Harry Poker & The Magical Muck

Harry:  I swear I don't know. One minute the glass was there and then it was gone. It was like magic.

Uncle Vernon:  There's no such thing as magic!

—Harry Potter & The Sorcerer's Stone (2001)

Poker player and blogger Robert Taylor posted today about a controversial ruling that arose during a low-stakes NLHE cash game at the Rivers Casino poker room in Pittsburgh. I started to write a comment, then decided the "magical muck" issue—the idea that a hand becomes automatically and irretrievably dead merely because one or both cards have touched any part of the muck—is a common misconception among poker players that deserves a lengthier discussion.

The scene as set by Robert is a pretty typical backdrop for "magical muck" situations. To sum up, an aggressive young player ("Moneybags") bet on the river. An opponent verbally declared himself all-in, and another player in the hand folded. With action back on him, Moneybags threw his cards forward. It is unclear whether the cards touched the muck. When the dealer began to push the pot to his opponent, Moneybags objected that he hadn't been aware there was another live hand, and declared he would call the all-in. The floor and later a manager were called, and based upon the dealer's representation that Moneybags' hand had not touched the muck, declared the hand live. Moneybags had a full house which beat his opponent's straight. Moneybags was awarded the pot, his opponent stormed out of the room, and controversy ensued.

Robert's discussion of the situation tracked with the obsession by the floor and manager with the question of whether the player’s cards hit the muck. Setting aside any idiosyncratic house rules for the poker room, all of the focus on the muck is misplaced under the general rules of poker. Despite widespread player assumptions to the contrary, the muck is actually not magical; nothing special occurs to a hand once it hits the muck. Let’s look at Robert’s Rules of Poker, beginning in Chapter 3, "GENERAL RULES OF POKER", where we learn:

DEAD HANDS
1.  Your hand is declared dead if:
(a) You fold or announce that you are folding when facing a bet or a raise.
(b) You throw your hand away in a forward motion causing another player to act behind you (even if not facing a bet).

In this case, Moneybags did not announce a fold. Moneybags did not cause another player to act behind. Based on the subsequent action, it is arguable whether he folded or was merely surrendering his hand in the (mistaken) belief he held the only live hand and had won the pot.  Let’s look at another rule under “DEAD HANDS”:

2.  Cards thrown into the muck may be ruled dead. However, a hand that is clearly identifiable may be retrieved and ruled live at management’s discretion if doing so is in the best interest of the game. An extra effort should be made to rule a hand retrievable if it was folded as a result of incorrect information given to the player.

Here’s where we find the source of the routinely misunderstood “magical muck” rule. Note that whether the cards touch the muck is not the determining factor in whether a hand is dead; the hand merely may be ruled dead. The muck is not magical; it's touch does not turn a hand to stone, transform it into a rabbit, or even kill it. In this case, there is no question that the hand was “clearly identifiable”, so the real issue to debate is not whether the cards hit the muck, but whether the player intended to fold, folded in error, or had not actually folded at all but was merely surrendering what he thought was the uncontested winning hand.

We do, however, need some way to help us resolve the ambiguity of the situation.  This brings us to another couple of rules from Chapter 2, "HOUSE POLICIES":

DECISION-MAKING
1.  Management reserves the right to make decisions in the spirit of fairness, even if a strict interpretation of the rules may indicate a different ruling.
….
8.  The same action may have a different meaning, depending on who does it, so the possible intent of an offender will be taken into consideration. Some factors here are the person’s amount of poker experience and past record.

Here, Moneybags clearly did not realize he was the last person standing, so his throwing his cards forward is not a clear “fold” as it is also consistent with surrendering cards as the winner of the hand. Thus, the player's action was ambiguous, and not a definitive fold.

Now some players may argue that Moneybags had a duty to protect his own hand by not surrendering it before the dealer awarded the pot to him. This is unquestionably true, but it is not decisive in this type of situation. Of course, Moneybags should have known the other player had a live hand, and should have protected his hand until the pot was pushed to him. But players do in fact make mistakes, and the rules do permit some of those mistakes to be corrected under some circumstances. Let's look at the relevant rule, again in Chapter 3, "GENERAL RULES OF POKER":

IRREGULARITIES2.  You must protect your own hand at all times. Your cards may be protected with your hands, a chip, or other object placed on top of them. If you fail to protect your hand, you will have no redress if it becomes fouled or the dealer accidentally kills it.

