concluding that class II legislative history is not applicable to class III gambling, but nevertheless holding that a state need not negotiate with Indian tribes regarding particular gaming activities in which the state forbids others to engage]).

Accordingly, in determining whether New York “permits such gaming” for purposes of satisfying the condition contained in 25 USC § 2710 (d) (1) (B), “the question is not whether these games may be characterized as Las Vegas-style or commercialized gambling, but whether a particular game is” permitted under our Constitution, statutes and applicable regulations (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 843 n 10 [2003], supra [Read, J., dissenting]). “[I]f a state does not permit ‘such gaming,’ the matter is at an end” (Mashantucket Pequot Tribe v State of Connecticut, supra at 1028-1029) and a compact purporting to authorize prohibited gambling will not be valid (see Artichoke Joe’s Cal. Grand Casino v Norton, 353 F3d 712, 720-723 [2003], supra; United States v Santee Sioux Tribe of Neb., 135 F3d 558, 563-564 [1998], supra; Citizen Band Potawatomi Indian Tribe of Okla. v Green, 995 F2d 179, 181 [1993], supra-, United States v Santa Ynez Band of Chumash Mission Indians of Santa Ynez Reservation, Cal., 33 F Supp 2d 862, 863 [1998], supra). Contrary to defendants’ argument that the “permits such gaming” requirement is satisfied if the state allows any class III gaming, we conclude that if a particular class III game is not permitted by New York law under any circumstances, a tribal-state compact will not be upheld insofar as it purports to authorize a tribe to conduct that game on Indian lands.

To summarize, while IGRA “preempt[s] the field in the governance of gaming activities on Indian lands” (S Rep No. 100-446, 100th Cong, 2d Sess, at 6, reprinted in 1988 US Code Cong & Admin News, at 3071, 3076; see Gaming Corp. of Am. v Dorsey & Whitney, 88 F3d 536, 546 [1996]), it also gives states, through the tribal-state compacting process, a power withheld from them by the US Constitution—i.e., “some measure of authority over gaming on Indian lands” (Seminole Tribe of Fla. v Florida, 517 US 44, 58 [1996], supra). Nevertheless, this authority does not amount to a blanket imposition on tribes of all state laws regarding gambling activity. Instead, consistent with traditional principles of tribal sovereignty, the compacting process constitutes “a framework for the regulation of gaming activities on Indian lands which provides that in the exercise of its sovereign rights, unless a tribe affirmatively elects to have [s]tate laws and [s]tate jurisdiction extend to tribal lands, the Congress will not unilaterally impose or allow [s]tate jurisdiction on Indian lands for the regulation of Indian gaming activities” (S Rep No. 100-446, 100th Cong, 2d Sess, at 5-6, reprinted in 1988 US Code Cong & Admin News, at 3071, 3075). We emphasize, however, that Indian tribes may not engage in class III gaming activities if those particular activities are not “located in a [s]tate that permits such gaming for any purpose by any person, organization, or entity” (25 USC § 2710 [d] [1] [B]). That is, gaming activities that are not permitted by a state cannot be the subject of a tribal-state compact or played on Indian lands. We must therefore determine what gaming activities are permitted under the NY Constitution and laws regulating gambling.

B. Gaming in New York

New York has generally prohibited gambling throughout its history, with certain exceptions. The state’s first Constitution, in 1777, did not mention gambling or lotteries and numerous statutes authorized public lotteries to raise money for a variety of purposes by the colony and state from 1746 through 1821 (see 3 Lincoln, The Constitutional History of New York, at 34-43 [1906]; see also People ex rel. Ellison v Lavin, 93 App Div 292, 300 [1904], revd on other grounds 179 NY 164 [1904]; Matter of Dwyer, 14 Misc 204, 205-206 [1894]). The second Constitution, approved in 1821, however, expressly prohibited lotteries not already authorized by law stating: “No lottery shall hereafter be authorized in this state; and the [Legislature shall pass laws to prevent the sale of all lottery tickets within this state, except in lotteries already provided for by law” (1821 NY Const, art VII, § 11). An amendment prohibiting horse racing was also proposed but rejected by the Constitutional Convention of 1821 (see 3 Lincoln, The Constitutional History of New York, at 45 [1906]).

