The Ohio Tenth District Court of Appeals today held (pdf) that limiting the prize value permissibly distributed for a “win” of a game of skill (as opposed to a scheme of chance, which is gambling and always illegal in Ohio) to $10 is an equal protection violation. I find the ruling to be quite an astounding decision, the sort of “judicial activism” decried by conservatives. This is a picture perfect example of a court supplanting its judgment for that of the legislature.
As the court sets up the facts:
R.C. 2915.01(AAA)(1) makes operation of a skill-based amusement machine lawful where prizes awarded are worth $10 or less, but makes operation of the same machine unlawful where the prizes awarded are worth more than $10. Appellants argue that the definition of “skill-based amusement machine” in R.C. 2915.01(AAA)(1) violates the Equal Protection Clauses of the Ohio and United States Constitutions because there is no rational relation between the value of the prizes awarded and the government interest in differentiating between the lawful use of skill-based amusement machines and unlawful participation in gambling.
The court noted the low standard applied to such challenges, quoting from earlier Ohio Supreme Court precedent: “Under the rational basis test ‘great deference is paid to the state, the only requirement being to show that the differential treatment is rationally related to some legitimate state interest.’”
The state argued the following was its objective in limiting skill-game prizes to $10: “the General Assembly is free to conclude that the gambling instinct is likely to be engaged by high-value prizes, but that the [player's] legitimate goal of amusement is accomplished with prizes under ten dollars wholesale value.” The state also notes: “[T]he fact the line might have been drawn differently at some points is a matter for the legislative, rather than judicial, consideration.”
The court then concludes:
The essential ingredient that differentiates merely playing a game for amusement (which can include the added amusement of a prize) and playing a game for amusement that constitutes gambling, is whether the outcome is determined in whole or in part by chance. The General Assembly codified that distinction with respect to amusement machines when it made chance-based machines illegal and skill-based machines legal, through enactment of R.C. 2915.01(AAA)(2). However, though the state certainly has a legitimate interest in regulating gambling, we fail to discern how the distinction between machines that reward players with prizes worth over $10 and those that reward players with prizes worth $10 or less is rationally related to the goal of furthering that interest.
I don’t see how this opinion possibly could be upheld on appeal. The court simply said that it didn’t agree with the legislature’s detirmination that a $10 prize limit lessened the likelihood that players would be treating the games like gambling, with associated concerns that led the state to outlaw gambling. It said that it didn’t agree, and then struck the statute — under rational basis review — as a violation of equal protection.
Judicial activism at work!
[FULL DISCLOSURE: I was working for the Attorney General's office during consideration and passage of this legislation. The A.G.'s Office, as explained in the court's opinion, was very involved in the underlying facts of the issues of this case.]
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
So does this mean carnivals and fairs can’t give away stuffed animals worth more than $10? If so,I’m all for that. I feel bad for the guys who have to lug around a panda bear bigger than them just for their date.
Can I get a Williamson v. Lee Optical witness:
But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. “For protection against abuses by legislatures the people must resort to the polls, not to the courts….”
Manos Torgo,
If based on the value of the Chinese sweatshop labor and cheap materials, trust me, even the biggest carnival panda ain’t worth more than $10.
Oh so true! Especially the lead-filled pandas.
I have a few questions about both the specifics of the decision and the judges who made it. First, how exactly is the distinction made between ‘games of chance’ and ‘games of skill.’ For example I would assume that ordinary slot machines would be ‘games of chance’ while something like pinball would be, provably, a game of skill, but is it so defined? Can you, from your work on the case give a better idea of what the distnction is, according to Ohio law?
More importantly, who were these judges? Were they appointed or elected? Did they run on a partisan ticket, and are they considered, in general, partisan?
As for the decision, I condemn it wherever on the spectrum it came from. I rarely use the term ‘judicial activism’ because it has come to mean ‘making a Constitutional decision I don’t like,’ but if any case fits it, this does. And it doewsn’t matter in the slightest if I agree with the distinction the legislature made, the question was did they have a reasonable basis for making such a decision. If so, I can’t see how a court can refuse deference to legislative findings — isn’t that the substance of a good part of the testimony I heard this week?
I don’t know how easily one can distinguish games of chance from those of skill. I am pretty unskilled at poker, but I occasionally get ahead in a game based on chance (always end up losing though due to fundamental lack of skill).
I just wanted to say, let’s not discount the value of a rational basis test that actually has some bite. It was the Iowa Supreme Court’s striking down of similarly arbitrary taxation statutes (a case known as RACI and it sequel, AKA RACI II) that led Lambda Legal to believe it might be a good place to bring a marriage lawsuit — and we’ve seen the products of that intuition.
I’m going to hope that you were using the word “activist” ironically, then.