Notice that the rule states that a player has no redress (i.e., makes a mistake for which there is no remedy) for an unprotected hand only if the hand "becomes fouled or the dealer accidentally kills it". In this situation, the hand was not fouled because it remained identifiable; there was no need to dig through the muck to retrieve the hand. Neither had the dealer killed the hand, because as we have already discussed above, the muck rule merely provides that the hand may be ruled dead, but may be retrieved as a live hand depending on the circumstances (keep in mind that other rules or actions may irretrievably kill a hand which might affect the operation of this rule under circumstances not present in the scenario under discusssion).

So, under the general rules of poker, Moneybags' hand was not necessarily dead merely because he threw them forward, or because the dealer might have touched them to the muck. Moneybags' hand was clearly identifiable. So what ruling is in the best interest of the game?

Ultimately, we should want the best hand to win, while also discouraging angle shooting. These goals will often be in tension. In my view, the correct ruling in this situation was to allow Moneybags' hand to remain live, in large part because Moneybags held a very strong hand consistent with his claim that his action was not a fold. This is not a situation where Moneybags folded a hand like Ace-high or even one or two pair on a scary board, then tried to belatedly retrieve his hand when shown a bluff by his opponent. In this case, knowing Moneybags’ hand is strong evidence resolving the ambiguity in his action—a floor could rule with a high degree of confidence that Moneybags was not shooting an angle, but rather had erroneously assumed he held the only live hand and was merely surrendering his cards thinking he had won the pot.

Although it is always satisfying to see arrogant jerks get their comeuppance, even jerks deserve to be treated fairly. Here, Moneybags made a silly mistake, but it was an error that could be corrected within the letter and the spirit of the rules. Demanding strict adherence to bright line rules (e.g., “cards touching the muck are always irretrievably dead”) can make rulings absolutely consistent, but at the price of player dissatisfaction with results that may be excessively harsh in some circumstances. Slavish devotion to bright line rules is rarely in the best interests of any game, particularly at low stakes games with a wider range of player ability and in settings that generally cater to recreational players. Rules work best and games play best when there is room for common sense and judgment calls. I think the floor and manager made the right call here, even if for the wrong reason.

Poker! Yay!

With WPBT almost upon us (yikes how time flies!), I have become painfully aware of the poker dearth in my life. It's rather amusing that, as a guy who hadn't played online in over five years, I've played poker barely a handful of times since Black Friday (not counting my Vegas trip in June). [FN1]  Out in the real world, I've run into quite a few of the regular players from the Meadows, and apparently my absence has drawn some comments at the tables, likely the same kind of coffee talk as heard between barracuda when they notice a drop off in the local clown fish population.

My last visit to the poker tables was the first weekend in October, when I had scheduled a guys' weekend trip to Kansas City for drinking, gambling, and football. From my house, it's an easy 2.5 hour drive down I-35 to the Harrah's North Kansas City casino, which is pretty convenient. My crew for the weekend consisted of Santa, Jugweed, and Big E (our designated degenerate). Two Iowa State Cyclown fans, a Husker fan, and a Jayhawk fan, riding in a car with Iowa plates in rural Missouri—what could go wrong??

On our journey, I was driving so the other guys had broken out some libations, requiring a pit stop in Deliveranceville. We found a highly sketchy gas station / closed diner combo that would make a great Criminal Minds set after dark. Thankfully, it was mid-day, so we took a chance. On the front door we saw this important notice:

Yes, apparently in Missouri it's common to have as pets chickens, cats, dogs, and donkeys ... who are circus-trained. Also, it's important to advise folks to keep their pets outside, lest they be microwaved and served to passing tourists. (Perhaps I'm misreading the sign; I'm not fluent in redneck pictogaphy.)