The third Constitution contained a similar provision that prohibited lotteries but remained silent on other forms of gambling, providing: “nor shall any lottery hereafter be authorized, or any sale of lottery tickets allowed within this state” (1846 NY Const, art I, § 10). In 1887, the Legislature enacted the Ives Pool Law, authorizing gambling on horse racing during certain times of the year with a five percent tax on revenues to be used for the support of horse breeding (L 1887, ch 479). This form of gambling was subsequently forbidden by the fourth Constitution, approved in 1894 (see 3 Lincoln, The Constitutional History of New York, at 47 [1906]). Article I, § 9 provided: “nor shall any lottery or the sale of lottery tickets, pool-selling, book making, or any other kind of gambling hereafter be authorized or allowed within this [s]tate” (1894 NY Const, art I, § 9). An identical provision appeared in the current Constitution, when it was approved in 1938.

Since that time, NY Constitution, article I, § 9 has been amended five times. The effect of these amendments has been to broaden the scope of permissible gambling in the state through a series of exceptions to the general prohibition on gambling. In 1939, the section was amended to except parimutuel betting on horse races from the prohibition on gambling. A 1957 amendment authorized localities to permit religious, charitable and nonprofit organizations to conduct bingo or lotto. A 1966 amendment permitted the state to conduct a lottery, with the net proceeds to be used to support education. Most relevant here, section 9 (2) was amended in 1975 to allow localities to permit, in addition to bingo and lotto, “games in which prizes are awarded on the basis of a winning number or numbers, color or colors, or symbol or symbols determined by chance from among those previously selected or played, whether determined as the result of the spinning of a wheel, a drawing or otherwise by chance.” Subsequently, in 1984, the Constitution was amended again to provide that the previously mandatory $250 limit on single prizes and $1,000 limit on a series of prizes in games permitted by the 1957 and 1975 amendments could be varied by law.

As amended, the current version of NY Constitution, article I, § 9 (1) thus reads in pertinent part:

“except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking, or any other kind of gambling, except lotteries operated by the state and the sale of lottery tickets in connection therewith as may be authorized and prescribed by the [legislature, the net proceeds of which shall be applied exclusively to or in aid or support of education in this state as the [LJegislature may prescribe, and except pari-mutuel betting on horse races as may be prescribed by the [Legislature and from which the state shall derive a reasonable revenue for the support of government, shall hereafter be authorized or allowed within this state.”

NY Constitution, article I, § 9 (2) provides:

“any city, town or village within the state may by an approving vote of the majority of the qualified electors . . . authorize, subject to state legislative supervision and control, the conduct of one or both of the following categories of games of chance commonly known as: (a) bingo or lotto, in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random; (b) games in which prizes are awarded on the basis of a winning number or numbers, color or colors, or symbol or symbols determined by chance from among those previously selected or played, whether determined as the result of the spinning of a wheel, a drawing or otherwise by chance.”

Subdivision (2) imposes a number of restrictions on permissible gaming, in addition to any others that the Legislature may prescribe. Specifically, subdivision (2) provides that “only bona fide religious, charitable or non-profit organizations of veterans, volunteer firefighter and similar non-profit organizations shall be permitted to conduct such games;. . . the entire net proceeds of any game shall be exclusively devoted to the lawful purposes of such organizations; ... no person except a bona fide member of any such organization shall participate in the management or operation of such game; ... no person shall receive any remuneration for participating in the management or operation of any such game[; and u]nless otherwise provided by law, no single prize shall exceed [$250], nor shall any series of prizes on one occasion aggregate more than [$1,000]” (NY Const, art I, § 9 [2]). Subdivision (2) further directs the Legislature to “pass appropriate laws to effectuate the purposes of this subdivision [and to] ensure that such games are rigidly regulated to prevent commercialized gambling” (NY Const, art I, § 9 [2]). Notably, subdivision (2) expressly permits the Legislature to pass laws restricting the gambling permitted by that section (NY Const, art I, § 9 [2]).

