(Posted October 13, 2023) What, you thought the justices were on a long siesta? No dice; today the Supreme Court of Virginia hands down an important order relating to “skill games” that pay out prizes to players.

In 2020, the General Assembly acted to regulate these machines. The operator of some truck stops, where the machines are quite popular, sued to have the statutory regulation declared unconstitutional. A circuit court judge granted a temporary injunction after applying the four-factor test in Winter v. NRDC, a SCOTUS decision that Virginia judges have had to use because the SCV has stubbornly refused to lay down a specific Virginia test.

That prompted the General Assembly to act last year. It amended the statute to avoid the constitutional infirmity that the judge had pinpointed. Accordingly, the existing lawsuit became moot; no one would seek to enforce a superseded statute. Back to court went the plaintiff, contesting the new law. Again the judge imposed a temporary injunction, fixing a trial date in December 2023.

The Commonwealth, as is every litigant’s right in this position, filed a petition for review. The justices today, in Commonwealth v. Sadler Brothers Oil Company — NASCAR fans will recognize the surname — overturn the injunction and reinstate the ban. In doing so, the court rejects a First Amendment challenge, holding that the statute addresses conduct, not speech.

This decision implicates a lot of wealth. These machines are, as I understand it, money-printing devices for the owners and the companies that lease them. The legislature saw them as just a form of slot machines, and as the court indicates today, the General Assembly emphatically has the right to regulate, or even prohibit, gambling.

One point about today’s order caught my attention. This case had at least the potential for the Supreme Court to lay down, at long last, a definitive standard for the granting of temporary injunctive relief in the Commonwealth. The order mentions in a detailed footnote the dispute over whether we should adhere to the federal Winter standard or its predecessor, known here as the Blackwelder Furniture test. But the court punts on that opportunity, holding that the injunction request fails under either test because the petitioner isn’t likely to prevail on the merits. In appeal after appeal, when given the opportunity to set a specific standard — something that circuit courts and litigants have long been salivating for — the justices have refused to do so.

The likely explanation for the absence of such a definitive ruling is that today’s order comes from a three-justice panel and not the full court. Justices McCullough, Chafin, and Russell were the only three Robes to consider and decide this appeal. I sense that if the Supreme Court will ever answer our prayers, it will take the full court to set down a rule. Personally, I doubt that such a ruling will come during my legal career, and maybe not even in my lifetime.

I note with appreciation the good folks over at Virginia Mercury, which broke the story today. This isn’t among the court’s published opinions, and it doesn’t even appear on the unpubs web page.