More Luck Than Skill in Poker, Pennsylvania Court Claims
2-1 Ruling Reverses Earlier Decision
It’s a decision that will leave many poker players scratching their heads.
“While the outcome of poker may be dependent on skill to some degree, it is predominantly a game of chance,” Judge Robert Freedberg wrote in an opinion last week.
So yeah, if you’ve been making a living through poker, consider yourself blessed. Because according to the Superior Court of Pennsylvania, you’re one lucky guy (or girl). Or, at least, you’re winning at a game that is primarily luck.
The controversial 2-1 ruling by the court reversed a trial judge’s ruling from January 2009 that poker was more of a game of skill than a game of chance, and thus not subject to the state’s illegal gambling laws.
The Poker Players Alliance released a statement saying it was “disappointed” with the ruling, but that “the case is not over,” indicating that the organization believes the defendants will appeal to the state’s supreme court.
The case in question centers on two individuals, Walter Watkins and his girlfriend at the time, Diane Dent, who were running a small-stakes poker game out of his garage.
The game of choice was usually $1-$2 no-limit hold’em, according to various news outlets, although the recent Superior Court opinion described it as a game where “players placed bets worth $1.00 or $2.00 into the ‘pot’ and at the conclusion of each game the winner would receive the pot.”
However, an undercover state trooper began attending the games and eventually broke it up, prosecuting the individuals under Pennsylvania’s illegal gambling laws.
However, Watkins and Dent refused to plead guilty and decided to take the case to court. Thanks to both Pennsylvania law and a previous state supreme court decision, they found themselves in a great position to exonerate themselves.
While many states outlaw “games of chance” — a description the PPA and others believe poker cannot be called — the state of Pennsylvania goes one step further. Based on a 1983 Pennsylvania Supreme Court decision, “for a game to constitute gambling, it must be a game where chanced predominates rather than skill.”
So, even if you believe that the terms are not mutually exclusive and that poker can be both a game of skill and a game of chance, it is not considered illegal gambling in Pennsylvania if it is determined that there is more skill involved than chance.
That’s why trial judge Thomas James initially threw out the case, saying that it was clear to him after the evidence was presented that poker was a game of skill.
But the state appealed and the Superior Court overruled James’ verdict in a 2-1 ruling last week.
In Judge Freedberg’s decision, he pointed to a variety of court decisions from across the United States that identified poker as a “game of chance” — including a 1904 New York case, a 1911 Missouri case, 1919 Nevada case, a 1927 Oregon case, a 1928 Utah case, a 1935 Kansas case, a 1971 Washington case, a 1995 New York case, and a 2007 North Carolina case.
While those states do not have as explicit a “dominant factor” test as Pennsylvania has because of its supreme court’s 1983 decision, the Superior Court of Pennsylvania decided that it was clear to them that poker was, for the most part, a game of chance.
“We agree with the cases cited above that, while the outcome of poker may be dependent on skill to some degree, it is predominantly a game of chance,” the court wrote.
Judge Robert Colville disagreed with his two fellow judges, and issued a dissenting opinion. He didn’t argue that poker was necessarily a game of skill, but said that the commonwealth had failed to prove in court that poker was primarily a game of chance.
“The Commonwealth failed to present any evidence which, if accepted as true, would prove that the games played at the Appellants’ Texas Hold’em Poker tournaments were games where chance predominated over skill. In other words, the Commonwealth failed to meet its burden of proof at the hearing,” wrote Colville.
Although a decision to appeal to the Pennsylvania Supreme Court is up to the two poker players involved, it seems clear that the PPA hopes that they will do.
“We think it is likely that the case will promptly be pursued to the Pennsylvania Supreme Court, which will have the final word on that state’s laws,” said John Pappas, the executive director of the PPA. “That Court should agree with the excellent opinion of the trial judge in this case, who recognized that poker is a game of skill, not illegal gambling.”
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