The foregoing illustrates that while the NY Constitution generally bans gambling and evinces a strong policy against commercialized gambling, at least some form of gambling has been authorized throughout most of the state’s history. Indeed, the NY Constitution contained a complete prohibition on gambling only from 1894 to 1939 and now permits several forms of gambling, some of which would be deemed class III gaming under IGRA (see 25 USC § 2703 [7], [8]). The legalization of certain forms of gambling “indicate [s] that the New York public does not consider authorized gambling a violation of ‘some prevalent conception of good morals, [or] some deep-rooted tradition of the common weal’ ” (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 15 [1964], quoting Loucks v Standard Oil Co., 224 NY 99, 111 [1918]), as plaintiffs would have us hold. Instead, “[t]he trend in New York State demonstrates ah acceptance of licensed gambling transactions as a morally acceptable activity, not objectionable under the prevailing standards of lawful and approved social conduct” (Intercontinental Hotels Corp. [Puerto Rico] v Golden, supra at 15; see generally Ramesar v State of New York, 224 AD2d 757, 759 [1996], lv denied 88 NY2d 811 [1996] [noting that public policy generally continues to disfavor gambling and, thus, regulations pertaining thereto must be strictly construed]).

Regarding “games of chance,” the 1975 amendment permits, on its face, “games in which prizes are awarded on the basis of a winning number or numbers, color or colors, or symbol or symbols determined by chance.” Plaintiffs do not dispute that this provision allows Las Vegas or casino nights, subject to the limits imposed in NY Constitution, article I, § 9 (2), and that charities currently engage in millions of dollars worth of casino gambling per year (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 844 [2003], supra [Read, J., dissenting]). Nor do plaintiffs assert that the state prohibits charities and nonprofit organizations, during their Las Vegas or casino nights, from engaging in any of the 31 games listed in the compact that the Governor executed with the Seneca Nation pursuant to part B of chapter 383 of the Laws of 2001. In this regard, we note that the 1975 Senate debate leading to this constitutional amendment indicates that the purpose of the amendment was to expand the types of games in which religious, charitable or nonprofit organizations could legally engage to include Las Vegas night casino-type gambling, such as roulette, blackjack and dice games (see New York State Senate Debate on Senate Bill S 2509, June 19, 1975, at 8234-8235, 8239-8242, 8259, 8266-8268, 8271-8272)—games authorized in the Seneca Nation compact, as well.

For example, Senator B.C. Smith, in answering Senator Lewis’s objection to the amendments allowing “Las Vegas night” and “roulette wheel[s]” in houses of worship (id. at 8234-8235), stated that “your synagogues, your churches and your fire departments in certain sections of the state are doing just this, just the very thing that is legalized by this proposition” (id. at 8239). He explained that many fire departments and churches could not survive without “their bazaars and fairs” (id. at 8241) and that, while people operating such fairs were arrested in certain counties (id. at 8239-8240), “when [he] was District Attorney of [his] county, . . . [he] wouldn’t arrest anybody that was running a firemen’s affair . . . [with] big six” (id. at 8241-8242). Indeed, Senator Lewis, who strongly opposed the amendment on the ground that it could potentially “make every one of the institutions, religious and eleemosynary, a pseudo or partial casino,” conceded that roulette wheels “exist [ ] in my community and they have [them] in the fairs all around me, and the police, if they are involved, look the other way” (id. at 8245). Further, Senator Rolison, in explaining the bill, indicated that dice games, such as craps, would be permitted under the amendment (id. at 8259). These excerpts from the debates demonstrate that the 1975 amendment was intended to except from the general prohibition on gambling the precise types of casino gaming contemplated by part B of chapter 383 of the Laws of 2001, provided that such gaming was conducted for charitable purposes.

This conclusion is farther supported by reference to the text and history of General Municipal Law article 9-A, which the Legislature enacted pursuant to the 1975 amendment and which codifies the definition of permissible games of chance. At the time it was enacted, General Municipal Law § 186 (3) provided:

“ ‘Games of chance’ shall mean and include specific games of chance, in which prizes are awarded on the basis of a designated winning number or numbers, color or colors, symbol or symbols determined by chance, but not including games commonly known as ‘bingo or lotto’ which are controlled under article [14-H] of this chapter and also not including ‘slot machines’, ‘bookmaking’, and ‘policy or numbers games’ as defined in [Penal Law § 225.00]. No game of chance shall involve wagering of money by one player against another player.”

