Same Song, Different Verse:Poker Players Lose Again (South Carolina Edition)

"Insanity: Doing the same thing over and over again and expecting different results."

~Albert Einstein

This morning, the South Carolina Supreme Court finally issued its long-awaited decision in Town of Mount Pleasant v. Chimento, the legal challenge to the application of the state's anti-gambling statute to poker games hosted in a private residence. Considering the case was argued more than two years ago, I think it's now safe to conclude that the reason for the lengthy delay between the argument and the ultimate release of the opinion was that the judges simply could find little common ground on which to agree. The court issued a fractured decision, with two of the court's five judges joining in a plurality opinion delivering the court's judgment, two judges joining in a dissenting opinion, and one judge concurring in the plurality's judgment while agreeing largely with the dissent's reasoning. Despite the fractured decision, the ultimate result was much the same as in other state court challenges to state gambling laws—the Chimento court held that poker was illegal gambling under state law, at least when played for money in a private home whose owner took a small rake or fee for hosting the game.

I.  The Three Opinions

A.  Case Background:  I previously summarized in detail the factual background of the case as well as the primary arguments raised by the parties. I will presume you are familiar with my prior summary as you read the remainder of this post. However, I will summarize the relevant facts again here to help frame the court's decision:

• The game was held in a private residence.
• The game was regular and recurring, typically being held once or twice each week.
• The game was open to new participants known to the game organizer or brought to the game by established players.
• Participants—including new players—could learn about the game via an online social network.
• The game involved very low stakes Texas hold 'em cash game play—blinds of 25¢ / 50¢, with a maximum buy-in of $20.
• The game organizer (who also resided in the house with his girlfriend) took a small rake from each pot, ostensibly to cover food and beverage expenses. The game organizer testified that the maximum rake was 50¢ per pot, while a state investigator testified the maximum rake was $2 per pot (which seems unlikely given the stakes).

B.  Issues:  The illegal gambling charges against the defendants were based on a two-century old statutory ban on gambling (the full text of the statute is set out in my prior summary of the arguments). The court's analysis came down to two particular phrases in that statute (emphasis added):

If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, ...

Essentially, the defendants argued that: a) poker was a game of skill and the statute implied only that card games of chance were illegal gambling; b) a private residence could not be a "house used as a place of gaming" where the only game being played was poker; and, c) the phrase "house used as a place of gaming" in the statute was unconstitutionally vague because an ordinary citizen would not appreciate that the statute might be interpreted to apply to a private home poker game.

The state argued that: a) the statute barred gambling on all card games regardless of whether they were games of skill or chance; b) a private residence could be a "house used as a place of gaming" if the owner or host took a fee or rake; and c) the phrase "house used as a place of gaming" in the statute could be understood by an ordinary citizen to apply to a poker game such as the one attended by the defendants, and thus the statute was not unconstitutionally vague.

The court was ultimately confronted with two issues. First, is playing poker in a private residence illegal gambling under South Carolina law? Second, if playing poker in a private residence is illegal gambling under the statute, is the anti-gambling statute unconstitutionally vague because it fails to clearly define "house used as a place of gaming"? If the defendants won on either issue, they could not be convicted of a gambling offense.

C. Plurality Opinion:  At the outset, it should be noted this is the rare appellate decision (at least for a state court) which does not have a true majority opinion—a decision in which a majority of the justices agree both as to the judgment (the result) and the opinion (the legal reasoning used to reach the result). Occasionally, as here, a majority of the judges can agree on the ultimate judgment—reversal of the lower court and a reinstatement of the guilty verdicts—but do not agree on how the law supports that result. Such opinions are binding on the parties, but generally are not given as great of weight when cited by other courts. In this case, the plurality opinion by Justice Pleicones (joined by Justice Beatty) leads off the official decision because it is the opinion with the most support by the justices in the majority as to the judgment. As will be seen later, Chief Justice Toal concurred in the judgment (agreed the guilty verdicts should be reinstated), but actually disagreed with both the plurality and the dissent on different aspects of the constitutional questions presented.

After discussing the legislative history of the two-century old anti-gambling statute, the plurality first concluded that a private residence could constitute a "house used as a place of gaming", but noted that such a definition excluded "casual games" (emphasis added):

By altering the prohibition on playing prohibited games from “public house” to “house used as a place of gaming,” the legislature effectively adopted the view of Justice Brevard in his Brice dissent. What was originally a ban on merely playing these games “in a public house” became a ban on playing of these games in a residence or mansion house only when that house was “used as a place of gaming.” Thus, individuals gambling on a casual game in a person's home were no longer subject to prosecution under this statute.

