Dave Whaley, Tulare County sheriff candidate, held a press conference at the offices of the Ledford Law Corporation in Visalia on February 20 to allege that a gun raffle fundraiser for the campaign of his opponent, Sheriff Mike Boudreaux, violates the state penal code as an illegal lottery.
Whaley referred to section 320 of the California Penal Code that reads, “Every person who contrives, prepares, sets up, proposes or draws any lottery, is guilty of a misdemeanor.” He later added, “If numerous people conspired to commit a misdemeanor, it raises to the level of a felony.”
A February 19 press release from the Whaley campaign explained, “A raffle is an illegal ‘lottery’ within the meaning of that statute. After a review of filings with the Department of Justice, the Secretary of State and the California Fair Political Practices Commission, we believe the Friends of Mike Boudreaux for Sheriff 2014 is not qualified for exemption under Penal Code section 320.5. Accordingly, the proposed raffle/lottery is a crime.”
“We contacted the Fair Political Practices Commission and we also contacted the Department of Justice,” responded Boudreaux. “We’re very confident that we operated within the scope and the intent of the law.”
Boudreaux also cited the penal code.
“Although there is a difference in the interpretation, you have to make sure you read the totality of it,” he said. “Make sure you don’t just read the part that supports your opinion.”
At his press conference, Whaley stated that his objection to the raffle “has nothing to do with firearms. This has to do with a misdemeanor violation of the penal code.” He added that the penal code allows for some nonprofit organizations to hold raffles, “but my opponent’s campaign does not qualify as a charity.”
Even though he expressed support for the second amendment, that support was not made clear to some voters.
“We’ve had a lot of people call us very angry over the fact that, at face value, Dave Whaley is not a second amendment supporter,” said Boudreaux. “In his defense, he is a second amendment supporter, but we also have people who come to us and say this issue is trivial.”
Whaley, however, does not consider the matter trivial. “I wanted something to be done for the innocent people who were victimized by this,” he said.
“I’ve had numerous people tell me that tπhey bought tickets just to win those firearms,” Whaley said, adding that 15 ticket-buyers who approached him were people who haven’t decided who they were going to vote for.
Whaley repeated in a telephone follow-up that Boudreaux’ election committee is guilty of a misdemeanor. “Whoever sells these tickets, whoever put this thing together is guilty of a misdemeanor,” he said. “I’m just quoting a law. It’s in the penal code. These are misdemeanors and are listed in the penal code very clearly.
“I don’t expect the average common person to know the law, but I expect law enforcement to,” he added. “As law enforcement, we should be held to a higher standard than anyone else.
“I think the acting sheriff of Tulare County should know better than this,” he said. “He really has contaminated his command staff. What happens the next time they’re prosecuting a crime? Is the defense attorney going to bring this up?”
At the press conference, Whaley showed a copy of the gun raffle flier that shows tickets for a chance to win any of the 11 guns are $20. There was no mention of an option for a free ticket on the flier Whaley held up. He also showed a revised gun raffle flyer, which included “No purchase necessary” in small type.
“It appears that they realized they were doing it wrong and now they are doing it right,” said Roy Merl Ledford III, attorney for the Whaley campaign. “I think it’s good they realized they made a mistake.”
Boudreaux didn’t see it as a mistake.
“The attorney suggested that we take that extra step so that it’s perfectly clear,” said Boudreaux, explaining the revision. “Part of the rules are that you have to offer complimentary tickets.”
“The tickets are offered on the same terms and conditions as the terms for which a donation is given,” said Brian Hildreth, attorney for the Boudreaux campaign. “The scheme does not require any of the participants to pay for a chance to win.” He added that the raffle is legal, “since there’s no requirement that you have to buy a ticket.
“We fit squarely within these exemptions provided in the law and we are not running afoul of any legal authority,” he said.
“It’s a fundraiser and our supporters have contributed money knowing it’s helping with my campaign,” noted Boudreaux. “We haven’t had anyone take a free ticket, though we offered it over and over again.”
Both versions of the gun raffle fliers state that gun raffle winners, “must be eligible to legally possess a firearm and pass a Department of Justice background check.”
At the press conference, Ledford repeated Whaley’s statement that, “A political campaign committee does not qualify as a charity,” but according to a state website, a political campaign may not need to qualify as a charity to conduct a raffle.
The California Department of Consumer Affairs “Rules Prohibiting Lotteries” webpage reads, “A lottery consists of three elements: (1) a prize, (2) consideration, and (3) distribution of the prize by chance. California courts have interpreted these elements broadly.”
Since the gun raffle clearly offers prizes and involves chance, the only unresolved question is about “consideration,” and in language which doesn’t require a legal interpreter, the webpage states, “The second element of a lottery is payment of consideration by the participant in order to be eligible to win a prize. Consideration includes any exchange of value. For example, courts have found consideration present where participants each paid $.25 in exchange for a Bingo card or for small plastic rings used to play a game of chance, or where participants paid $1.00 in exchange for both a short subscription to a bulletin and a ticket for a drawing…
“Courts have used certain rules to decide whether a scheme includes consideration because it is not always clear. If a person is eligible to win a prize without purchase, there is no consideration and the contest is legal. In such a case, if some people may pay money – for example, an admission charge or a product – there is not necessarily consideration if other people may enter without such a purchase. If eligibility to win a prize is limited to those who have paid money, however, there is consideration. Alternatively, if some persons must pay in order to have a chance at a prize while others do not, there is consideration.”
On February 28, the Tulare County District Attorney’s office formally commented on the issue.
“The allegations as discussed in the media regarding the upcoming raffle relate to a potential misdemeanor offense,” read a press statement issued by Assistant Tulare County District Attorney Anthony Fultz. “As of today, we are not aware of any local law enforcement agency that has investigated this matter, and no case has been submitted to this office. We have forwarded all the information in our possession to the Office of the Attorney General. As campaign regulations and donations are under the purview of the Fair Political Practices Commission, we have also forwarded all information to their office. The Office of the District Attorney has been proactive and has taken the appropriate measures to be prepared should a case be submitted to our office for review.”