Decided: November 21, 2012
Jimmy Martin and Lucky Strike, LLC (appellants) brought an action in the district court to enjoin the enforcement of S.C. Code Ann. §§ 12-21-2710 and 12-21-2712, which prohibit certain “device[s] pertaining to games of chance.” They then appealed the district court’s grant of summary judgment, advancing two theories: that §2710 is void for vagueness and thus violates the Fourteenth Amendment, and that, under the holding of Ex Parte Young, § 2710 is violative of their right to equal protection under the Fourteenth Amendment. The appellate court rejected these arguments and upheld the district court’s ruling.
The court first addressed the appellants’ due process argument, noting that a statute is unconstitutionally vague under the Due Process Clause if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Since gambling does not implicate a constitutionally protected right, the court framed the inquiry as whether § 2710 is invalid “in all of its applications,” focusing specifically on the statute’s blanket prohibition against possessing any “device pertaining to games of chances of whatever name or kind.” In light of several South Carolina Supreme Court cases that have provided clarity to this particular phrase, the court found that the use of the term “games of chance” has a plainly legitimate sweep and more than conceivable application such that it is not unconstitutionally vague. The court also noted that inconsistent enforcement and judicial rulings on the statute may indicate a difference of opinion amongst judges or law enforcement, but does not make the statute unconstitutionally vague.
The court then addressed the appellants’ argument that § 2710 violates the Equal Protection Clause because they are forced to risk criminal prosecution, imprisonment, fines, and forfeiture to gain a determination as to whether a proposed game is legal under the statute. The appellants urged the application of the holding in Ex Parte Young that a state cannot force a party to risk severe penalties to obtain a judicial determination if that determination involves a complicated or technical question of fact. The court found that Young was not applicable because § 2710’s scope and validity is sufficiently clear; determining whether the statute applies to a particular game does not involve the kind of intensive investigation and technical analysis implicated in Young. Furthermore, the court found that the risks are too attenuated for proper application of Young since the historical record of enforcement of § 2710 reveals that the appellants would not face the type of dire criminal prosecution involved in Young if they put a game into operation that turned out to be illegal.
In summary, the court affirmed the judgment of the lower court finding that § 2710 is neither unconstitutionally vague nor violative of the Equal Protection Clause.
– Kassandra Moore