We arrived at the casino mid-afternoon and immediately hit the poker room, except for Big E who headed off for some Pai Gow. As is often the case, I had a good start, making nearly $300 before dinner. As is usually the case, I should have stopped there. As is always the case, I forged ahead.

Dinner was an entertaining affair, in the Irish wake fashion. The Cyclowns kicked off against Texas as we sat down for dinner in the Harrah's sports bar (interestingly, 'Clown superfan Big E was wearing a Texas burnt orange sweatshirt). The 'Clowns promptly imploded. We enjoyed beer and bleu balls until the Huskers kicked off against Wisconsin in their Big Ten debut. The Huskers waited until nearly halftime before gagging up all hopes for a BCS bowl. Santa and Big E gave up on the 'Clowns and headed back to the poker and pai gow tables. I moved to the bar for a rum and diet or five while cursing the Huskers during their spectcular second half collapse.

Santa in typical Cyclown form.

Santa & Big E in full Cyclown denial.

Following the Huskers debacle, I debated between seppukku and poker as the proper method of purging my shame. Poker being the more painful option, I headed back to the tables. After mucking around some $2/$5 NLHE, I heard the siren song of the $2/$5 PLG (Pot Limit Gamboool) game. It was a lot of fun as always, but variance was not kind to me or my bankroll (down three $300 buy-ins net by night end). I worked up a stack over $1,000 after each buy-in, but four big hands all went against me—twice my sets were run down by combo draws, twice my combo draws failed to run down sets. Eh. PLG giveth, PLG taketh away. Praise be PLG!

The Harrah's North Kansas City poker room does have a couple of annoying quirks I had not noticed on prior visits. The most annoying is the chip buying system. No chips can be sold by the dealer, and they do not allow chip runners. So players who want to rebuy or even top off their stack must go up to the poker room front desk. This isn't a big problem, except the front desk is never staffed to sell chips except during the room's busiest periods. So, much of the time (particularly after midnight which is generally a lucrative time to play against bad or stuck players), players have to go across the casino floor to the nearest cashier cage to get chips, often standing in line for five minutes or so to buy chips. The problem with this arrangement is that many bad players who would've rebought if they had stayed at the table or been able to rebuy at the poker room counter end up cooling off on the walk to the cage and keep on walking on to a table game in the pits or out to their car or hotel room. Not a great way to keep players at the poker tables.

After catching a short nap, we met up at the Harrah's buffet to fuel up for the Chiefs-Vikings game. The food was decent, nothing special, but good omelets made to order, bacon, and coffee are really all I need. Our beverage server was a nice lady with a heavy, possibly Caribbean  accent. She kept us refilled with juice and coffee, speaking little, mostly one-word questions or statements. Toward the end of the meal, our server came over with a fresh cup of coffee for me. Setting it down next to me, she gave a small fist pump and declared in a soft voice: "Coffee! Yay!" So, for the remainder of the trip, and for the next couple of weeks, our crew would point something out in the same manner: "Field goals! Yay!" "Popcorn! Yay!" "Cheerleaders! Yay!" I'm certain our spouses enjoyed our phrase-of-the-month as much as we did.

The Chiefs-Vikes game promised to be spectacularly bad, considering neither team had won a game at that point, and both teams appeared actively engaged in the "Suck for Luck" festivities. Somehow, an exciting game broke out, made even more entertaining because it was probably my last chance to see Donovan McNabb suck in person. McNabb lived down to his reputation and led the Vikes to a rather pitiful defeat.

Santa, Big E, and Jugweed enjoy a tailgate beverage.

Great view from our seats of McNabb's utter suckitude.

OK, this play was a TD, but McNabb still sucked.

This was my first game at Arrowhead Stadium, and I have to wonder about some of their management decisions. At the gates, there was security screening, but it was cartoon security theatre. Men had to lift up hats, raise their arms, and be patted down on the chest and back, but I could've easily had a knife or gun in my cargo shorts pockets and it would never have been noticed. Why bother with this kind of security charade?

I'm not certain how this lady made it

past the fashion police at the gate.

