Is the North Carolina Education Lottery a tax, and was the law making it legal in the Tar Heel state passed unconstitutionally? State Superior Court Judge Henry Hight, in March 2006, ruled against a lawsuit challenging the lottery's legality, saying the bill was legally passed, because it is not a tax and no one is forced to play the lottery. But Bob Orr, former executive director of the North Carolina Institute of Constitutional Law and one of the lawyers pressing the challenge to the lottery, argued before the state Court of Appeals Tuesday that it was indeed a tax, because 35 percent of the lottery proceeds are allocated for education and that any money raised for the public's general benefit is a tax.

At issue in the case is how the General Assembly passed the law and whether it was constitutional.

North Carolina law requires votes on separate days for laws that lead to higher taxes or borrow against the state's credit.

Attorneys for the state have argued that the lottery law does neither and that both chambers' votes were legal. (In April 2005, the House approved the lottery bill by a vote of 61-59. In August of the same year, the Senate needed a tie-breaking vote from Lt. Gov. Beverly Perdue for the measure to pass 25-24.)

The bigger question, however, for appeals court judges Tuesday was what happens if the lottery, which recently reached the $1 billion sales mark, is ruled unconstitutional -- specifically, what would happen to all the money already rewarded.

Attorneys for the plaintiff, however, said they were only seeking to change the future of the lottery law and wasn't interested in lottery winnings since the lottery launched in March 2006.