If, however, a dwelling house is being used “as a place of gaming,” then all those playing the game, whether or not they are betting on it, and those present and betting, even if not playing, are guilty of violating § 16-19-40. To the extent that respondents argue that a residence or dwelling cannot be a house within the meaning of this statute, their contention is refuted by Faulkener, supra, and the plain language of the statute.

To determine whether the residence was being "used as a place of gaming", the plurality next looked at whether poker is illegal gambling under South Carolina law. This is the central issue in the case, and the place where the PPA's standard "poker is a game of skill" argument was brought to bear. The plurality sidestepped the entire skill/chance analysis, however, by finding that the skill/chance analysis applies only to "lotteries" while "gambling" involves betting on games, and thus any analysis of whether skill or chance predominates with respect to the underlying game is irrelevant (emphasis added):

Under the plain language of § 16-19-40, gambling on a game of skill is a violation if that gambling is being done in a prohibited location. The statute specifically lists several games that are exempt from the absolute ban on playing games in prohibited locations: billiards, bowls, backgammon, chess, draughts, and whist. These games all involve skill, yet betting on these games is a crime under the statute. [citations]. A violation of the gaming prohibition of § 16-19-40 does not depend on whether the particular game involves more skill than chance.

The plurality further held that, under South Carolina law, the key defining component of gambling is whether money is wagered, noting that money can be wagered on games of skill as readily as games of chance (emphasis added):

[G]ambling/gaming depends not on the skill/chance ratio, but on the wager.

We hold that one "games" within the meaning of § 16-19-40 when money is wagered on Texas Hold’em, even though it is a game in which skill predominates.

Thus, the plurality held that poker is "gambling" under South Carolina law because it involves betting on a game of cards; whether poker is a game of skill or chance is ultimately beside the point.

The plurality then moved on to the constitutional claim. The plurality first noted that merely because a phrase is undefined in a statute is insufficient to render a statute void for vagueness. The plurality cited to a 1909 decision for the proposition that "the evidence of keeping a gaming house is determined by the facts and circumstances" of each case. In this particular case, the plurality noted that the evidence supported a finding that the residence in question in fact was used as a house of gaming:

[T]he evidence showed that Stallings’s house was used regularly twice a week for poker games at which there was gambling, and that the games were advertised to interested persons on the website, and open to those individuals and their friends.

Further, the plurality contended that, although the statute might arguably be vague as to some persons involved in different types of games, the statute was not vague with respect to the poker game in question (emphasis added):

One whose conduct clearly falls within the statutory proscription does not have standing to raise a void-for-vagueness challenge. [citation]. We find respondents lack standing to challenge § 16-19-40,7 but also note that a person of reasonable intelligence would understand the statute to prohibit gambling on a card game at a house where players were invited on a regular basis to engage in this activity, especially where, while not a profit-making commercial activity, the players were required to contribute money to cover the host’s expenses.

Thus, the plurality held that because these particular defendants clearly should have known that this type of poker game was illegal under the statute, they did not have a viable constitutional complaint about how the statute was worded or applied.

D.  Dissenting Opinion:  Jumping ahead to the dissenting opinion, Justice Hearn (joined by Justice Kittredge) focused on the constitutional void-for-vagueness argument. In fact, the dissent expressly disavowed any comment on the statutory construction issues that formed the bulk of the plurality opinion, finding that it was not necessary to wrestle with whether poker was illegal gambling under the statute when the statute was, in the dissent's view, unconstitutionally vague.

Interestingly, the dissent did not directly disagree with the plurality's reasoning on the vagueness issue. In fact, the dissent specifically agreed that the defendants should have been aware that the poker game was illegal gambling:

As reasonable, intelligent people, Respondents should have understood the statute prohibited their conduct. It banned playing cards, with betting involved, in a house used as a place of gaming; Respondents participated in bi-weekly, organized poker games at someone's home with strangers that responded to advertisements on the internet, with a buy-in and the house taking a rake. While I question whether other individuals under different circumstances would have sufficient notice of whether their conduct is proscribed, such as four individuals who play a penny-ante poker or bridge game once per month, it is clear that Respondents were on notice their gambling fell within the ambit of the statute.

However, the dissent noted that there are two ways a statute can be unconstitutionally void: a) where the statute fails to give a person notice that their conduct is illegal, or b) where the statute fails to provide sufficient standards for law enforcement to objectively determine whether particular conduct is illegal. Although the two tests are intertwined to a degree, they are distinct.