The legislative debates and history regarding the enactment of General Municipal Law article 9-A similarly evince an acknowledgment that the definition contained in section 186 was intended to include casino-type games (see e.g. New York State Senate Debate on Senate Bill S 9101, June 26, 1976, at 9649-9651 [stating that dice games, blackjack and baccarat are among the games permitted under the statute]; Mem of State Racing and Wagering Board, at 2, Bill Jacket, L 1976, ch 960 [indicating that “roulette, dealer blackjack and baccarat” would be permissible]). These games, such as blackjack, craps, roulette and baccarat, generally would be considered class III gaming under IGRA (see 25 USC § 2703 [8]). Pursuant to General Municipal Law § 186 (3), the Racing and Wagering Board lists a number of casino-type games, such as craps, roulette, blackjack and big six, that may be conducted in this state (see 9 NYCRR 5620.1) . Again, these games fall into the category of class III gaming under IGRA (see 25 USC § 2703 [8]).

In sum, despite a ban on commercialized gambling, a general prohibition on all gambling except that expressly authorized and a history that includes a 45-year period during which gambling was banned completely, New York now constitutionally permits a substantial amount of gambling. The 1975 amendment to the Constitution and implementing legislation and regulations (see General Municipal Law § 186 [3]; 9 NYCRR 5620.1) , in particular, were intended to permit charities, religious organizations and other nonprofit groups to conduct the types of gaming categorized as class III by IGRA.

Inasmuch as the state permits, subject to heavy regulation and various restrictions, others to engage in the type of gaming activities at issue here, it merely regulates, as opposed to completely bars, those gaming activities. For purposes of IGRA, then, the state “permits such gaming for any purpose by any person, organization, or entity” (25 USC § 2710 [d] [1] [B]). Accordingly, the class III gaming at issue is properly the subject of a tribal-state compact and part B of chapter 383 of the Laws of 2001 authorizing the Governor to enter into such compacts is consistent with both IGRA and NY Constitution, article I, § 9.

We similarly conclude that part B is consistent with the requirement in NY Constitution, article I, § 9 (2) that the Legislature “pass appropriate laws to . . . ensure that such games are rigidly regulated to prevent commercialized gambling.” Plaintiffs’ argument that part B violates this requirement is premised on their incorrect belief that New York laws relating to gaming activities apply with the same force and effect on Indian lands as they do elsewhere within the state. As explained above, because Indian tribes retain attributes of sovereignty, state law applies on Indian lands only if Congress so provides or state law is not preempted (see California v Caba zon Band of Mission Indians, 480 US 202, 207, 215-216 [1987], supra). In the context of casino gaming on Indian lands, IGRA both determines the extent to which state law applies to gaming on Indian lands (see Seminole Tribe of Fla. v Florida, 517 US 44, 58 [1996], supra; see also Artichoke Joe’s Cal. Grand Casino v Norton, 353 F3d 712, 716 [2003], supra; Keweenaw Bay Indian Community v United States, 136 F3d 469, 472 [1998], cert denied 525 US 929 [1998]) and “preempts] the field in the governance of gaming activities on Indian lands” (S Rep No. 100-446, 100th Cong, 2d Sess, at 6, reprinted in 1988 US Code Cong & Admin News, at 3071, 3076).

States do not have the authority to regulate class III gaming on Indian lands other than through the compacting procedure outlined in IGRA. States are not required by IGRA to agree to compacts (see 25 USC § 2710 [d] [7] [B] [vi], [vii]), although they may choose to enter, via the compacting process, an otherwise preempted field if their actions are in compliance with the federal standards embodied in IGRA. Should a state refuse to participate in the negotiation process, the result would be only that the state would lose its ability to influence the terms on which gaming will occur, with such authority reverting to the Secretary of the Interior (see 25 USC § 2710 [d] [7] [B] [vii]; 25 CFR part 291). Thus, IGRA cannot be interpreted as a federal directive that requires states to assume a regulatory role in violation of the anticommandeering principle contained in the 10th Amendment of the US Constitution (see Ponca Tribe of Okla. v State of Oklahoma, 37 F3d 1422, 1432-1435 [1994], revd on other grounds 517 US 1129 [1996]; Yavapai-Prescott Indian Tribe v State of Arizona, 796 F Supp 1292, 1297 [1992]; see generally Printz v United States, 521 US 898, 926 [1997]). Instead, the IGRA compacting process is best understood as providing states with the opportunity to establish “some measure of authority over gaming on Indian lands [,] ... a power withheld from them by the Constitution” (Seminole Tribe of Fla. v Florida, supra at 58).