Similarly, the game entertainment presentation was overtly sexualized, making me wonder about how comfortable parents would be bringing younger children to the game (not to mention the way such shenanigans are received by female fans). It's not just that there are official dance teams and cheerleaders in skimpy outfits on the field, but those women are shown on TVs throughout the stadium in a variety of regularly repeated announcements, providing close-ups of cleavage and booty. The worst moment, however, was at halftime, when the cheerleaders introduced fifty or so "Junior Chiefs Cheerleaders"—young girls from 6-12 years old, all in cheerleader outfits. They put on a dance routine, complete with suggestive moves, set to a medley of songs which included:

• "Girls Just Wanna Have Fun"—Cyndi Lauper (not too bad)
• "Barbie Girl"—Aqua (seriously, read the lyrics)
• "Material Girl"—Madonna (women as money grubbers)
• "Girls, Girls, Girls"—Motley Crue (an ode to strip clubs)
• Several hip hop songs I couldn't name, but all with sexual lyrics

Look, anyone who knows me knows I'm far from a prude. I have no problem with adult women dancing around to whatever music they want, wherever they want, and for money if they want. I also don't mind the concept of a junior cheerleaders program; plenty of girls enjoy being cheerleaders. What struck me about this program was the utter obliviousness to whether the music and dance moves were appropriate for girls that age. I know we live in a hypersexualized society, but seeing a bunch of elementary school girls tarted up and dancing around to that soundtrack in front of an crowd of mostly middle-aged, half-drunk men just seemed a little inappropriate. Certainly not my idea of family entertainment.

Happy Thanksgiving to all! Hope to see some of you soon at WPBT, and for those who can't attend, I'll be certain to post the highlights of the hijinks.

WPBT! Yay!

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[FN1]  Since my last post, work has gotten even busier, rather than more settled, after one of my staff attorneys left to take a new position. Sh*t flows uphill in some universes. Hopefully we'll have someone hired and in place by end of the year.

On top of the work situation, I coached a middle school mock trial team again this year. It was a great group of smart, funny kids who I had also coached last year as 7th graders when they qualified for state, but fell just short of the top 10 (who get trophies). This year, we practiced starting in early September, twice a week for three hours. In October, we added another day of practice as well as three dress rehearsal trials. Prior to regionals and state, we practiced six out of seven days in the week before competition, plus two days of regionals and three days at state. Quite a time commitment, not just for me, but also for the kids and their parents. But, it paid off as the kids won their first three trials at state and qualified for the final four. They got to try their semi-final case in the Iowa Court of Appeals courtroom, which they won. The kids then got to try the final round case in the Iowa Supreme Court courtroom with the Chief Justice presiding and the entire spectacle filmed for broadcast later this month on the local cable network. The team ended up finishing second, which is quite the accomplishment considering our regional alone had 48 teams (with eight going on to state), and the state competition had 32 teams. These kids (as well as the team that won state) frankly are better at evidentiary objections and cross-exams than many attorneys with years of experience. Mock trial! Yay!

I'm Not Dead Yet!

It's been over two months since I last posted. I appreciate the many kind comments and emails I have received inquiring as to my blogging hiatus. It was nothing intentional, just a perfect storm of circumstances.

The major factor in my absence from these parts has been a work project the past few months involving the sale of one of our subsidiaries. Deals like this require a lot of "due diligence" and secrecy bordering on a Masonic-Illuminati conspiracy. So, given my position in the company, I was one of the very small group of folks responsible for working on the deal in addition to my normal work duties. It wasn't particularly tough—mostly lots of conference calls and endless emails—but it did cut into my free time. So, when I got home, I was more interested in playing with the dog and spending time with the sig other than in blogging. Also, with less free time, I played less poker, leading to less blog-worthy material. I think I've played maybe five sessions in the four months since my last trip to Vegas, my driest streak in years.

Of course, a lot has happened in the poker world in the past two months. Recent revelations about the depth of the problems at Full Tilt have dominated discussion, and I do have a couple of partially written posts about those yahoos that will likely find their way to publication soon. But, there has been a ton of great writing on that topic already, and I really don't want to throw something out there that doesn't add some kind of unique take on events.

