News for Degenerates, Vol. 3: Poker in Virginia loses shot at legalization in Va. Supreme Court

By Tom Jackman, Washington Post – 3/1/2013

Legalized gambling in Virginia remained ever further from reality Thursday when the Virginia Supreme Court decided not to rule on the weighty issue of whether poker is a game of skill or chance. A Portsmouth man’s bid to run a legal poker parlor hinged on whether he could convince the courts that Virginia’s anti-gambling laws were unconstitutional. He busted out.

Charles Daniels ran one of a number of poker halls in Portsmouth, some of which raised hundreds of thousands for charities. (The Fraternal Order of Police filed an amicus brief supporting Daniels.) But in 2010, the Portsmouth Commonwealth’s Attorney, Earle Mobley, changed his position and declared that he would begin enforcing the illegal gambling law, and the halls closed. Daniels filed a lawsuit in circuit court seeking to have the gambling law overturned. He lost, and appealed to the Supreme Court.

The funny thing about Virginia law (but not funny “ha ha”) is that it allows ”any contest of speed or skill between men, animals, fowl or vehicles.” Which may have been around when cockfighting was legal or may mean that men and chickens are permitted to participate in cross-species sporting events. The law notes that “participants may receive prizes or different percentages of a purse, stake or premium.”

But if you want to operate a game that involves wagering on “any game, contest or any other event the outcome of which is uncertain or a matter of chance,” and you have gross revenue of $2,000 or more in any single day, then you’re looking at felony illegal gambling and a minimum one year in prison.

Daniels’ lawyers brought in Greg “Fossil Man” Raymer, a World Series of Poker main event winner, to give a Portsmouth judge a tutorial on how poker is a game of skill, not chance: Calculating odds, reading body language, figuring others’ strategies aren’t done by luck, said the expert witness, who wears those hypnotizing sunglasses at the table during tense hands. The judge didn’t disagree with the skill part, but said the other part of the law, banning betting on an ”outcome which is uncertain” made it illegal.

Some might say that walking across the street has an “outcome which is uncertain,” and that perhaps the Virginia General Assembly might want to tweak that. But this is Virginia and the legislators have not seemed so inclined. So the case moved on to the Supreme Court, which first ruled that the Portsmouth circuit court judge shouldn’t even have ruled on the first half of Daniels’ case because he’d never been charged with anything.

A shot from the World Series of Poker at the Rio hotel and casino in Las Vegas. At the height of the poker fad, Las Vegas couldn’t get enough of poker rooms. Now some of those rooms are folding. Four casinos yanked their poker tables last year, including the Tropicana, and three other rooms closed shop in 2011. (Eric Jamison – AP) Then came Daniels’ claim that the gambling law was unconstitutionally vague because it didn’t allow for the application of the “skill” part of the law to poker. The Supreme Court’s answer: the law isn’t vague. The law allows for skill to be considered in determining whether the gambling law has been violated, Justice S. Bernard Goodwyn wrote. But it’s not vague. Case dismissed.

So does that mean poker qualifies as a game of skill? The court didn’t say. They checked. And then they folded.

Steve Emmert, a noted appeals court expert and poker player, noted that in-home games are still legal. And he said the Supreme Court “left the door open” for another challenge, by not resolving the skill issue.

But for the game to be played in public, as it is in many other states (and soon in Maryland), a new legal challenge has to be launched. It would involve someone being charged with felony illegal gambling, to give the local court jurisdiction, and the defendant arguing that the “skill” part of the law provides an exception to the gambling law for poker, as well as cockfighting.

Problem: Defendant must lose. Be convicted. Face one to 10 years in the slam. (Commonwealth can’t appeal when it loses.) Appeal. Possibly win. Possibly be in prison while winning, or have felony conviction and loss of voting rights with a suspended sentence.

“I didn’t say it was a good option,” Emmert said. “The last thing most people want to do is risk criminal prosecution to prove a point.”

But all is not lost, poker fans. The Virginian-Pilot reports that in Virginia Beach, restaurant owner George Pitsilides is facing three felony counts of illegal gambling, for running poker tournaments in 2011. He had been hoping for a favorable Supreme Court ruling, now he is looking at trial and a minimum three years in prison, a year on each count. He is represented by the very experienced attorney James Broccoletti, who has motions pending that challenge the gambling law.

So, down the road, Pitsilides could become the hero to Virginia poker fans. If he’s willing to pay the price.