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Justices of the Georgia Supreme Court held their cards close to the vest Monday in arguments over the constitutionality of a state law banning video poker machines. The justices waited about 15 minutes into the 50-minute oral argument before interrupting lawyers to ask questions. When they did, the questions revealed only glimpses into the justices’ thinking on the issue. Emmet J. Bondurant, a special assistant attorney general arguing that a Fulton trial judge “mismatched legal principles” when he held the law unconstitutionally vague, spoke uninterrupted for nine minutes before he stopped and reserved the rest of his time for rebuttal. Then Alan I. Begner, representing gaming machine owners who challenged the law, made his case for another several minutes before Justice Robert Benham broke the court’s silence. Benham wanted to confirm that the gaming machine owners were arguing that a South Carolina law banning similar machines, and upheld by that state’s courts, was “drastically different” than the Georgia law at issue. “Yes,” Begner said, then quickly moved back to his litany of examples showing that the Georgia law was so vague that people could not tell which machines were illegal and which were legal. PIGGY BANKS INCLUDED? Noting that the law banned not only slot machines and video poker games but also simulations and variations, Begner argued that the law could ban children’s piggy banks that resembled slot machines as well as card games such as go fish and gin rummy. Monday’s afternoon session was the latest episode in a seven-month legislative and legal odyssey for the law, passed hastily during a special session of the General Assembly last summer. The act amended three state code sections to change the definition of “gambling device” to make coin-operated video poker, blackjack, keno and video slot machines illegal. State authorities claimed the law cracks down on an annual $1 billion illegal industry, while gaming machine owners say it deprives them of millions of dollars of legal business assets. About 20 gaming machine owners came Monday to watch the arguments. After an unsuccessful foray into federal court late last year, the gaming machine owners challenged the law before Judge John J. Goger of Fulton Superior Court. Goger blocked the law from going into effect and in January issued a 13-page ruling that declared the law unconstitutionally overbroad and vague. Phoenix Amusements v. Barnes and Old South Amusements v. Georgia, Nos. 2001CV46725 and 2001CV46705 (Fult. Super. Jan. 14, 2002). Goger said that the law’s definition of a “gambling device” includes a variety of games that could be played simply for amusement. On Monday, Bondurant opened by citing a 1982 decision by the U.S. Supreme Court, Village of Hoffman Estates v. The Flipside, 455 U.S. 489. The decision held that an Illinois township’s ordinance requiring businesses selling products “designed or marketed for use with illegal cannabis or drugs” to get licenses and record customers’ names was not unconstitutionally overbroad or vague in part because it did not affect constitutionally protected conduct. NOT A FUNDAMENTAL RIGHT? Similarly, Bondurant based his argument on the premise that owning a video poker machine was not a fundamental right and a law prohibiting the machines need only be reasonably related to a legitimate government objective. Another lawyer representing the machine owners, David J. Bederman, ran into some trouble with Presiding Justice Leah Ward Sears. When Sears noted that laws struck down as overbroad usually involved free speech, Bederman conceded that Goger may have made a mistake in finding the law overbroad. Bederman said he preferred the word “over-inclusive,” but he held his ground that the law was still unconstitutionally vague. Justice George H. Carley focused on the plaintiffs’ argument that the law was too vague because it outlawed games “operated for any consideration,” possibly meaning that the mere purchase of a game resembling poker would be illegal. COMPUTER GAME ILLEGAL? When Bondurant returned for rebuttal, Carley asked whether the law precludes someone from buying a computer program that played blackjack. “No,” Bondurant said. “It’s not operated for consideration.” Merely paying is not consideration? Carley followed. “We know what gambling is and we know what slot machines are,” Bondurant argued, accusing the plaintiffs of playing “word games” with the statute. Bondurant also took a shot at the plaintiffs’ argument — one noted by Goger — that it was unclear under the law whether games at amusement venues such as Dave & Buster’s were prohibited. Bondurant said the plaintiffs had no standing to make that argument, because “Dave & Buster’s is not a plaintiff in this case.”

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