I also have a handful of lengthy draft posts, most which have been a long time in the making (in some cases, having been started a year or more ago). Although these draft posts are not exactly tied to current events, there is no question that Black Friday has made them less urgent in some cases, and more in need of updating in other cases. In this vein are a critique of the overreach in the PPA's "poker is a game of skill" argument, a completion of the venue and choice of laws discussions for my poker-and-the-law series, an examination of class actions in the context of suits against Full Tilt, commentary about the need for better regulation of online poker, and similar kinds of projects. The problem with these kinds of law-related posts is that they require a significant amount of research time to meet my standards for publication, and they also are the type of posts that require several hours of uninterrupted writing time to get the kind of finished product I want to share. Partly this is my background in appellate briefing, partly it's my obsessive side that rears its ugly head when I write. For better or worse, my law posts tend to run on for some length. This probably results mostly in a lot of "too long, didn't read" (or "tl;dr" for my ADHD readers who made it this far) reaction from readers, but for legal issues, detail and nuance matter. And, over the past couple of months, I just haven't had the luxury of extra free time to devote to finishing the necessary research and polishing the analysis to bring many of my drafts to the point where I would be willing to hit "publish".

In any event, my work schedule is slowly returning to "normal". But I have to admit part of me has enjoyed the hiatus from regular blogging, even as part of me missed it greatly. It's a lot like my running habit. When I ran nearly every day for a over a decade, it felt weird to miss more than a day. But when a foot injury sidelined me for a few months recently, it became a real struggle to get back in the swing of running every day. So, please bear with me as I get back up to speed with my writing. It may take a few weeks, but I have no doubt I can shake off the cobwebs.

I would normally end with a poker analogy, witty turn of phrase, or pop culture reference. Alas, I am out of practice, not to mention I am suddenly being run over by a truck.

Revenge of the Non Sequiturs—Slots, ATMs, and Online Poker

"More slot machines than ATM's in USA. Yet online poker illegal! ..."

—@oneouterdotcom

Variations on the Tweet above made the rounds of a number of poker players this evening. Although I share the general sentiment—gambling is widely legal, so poker should be as well—this type of argument is specious and ultimately proves nothing about the state of poker specifically or gambling in general.

The Tweet in question referenced a CBS News story about the spread of legalized gambling across the United States. The story cited one statistic relevant to the online poker legalization debate—38 states now have legal casino gambling. Given the prevalence of casino gambling, a strong argument could be made that online poker is a natural next step in the gambling market for those states. After all, those states already make money off of regulated casino gambling, online poker is being played anyway, why not cash in?

The CBS story, however, really goes off the track by throwing in the useless statistic comparing the number of slot machines (850,000) to the number of ATMs (425,000) in the United States. This type of statistical comparison is commonplace in news reporting, and is basically a variant on the time-honored method of demonstrating really big numbers in a superficial manner: "If you laid [objects, dollars, etc.] end-to-end they would stretch [from the earth to the moon and back, around the equator, etc.] X times." Considering most people don't have a clue how far away the moon is, or how many miles it is around the equator, or any other really big metric of choice, these types of comparisons are almost never useful in advancing the point of the story.

Looking at the slot machine / ATM comparison, there are two real problems with the comparison. First, most Americans don't have a clue how many ATMs there are in the United States, the same flaw inherent in most of these comparisons. Second, and more importantly, the CBS story doesn't provide any context for the statistic. What connection is there between the number of slots and ATMs? A statistic like "There are more health insurance processors than doctors" might generate useful debate about the relative impact of insurance paperwork on the delivery of health care in the United States. (Note: that statistic was created solely as an example and might or might not be true.) But where is the logical connection between ATMs and slot machines? The two might be connected within a casino (e.g., casino management might want one ATM for every 200 slot machines—again, an entirely fabricated statistic). But where is the significance in comparing slot machines to the number of ATMs in general? What possible useful conclusion can be drawn from that comparison?

