MISSOURI HIGH COURT TAKES CARE IN RULING ON GAMBLING VOTES

Once the voters of a city have had their say on an issue such as whether to allow riverboat gambling in their community, should another vote be permitted? That question, one of many surrounding the divisive gambling issue, was before the Missouri Supreme Court for a decision late last month. The court's answer: "Yes." Make that: "Yes, but."

The situation arose in Jefferson City, whose voters approved a local-option gambling referendum at the November 1992 general election on the same day that Missouri voters approved a bill referred to them by the General Assembly authorizing such gaming statewide. There followed no fewer than seven attempts by gambling opponents in our capital city to place before that community a re-vote of the issue of local gambling there. The city attorney and clerk who are charged with reviewing initiative petitions under the city charter found various of these petitions efforts to be defective, and opponents sued. The issue landed in the high court.

The court specifically held there to be nothing in either the gambling statute or the Missouri Constitution that prohibits another vote after a prior affirmative vote in the same community. That is really all the decision means in this instance. It would be unwise to read too much into this particular court decision. Specifically left for another day, and another set of facts, is the question, also asked by gambling opponents, as to what legal effect would be the outcome of such a second vote "if it is contrary to the first" voter outcome.

Turning to this question, Judge William Ray Price, author of the court's opinion, phrased the issue this way: "Specifically, would the Missouri Gaming Commission be precluded from licensing riverboat gambling in Jefferson City?" In a classic statement of judicial restraint, Judge Price answered: "This issue, however, is dependent upon the language of a ballot initiative not yet finalized, the outcome of an election not yet held and the facts and circumstances of various other parties who are not in this lawsuit."

Citing longstanding principles of judicial restraint concerning hypothetical situations, Judge Price's opinion declares such a decision to be "premature" in this instance and not ripe for judicial decision. "We will not rush to review the possible legal effect of such matters prematurely," Price concludes.

While maddening to litigants seeking an answer to provocative questions with great public import, such an instance of judges' restraining themselves is much to be commended. To have done otherwise would have been to issue what the law calls an advisory opinion, or an airy legal pronouncement where a true controversy, grounded in real disputes between real parties, is absent. The prohibition against courts' issuing such opinions is a longstanding one in American law. It is good to see our state's highest court reaffirming it here.

The bottom line, then, is that second elections can be held, and perhaps even a third and a fourth and on and on. But resolution of the exact legal effect of such an election -- what would happen, for instance, if the state had already issued a license, on the basis of which the licensee had spent millions? -- will have to wait for another day and another lawsuit.