The dissent then argued that the South Carolina anti-gambling statute failed to provide sufficient objective standards to guide law enforcement. The dissent noted that the phrase "house used as a place of gaming" was undefined and has no common understanding in the community. Thus,

Because the statute itself provides no guidance, it was up to police and local governments to determine just where this line is drawn. To that end, Officer Hembree believed that the frequency of the games, the number of players involved, and whether the game was run for a profit all factored into whether individuals were playing in a "house used as a place of gaming." However, none of these criteria appears in the statute, and Officer Hembree's decision to issue Respondents a citation was based on these additional elements imposed simply to ferret out conduct he truly believed violated the statute. Officer Hembree therefore had to take it upon himself to make a policy decision based on his own personal opinions as to what should be covered by the statute. It is also clear from Officer Hembree's testimony that had another officer entered Stallings' home, the officer could have come to a different conclusion.

In the dissent's view, the statute as written improperly permitted—even required—law enforcement officers to engraft their own criteria onto the statutory definition of "house used as a place of gaming", which necessarily would lead to different interpretations of the statute by different officers, and thus different treatment of poker players based solely on the policy of law enforcement where they lived:

Accordingly, when a statute such as section 16-19-40 or the one at issue in Morales grants officers too much discretion, the decision to target a certain individual is based upon the officer's own understanding of what the statute proscribes and not solely upon the language of the statute itself. Therefore, every arrest or citation is the result of the officer's personal exercise of discretion; the individuals he lets be are only granted that relief because he has decided their conduct does not fall within the proscription as he understands it. I agree with Justice Breyer that the inescapable conclusion accordingly is that the statute's application is invalid in every case, rendering it facially unconstitutional. A criminal statute is the place for setting forth with precision what conduct constitutes a crime, and our law does not sanction the idea that police and the prosecution can subjectively vary from the statutory elements and impose their separate criteria. If part of a statute permits such variance, as the one before us today does, that language is unconstitutionally vague.

E.  Concurring Opinion:  The court's decision ultimately came down to Chief Justice Toal. Her concurring opinion is quite interesting; in fact, it is rather unlike any other concurring opinion I can think of off the top of my head. The Chief Justice begins by stating, "I agree wholeheartedly with the constitutional analysis contained in the excellently researched and beautifully written dissenting opinion ...". Usually, one would expect the dissent to prevail after hearing how their argument is correct. However, the Chief Justice then goes on to proclaim that "because of the unique circumstances of this case, ... I concur in the result reached by the majority that these defendants' convictions must stand". Well, that's certainly an interesting case of judicial whiplash.

The Chief Justice begins her analysis in a rather straightforward manner, agreeing with the plurality that, even if the statute is vague, the defendants' conduct in this case was so clearly illegal that they had no legal basis ("standing") to complain about that vagueness:

I agree with the majority that these Appellants are foreclosed from challenging the constitutionality of this section because they were engaged in conduct that fell so clearly within the statutory proscription. This was not your penny ante game of poker organized in someone's home, but a regular card game hosted in Stallings's home after advertisements were posted on the Internet to recruit players who paid to participate. Thus, they do not have standing to challenge the statute as vague.

Thus far, the Chief Justice's analysis is pretty standard stuff. But then her opinion takes a twist, declaring that she finds the statute to be unconstitutionally void for vagueness, but is unwilling to strike down the statute because to do so would potentially render all gambling in private homes legal, opening the proverbial floodgates of criminal activity, causing great harm to the state (emphasis added):

In my opinion, striking this language would also open the door wide to all heretofore illegal gaming practices in this state, including video poker. See S.C. Code Ann. § 16-19-40(g) (proscribing the playing of "any machine or device . . . used for gambling purposes"). Because of this very real consequence, I am concerned that striking this critical language from the statute would beget, as elucidated by the General Assembly in 1816 when amending section 16-191-40, the "impoverishment of many people, corruption of the morals and manners of youth, . . . the tendency which is vice, misery and crime, as examples in this state have abundantly proven." These dire concerns resonate as much today as they did nearly 200 years ago. I do not need to remind any person of the havoc wreaked upon this State as a result of the "pernicious" practice of video poker. Although there are other sound provisions outlawing video poker, see S.C. Code Ann. §§ 1221-2710, 2712 (2000), I am loathe to strike the critical language from the general ban on gaming in the event that it guts these provisions, and consequently, South Carolina's longstanding prohibition against gambling.

