Pennsylvania court: Poker is a game of skill

On Wednesday of last week a court in Pennsylvania dismissed charges against two defendants who had been charged with running an unlawful gambling operation. The dismissal was based on the court's conclusion that poker (or, more specifically, Texas hold'em) is more a game of skill than chance and therefore not unlawful gambling under state law.

You can read the background facts of the case here. I have posted a copy of the decision and order here. (Thanks to Prof. I. Nelson Rose for sharing the copy of the decision that he received. See his web site here. The archive of his always excellent columns for Poker Player newspaper is here. I think we can expect to see his comments on this case in that space in the near future.)

The case won't actually have any legal precedential value because it comes from a trial court rather than an appellate court. Nevertheless, other defendants similarly situated may be able to use it as "persuasive authority" (depending on local court rules for citing such materials). Will the state appeal the decision, and thus get us an actual precedent, for good or ill? We will have to wait and see.

I'm kind of surprised at the nature of the decision. There is no expert testimony cited. Apparently there was no trial. But I would have expected the judge to require at least a hearing at which relevant facts could be introduced via experts on the witness stand. In short, the parties are supposed to present the facts, and the trier of fact (a judge or jury) is supposed to sift through only those facts that were properly presented in court, decide which to believe or not, and render a verdict. Now, that can be somewhat different when, as appears to be the case here, the judge is presented with what might be considered a mixed question of fact and law. But it seems to me that what this judge has done is essentially to deem the claim that poker is a game of skill as a fact that is within "judicial notice" and therefore not one requiring expert testimony. (That term shows up in a dissenting opinion of an Illinois state case, cited by one of the law review articles on which the Pennsylvania judge relied heavily--see p. 8 of the opinion--but the judge himself doesn't appear to use the phrase explicitly to explain what he's doing, unless I missed it.)

If I'm right to characterize it this way, then it's pretty peculiar. The usual realm of facts considered eligible for recognition under "judicial notice" is those that are widely known and uncontroversial, e.g., "Pearl Harbor was bombed by Japanese war planes on December 7, 1941." That poker involves skill more than chance is, I believe, correct, but is not in the category of "facts" to which no reasonable dispute could be raised by a party. If I'm right about this, the decision may be on shaky grounds if it gets appealed. Maybe, though, I'm misunderstanding what it is that this judge has done.

Anyway, it's a relatively interesting decision, which is why I thought it deserved a wider audience than it has received so far, judging by the paucity of comment in the poker blogosphere and most poker news sites.