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Lawyers for video poker machine owners spent Tuesday studying the bad hand of cards they were dealt by the Georgia Supreme Court, which held unanimously that a state ban on the machines indeed is constitutional. The lawyers said they plan to ask the high court to reconsider — or at the very least clarify — its decision, which reversed a January ruling by Judge John J. Goger of Fulton Superior Court declaring the law unconstitutionally vague and over-inclusive. “The ruling is brutal,” said Alan I. Begner, who represented some of the gaming machine owners. He added that it was still unclear whether the law violated Georgia’s right to privacy precedent when applied to machines operated in one’s own home for personal, noncommercial use. “I’d hate to be in trouble for having one in my basement,” added Begner, who said he indeed does have a machine in his basement. If the gaming machine owners don’t get relief from the state high court, they might apply for certiorari at the U.S. Supreme Court or bring their case again to a federal district court, said Begner and Mark Van Spix, who represents a companion group of machine owners. FEDERAL INVOLVEMENT UNLIKELY Both choices look like uphill battles. Statistics show that the U.S. high court grants about 1 percent of the petitions for certiorari. Late last year, a federal judge refused to hear the gaming machine owners’ challenge due to states’ 11th Amendment immunity from suits. Georgia Gov. Roy E. Barnes, who signed the hastily passed measure into law last year, said, “This decision will allow us to put an end to video poker before it brings any more harm to our citizens.” The law gives machine owners until June 30 to sell their machines to people in states that allow them. After that date, Barnes said, the Georgia Bureau of Investigation and local police will begin to enforce the law, which makes it a misdemeanor to own the machines. In his January decision, Goger had said that the law’s definitions of a “gambling device” were so vague that it created “an ad infinitum list of games which would be arguably illegal.” “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,” Goger concluded. But writing for the high court, Justice Hugh P. Thompson disagreed. “The legislature is not required to draft its statutes with mathematical precision,” he wrote. “Although uncertainties may lurk in the words employed by the act � we believe that persons of common intelligence will readily ascertain what the act prohibits.” “After all,” Thompson added, “the words ‘slot machine,’ ‘simulation,’ ‘variation,’ ‘pictures,’ ‘representations’ and ‘symbols,’ all possess common meaning.” State of Georgia v. Old South Amusements and State of Georgia v. Phoenix Amusements, Nos. S02A0791 and S02A0792 (Sup. Ct. Ga. May 28, 2002). Thompson went on to agree with Goger that “the legislature could have taken a less drastic approach to eliminate the evil of video poker gambling.” “However, that is irrelevant to our inquiry,” Thompson added. The plaintiffs were not members of a protected class, and there is no fundamental right to own an amusement machine, Thompson wrote. Therefore, he concluded, the court would uphold the law as long as it found that the act was rationally related to the state’s objective of ensuring amusement machines were not used for illegal cash payouts. The court also addressed the amusement machine owners’ claim that the law violated their Georgia constitutional right not to have property taken by the government without just compensation. LIQUOR BAN CITED The plaintiffs had relied on a 1990 state high court decision that struck down a local sign ordinance, but Thompson compared the use of amusement machines to the regulation of alcohol, dusting off an 1887 decision upholding an Atlanta law prohibiting the possession of liquor. He cited Menken v. City of Atlanta, 78 Ga. 668, in which the court wrote that the anti-liquor law “does not take or damage the property of these owners for the public use, but only prevents them, to a certain limited extent, from taking or damaging the public for their use.” Thompson concluded the video poker law “does not take business property for public use; it merely requires an already regulated business to adjust its property to the new law.” Georgia Attorney General Thurbert E. Baker called bringing a takings case “difficult” for the plaintiffs. Baker said his reading of the decision shows that the machines will be considered contraband after June 30, although he said the decision would probably not take effect for another two weeks or so in order to give the other side time to ask for reconsideration. Spix, one of the lawyers for the gaming machine owners, called the decision “just devastating,” comparing the process that must be undertaken by gaming machine owners to that of someone told to remove all dark socks from his dresser. Certainly black socks are included, he said, but “who’s going to answer the question of whether the blue socks” are included? Spix called the high court’s decision “an insult to Judge Goger.” Along with Begner and Spix, Emory University law professor David J. Bederman, Howard J. Manchel and Jerome J. Froelich Jr. represented the gaming machine owners at the April oral argument before the high court. A team of Bondurant, Mixson & Elmore partners — Emmet J. Bondurant, Frank M. Lowery IV and Michael B. Terry — represented the state, along with Senior Assistant Attorney General Christopher S. Brasher. Staff Reporter Janet L. Conley contributed to this report.

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