In lieu of invalidating the statute as vague, the Chief Justice instead tossed the problems with the anti-gambling statute back to the legislature to fix:

Section 16-19-40 is hopelessly outdated, as it applies to any gaming activity (including all card games) played in a residential home whether wagering occurs or not. This section expired in usefulness long ago and should not form the basis of a modern anti-gambling statute. Thus, I now charge the legislature to modernize section 16-19-40, as I am inclined to agree with the dissent that this provision is constitutionally infirm. However, for the aforementioned reasons, I join the majority in result only, and would reverse the circuit court under these circumstances.

II. Analysis

A.  Casual, Social, Low-Stakes Home Games Are Likely Legal (For Now):  Although the court never explicitly ruled on the issue, a common thread in each opinion was that the game at issue was illegal because the game was more than a mere low-stakes, casual home game. The opinions went out of their way to emphasize that the game in this case was more than penny-ante ($20 buy-in; whoa, call in Ivey and Galfond!), was regular, invited players via social media, and paid a rake to the host. The opinions also expressed unease with applying the "house used as a place of  gaming" designation for casual, social, low-stakes games. Given how the court's opinions were written, as well as the state's admission in oral argument that the statute did not apply to social poker games held in private homes, South Carolina poker players probably have some breathing space for hosting low-stakes, rake-free, private games and tournaments. But that doesn't mean some law enforcement officer won't decide to bust even those poker games, so proceed at your own risk.

B.  "Poker As a Game of Skill" Argument Takes a Back Seat:  After all of the time spent in testimony at trial and pages devoted in appellate briefs to the skill/chance argument, the court collectively shrugged and avoided any analysis of the issue. The entire argument was essentially ignored, except for the plurality opinion stating in passing, "We hold that one 'games' within the meaning of § 16-19-40 when money is wagered on Texas Hold’em, even though it is a game in which skill predominates." (emphasis added). Poker players will almost certainly latch on to this one statement and declare that the court held that poker is a game of skill. But in fact, the court actually held it didn't matter whether poker was a game of skill, so the court simply passed on deciding the issue altogether. This distinction is important, because other courts wrestling with the skill/chance issue will give little credence to what is essentially a throwaway, conclusory sentence which had no bearing on the court's analysis of the controlling issues (what lawyers refer to as "dicta").

C.  Opinion Shopping:  This decision is rather strangely written. As noted earlier, this decision featured fractured opinions and a lengthy delay (over two years) from argument to decision. Also, both the plurality opinion and the dissenting opinion contain full-fledged procedural and factual histories, which is uncommon unless the dissent wants to highlight certain facts; here, the plurality and dissent mirror each other. My read of the situation is that Chief Justice Toal waffled in her vote, and the two opposing sides wrote multiple drafts of opinions hoping to get her to sign on to their side of the decision. Based on the Chief Justice's ultimate concurring opinion, it was a close call, but her concerns about the possible negative effects of striking down the statute entirely eventually won the day for the plurality; the Chief Justice stared into the legalized, unregulated gambling abyss and flinched. As I discussed previously, given the Chief Justice's vocal concerns about the evils of gambling in a prior case involving video poker (referenced in her concurring decision in this case), nobody should be all that shocked that she finally sided with the anti-poker argument.

D.  "Void for Vagueness" Is a Tough Argument to Win, Particularly for the Guilty:  As a general rule, constitutional challenges are rarely successful, and the "void for vagueness" sub-genre is notoriously among the least likely to prevail; courts go out of their way to find statutes constitutional against vagueness challenges. In this case, the defendants also argued that the statutory proscription against any card game was vague and overbroad. As I noted in my prior analysis of the appelllate briefs:

[T]he defense argument on this point is a bit awkward, essentially stating, "You can't convict us for gambling when we were playing cards for money, because the statute might arguably apply to the kids next door playing Old Maid." Let's just say that the kids playing Old Maid, if they were ever arrested for gambling, would have a much stronger argument on this point than the poker players in this case.

Similarly, when you make a void for vagueness challenge, you want to be in the "gray area" of the law (preferably the light gray area) to demonstrate how extreme and unfair the prosecution is. Here, by contrast, the defendants were well into the dark gray area at best, involved in a poker game one step removed from an actual underground poker room, à-la Rounders. The defendants would likely have won their appeal if their game had been a truly casual, friendly, no-rake affair.