To think about the absurdity of the comparison, let's compare slot machines to other categories. Why not state that there are more slot machines than:

• MRSA infections (94,360)
• Farmers (751,000)
• NCAA student-athletes (420,000)
• Annual adoptions (127,400)
• African-Americans in prison (308,000)
• Orphans (123,000)
• Fast food restaurants (160,000)
• Christian churches (322,000)

On the flip side, here are some things more common than slot machines:

• Hurricane Katrina evacuees (1.5 million)
• Gym memberships (45.3 million)
• Guns (more than 238 million)
• Annual DUI arrests (1.4 million)
• Annual bankruptcy filings (1.4 million)
• Bloggers (22.6 million)
• Atheists (1.6 million)
• Animals killed in tests (10 million)

These comparisons would be equally as true, and equally as pointless as the comparison drawn by CBS. But what logical insight would any of these comparisons support? What analytical connection exists between slots and ATMs?

Nonetheless, poker advocates take the slots / ATMs analytical non sequitur and double down by suggesting there is a logical connection between the number of slot machines in casinos and the legality of online poker. What if there were only 600,000 or 300,000 or 100,000 slot machines in casinos? Would those numbers change the argument as to whether online poker should be legalized? Does the legality of any form of casino gambling really bear any direct correlation to the debate over the legalization of online gambling in general or online poker specifically?

There are plenty of good arguments for legalizing online poker. Relying on the ratio of casino slot machines to ATMs is not one of them.

South Carolina Poker—Canary in the Coal Mine for Chimento?

Last fall, the South Carolina supreme court heard oral arguments in Chimento v. Town of Mount Pleasant, an appeal asking the court to determine whether poker is banned as a game of chance by the state's anti-gambling statute. My analysis of the appeal is that the court will likely find that poker is illegal gambling, though the court may carve out an exception for purely recreational or social games where no rake or fee is charged.

Because oral arguments were held over eight months ago, I have been tracking the appellate decisions which are released on the South Carolina judicial website in anticipation of the Chimento decision. Although the supreme court has yet to release its opinion in Chimento, the South Carolina court of appeals recently issued a decision in South Carolina Law Enforcement Division v. 1-Speedmaster SN 00218, a gambling case that could be a sign of trouble for poker advocates.

In Speedmaster, the court of appeals was confronted with the question of whether an electronic gaming device violated the state's video gaming statutes. The magistrate (trial) court had held a hearing during which a Speedmaster technician had both testified and demonstrated that a skilled player could beat the machine and win every time. Based on this record, the court of appeals ultimately concluded that the Speedmaster game was not a game of chance, and there was no evidence that players wagered on the outcome of the game. Thus, the Speedmaster game was not an illegal gaming device.

Although this decision might superficially seem beneficial to the "poker is a game of skill" advocates in Chimento, the bulk of the Speedmaster court's analysis of the "skill vs. chance" argument—if adopted by the Chimento court—is strongly anti-poker. The Speedmaster court noted that the South Carolina supreme court has not yet adopted either the "dominant factor" test or the British common law "pure chance" test for determining whether a game qualifies as "gambling" under criminal law. [FN1]. The court defined the two competing tests:

The dominant factor test provides when "the dominant factor in a participant's success or failure in a particular scheme is beyond his control, the scheme is a lottery, even though the participant exercises some degree of skill or judgment." [cite]. "If a participant's skill does not govern the result of the game, the scheme contains the requisite chance necessary to constitute a lottery." [cite].

In contrast, under the "pure chance doctrine," founded in British law, "any skill, however minimal, is sufficient to remove a scheme from the definition of lottery. [cite]."

Note that the court's formulation of the dominant factor test does not require any weighing of the relative effect of skill and chance on the outcome of the game as is usually presumed by litigants advocating the "poker as game of skill" argument. Instead, so long as chance is an intrinsic or inherent element in determining the outcome of the game, it constitutes gambling. Under this interpretation of the dominant factor test, it is difficult to see poker being found to be anything other than gambling. However, the Speedmaster court declined to adopt either test, noting that under either test, the Speedmaster machine at issue was unquestionably a game of skill because a player demonstrably could win every time he played. [FN2].

