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News Update: Justices rule in favor of casinos

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The Indiana Supreme Court has given state casinos a double win, strengthening their rights by saying they can exclude card-counters and that problem gamblers can’t recover damages stemming from gambling losses as long as the casinos are following state regulations.

A pair of split decisions Thursday afternoon came in the highly watched appeals of Caesars Riverboat Casino v. Genevieve M. Kephart, No. 31S01-0909-CV-403, and Thomas P. Donovan v. Grand Victoria Casino & Resort, No. 49S02-1003-CV-00124.

While casinos triumphed in the dual rulings,  the state’s top jurists disagreed on how the two appeals should be resolved when it comes to the intersection of common-law rights and state gambling statutes. In one case, the court decided legislators overrode a gambler’s common-law right to recover damages because of the regulatory scheme on the gaming industry. But in the other case, the justices found that casinos’ common-law right as a business to exclude certain patrons trumps those same state regulations.

In Donovan, the Grand Victoria Casino and Resort at Rising Sun in 2006 banned Thomas P. Donovan, a retired computer programmer from Indianapolis who’s won about $65,000 playing blackjack since 1999. He sued on grounds that the casino had breached a contract and the trial court in Marion County granted summary judgment to the casino. The Court of Appeals reversed on the exclusion issue and held Donovan was entitled to a declaratory judgment that the casino couldn’t exclude him for counting cards.

The case drew statewide attention, including an opinion from Gov. Mitch Daniels during a commencement speech where he rooted in favor of Donovan because it appeared he used his intelligence and skill to win rather than luck.

But in its ruling Thursday, the Supreme Court held that businesses have a common-law right to exclude a visitor or customer, subject only to civil rights laws.

"This long-standing common law right of private property owners extends to the operator of a riverboat casino that wishes to exclude a patron for employing strategies designed to give the patron a statistical advantage over the casino," Justice Frank Sullivan Jr. wrote for the majority.

Justice Robert D. Rucker didn’t participate in the case, leaving only the four justices to decide it. Justice Brent Dickson was the sole dissenter, criticizing the court’s common-law analysis that differed from the other casino case issued the same day. He said the casinos exist in Indiana only by the recent permission of the General Assembly, and that they have a common-law duty to serve the general public.

"Permitting a casino to restrict its patrons only to those customers who lack the skill and ability to play such games well intrudes upon principles of fair and equal competition and provides unfair financial advantages and rewards to casino operators," he wrote.

Justice Dickson said the court should use the same common-law rationale as it outlined in its separate Kephart decision, in which he also dissented.

The Kephart case is out of Harrison Circuit Court and involved a Tennessee woman who lost $125,000 in a single night of gambling at what is now known as Horseshoe Southern Indiana casino along the Ohio River. The casino sued to recover the money it had lent it her, and Genevieve Kephart counter-sued on a claim that the casino had a common-law duty to protect her because it knew of her pathological gambling history and it used that to entice her with free meals and rooms, provided a car to drive her from Tennessee to Indiana to gamble and lent her credit to support her habit. The trial court declined to dismiss the case on that issue and the Court of Appeals reversed. The justices granted transfer.

In a 4-1 decision authored by Justice Rucker, the court ruled that problem gamblers have the responsibility to look after themselves and casinos can't be expected to protect them if they don't – one of those options used in this case was a voluntary exclusion program allowing compulsive gamblers to place their names on a list of patrons to be banned from casinos.

“In this case, not only does the statutory scheme cover the entire subject of riverboat gambling, but the statutory scheme and Kephart’s common law claim are so incompatible that they cannot both occupy the same space,” Justice Rucker wrote. “The existence of the voluntary exclusion program suggests the legislature intended pathological gamblers to take personal responsibility to prevent and protect themselves against compulsive gambling. To allow Kephart’s claim to go forward under the common law would shift primary responsibility from the gambler to casino.”

Chief Justice Randall T. Shepard and Justice Sullivan concurred while Justice Theodore Boehm concurred in result and offered an analysis of a nearly 20-year-old standard used to reach the decision, saying that the three-part test detailed in Webb v. Jarvis, 575 N.E. 2d 992, 995 (Ind. 1991), causes more confusion than light.

In his dissent, though, Justice Dickson described the result of this case as particularly disturbing because it goes against long-established common-law rights and he disagreed with how the majority used an “implied abrogation” standard for Kephart but came to a different decision in Donovan.

“Nowhere in Indiana’s statutory system of gambling regulation is there any provision that expressly or unmistakably abrogates Indiana’s common law requiring business operators to exercise reasonable care for the safety of their customers and subjecting them to accountability in damages for failing to do so,” he wrote.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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