South Carolina case

I have just read the decision of the South Carolina Supreme Court in Town of Mount Pleasant v. Chimento, available here. I have not read any other coverage or commentary on it. I don't have time for as full a critique as I would like to write, but here are some scattered thoughts. And remember: I am not a lawyer, and I don't even play one on TV.


1. The entire case turns on the meaning of the phrase "any house used as a place of gaming," because the statute bans gambling only in specifically listed locations, and this is the only one from the list that could conceivably apply to the home poker game in question. The phrase is not defined by the statute. You can immediately intuit that the phrase cannot just mean "any house where gaming takes place," because if that is the intended meaning, then the legislature would have just said, "any house." Put another way, the broadest interpretation renders meaningless the qualifying verbiage, "used as a place of gaming." So when does a house shift from being one where gaming is taking place but is not "used as a place of gaming" to one where gaming is taking place and is "used as a place of gaming"? That is the crux of the whole matter.

2. The majority concludes that, sure, it will often be vague whether some particular defendant's conduct crosses that ill-defined line, but these particular defendants were so clearly on the bad side of the line that we don't have to decide where that line is. Moreover, the court said, these defendants don't even have legal standing to raise the constitutional defense of statutory vagueness.

3. I think the dissent has by far the better argument here. The dissent says that whether these defendants' conduct was clearly over the line is not the end of the inquiry. We also have to ask whether the fuzziness of the line is such an intrinsic characteristic of the statutory language that arbitrary enforcement is necessarily going to result. And she concludes that that is, in fact, the statute's fatal flaw, constitutionally speaking, independent of the question of whether these defendants' due-process rights were violated because the vagueness of the statute made it impossible for them to know whether their conduct ran afoul of the law.

These defendants were only arrested and prosecuted because of the regularity of the game's occurrence, the fact that they held open an invitation for anyone to join, because rake was taken to defray the costs of providing food, and because the stakes were more than "penny-ante." The police freely admitted that it was these criteria that caused them to make arrests. Yet none of these additional criteria are in the statute. When the police make up their own criteria for deciding who to arrest and who to leave alone, I don't see how anybody can deny that this constitutes arbitrary enforcement. Nor can I see how anybody can deny that arbitrary enforcement is both (1) constitutionally disallowed as a matter of due process and (2) odious and dangerous as a matter of public policy. As the dissent persuasively argues, this statue is so vague that arbitrariness on the part of law enforcement is not only a possibility, but an inevitable consequence, and that is something the Supreme Court has rightly and repeatedly said cannot be tolerated.

4. My preference for the dissent's conclusion really has nothing to do with my preference, as a public policy matter, that people be free to run poker games in their home. It surely has a great deal to do, however, with my personal experience with arbitrary enforcement of laws. I have been on the raw end of an arbitrary law-enforcement decision--and not in a minor way, but in a way that completely changed the entire trajectory of my life, so I have a strong visceral distaste for prosecutions that hinge on the arbitrary decisions of those charged with enforcing the laws.

5. The majority decision doesn't take issue with the conclusion of the lower court that poker is a game in which skill predominates over luck. But not a single member of the court, either in the majority or in the dissent, thought that that had any bearing on the outcome. It was completely irrelevant to the questions that the court had to answer. "Whether an activity is gaming/gambling is not dependent upon the relative roles of skill and chance, but whether there is money or something of value wagered on the game's outcome." If you hear anybody say that this court held that poker is a game of skill, they're either misinformed or deliberately misstating the facts. That language is pure dicta--i.e., a side commentary on a question that the court did not have to resolve in order to reach its conclusion. It has no legal force, and cannot properly be cited as precedent by future courts.

6. I'm appalled at Chief Justice Toal's concurrence. She effectively admits that she would vote to uphold the statute even if it is unconstitutionally vague because she fears what would happen to public decency and order if they struck it down. I consider that a flagrant abdication of her duty. In the rare instances in which a court finds that it must invalidate a statute but that doing so will leave some sort of potentially alarming gap in the state's whole statutory scheme, one compromise remedy courts can turn to is to stay (i.e., delay) the effect of the decision--say, for 30 or 60 or 90 days--to give the legislature time to enact a replacement before the old statute is declared void.

7. The dissent reads to me as if it were originally written to be a majority opinion, then tweaked later when it became a dissent. My guess is that the swing vote, Toal, was with the dissent at first, but then what became the court's opinion was amended just enough to win her over as far as the result, though she still disagreed with the main part of its reasoning. It appears that it was the section on standing that pulled her over.

8. The dissent is right, IMHO, to criticize the majority's handling of the standing question. That is, they are deciding the case (or at least settling one of its most important arguments) on the basis of a question that neither party raised to the court. Although the dissent doesn't say this, the proper thing for the court to do when it faces such a dilemma is to order the parties to do additional briefing, and perhaps even a second round of oral argument, to address the question on which the case may be turning. (This is what happened, for example, in the Citizens United case on campaign financing before the Supreme Court a couple of years ago.)

OK, that's all I have time for. Besides, it's probably more than about 99% of you are interested in already.