Making the Case

By Joe Kelly
Contributing Editor

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    Joe Kelly

    Poker Law (2009-2010)

    Philadelphia, PA (Sports Network) - Unfortunately judicial decisions in the U.S. and in Europe have been unhelpful to land -based and interactive poker players. While European judicial decisions generally concluded poker games were illegal, European countries, unlike the U.S., are increasing willing to regulate and tax interactive poker.

    In both Pennsylvania and Colorado, state appellate courts have reversed trial court determinations or jury verdicts that Texas Hold'em was not illegal gambling. In Commonwealth of Pennsylvania v. Dent, (2000 Pa. Dist & City, Dec. LEXIS 146, rev'd by 2010 Pa. Super. LEXIS 76 (Pa. Super. Ct. 2010), appeal to Pa. Supreme Court filed April 26, 2010). Defendants were arrested for having violated Pennsylvania's gambling laws. There was no dispute that Pennsylvania law was unclear concerning the legality of Texas Hold'em and that the legal test was whether the game was one where skill predominated over chance. The trial court relied heavily on scholarly studies that concluded poker was a skill game and therefore not illegal. The appellate court ignored expert testimony and relied on archaic decisions from other states such a Missouri, Utah, and Nevada which had concluded poker was illegal. The appellate court also relied on Joker Club L.L.C. v. Hardin, 643 S.E. 2d 626 (N.C. CT. app.2007, rev.den. 2008 N.C. LEXIS 59), where the appellate court affirmed the trial court conclusion that poker was a game where chance prevailed over skill.

    A Colorado appellate court (People v. Raley NO. 09CV 168, Aug. 4, 2009, rev. den. 2010 Colo. LEXIS 263) reversed a trial court determination that poker was not illegal based largely on the testimony of an expert witness. The appellate court concluded his testimony should never have been admitted. In neither Pennsylvania nor Colorado could the accused be tried again, but prosecutors in both states appealed the legal conclusion that permitted poker since it might open the door to widespread playing of Texas Hold'em. In South Carolina an appellate court (Chimento v Mt. Pleasant, 2009-CP-10-001551)determined in October 2009 that poker was a game where skill prevailed over chance and therefore there was no violation of South Carolina gambling law. In December,2009, the South Carolina attorney-general filed an appeal with the state Supreme Court alleging the reviewing court should never have applied the skill/chance standard.

    Concerning Internet poker, there has been no activity in Congress on the Senate Bill entitled "Internet Poker and Games of Skill Regulation, Consumer Protection and Enforcement Act of 2009" which had been introduced in August 2009. Neither Florida nor Iowa passed intrastate Internet Poker bills in 2010, largely due to the short state legislative sessions. California is considering a detailed intrastate Internet poker bill (SB 1485) that is set for a Senate hearing in late June 2010. Powerful tribal interests may prevent passage of this bill. One bright spot is the possibility that the state of Washington Supreme Court might reverse the appellate decision that upheld the constitutionality of a state statute that made internet poker playing a class III felony. (Rousso v Washington, 2009 Wash. LEXIS 793)

    The highest courts in Switzerland (May 2010) and Denmark (July 2009) have ruled that poker should be controlled only by state licensed entities. A Swedish appellate court, in May 2009, however, reversed or reduced sentences of convicted poker players when it concluded poker was a game where skill prevailed over chance. In Sweden internet and land-based poker is a government monopoly of the state-owned gaming firm Svenska Spel. Unlike the U.S., Internet poker has been regulated and licensed in European countries, such as France, Italy and Great Britain and might soon become licensed in countries such as Denmark. In the U.S., such regulation in the next few years would seem to be a highly improbable possibility.

    Professor Kelly has been an expert witness for Park Place Casino, Boyd Gaming, and Harvey's Casino as well as card clubs in San Jose California. He has appeared as an expert witness before the Virgin Islands Casino Control Commission (2004), the South African Parliamentary Committee on Trade and Industry (2003)and as recent as 2007 appeared as an expert poker witness in the trial of R v Kelly (Gutshot) in Snaresbrook Crown Court (London), UK.

    Copyright 2009

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