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Seven months after its birth at the Georgia Capitol, the law banning video poker machines has gone as far as … across the street. The Georgia Supreme Court is set to hear arguments Monday over whether the statute is unconstitutionally overbroad and vague — which is what Judge John J. Goger of Fulton Superior Court concluded in January. The 2 p.m. showdown will be the latest hurdle for the law, passed hastily during a special session of the Georgia 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. After an unsuccessful foray into federal court, gaming machine owners challenged the law before Goger. In late December, just days before the law was to go into effect, Goger expressed doubts about the law’s constitutionality and issued a temporary restraining order against the state. Three weeks later, he issued a 13-page ruling that declared the law “unconstitutional and void for vagueness pursuant to the Due Process Clause.” Phoenix Amusements v. Barnes and Old South Amusements v. Georgia, Nos. 2001CV46725 (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. Another section of the law makes illegal slot machines “or any simulation or variation thereof” and “any variation of poker, black jack, any other card game.” Those definitions were so vague, Goger said, they “provide an ad infinitum list of games which would be arguably illegal.” Goger concluded, “This is the sort of lawmaking which poses a real threat to liberty. … Exposing innocent conduct to criminal prosecution because of the difficulty or expense associated with defining illegal conduct (which is the object of the legislation) is 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 next time the conduct might be something not quite as unpopular as gambling.” Both sides have tapped appellate experts to represent them before the justices. State Attorney General Thurbert E. Baker has retained Emmet J. Bondurant of Atlanta’s Bondurant, Mixson & Elmore, while Emory University constitutional law scholar David J. Bederman will represent the gaming machine owners. Bondurant is a noted trial and appellate lawyer, who last went before the state high court in March, representing Alpharetta, Ga.-based Golden Peanut Co. in a fight over millions of dollars of peanut contracts. Bederman, who teaches international and constitutional law at Emory, said he never has argued before the state high court, but he recently discovered a busy niche before the U.S. Supreme Court. In February, Bederman argued against the state of Georgia at the U.S. high court in a case challenging the state’s 11th Amendment immunity from suits. He’s set to go there again next fall to argue a related issue. (It was the state’s 11th Amendment immunity that doomed the gaming machine owners’ first challenge in federal court last year.) The state’s brief, signed also by Bondurant’s partners Michael B. Terry and Frank M. Lowrey IV and Baker, Mary Beth Westmoreland and Christopher S. Brasher of the attorney general’s office, argues first that “Possession of a video poker machine is not a fundamental right.” That statement frames their case that Goger used the wrong standard by which to judge the video poker law. Laws restricting fundamental rights are subject to “strict scrutiny” by the courts, the lawyers argue. But when reviewing other laws, they add, judges must use the “rational-basis test,” by which a court will uphold a law as long as it bears a reasonable relationship to attaining a legitimate government objective. Moreover, the state brief explains, the plaintiffs had no standing to bring the case because they did not claim that the law was vague as applied to their machines, only as applied to hypothetical amusement-only games. The plaintiff’s brief was signed by Bederman and the lawyers who argued the case before Goger — Howard J. Manchel, Mark V. Spix and Jerome J. Froelich Jr. They say that the state trivializes Goger’s decision by arguing that the right to own a video poker machine is not constitutionally protected. “But they miss the more important point: that the right not to ‘be deprived of … property, without due process of law’ most emphatically is a fundamental right protected by the U.S. and Georgia Constitutions, the supreme law of the land. “Whether judged by a strict scrutiny or rational basis standard the Act fails on equal protection overbreadth grounds,” the plaintiffs say. The lawyers add the law is so vague that “Police, prosecutors, judges, juries and the public-at-large can only guess at its meaning and will differ widely as to its application.” Finally, they respond to the state’s argument that the plaintiffs lack standing. “There is nothing in the least ‘hypothetical’ about the potential impact of this Act upon them,” as they stand to have their valuable business assets transformed into criminal liabilities.

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