February 24, 2014

Garnishing a Turd (Part IV)—DiCristina Ends, Not With a Bang, But a Whimper

Today, the United States Supreme Court (SCOTUS) entered its much-anticipated ruling on the Petition for Writ of Certiorari ("Petition") filed in the DiCristina poker litigation. As expected, SCOTUS declined to hear the appeal ("denied certiorari" or "denied cert") without comment (the Court's denial is reflected on page 5 of today's lengthy Orders List). Here are a few quick points to keep in mind about both SCOTUS' ruling and the ultimate impact—or lack thereof—of the DiCristina litigation.

A.  We Do NOT Know Why SCOTUS Denied Certiorari

The Court did not indicate why it denied cert. This is standard practice for the Court. All we know for certain is that the Petition failed to attract four Justices interested in considering the appeal. So, we can only speculate as to why cert was denied. Likely, some of the reasons playing into the decision included the lack of a split among the lower courts over the interpretation of the Illegal Gambling Business Act (IGBA), various procedural issues related to preservation of error (discussed here and here), and the relatively low profile of the IGBA, which is not used often by the federal government, and rarely against poker operations.

Also, no Justice filed an opinion dissenting from the denial of cert, explaining why they felt cert was appropriate. Contrary to PokerNews' coverage of the case, it is simply not true that "If the petition is declined but there were justices who wanted to take it, the outvoted justices often write short opinions on why the Supreme Court should have taken the case." In fact, opinions dissenting from the denial of cert are exceedingly rare, probably happening only a handful of times per Term out of thousands of denials of cert. The lack of a dissenting opinion doesn't mean that no Justice voted to grant cert, it merely means that the denial of cert was routine.

B.  A Denial of Certiorari Is NOT a Ruling on the Merits

Often following a denial of cert, the press will say something like, "The Supreme Court today ruled that poker is covered by the IGBA." This sort of comment is not just technically incorrect, but is false in a legally significant manner. A mere denial of cert means nothing more or less than that SCOTUS did not take the case. It does not mean that SCOTUS agrees or disagrees with either the conviction of DiCristina or the Second Circuit's reasoning in its decision. It does not mean that the Second Circuit's decision has some kind of SCOTUS stamp of approval. It does not indicate any kind of implicit endorsement of Judge Weinstein's ruling finding poker is a game of skill. All SCOTUS' denial of cert means is that the Second Circuit's decision is the final word on the matter in this case, at this time.

C.  DiCristina Is a Significant Blow to the "Skill Game" Argument for Poker

Because the Second Circuit's decision stands as written, it will be difficult for any future attacks on federal poker prosecutions under the IGBA. Although DiCristina technically only is controlling authority in the Second Circuit, case law cited in the DiCristina decision suggests that most, and likely all, of the other Federal Circuits would follow DiCristina or find it persuasive authority if confronted with a poker prosecution under the IGBA. In fact, a federal district court in Guam has already rejected Judge Weinstein's opinion and adopted much the same reasoning as used by the Second Circuit's decision in finding the IGBA applies to poker. Although a "skill game" challenge to the IGBA is theoretically possible in another Circuit, any such challenge would be like trying to swim with an anchor tied to one leg.

Further, even though the Second Circuit completely passed on any analysis of Judge Weinstein's finding that poker is a game of skill, it is difficult to see where Judge Weinstein's opinion will be of any real benefit in future poker litigation. Although the case can be cited with respect to the skill game analysis, pragmatically speaking, Judge Weinstein's opinion will have little or no influence. In most states, poker's status as gambling is already established by statute or case law. In the few states where poker's status as gambling is arguably undecided, it is doubtful that an appellate court would adopt the skill game argument. After all, since 2007, appellate courts in North Carolina, Pennsylvania (my discussion), Kansas (the "Kandu case"), and South Carolina (my discussion) have all considered and rejected skill game arguments for poker. Appellate courts in Colorado and Virginia have declined to rule on the skill game issue. On the federal front, other federal criminal statutes potentially applicable to poker—e.g., UIGEA, the Travel Act, and the RICO Act—all look to state law to determine the definition of illegal gambling, without the ambiguous language found in the IGBA.

The skill game argument for poker legalization is revered as unquestionable dogma within the echo chamber occupied by poker partisans. But out in the real legal world, the argument is oh-fer in all of the appellate courts to consider the issue. As I often tell younger attorneys and law clerks who work with me on significant motions and appeals: "It doesn't matter how brilliant your argument is. Sometimes, the court just isn't buying what you're selling."

D.  At Best, DiCristina Is Merely a Symbolic Victory for Poker Players

I presume the poker media will be filled with quotes and analysis from the PPA and other poker partisans expressing disappointment with SCOTUS' denial of cert. These comments and analyses will all be qualified by reminders that Judge Weinstein found poker to be a game of skill, which the poker community will latch onto as the important feature of the DiCristina litigation. Such a mindset is as predictable as it is misguided.

As I noted after the Second Circuit entered its decision, the legacy of Judge Weinstein's DiCristina ruling will most likely be as the Baxter v. United States of the modern poker era. Baxter, decided in 1986, is another federal district court case which held that poker was a game of skill for purposes of federal law, albeit a federal tax statute. Within the poker community, Baxter has long been touted as a significant legal victory. The reality is that Baxter was actually an obscure decision of little or no consequence to the issue of poker's legal status. Like Baxter, Judge Weinstein's ruling in DiCristina is ultimately nothing more than a nice little vanity award, soothing the bruised egos of poker players who crave mainstream respect.

E.  The Fight for Poker Legalization Is—and Always Has Been—an Issue for State Legislatures

One silver lining in SCOTUS' denial of cert in DiCristina is that it might finally drive home to poker players that the poker legalization fight—whether for home games or online poker—cannot be won magically with a simple pronouncement by a court. Instead, poker legalization can only be won by changing state law via new legislation. Even if a miracle federal online poker bill would materialize, there would necessarily be an opt-in/opt-out fight in every state. Pursuing the "game of skill" litigation strategy has not advanced the cause of poker legalization at all. It's time to take the legalization fight to where it matters—the state legislatures.


  1. I miss poker. When's the Midwest poker blogger gathering?

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