August 21, 2007

ATTORNEY GENERAL OPINION NO. 2007- 23

The Honorable Carl Dean Holmes

State Representative, 125th District

P.O. Box 2288

Liberal, Kansas 67905

Re:	State Boards, Commissions and Authorities–State Lottery–Rules and Regulations; Temporary Regulations; Length of Effect

Synopsis:	Since the Kansas Lottery's temporary rules and regulations are exempt from the otherwise applicable 120 day duration for temporary rules and regulations, the Kansas Lottery's temporary rules and regulations remain in effect indefinitely unless revoked. Cited herein: K.S.A. 74-8710 as amended by L. 2007, Ch. 110, § 44; 77-415; K.S.A. 2006 Supp. 77-422; L. 2007, Ch. 110, § 17.

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Dear Representative Holmes:

As State Representative for the 125th District, you inquire about the duration of temporary regulations adopted by the Kansas Lottery.

Under statutorily specified circumstances an administrative agency may adopt temporary rules and regulations which, pursuant to the Rules and Regulations Act,1 are "effective for a period not to exceed 120 days."2 As with most state agencies, the Legislature granted the Lottery authority to adopt temporary and permanent rules and regulations in order to carry out its statutory responsibilities.3

However, unlike other state agencies, since its inception the Kansas Lottery has been authorized to adopt temporary rules and regulation without being subject to the provisions and requirements of the Rules and Regulations Act.4 Such regulations are, however, required to be approved for legality by the Attorney General, filed with the Secretary of State and published in the Kansas Register.5

This unusual grant of authority was recently re-affirmed with passage of the Kansas Expanded Lottery Act6 in which the Lottery's authority to adopt temporary rules and regulations without being subject to the Rules and Regulations Act was reiterated.7

While such authority is not typical, the Kansas Supreme Court has sanctioned the Lottery's authorization to adopt such "exempt" regulations. In Fowles v. State8 the Lottery refused to pay a claim to a person who was unable to produce the winning lottery ticket. In upholding the Lottery's position, which was based in part on a temporary regulation, the Court stated:

"Plaintiff's assertion that the temporary rules and regulations expire 120 days after adoption based on K.S.A. 77-422 is inaccurate because K.S.A. 74-8710 exempts the Lottery's temporary rules and regulations from the requirements of K.S.A. 77-415 et seq."9

Applying the Court's rationale, since the Kansas Lottery's temporary rules and regulations are exempt from the otherwise applicable 120 day duration for temporary rules and regulations, the Kansas Lottery's temporary rules and regulations remain in effect indefinitely unless revoked.

Sincerely,

Paul J. Morrison

Attorney General

Camille Nohe

Assistant Attorney General

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