Finding Willing Judicial Partners, Gambling Barons Will Stoop to Anything

A Story of Legalistic Timing & a Willing Judge

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."

By CINDI ROSS SCOPPE,
Associate Editor

"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 law.

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 courthouse.

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 overturned.

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 p.m.

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 the law.

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 again.

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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(posted 9 July 2000)