The Speedmaster court then turned to the question of whether the Speedmaster machine was an illegal "gambling device". The court first referred to South Carolina common law (which is consistent with most states’ common law) and found that the elements of gambling are “consideration, chance, and reward”, with a particular analytical emphasis on the element of “chance”:

"As legal terms, 'gaming' and 'gambling' are the same and involve either fraud, or cheating or chance applied in a situation of agreement between two or more persons in which, in accordance with certain rules, the parties play a game or contest, or await the outcome of some event that will determine one or more winners or losers."

The court also looked to a state statute regulating gambling on certain gambling cruises:

"'Gambling' or gambling device' means any game of chance and includes, but is not limited to, slot machines, punchboards, video poker or blackjack machines, ke[]no, roulette, craps, or any other gaming table type gambling or poker, blackjack, or any other card gambling game."

The Speedmaster court’s reliance on the gambling cruise statute is important, because it emphasizes a point I have previously discussed: Where poker is legalized and regulated under some conditions (e.g., in a casino, on gambling cruises, or in a “charity” setting), courts will be reluctant to interpret a general gambling prohibition as permitting legalized poker outside the regulated settings permitted by state law. [FN3]. Here, the South Carolina legislature has enacted a recent statute declaring poker to be “gambling” subject to state regulation. The South Carolina supreme court in Chimento will likely rely on that statute in two ways. First, the gambling cruise statute expresses a public policy decision by the legislature that poker is included in the games to be regulated as gambling within the state. Second, the South Carolina supreme court will likely be reluctant to interpret the general anti-gambling statute at issue in Chimento as permitting poker to be played legally anywhere without regulation while poker on gambling cruises is subject to regulation.

Finally, the Speedmaster court noted in passing that even a skill game such as the Speedmaster machine could still involve gambling:

When parties wager on a game of skill, the element of chance is injected back into the game. For example, if Player A bets Player B $10 he can get a higher score in pinball, Player A has left to chance how Player B will perform. Even though Player A controls his own score, he does not control Player B's performance, and therefore, Player A does not control the outcome of the wager.

This view of the interplay between skill and gambling is also troubling for poker advocates. South Carolina’s general anti-gambling statute at issue in Chimento includes an exempt list of games of skill—billiards, bowls, backgammon, chess, draughts, and whist—which are not gambling so long as no money is wagered on the outcome of the game. The problem for poker, of course, is that no matter how much skill dominates the game, money being wagered on the outcome is an inherent part of the game. Under the Speedmaster court’s analysis that wagering on a skill game causes “the element of chance to be injected back into the game”, poker played for monetary stakes is gambling regardless of whether a rake or fee is taken by the house.

Of course, the South Carolina supreme court is not obliged to follow or even take note of the Speedmaster decision, as court of appeals decisions are not binding on the supreme court. However, the Speedmaster decision is interesting and important because it reveals the general manner in which appellate judges in the state are likely to think about gambling statutes. [FN4]. Moreover, the Speedmaster decision is likely to at least be read by the supreme court justices given that the decision references a prior South Carolina supreme court decision, State v. Johnson, which found video poker games were not “lotteries” (leading to their immediate regulation by the legislature). Johnson is important to Chimento because the current supreme court Chief Justice Toal concurred in one dissenting opinion and wrote her own dissenting opinion in that case. In her own dissent, Chief Justice Toal asserted that video poker machines could not pass even a pure chance analysis. In the dissent by another justice supported by Chief Justice Toal, she agreed with the position that the court should apply a dominant factor analysis, and then conclude that video poker was a game of chance:

I would hold, where the dominant factor in a participant's success or failure in a particular scheme is beyond his control, the scheme is a lottery, even though the participant exercises some degree of skill or judgment. If a participant's skill does not govern the result of the game, the scheme contains the requisite chance necessary to constitute a lottery.
….

The third category of games ("Type III") includes games such as poker and black jack as well as one variety of keno. In these games, the player makes a variety of decisions at one or more points during play of the game. The decisions the player makes may affect the continued play and the ultimate results of the game in a variety of ways.