Stated differently, IGRA does not force New York to accept a particular compact. It simply affords the state the opportunity to assert authority over gaming on Indian lands, a power that the state otherwise lacks. Because part B of chapter 383 of the Laws of 2001 permits the Governor to enter into tribal-state compacts extending state regulatory authority to commercialized casino gambling on Indian lands—where such authority would not otherwise exist—we cannot say that the Legislature has violated the constitutional mandate to pass laws limiting commercialized gambling. Rather, part B permits the Governor to assume a role in setting the terms and restrictions pursuant to which Indian gaming will occur, and thereby limit such gaming in a manner consistent with the state’s interests.

Plaintiffs’ remaining arguments regarding part B of chapter 383 require little discussion. Plaintiffs contend that the Governor cannot, consistent with New York public policy as set forth in the NY Constitution, concur with the Secretary of the Interior that gaming on Indian lands other than an existing reservation would not be detrimental to surrounding communities. Plaintiffs’ argument is unpersuasive. Before gaming may occur on lands held in trust by the federal government for the benefit of Indian tribes, the Governor’s concurrence is required (see 25 USC § 2719 [b] [1] [A]). We note that the statute leaves the decision to the Governor whether, in his judgment, gaming on Indian lands would be detrimental—i.e., have adverse social and economic consequences—on the surrounding communities (see 25 USC § 2719 [b] [1] [A]). It does not require a determination that the gaming would fall within one of the constitutional exceptions to the state’s general prohibition on gambling or that the gaming would be lawful if conducted on state land. Second, while New York does have a strong policy against commercialized gambling, “the New York public does not consider authorized gambling a violation of ‘some prevalent conception of good morals, [or] some deep-rooted tradition of the common weal’ ” (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 15 [1964], supra [citation omitted]). Hence, the Governor’s concurrence cannot be said to violate New York public policy.

Finally, we reject plaintiffs’ argument that part B of chapter 383 represents an unlawful delegation of power to the Governor because it provides no legislative guidance with respect to future compacts in Ulster and Sullivan Counties. Part B adequately sets forth the parameters for compacts between New York and Indian tribes. It indicates the number of casinos permitted, the general location of those casinos, and a number of provisions that must be included in the compacts regarding, among other things, access of labor unions for purposes of soliciting employee support for representation, binding arbitration of labor disputes, assurances that the tribes have adequate civil recovery systems to protect the rights of visitors and guests, and assurances that the tribes will maintain sufficient liability insurance to compensate visitors and guests for injuries that might occur. We conclude that in part B, “ ‘the basic policy decisions underlying the [executive action] have been made and articulated by the Legislature’ ” (Bourquin v Cuomo, 85 NY2d 781, 785 [1995] [citation omitted]). That part B leaves discretion to the Governor in negotiating compacts with Indian tribes merely permits compliance with the state’s obligation to engage in good-faith negotiations (see 25 USC § 2710 [d] [3] [A]) and does not render the provision an unlawful delegation of authority.

II. VLTs

Part C of chapter 383 of the Laws of 2001 authorizes the Division to license and operate VLTs at eight licensed parimutuel racetracks. Pursuant to the statute, five racetracks— Aqueduct, Monticello, Yonkers, Finger Lakes and Vernon Downs—are automatically eligible to apply for a license to install VLTs (see L 2001, ch 383, part C, § 1; Tax Law § 1617-a [a]). Upon approval from the governing body of the appropriate counties, certain harness racetracks—Saratoga Equine Sports-center, Batavia and Buffalo—may also install VLTs (see L 2001, ch 383, part C, § 1; Tax Law § 1617-a [a]; Racing, Pari-Mutuel Wagering and Breeding Law art 3). Three other racetracks— Belmont Park, Saratoga Thoroughbred Racetrack and the New York State Exposition in Onondaga County—are not eligible to install VLTs (see L 2001, ch 383, part C, § 1; Tax Law § 1617-a [a]). The statute directs that the payout for prizes is to be 90% of sales (see L 2001, ch 383, part C, § 2; Tax Law § 1612 [c] [3]). As originally enacted, part C provided that the balance of the total revenue was to be paid to education after deducting 15% for the Division’s operating and administrative costs and a “vendor’s fee” of between 12% and 25% to be paid to the racetrack (see L 2001, ch 383, part C, § 2). The statute required that each racetrack reinvest a percentage of its vendor fee to support higher purses and the appropriate breeding fund at the racetrack (see L 2001, ch 383, part C, § 2).

