Cindi Ross Scoppe

Scoppe: 'Kitchen table poker' case more than meets the eye

As the Republican gubernatorial primary contest heats up, and as Democrats look to the not-insubstantial possibility of a November match-up with Henry McMaster, the attorney general is coming under increased fire for using his office to pander to the base.

Some of the criticism is spot on. Mr. McMaster is increasingly taking official actions that seem more about politics than about trying to uphold the state constitution and, when they are not in conflict, the state's laws. His appeal of a bizarre ruling in favor of poker playing is not among them.

On a purely practical level, it's hard to believe that fighting the so-called "kitchen table poker" case will do him much good politically, even in a Republican primary dominated by religious conservatives. Gambling interests at home and abroad have done a great job of convincing people that the law used in this case is an outrageous overreach that prohibits even the playing of solitaire at your kitchen table - no gambling required. And we in the media have aided and abetted them.

I count myself among the guilty: Until I read the state's appeal, and started asking questions, I thought that while the judge's ruling was outlandish, the underlying statute was indeed as absurd as it has been painted to be. I was wrong. The key word that people are overlooking in the no-card-playing statute is "gaming" - a word that I detest because it attempts to whitewash gambling but which the Supreme Court has repeatedly acknowledged means precisely that: gambling. The use of that word in the statute, along with a couple of centuries of case law, makes it clear that the only thing prohibited by S.C. Code Section 16-19-40 is gambling with cards or dice.

Further, the state's appeal argues that the law doesn't apply to a friendly game of poker on Friday night, because the term "house used as a place for gaming" refers to a casino or other professionally organized setting. (This interpretation does argue, rather strongly, that the statute ought to be rewritten in modern English, but we could say that about a lot of statutes.)

Still, this case would hardly justify the attorney general's intervention if Judge Markley Dennis had thrown out the charges because he did not believe the facts justified a conviction. That's not what he did: He essentially rewrote the statute, and then said the facts didn't justify a conviction under his re-imagined version of the law. And that his made-up version of the law was unconstitutional.

That's important because the decision wipes out our state's only prohibition against high-stakes poker games, and any other (non-electronic) gambling that supporters are able to convince a judge requires skill.

Now, argue all you want over whether our state should allow Texas Hold Em tournaments and other big-money gambling - as the Las Vegas experts who flew in to testify in this case obviously hope to do. I think that would be a very bad idea. But it is the job of the Legislature to make that decision, and in this case, a judge made that decision, by declaring that the "house of gaming" law applies only to games of chance, not to games of skill, even though the statute makes no such distinction.

The state's appeal makes a compelling case that the Legislature quite deliberately declined to distinguish between chance and skill, arguing that "Over the course of two centuries, the Legislature could have expressly placed the words 'chance' in the statute, but has not.... (I)n the General Assembly's view, the ills resulting from games played for money does not depend upon the particular game or the nature in which it was played. The many problems associated with gaming resulted from the playing of games for money, not whether the particular game is one of chance or skill."

Further bolstering the idea that the Legislature would have included "games of chance" in the statute if it wanted to so limit the prohibition is the fact that some of our state's gambling laws do make that distinction. Most notably, it was central to the court battles over video gambling, with the poker barons arguing that they ran legal games of skill and everybody even remotely familiar with their operations arguing that who won and who lost was a measure of chance, and not a little bit of electronic manipulation. Even the rewritten video gambling statute that shut down the industry makes that distinction.

"Because a statute is old, does not mean it is unclear, or void-for-vagueness," the state's appeal argues. "Nor may the Circuit Court step into the shoes of the General Assembly by adding terms such as 'chance' or 'skill' when the Legislature has made clear that 'any game with cards or dice,' when played for money or other consideration is forbidden."

At least when video poker got legalized without anyone realizing what had happened, it was done through a law that a deceptive senator slipped past unsuspecting colleagues. There has been no such chicanery this time, no change in the law. This is the same law that has prohibited "gaming" of any sort for centuries - until a judge decided to ignore centuries of precedent and read words into the statute that are not there.

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Even if you think casino gambling should be legalized, surely you don't think it should be done by this sort of judicial fiat, which undermines the very notion of a legislature writing the laws and a judiciary enforcing them. That's an important fight that any attorney general would be derelict to sidestep, no matter what the political implications. Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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