Kansas Attorney General Opinion 2015-006

March 24, 2015
ATTORNEY GENERAL OPINION NO. 2015- 6
Robert W. Challquist
Kansas Department of Revenue
Legal Services Bureau
915 SW Harrison Street, Room 230
Topeka, Kansas 66612-1588
Re: 	Constitution of the State of Kansas—Legislative—Legislative Power
Constitution of the State of Kansas—Miscellaneous—Lotteries; Regulation
of “Raffles” Authorized
Synopsis: 	Article 15, § 3d of the Kansas Constitution is not self-executing. Only after
the Legislature has exercised its constitutional authority to legislate on the
licensing, conduct and regulation it deems appropriate will charitable
raffles by certain nonprofit, religious, charitable, fraternal, education and
veterans 	organizations 	be 	legal 	in 	Kansas. 	Further, 	the 	Kansas
Department of Revenue is without authority to promulgate rules and
regulations without the Legislature enacting a law authorizing charitable
raffles. Cited herein: Kan. Const., Art. 2 § 1; Kan. Const., Art. 15 § 3d.
* 	* 	*
Dear Mr. Challquist:
On behalf of the Kansas Department of Revenue (KDOR), you ask our opinion on two
questions related to the recently approved amendment to the state constitution allowing
the Legislature to authorize charitable raffles held by certain nonprofit groups.1
1 Kan. Const., Art. 15 § 3d, approved November 4, 2014.

Robert W. Challquist
Page 2
Article 15, § 3 of the Constitution of the State of Kansas provides, “[l]otteries and the
sale of lottery tickets are forever prohibited.” 	“[T]he term lottery, as used in Art. 15, § 3
of the Kansas Constitution, has been defined by [the Kansas Supreme Court] as any
game, scheme, gift, enterprise, or similar contrivance wherein persons agree to give
valuable consideration for the chance to win a prize or prizes.”2
However, there are four voter-approved exceptions to the prohibition on lotteries and
the sale of lottery tickets.3 	The one pertinent to your question is in Article 15, § 3d,
which authorizes the regulation of ‘‘raffles’’ and provides:
Notwithstanding the provisions of section 3 of article 15 of the constitution
of the state of Kansas, the legislature may authorize the licensing, conduct
and 	regulation 	of 	charitable 	raffles 	by 	nonprofit 	religious, 	charitable,
fraternal, educational and veterans organizations. A raffle means a game
of chance in which each participant buys a ticket or tickets from a nonprofit
organization with each ticket providing an equal chance to win a prize and
the winner being determined by a random drawing. Such organizations
shall not use an electronic gaming machine or vending machine to sell
tickets or conduct raffles. No such nonprofit organization shall contract
with a professional raffle or other lottery vendor to manage, operate or
conduct any raffle. Raffles shall be licensed and regulated by the Kansas
department of revenue, office of charitable gaming or successor agency. 4
The Kansas courts have established a test for determining whether a provision in
the Kansas Constitution is self-executing.
It 	is 	a 	settled 	rule 	of 	constitutional 	construction 	that 	prohibitive 	and
restrictive 	constitutional 	provisions 	are 	self-executing 	and 	may 	be
enforced by the courts independent of any legislative action, unless it
appears 	from 	the 	language 	of 	the 	provision 	that 	the 	enactment 	of
legislation is contemplated as a requisite to give it effect.5
2 State ex rel. Stephan v. Finney, 254 Kan. 632, 644 (1995).
3 Kan. Const., Art. 15 § 3a, adopted in 1974, authorizes bingo; § 3b, adopted in 1986, authorizes
parimutuel wagering; § 3c, adopted in 1986, authorizes state-owned and -operated lottery; and § 3d,
adopted in 2014, authorizes “raffles.”
4 Kan. Const., Art. 15, § 3d. Based on this definition and the judicially-created definition of “lottery”, we
believe a “raffle” is a type of “lottery.”
5 State ex rel. Frizzell v. Highwood Serv., Inc., 205 Kan. 821, 825 (1970) (citing Higgins v. Cardinal
Manufacturing Co., 188 Kan. 11, 18 (1961)).

