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AGO Opinion 83078

April 14, 1983
Senator John W. DeCamp
Nebraska State Legislature
Room 1116, State Capitol
Lincoln, NE 68509




Dear Senator DeCamp:

You have requested that we review ~some proposed amendments to LB 336. The amendments that you have~ provided to us do not carry a number assigned by the devisor of statutes. They appear to be a draft copy. In substance, the amendment imposes a 7 percent tax on all lotteries conducted within the State of Nebraska consists in the regulatory commission to be established in Section 5~ of LB 259 rule making and authority to regulate, control and supervise conduct of lotteries. You ask us to review these proposed amendments to determine whether thev are ccnstitutional.

Since you have indicated that there¢ is an extreme urgency with respect to your request, substantial research has not been possible. We may, however, get orally state that an amendment which intends to impose a tax on the merchandise proceeds of lotteries conducted within the state would be constitutional. See, State v. Smith, i35 [{eb. 423, 281 "-.~.2d 851 (1938) and Thorin v. Burke, 146 Neb. 94, 18 N.W.2d 664 (1945).

The second matter that we wish to .discuss with respect to your request relates to granting the rule making power to the regulatory commision, n established by I.~ 759. the proposed amendment lift four areas in which the commission is to act,:"revision which states that the "Develop techniques to insure the elements are of lottery activity."

Arguably, we are able to determine what an improper lottery activity would be by referring to the general lottery statute which sets forth the elements of a lottery. We have been unable to find any definition of "improper elements" or "improper operators." We believe that this particular provision violates the restriction~ on delegating legislative authority. It appears to up to be vague avoid perhaps overbroad.

The Nebraska Supreme Court dealing with a statute which provided that the erection or maintenance of an advertising sign visible from the main travel portion of the interstate system was vague.

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are net clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct we insist that ]aw~ give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, sc that he may act accordingly. Vague laws may trap the innocent by net providence fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for these who apply them. A value law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. "

In addition to the vagueness’ associated with the use of the term "improper elements or operators,"can conceive of a situation in which a rule would he adopted Which would be sc bread as to sweep within its net totally innocent people. We therefore are constrained to say that the proposed amendments granting the authority to adopt rules and regulations to ensure that "improper elements or operators" is an improper delegation of legislative authority in that no standards or criteria are laid down to guide the administrative agency.

Very truly yours,

PAUL L. DOUGLAS
Attorney General