South Carolina Supreme Court Poker Decision

On November 21, 2012, the Supreme Court of South Carolina finally issued an opinion on a case that it heard in October of 2010 and that was first argued in front of a lower court in 2006. I have been closely involved with this case since its inception. My series of three articles in Card Player called attention to a poorly worded South Carolina gambling law, section 16-19-40, that traces its origins back to 1802. I claimed that law, which forbids “any game played with cards or dice,” was unconstitutionally vague. The five poker players who were charged under this law were part of a group of poker players who were arrested in a police raid on a private home that was hosting a poker game played for money. They were motivated to challenge the South Carolina law in part by my series of Card Player articles.

I am obliged to admit that I am not a lawyer, even though I have written quite a bit on state gambling laws over the years. Also, the opinions in this article are my own, and are not to be extended to Card Player, the Poker Players Alliance (deeply involved in the SC case), or any other organization. On the other hand, I know some information that is not public domain, so I am not just going by a layman’s reading of the text of the decision itself (which I have read through several times).

The initial impression created by the court’s decision would likely be that the poker players and the poker world lost. The court voted 3-2 to overturn the circuit court decision that had found the players not guilty and dismissed the case. The South Carolina Supreme Court said: “We Reverse.” So it is plain that the poker community did not get quite all that it wanted. On the other hand, I believe there is still a lot to be cheerful about when reading the actual text of the decision. Let me present some parts of it that make me quite happy.

The first thing I like about the decision is that the court viewed poker as primarily a game of skill. The defense team had presented some excellent testimony from poker tournament TV commentator Mike Sexton and others to show the immense amount of skill in poker. The court explicitly agreed with this view, even though it took the view that poker and other games of skill were not exempt from this South Carolina anti-gambling law. So the decision could actually be helpful to poker because it is yet another court case that says poker is primarily a game of skill.

The second thing I like about the decision is that three of the five South Carolina justices declared that the state law on gambling that covered poker, section 16-19-40, was impermissibly vague. Unfortunately, three of the justices took the view that the defendants did not have standing to challenge the law, because their actions were clearly covered under a portion of the law that was constitutional.

The two justices that disagreed with the opinion of the court actually pointed out in their dissent that the standing of the defendants was not challenged at trial. “It is not the province of this court to inject an entirely new issue into a case [standing of the defendants] after briefing and oral argument have long since been completed.” Evidently, the three justices refused to budge from this view despite this departure from “longstanding principles of appellate jurisprudence.”

According to the court, there are two areas where the South Carolina gaming law is so vague as to be unconstitutional. They are where a house used for gaming is a location of prohibited activity, and where any game using cards or dice is forbidden. The defense team for the poker players had argued that the words “Any house used as a place of gaming” did not apply to a private residence. The court did not accept this argument as pertaining to the case before them. However, in a concurring opinion, Chief Justice Toal wrote “Based on my review of the statute, a view with which a majority of this court agrees, it [S.C. law, section 16-19-40] is not a blanket prohibition of all gaming in the home.”

The Chief Justice also wrote, “The use of the language ‘Any house used as a place of gaming’ in section 16-19-40 fails to establish minimum guidelines to govern law enforcement, thereby permitting arbitrary and discriminating law enforcement. I would accordingly hold that language as unconstitutionally vague.”

Justice Toal wrote, concerning the cards or dice clause, “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.”

The third thing that I like about the decision is the court told the legislature explicitly that the state law needs to be changed, and why. The South Carolina Supreme Court in this decision said that their state’s gambling law was impermissibly vague (exactly as I said in Card Player in 2006). Justice Toal wrote, “The dissent is completely correct in its conclusion that section 16-19-40 is void for vagueness because that section fails to give adequate notice of the prohibited conduct and fails to provide law enforcement with the requisite guidance to ensure its fair administration.”

And pointedly, ”Thus, I now challenge the legislature to modernize section 16-19-40, as I am inclined to agree with the dissent that this provision is constitutionally infirm.”

I would like to compliment the five poker players of South Carolina that were willing to fight long and hard to get justice for poker players in a court of law. Even though the actual verdict went against them, their lawsuit was definitely not in vain. The spokesperson among them, Bob Chimento, is still hard at work to get good laws for poker in South Carolina. I wish all the poker players had as much braveness and character to stand up for our game and their rights as did the South Carolina five.

A gambling law expert told me, “It is likely the South Carolina Supreme Court held off issuing a decision for such a long time because a decision in favor of the players would have opened the possibility of a poker room on any given corner in the state. The court really wanted the overhang of the likely decision to spur the state legislature to enact a new statute.”

I am not upset with the decision’s timing, because the best time to amend a poker law is at the end of an election cycle — like now!

Here are a couple of suggestions for South Carolina in rewriting the law.

(1) Draw a sharp legal distinction between social card games like poker and bridge, where the players pay a fee to the house and gamble with each other, and casino gambling games like blackjack and Caribbean Stud, where the house is a direct adversary. Poker is not a casino gambling game just because it is sometimes played in a casino cardroom. It’s more like bridge.

(2) Separate regular poker from video poker in the law. Regular poker is a social card game. Video poker is a type of slot machine game that uses poker hands for its payoff scale. The two belong in completely separated sections of South Carolina gambling laws. ♠

Bob Ciaffone’s new poker book, No-limit Holdem Poker, is now available. This is Bob’s fifth book on poker strategy. It can be ordered from Bob for $25 by emailing him at [email protected]. Free shipping in the lower 48 states to Card Player readers. All books autographed. Bob Ciaffone is available for poker lessons.