E.  Judicial Hand-Wringing:  Chief Justice Toal's concurring opinion bothers me a bit as an attorney. She could easily have said something to the effect, "Although I share the dissent's concerns as to whether the statute might be void for vagueness in some contexts, I agree that these defendants clearly crossed the line into illegal behavior." Instead, the Chief Justice went out of her way to express in great detail how much she agreed with the dissent about how poorly the statute was written (and how archaic the statute was). But instead of voting to strike down the law and forcing the legislature to enact a "modern" gambling law, the Chief Justice flinched at the idea of implicitly legalizing gambling by fiat, and instead resorted to the classic judicial dodge: "I really hate this statute, but my hands are tied. It is up to the legislature to fix this statute, not me." Now, such a hands off jurisprudence might be appropriate in many situations. Maybe it was even appropriate here. But it feels awkward to have a judge wax poetic about how a statute is flawed, only to punt at the last second to the legislature, leaving the actual parties in the lurch (and with a criminal record).

F.  Things Could Get Worse for Poker Players:  Given that the court essentially threw down the gauntlet challenging the legislature to fix the anti-gambling statute before the court is forced to invalidate it, I would expect the South Carolina legislature to enact a "modern" anti-gambling statute in its next session. Considering how socially conservative South Carolina is compared to the rest of the nation, don't be surprised to see a sleek new highly restrictive anti-gambling law rolling off the legislative assembly line in the next year. None of the justices gave any indication they would find a general ban on poker to be legally problematic, and in fact the court endorsed the idea that skill games can be the predicate for illegal gambling. Poker players may well end up in a worse legal position under any new law than they are under the archaic current law.

G.  The PPA Is Still Inept:  This case was a perfect storm of good factors for the PPA's legalization-by-litigation strategy. The statute was, by the court's own admission, poorly drafted. The trial court found that poker was a game of skill. Yet the South Carolina Supreme Court all but ignored the arguments made by the PPA in its amicus brief, and ultimately ruled against poker players in general and the poker player defendants specifically. Although this topic deserves its own lengthy post (in the works!), this case serves to underscore the ineptitude of the PPA on the litigation front. Frankly, it probably serves to demonstrate the futility of pursuing further poker legalization litigation.

As many of my readers are aware, I've long argued that the poker legalization-by-litigation strategy is flawed and ultimately doomed to failure, primarily because of the inherent difficulty in convincing an appellate court to flout historical and social understandings of poker as a form of gambling. My readers may recall I accurately predicted the failure of the PPA's Commerce Clause challenge to the Washington state ban on internet gambling. Similarly, I predicted the failure of the Chimento appeal, as reflected below:

Given the text of the statute and the related case law, I think the South Carolina supreme court will most likely find that poker is prohibited by the anti-gambling statute, regardless of whether it is predominately a game of skill or a game of chance. To hold otherwise would overturn decades of social agreement that poker is gambling, with the effect of essentially legalizing unregulated, for-profit poker rooms and poker tournaments statewide. As I've discussed previously, asking courts to rule that poker is not gambling is really no better than tilting at windmills.

[T]his is precisely the ruling I expect the court to reach—poker is gambling, and is legal if done as a private, no-rake game, but becomes illegal when played in a public place and/or for a rake or fee. Such a ruling would preserve the traditional notion of poker as gambling, prohibit poker in public or for-profit setting contexts, but allow casual home poker games to be played legally. Such a ruling is actually the result most poker players should want.

Of course, my prediction of the outcome is not the result most poker players think they want. But those players are short-sighted. Yes, the statute is rather poorly written, though that is mostly an artifact of its age. Yes, the statute could use clarity. Yes, it would be really nice if a court would recognize poker is a game of skill, and exempt it from an anti-gambling statute. But such a ruling would essentially legalize unregulated, for-profit poker rooms and poker tournaments throughout the state. The legislature would almost certainly react swiftly and negatively to such a ruling, and likely enact draconian restrictions against playing poker, including perhaps an explicit ban on online poker. Don't forget, this is South Carolina, where conservative "family values" politics still hold sway. Frankly, a fully pro-poker court ruling might be the worst result for poker players, a Pyrrhic victory leading to explicit and more onerous anti-poker laws.

Poker is illegal gambling under South Carolina law, regardless of skill element? Check. Casual home poker games are not illegal? Check. Charging a rake is a major factor in making home poker games illegal? Check. Judicial concerns about striking down the anti-gambling statute and legalizing unregulated, for-profit poker rooms preventing a pro-poker decision? Five star check. Legislature weighing in with broad new anti-poker restrictions in response to the appellate decision? Pending.

Look, I'm no legal Nostradamus. But I am an attorney with over 17 years of trial and appellate experience. The PPA's "poker as a game of skill" argument looks great on paper. But in the real world, it's not even worth using as toilet paper.

-----------------------------------------------------------------------

ADDENDUM:

Poker Grump has posted his thoughts about the decision, many of which dovetail with mine.

PokerFuse put out a nice news article about the decision which is worthy of reading.