Willing Judicial Partners, Gambling Barons Will Stoop to
A Story of Legalistic Timing & a Willing
Published Sunday, 9 July 2000, in The State (a
South Carolina newspaper):
"High court, law enforcement put an end to poker's
abuse of S.C."
"Most people know generally about poker's final,
dramatic play: Just hours before the ban on video gambling was to take effect, Henry Ingram
got a judge to issue an order allowing him to ignore the ban; a few hours later, in a hastily
convened late-night session, the Supreme Court overturned that order.
But the details are worth knowing as well, for two
reasons. The way Circuit Judge Gerald Smoak's order came about demonstrates the extraordinary
lengths to which the gambling industry has gone to manipulate our court system -- and the
success it has had in doing so.
And the bold and decisive way the state Supreme
Court, the State Law Enforcement Division and the attorney general's office responded should
remove any lingering doubts about their willingness or ability to uphold the rule of
The most remarkable thing about the case of Ingram
vs. Stewart is that Judge Smoak issued his order ex parte, or without hearing from anyone
except Mr. Ingram.
Court rules say that such orders are to be issued
only in emergencies. In order to even request an ex parte ruling, Mr. Ingram's attorney,
Brent Kiker, had to certify that he had not let the state know the suit had been filed "as
such consultation could not be timely held." It takes a lot of chutzpah to swear such a
statement under oath, knowing full well that the attorney general's office was open and could
have participated by phone in the hearing.
Mr. Ingram had known since Oct. 14 that his
gambling machines would become contraband at midnight on July 1. But he waited until 1:28
p.m. on Friday, June 30, to file a complaint for injunctive relief at the Jasper County
Just 47 minutes later, at 2:15 p.m., Judge Smoak
-- in his last official act before retiring from the bench -- signed an order restraining the
state of South Carolina from enforcing the law against Mr. Ingram.
Then Judge Smoak filed the order with the court
and, four minutes later, swore in his successor. Mr. Ingram went home and called Pete Nardi,
a reporter with The (Hilton Head) Island Packet, to brag about what he had done. Mr. Kiker
said in court papers that he put a copy of the order and the original complaint in the mail
to the attorney general and SLED -- apparently having never heard of a fax machine or a
telephone. Those documents arrived in Columbia five days later.
The order would have stood at least through the
weekend had Mr. Nardi not called SLED Chief Robert Stewart and officials with the attorney
general's office for comment, around 5 p.m. What followed was a four-hour scramble by lawyers
and police to get their hands on a copy of the order and to get it
Chief Stewart called S.C. Chief Justice Jean Toal
to find out if the court could consider a motion to overturn the injunction that day; she
said it could if it had a copy of the order. Assistant Deputy Attorney General Robert Cook
started drafting motions to make to the court.
Finally, around 9 p.m., a SLED agent got an answer
at Mr. Kiker's office. The person on the phone faxed a copy of the order to SLED at 9:19
Chief Stewart took the order to Justice Toal's
Shandon home. Justice Toal asked Justice Costa Pleicones, who lives five blocks away, to come
over, got Justice James Moore on the phone and convened the court in her kitchen. She tried,
unsuccessfully, to reach Mr. Kiker. Mr. Cook, by phone from his office, joined Chief Stewart
in requesting the court to overturn the injunction.
At 10:15 p.m., Justice Toal handed Chief Stewart a
two-page, handwritten order doing just that.
Once they heard the motion, the justices had no
choice but to supersede Judge Smoak's order. The judge had not made a finding that Mr. Ingram
was likely to prevail on the merits of the case; that is required before a judge can restrain
the state from enforcing its laws. But it was impossible in this case. In the last nine
months, the Supreme Court had issued three video poker rulings, which together rejected every
single issue in the complaint.
The Ingram episode took the gambling industry's
abuse of our court system to a new level. But it was hardly out of character. In fact, it
followed the pattern that the poker barons had used repeatedly to grow and prosper by
ignoring our laws: Wait until the last possible minute to raise an issue that has absolutely
no legitimacy, then find a judge who will issue a temporary restraining order that lets you
keep breaking the law.
This worked because court procedures are designed
to protect individuals from being mistreated by the government; judges would rather err on
the side of issuing a temporary restraining order that isn't needed than risk letting the
state violate someone's rights. The poker barons took advantage of those protections, turning
them into a weapon with which to mistreat the government.
They knew full well that their arguments had no
legal merit and that the restraining orders would be overturned. But it can take months or
even years for cases to be decided on the merits. Meanwhile, the poker machines would keep
humming, practically printing money, at an average rate of $68.50 a day. At that rate --
which surely would have been low with the rest of the poker machines in the state shut down
-- Mr. Ingram stood to make $185,000 off the nine-day ticket Judge Smoak wrote him to violate
On Wednesday, in asking the Supreme Court to
reverse its Friday night order, Mr. Ingram whined that "ordinary citizens of this state have
never been permitted to avail themselves of the short circuited procedure which was used by
the petitioners (the state) in obtaining the Order." If Mr. Ingram had been talking about the
procedure he used in Judge Smoak's courtroom, he would have been right; ordinary citizens
have not had such opportunities. But the video poker industry has -- time and time
At 10:15 p.m. on June 30, Justice Toal
administered the video poker industry a heavily diluted dose of its own medicine. Mr. Ingram
obviously didn't like the taste."
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