May 21, 2012

Where Is Chimento?

"You rush a miracle man, you get rotten miracles."

~Miracle Max (Billy Crystal), in The Princess Bride

Remember Chimento v. Town of Mount Pleasant, the case where the South Carolina Supreme Court was asked to decide whether home poker games are legal under that state's broad anti-gambling statute? Oral argument was held back in October 2010, and I have been monitoring the court's new decisions each week since then, waiting to see how the court would rule. Although the South Carolina Court of Appeals handed down a gambling decision last summer that referenced Chimento, the Chimento decision itself has yet to be released some 19 months and counting since the appeal was argued and submitted to the court.

Although I am not an expert in South Carolina appellate practice, I do quite a bit of appellate work, and also monitor appellate decisions in a number of states. Most appellate decisions are issued within six months of submission to the court (the submission date simply means the date the court votes on the appeal, usually the date of oral argument if argument is granted by the court). Browsing through the South Carolina Supreme Court's past few months of decisions reflects the Court follows the same general trend; a wait of more than a year and a half is certainly well outside the norm.

So what should we make of this lengthy delay by the Court? Sometimes changes in court personnel will delay an appellate decision, but here all five justices have been on the Court since before the case was argued. A delay can also indicate a controversial decision that has created a split on the Court, with the two opposing factions attempting to craft an opinion that will sway the decisive moderate vote. Similarly, a delay can indicate a unified decision as to the outcome, but disagreement and negotiation over the scope of the decision. For example, the Court may agree that the anti-gambling statute is valid, but be debating over whether to issue a strong decision on that point, or to carve out a limiting principle for certain situations. Conversely, the Court could be prepared to rule that the anti-gambling statute does not apply to home poker games, but is still discussing whether poker is covered by the statute in more general circumstances. Or, the delay could indicate the Court is planning to issue a detailed, analytical decision which requires extensive research and writing by the Court's staff.

Of course, the explanation for the delay might simply be that the Chimento decision is a lower priority than other appeals. Often cases with significant political impact will receive expedited consideration, as will cases involving certain types of criminal and family law issues. I can think of three appeals I've handled where I waited more than 18 months for a decision. In each case, the Iowa Supreme Court issued lengthy, detailed, but ultimately straightforward and unanimous opinions.

Unlike the U.S. Supreme Court which releases all of its opinions for a given Term before its summer recess in June (usually reserving its most controversial decisions for the last week of each Term), state appellate courts generally have no mandatory or even traditional deadlines by which an opinion in a case must be released. So, although appellate court tea leaf reading makes for an entertaining diversion, ultimately I don't think the length of time that has elapsed since the oral argument provides any useful insight into the direction of the Court's ultimate decision. To mix a couple of clichés, only time will tell how the Court will rule in Chimento, but good things don't always come to those who wait.

Anxious about how the South Carolina Supreme Court will rule in Chimento?
Allow me to suggest a watch panther.

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