Robert W. Challquist
Page 3
Your first question is:
“Does the constitutional amendment legalize charitable raffles without
legislation?”
We believe the answer to this question is no. 	Put simply, the general prohibition in
Article 15, § 3 remains in effect; thus, no one has any constitutional right to operate a
raffle, charitable or otherwise. 	The legality of a lottery or raffle in Kansas is dependent
on whether it falls within any of four exceptions mentioned above.
The verbiage in § 3d is plain and unambiguous. It is clear that § 3d is not self-executing
and that ancillary legislation is a necessary condition precedent to make this exception
to 	the 	general 	prohibition 	against 	lotteries 	effective. 	The 	amendment 	gives 	the
Legislature the discretion to take legislative action to authorize charitable raffles, but it
does not mean the Legislature has to take any action. 	Only after the Legislature has
exercised its new constitutional authority to legislate on the licensing, conduct and
regulation 	it 	deems 	appropriate 	will 	such 	authorized 	charitable 	raffles 	by 	certain
nonprofit, religious, charitable, fraternal, education and veterans organizations be legal
in Kansas.
In addition to the plain reading of the provision, we also note that when confronted with
the same question of whether another exception was legal without legislation, the
Kansas Supreme Court found that Article 15, § 3c of the Kansas Constitution regarding
state-owned 	and 	–operated 	lotteries 	was 	not 	self-executing. 6 	Implementation 	of
additional forms of state-owned and -operated gambling had to be enacted by the
Legislature to make the provision effective. 7
Your other question is:
“Whether the word ‘shall’ in the last sentence requires the KDOR (or a
successor 	agency) 	to 	license 	and 	regulate 	raffles 	regardless 	of 	the
passage of legislation authorizing them, or is the KDOR only required to
license and regulate raffles in the event that the legislature creates laws
authorizing the raffles?”
Because of our conclusion on your first question, we believe the KDOR is without
authority to promulgate rules and regulations without the Legislature enacting a law
authorizing charitable raffles. 	To conclude otherwise would be tantamount to granting
an executive branch agency the authority to legislate 8 because the agency has not been
6 State ex rel. Stephan v. Finney, 254 Kan. 632, 656 (1994).
7 Id.
8 Article 2, § 1 of the Constitution of the State of Kansas provides, “[t]he legislative power of this state
shall be vested in a house of representatives and senate.”

Robert W. Challquist
Page 4
provided sufficient standards with which to promulgate rules and regulations that
promote the manner and circumstances of exercise of that power.9
Moreover, if the last sentence were read as an independent grant of power to the
Department of Revenue to license and regulate raffles regardless of whether such
licensing and regulating first had been authorized by the Legislature, then the first
sentence of the new constitutional provision would be meaningless. 10 	Words in the
Constitution are “entitled to significance and weight,” 11 and thus a construction of the
new 	constitutional 	provision 	that 	would 	render 	parts 	of 	its 	first 	sentence 	mere
surplusage would not be favored. Therefore, we conclude that the correct reading of the
new 	constitutional 	provision 	empowers, 	but 	does 	not 	require, 	the 	Legislature 	to
authorize certain raffles, and the power granted to the Department of Revenue is limited
to subsequently licensing and regulating what the Legislature may have authorized.
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
9 U.S.D. No. 279 v. Secretary of Kansas Department of Human Resources, 247 Kan. 519, Syl. ¶ 6, (1990)
(“Legislative authority may be delegated to an administrative body where guidelines are set forth in the
statute that establish the manner and circumstances of the exercise of such power. Where the legislature
enacts general provisions for regulation and grants a particular state agency the discretion to fill in the
details, [the court] will not strike down the legislation as constitutionally impermissible unless such
provisions fail to fix reasonable and definite standards to govern the exercise of such authority.”).
10 Under such a construction, the first would be rendered meaningless at least insofar as it grants the
Legislature power to “authorize the licensing … and regulation of charitable raffles…” because precisely
the same power would have been granted by the last sentence to the Department of Revenue. Notably,
the first sentence also appears to grant a broader authority to the Legislature to authorize the “conduct” of
such raffles, and no parallel authority is granted by the last sentence to the Department of Revenue. We
do not opine on what constitutes this apparent difference in scope between the broader power granted to
the Legislature and the narrower power granted to the Department of Revenue.
11 State ex rel. Dole v. Kirchner, 182 Kan. 622, 625 (1958).