First, the player may make decisions as to how to continue to play. For instance, in a poker game the player will decide which cards to keep and which to discard. While this decision could be based on sheer caprice, it would normally be based on the player's view of the probability of receiving certain replacement cards that would constitute a winning hand. This decision may also be influenced by the player's analysis of the relative value of the given hands that could be received. In other words, a player faced with two or more possible "good" options may be willing to try for the less likely hand if the payout is high enough to justify the increased risk...

In short, the Type III games are the most complex and diverse .... Still, some features are common to all machines .... In particular, each game begins with the random selection of cards, numbers, or other icons. The player sees these and is given an opportunity to make one or more decisions. A second random selection is then made by the machine. The ultimate outcome is, therefore, influenced by, but is not entirely determined by the player's decisions. However. regardless of skill, knowledge, or experience, a player cannot alter the probabilities inherent in the play of any Type I, Type II, or Type III video machine games. Neither can the player modify the function of the random number generator, or the random delivery of cards, numbers, or icons.

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Whether chance predominates over skill is not easily answered with regard to the Type III games because the parties define "skill" differently. The plaintiffs maintain since play is completed by a random act outside the control of a player or by a player's decision to stand on the result of a prior random act, and the odds are stacked against a player, chance predominates. In effect, the plaintiffs define "skill" as the ability to affect the odds of obtaining a given card and, ultimately, the outcome of the game.

On the other hand, the defendants define "skill" as a player's ability to maximize the numbers of credits or dollars won through knowledge of probabilities and consideration of the potential payoff. One of the defendants' experts presented a mathematical model which compared the results of a player using optimum game strategy with a player acting entirely randomly. Since the most skilled player would win back 96.5% of his credits and the most unskilled player would win back 31% of his credits, the expert concluded skill predominated over chance.

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As noted in the defendants' expert's mathematical model, the probability of obtaining a particular hand does not increase, regardless of a player's level of skill. Although a skilled player (unlike an unskilled player) can improve his chances of winning and maximize those winnings, his ability to affect the outcome of a game, i.e., actually obtain the winning card, is determined by the random number generator. Similarly, if two players both exercise optimal strategy, chance would determine which player, if either, would obtain a given card. A player's skill, no matter how good or poor, does not control the random "deal" of the cards.

In my opinion, skill should be defined in terms of the ability to obtain the desired outcome - a certain card - rather than the ability of one player to play more judiciously than another. As noted by the certification order, a video poker player is unable to control the random selection of cards, in spite of his skill, knowledge, or experience. Since the player cannot improve the likelihood he will obtain a certain card, I conclude chance dominates over skill in the operation of the Type III video game machines.

This analytical approach to the skill vs. chance argument bodes poorly for poker legalization advocates in Chimento if the court chooses to follow the lead of the Johnson dissenters. Further, Chief Justice Toal is the only current member of the South Carolina supreme court who considered the Johnson decision. Consequently, it might be presumed she will be familiar with the skill vs. luck arguments, and may have more influence on the outcome of the Chimento case than usual. Of course, poker has some fundamental differences from video poker, and there is good evidence in the record for the court to consider regarding the relative role of skill in poker. Nonetheless, I think it’s safe to assume Chief Justice Toal is a likely vote against poker legalization.


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[FN1] U.S. courts looking to British common law is not unusual, particularly in eastern states where the original Colonies established their legal systems by importing British common law. Common law in later states tends to diverge somewhat from the original British common law, most notably in western states where the common law reflects more of a frontier, libertarian flavor.

[FN2]. The Speedmaster court did note that the South Carolina supreme court would be confronting the issue of the proper test for determining whether a game is skillful or gambling in the Chimento case.

[FN3]. See my discussions of the Dent decision in Pennsylvania (poker is regulated in casinos), the Wong case from Ohio rejecting a claim for reimbursement of player funds, attempts to legalize intra-state poker in Iowa (poker is regulated in casinos), and the "Pokerhaus" lawsuit in Illinois (poker is regulated as charitable gambling).

[FN4]. Similarly, the Washington supreme court's anti-poker decision in Rousso was foreshadowed by that court's anti-online gambling decision a few weeks earlier in the Betcha.com case.