The operation of VLTs is described in requests for proposals (hereinafter RFPs) issued by the Division inviting potential vendors to submit proposals for the implementation and operation of a VLT system. The system is to be comprised of three components: (1) video display terminals that accept players’ paper currency, credit or account cards, game identifier and price selections, and permit players to view the results of their purchased electronic instant lottery tickets; (2) site controllers that link a number of video display terminals to a central system, store and manage unpurchased electronic ticket series and are programmed to dispense electronic lottery tickets in the sequence received from and determined by the central system; and (3) a central system that randomly shuffles and stores electronic ticket series, distributes the tickets to site controllers, monitors all system activity, and performs accounting and security functions. The RFPs contemplate participation by multiple VLT players who will compete against each other by purchasing electronic instant lottery tickets from a finite depleting pool of tickets in a given series. Indeed, video display terminals must be linked electronically to allow players to compete against other players for a chance to purchase winning electronic lottery tickets. An electronic ticket series consists of a finite set of tickets from a particular instant game pool and, upon creation, is intermixed to ensure randomness. The ticket series is stored in the central system until divided into smaller quantities and sent to site controllers.

To play video lottery, a player inserts paper currency or another Division-approved representative of value into a video display terminal to purchase one or more electronic instant lottery tickets. The player determines the particular game and amount to be wagered. The next situated electronic ticket is then dispensed from the site controller to the display terminal, which shows the outcome associated with that ticket. The player cannot affect the outcome associated with the ticket beyond selecting the type of game to be played; the tickets are predetermined to be either winners or losers before the time of purchase. Once a player has purchased a ticket, it is removed from the pool of available electronic tickets in a given series and cannot be selected or dispensed again. Upon completion of play, the player receives a redemption ticket that can be used for wagering at another display terminal or presented for verification and payment at a validation terminal.

VLTs thus may be understood as presenting electronic versions of the instant-ticket lottery games conducted by the Division. As with “scratch-off’ tickets, an electronic instant lottery ticket is a winning or nonwinning ticket at the time of its creation and no skill on the part of the player is involved in the game. The distribution of electronic tickets, like scratch-off tickets, is random. In both paper and electronic instant lottery games, players compete against each other in the sense that once an instant ticket is removed from a series, the finite pool of tickets in that series shrinks for all players. The only other game permitted on VLTs is electronic keno, in which players compete against each other by choosing a series of numbers, colors or symbols from a finite pool in the hope that their selections will match those later randomly drawn by the central system.

Plaintiffs challenge part C of chapter 383 on two primary grounds. First, they argue that VLTs are slot machines and, thus, do not fit within the exception of state-run lotteries from the general ban on gambling in NY Constitution, article I, § 9. Second, plaintiffs assert that the directive in part C that racetracks reinvest a percentage of their vendor fees in purses and breeding funds violates the constitutional mandate that the net proceeds of state-operated lotteries “be applied exclusively to or in aid or support of education in this state as the [Legislature may prescribe” (NY Const, art I, § 9 [1]). We address each of these arguments in turn.

A. VLTs and Slot Machines

Plaintiffs contend that VLTs are, in reality, slot machines. They assert that slot machines cannot be “lotteries” within the meaning of that term in NY Constitution, article I, § 9 (1) and, thus, part C of chapter 383 of the Laws of 2001 is unconstitutional. Plaintiffs compare the description of the video display terminals used in video lottery gaming that is found in the Division’s RFPs to the definition of “[s]lot machine” contained in Penal Law § 225.00 (8), which states in relevant part: “ ‘Slot machine’ means a gambling device which, as a result of the insertion of a coin or other object, operates, either completely automatically or with the aid of some physical act by the player, in such manner that, depending upon elements of chance, it may eject something of value.”

Plaintiffs aver that the 1966 amendment to NY Constitution, article I, § 9 authorizing the state to conduct lotteries permits only traditional sweepstakes lotteries with periodic drawings. Specifically, they assert that the NY Constitution permits only those types of lotteries in which licensed vendors sell tickets for later drawings to occur with extremely limited frequency and at which winning numbers would be selected at some central headquarters. If the lottery ticket purchased by the consumer contained the winning number, that consumer would collect a pool of winnings that depended on the total number of tickets purchased. Plaintiffs contend that machines or gaming systems, such as VLTs, that permit games to be played with infinite frequency are slot machines and therefore cannot be considered to offer “lottery” games. Alternatively, plaintiffs contend that under the definition in General Municipal Law § 186 (3), as amended by part B, § 5 of chapter 383 of the Laws of 2001, video lottery cannot be a “lottery.” We disagree.

