(concurring specially).
In one of the most agonizing decisions I have made in my nearly twenty-four years on the bench, I reluctantly join the majority opinion.*
Let there be no doubt — each member of this Court fully appreciates the devastating negative impact this decision will have upon many citizens of this state. New businesses were created and a number of existing businesses expanded in reliance on video lottery. Our hearts are heavy for the families who rely on those businesses for their livelihood. Further, we are acutely aware of the significant impact on the state budget; approximately $60 million dollars in video lottery revenue used to fund worthwhile state programs will be lost.
To those adversely affected, I say, “Don’t blame this Court!” Too often courts, and particularly appellate courts, are blamed for decisions that have a negative effect on the lives of both individuals and society. Even if courts periodically deserve that criticism, it is not justified in this case.
As the majority so aptly notes, at the time video lottery was created, the South Dakota Constitution clearly prohibited “any game of chance” or “lottery” other than “a state lottery.” I ask rhetorically: “Why did governmental entities unthinkingly assume that games such as video poker, blackjack, or keno were included in the definition of ‘a state lottery’ rather than ‘any game of chance’? Did they ever stop to think what the voters assumed when they approved ‘a state lottery’?” Obviously someone was concerned about the distinction, for, as the majority notes, an earlier unsuccessful attempt was made in the 1986 Legislature to expressly include “video poker” in the proposed constitutional amendment.
Further, the Legislature’s Interim Lottery Study Committee, concerned about the constitutionality of video lottery, apparently sought legal advice from its staff, and based thereon, determined that video lottery was constitutional.
Additionally, Governor Mickelson posed the following question to the Attorney General:
Does the legislative and regulatory scheme authorized in implementing video lottery in the state of South Dakota satisfy the requirement of Article III, § 25 of the South Dakota Constitution that a state lottery be regulated, controlled, owned and operated by the state of South Dakota?
Via an official opinion, the Attorney General advised the Governor that the video lottery legislation “passes constitutional muster.” S.D. Att’y Gen. Op. 91-04 (1991). Further, relying exclusively on a dictionary definition, the opinion stated that “the video lottery scheme does constitute a lottery.” Id. at 7.
Although it is always easy to second guess those in authority, one wonders why this Court, whose constitutional role is the interpretation of the law, was never consulted. There is extensive precedent for such an inquiry.
Under our state constitution, the Governor of South Dakota has the power to request advisory opinions from this Court:
The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions.
S.D. Const, art. V, § 5.
Historically, we have given advisory opinions on significant state issues. In 1990, we advised Governor Mickelson on the extent of his authority to make financial commitments concerning the state’s involvement in a corn *250wet-milling plant. In re Request for an Advisory Opinion, 456 N.W.2d 546 (S.D.1990). We advised Governor Janklow concerning his authority to appoint members of a public authority to issue revenue bonds to finance agricultural loans and business enterprises. In re Request for an Advisory Opinion, 387 N.W.2d 239 (S.D.1986). We also rendered an opinion to Governor Janklow concerning the interpretation of statutes following cancellation of the state’s liability insurance policy. In re Request for Opinion of the Supreme Court, 379 N.W.2d 822 (S.D.1985). Governor Kneip obtained an opinion regarding the constitutionality of an act authorizing a bridge authority to issue revenue bonds. In re Opinion of the Supreme Court, 257 N.W.2d 442 (S.D.1977). We gave an opinion to Governor Boe pertaining to the constitutionality of legislation for tax relief. In re Opinion of the Judges, 81 S.D. 629, 140 N.W.2d 34 (1966).
Although the above are but a few of the more important advisory opinions rendered to governors, not one of them approaches the enormous statewide impact involved here. When considering the devastating economic consequences to this state and its citizens, it is indeed unfortunate that our advice was not sought earlier. As this Court stated in 1933, this situation was truly
a time when the separate and co-ordinate branches of the government of this state, executive, legislative, and judicial, should co-operate to the fullest extent possible for the public welfare.
Opinion of the Judges, 61 S.D. 107, 109-10, 246 N.W. 295, 296 (1933) (answering gubernatorial request for opinion relating to authority to pass reapportionment act).
Let my message be clear: I am pointing the finger at no individual. I am simply saying that in the weeks to come, we in the judicial branch should not be the “whipping boy” for those who are disappointed, hurt or angered by the opinion we hand down today. I only suggest that the problems that will follow this decision might have been avoided had our advice been requested at the beginning.
I am sure that for each member of this Court it would have been far easier to find that video poker was included within the definition of a lottery. However, the easy road is not always the right road. As judges we take our oath to uphold the constitution seriously; we wear our black robes with pride; we make the difficult decisions and take the consequences that flow from them, praying that the people will understand. We should not be condemned for performing our sworn duty to uphold the very constitution under which the people created the State of South Dakota.
Although the majority does not reach issues II & III, I sound a note of caution. Should a new constitutional amendment to allow video gambling he proposed, I advise its drafters to explicitly address both the extent to which gaming devices must be regulated, owned and operated by the state and the extent to which gaming proceeds must go to the state. Failure to do so may once again result in a ruling of unconstitutionality, producing further uncertainty and economic havoc.