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Fulton County, Ga., Superior Court Judge John J. Goger hinted late last year that he was troubled by Georgia’s new law banning video poker machines. “Any time the state gets into the business of trying to regulate the conduct of its citizens, it’s critical that the most precise and definite language be used,” he said before issuing a temporary restraining order on Dec. 28. Following two weeks of studying the issue, Goger seemed to confirm his initial view of the law, passed during a hectic special legislative session last summer. On Monday he issued a permanent injunction restraining enforcement of the law, calling it unconstitutionally overbroad and vague. The law would have made coin-operated video poker, blackjack and keno games illegal, and also banned video slot machines. Presently, the computerized gaming equipment may be owned and operated legally in Georgia as long as winnings are paid out in merchandise rather than in cash. But Goger found that the statute didn’t address the purported evil it apparently was intended to halt: gambling. As written, the statute made machines that do not involve gambling — meaning those that are not played to receive a reward — illegal, Goger found in his 14-page ruling. And, he wrote, the statutory language is so vague in describing what type of machines are illegal that it provides an “ad infinitum” list of games that would be banned. “The Legislature’s goal of preventing gambling is not served by an absolute ban on non-reward, pure amusement video games,” Goger wrote. “As the Legislature must acknowledge, the ‘evil’ of gambling does not inhere in the games of poker or blackjack themselves, but in the act of a winning player receiving compensation therefrom.” Goger concluded, “However well intentioned this legislation may be, it must be doomed. The law criminalizes a game when it is being played and operated as a game. This is the sort of law-making which poses a real threat to liberty.” He cited a Georgia Bureau of Investigation study that suggested an outright ban on all video poker machines was more efficient and cheaper than actually prosecuting people who use such machines for gambling. That type of lawmaking, Goger continued, was “a dangerous precedent for crime and punishment. If approved on this occasion, the State might one day choose to employ this method of law-making again and the next time the conduct might be something not quite as unpopular as gambling.” Plaintiffs’ attorney Alan I. Begner of Atlanta’s Begner & Begner says he was “just delighted” with the ruling and with Goger’s suggestion that “it’s a bad idea to criminalize these little machines rather than go after gambling.” Russell Willard, spokesman for the state attorney general’s office, says, “We are disappointed in the judge’s decision” and will appeal it. Gov. Roy E. Barnes didn’t spare any words in his criticism of Goger’s ruling. “I think he’s wrong. I’ve read the opinion. If the logic of the opinion is, ‘Well, you can ban the conduct but you cannot ban the instrumentality of the conduct,’ if that were extended to its logical basis you couldn’t ban burglary. … You’d have to actually catch someone actually committing the crime.” On Monday, the first day of the Georgia General Assembly’s 2002 session, lawmakers who had supported the measure appeared less interested in attempting an immediate legislative fix of the law than in hoping Attorney General Thurbert E. Baker would prevail at the Georgia Supreme Court. “Hopefully the judicial process will take care of it,” says state Sen. Mike Beatty, R-Jefferson. During last year’s regular session, Beatty pushed two bills that would have banned the machines but was unsuccessful. Later, during the special session called to deal with redistricting, Democrats moved their own version of the legislation, which passed quickly and was signed by Barnes. State Rep. David E. Lucas Sr., D-Macon, opposed the bill during the special session and says he isn’t surprised by the ruling. “I stated from the well then that I thought it was unconstitutional. The bill was taking perfectly legal folks and putting them out of business.” Goger’s ruling came in two separate suits filed to challenge the new law. The law bans “any contrivance which for a consideration affords the player an opportunity to obtain money or other thing of value, the award of which is determined by chance.” It includes slot machines, “matchup or lineup games,” and any video games that feature poker, blackjack or “any other card game.” It exempts pinball machines, video games, “claw” or “crane” machines, foosball, Skee-Ball and shuffleboard, among others. The law would have made operation and ownership of the gaming equipment illegal. The ban on operation of the equipment was set to take effect Jan. 1, but Goger’s Dec. 28 temporary restraining order and preliminary injunction halted enforcement of the law until he could study the issue further. The plaintiffs in the challenge are gaming-machine owners and renters and were represented by Begner and Atlanta lawyers Howard J. Manchel, Jerome J. Froelich Jr. and Mark V. Spix. They had challenged the law on numerous grounds, including that it was an unconstitutional taking of property without compensation and on privacy grounds (that it made the mere possession in the home of video poker machines illegal). ‘ARBITRARY, OVERBROAD’ But Goger never reached those issues. Instead, he found the law to be “arbitrary, overbroad, and overinclusive, thus violating the Equal Protection Clause” of the Georgia Constitution. Goger noted that, according to the GBI study, a machine is considered a gambling device: when it costs to begin play; when the outcome of an event in play is determined wholly or predominantly by chance; and when there is a reward of something of value which is equal to or greater than the consideration necessary to begin play. The law lists four categories of machines in four subsections, but only the first subsection contains language specifying that a “contrivance” played for a reward is illegal. The three other subsections contain no such language, but the machines described there are delineated as per se gambling devices, Goger noted. Without that critical language in those subsections, the judge found, the law “effectively eliminates all notion of gambling or risk-taking from the machines/devices described therein and for that reason they are not within any previous statutory definition of ‘gambling device’ or even the GBI’s understanding of the term.” The statute also allows various exemptions to the first category of machines that aren’t permitted in the other categories. The result of those omissions, Goger found, is that one group of machines that provide a reward to players is legal as long as “some skill” is involved in play, while three other groups of machines are illegal, regardless of whether reward or skill is involved. “The Act’s exclusion of the critical ‘reward’ phrase in subsections (B), (C), and (D) makes contraband any slot machines, matchup/lineup game machines, and/or video poker/blackjack game machines even if it is played for pure amusement purposes,” Goger wrote. “These provisions outright ban games that can be used for an innocent purpose (i.e., pure amusement) simply because they can also be used for ‘evil’ purposes (i.e., gambling).” Legitimate purpose or not, the law fails because less drastic means of accomplishing the Legislature’s purpose exist, Goger concluded. Goger also found the law was so vague that it violated due process. Laws that make conduct criminal must be definite so that citizens can understand what is proscribed, Goger wrote. But language that prohibits slot machines “or any simulation or variation thereof” and “any other card game” are so vague they could apply to innumerable gaming machines. Vague laws, Goger added, give law enforcement no guidance in deciding which machines are illegal. Staff reporters Jonathan Ringel and Rachel Ramos contributed to this article.

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