In determining whether games offered on the VLTs implemented by the Division pursuant to part C constitute “lotteries,” we are mindful of the rule that a legislative enactment may be found unconstitutional only upon a “demonstration of] the statute’s invalidity ‘beyond a reasonable doubt’ ” (LaValle v Hayden, 98 NY2d 155, 161 [2002], quoting People v Tichenor, 89 NY2d 769, 773 [1997], cert denied 522 US 918 [1997]). Defendants note that the NY Constitution does not define the term “lotteries.” They urge us to adopt a broad definition of that term, used by the courts primarily in interpreting the penal statutes, that a game is a lottery if it involves the three elements of consideration, chance and prize (see e.g. People v Hines, 284 NY 93, 101-103 [1940]; People v Miller, 271 NY 44, 47 [1936]; see also Trump v Perlee, 228 AD2d 367, 368 [1996] [defining lottery as containing those three elements in a taxpayers’ action seeking to enjoin the defendants from operating the game known as “Quick Draw”]; Harris v Economic Opportunity Commn. of Nassau County, 171 AD2d 223, 227 [1991] [holding that, in an action by the winner of a raffle to recover a prize, a raffle had elements of consideration, chance and prize and was therefore' an illegal lottery]). Inasmuch as play on VLTs indisputably involves those three elements, defendants argue that part C of chapter 383 is constitutional.

We agree with defendants that VLTs are simply a new method of presenting lottery games to the public and, therefore, the operation of VLTs by the state falls within the constitutional exception to the general ban on gambling. We conclude, however, that the 1966 amendment creating the exception that authorized a state-run lottery—pursuant to which part C was enacted—must be strictly construed to ensure that the exception does not swallow the rule (see generally Molina v Games Mgt. Servs., 58 NY2d 523, 529 [1983]; Matter of New York Racing Assn. v Hoblock, 270 AD2d 31, 33-34 [2000]; People v Kim, 154 Misc 2d 346, 351 [1992]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 213, at 372).

The elements of consideration, chance and prize are present in all forms of gambling or games of chance (see generally Penal Law § 225.00 [2] [defining “gambling”]). Pursuant to the definition advanced by defendants, any game of chance—including such casino games as poker, blackjack, craps and roulette— could be a lottery if operated by the state. Such a broad interpretation would expand the constitutional exception permitting state-run lotteries to such an extent that it would swallow the general constitutional prohibition on gambling (see 1984 Ops Atty Gen No. 84-F1, at 19-24; 1981 Ops Atty Gen 68, at 72). NY Constitution, article I, § 9 cannot support such a broad reading. Nevertheless, we conclude that even pursuant to a stricter reading of the term “lotteries,” video lottery gaming passes muster.

The term “lotteries” must be interpreted with reference to the language of the constitutional exception itself and the legislative history of the amendment, as well as related statutory and constitutional provisions. In its general prohibition, NY Constitution, article I, § 9 refers to a lottery as one of several forms of gambling, stating that “except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking, or any other kind of gambling . . . shall hereafter be authorized or allowed within this state” (NY Const, art I, § 9 [1]). “[L]ottery,” as used in article I, § 9, can thus be understood to mean a distinct, narrower form of the broad term “gambling,” which is defined by the three elements of consideration, chance and prize (see Penal Law § 225.00 [2] [defining “gambling” as “stak(ing) or risk(ing) something of value upon the outcome of a contest of chance or a future contingent event not under (one’s) control or influence, upon an agreement or understanding that he (or she) will receive something of value in the event of a certain outcome”]; see also Johnson v Collins Entertainment Co., 333 SC 96, 101, 508 SE2d 575, 577-578 [1998] [concluding that where a state constitution distinguishes between lottery and gambling or other games of chance, lottery must be defined in a narrow sense]; Poppen v Walker, 520 NW2d 238, 244-245 [SD 1994] [same]; Eisenrauch, Video Poker and the Lottery Clause: Where Common Law and Common Sense Collide, 49 SC L Rev 549, 567-572 [1998] [same]).

The lottery exception itself authorizes “lotteries operated by the state and the sale of lottery tickets in connection therewith” (NY Const, art I, § 9 [1]). On its face, the constitutional exception contemplates that stat