And Justice Lawton Nuss said, “You’re going to have to convince me that the ownership right, the control right, was transferred outside the state because that is where it initially resided, did it not?”

Leitch replied that under the Constitution, the Legislature provides for a state-owned and operated Lottery and, “Ownership has to be acquired in some way, not merely by legislative decree.”

But Biles said the Lottery owns the games and has control over the operation of the casinos.

“The state controls what games are going to be played. The state determines the rules and the odds,” Biles said. “This is a creature of the state. The Legislature decided to create a lottery enterprise.”

The question surrounding the law’s legitimacy hasn’t kept the Lottery from moving forward.

On May 5, the Lottery Commission approved its first contract with a developer. It unanimously approved a 15-year agreement with Penn National Gaming Inc., the only applicant to operate a hotel-and-casino complex in Cherokee County.

It forwarded the contract to the Kansas Lottery Gaming Facility Review Board, which will make the final selections for the four casino developers.

A law enacted last year requires developers in all but Ford County to invest at least $225 million plus pay a $25 million privilege fee. In Ford County, the investment is $50 million with a $5 million privilege fee because it’s a smaller market.

The commission has been negotiating with the other 11 applicants — five in Wyandotte County, four in Sumner County and two in Ford County. It meets next week to decide which contracts to accept and can endorse as many as it wants.