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COA: Casinos can't ban card counters

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An Indiana casino cannot stop someone from playing regulated blackjack simply because he counts cards, the Indiana Court of Appeals ruled today.

In its unanimous decision in Thomas P. Donovan v. Grand Victoria Casino & Resort, L.P., No. 49A02-0903-CV-259, a three-judge panel ruled in favor of Thomas P. Donovan, who challenged a Southern Indiana riverboat casino's decision to ban him from playing blackjack there.

A self-taught "advantage player" who uses blackjack to supplement his income, Thomas Donovan played at the Grand Victoria casino in Rising Sun for about three months in 2006 under an agreement with a floor supervisor, saying that he maintain a $25 per-hand betting limit. But when a new supervisor took over, Donovan was told he was no longer welcome to play blackjack there. The 50-year-old, semi-retired computer programmer sued the casino in Marion Superior Court; the casino won earlier this year when Marion Superior Judge Robyn Moberly granted it summary judgment.

Donovan appealed, arguing that he never attempted to hide his card counting and that the practice isn't cheating or prohibited by gaming law or administrative rule. Casino attorneys argued that Grand Victoria is "a private amusement" that doesn't have to accept anyone who visits; attorneys cited a 1994 appeals court decision backing a shopping mall's right to bar a customer and said casinos have the same right.

But the appellate panel disagreed, saying that precedent from Wilhoite v. Melvin Simon & Associates Inc., 640 N.E.2d 382, 385 (Ind. Ct. App. 1994), doesn't apply in this case because of the Indiana Gaming Commission's statutory rule-making authority of casinos.

Siding with Donovan's points, the court granted summary judgment on his request for declaratory judgment to the effect that Grand Victoria may not exclude him from playing blackjack because of his card counting. The judges relied on a New Jersey case, Uston v. Resorts Int'l Hotel Inc., 89 N.J. 163, 445 A.2d 370 (1982), involving a card counter who was also expelled from a casino there.

The General Assembly gave the Indiana Gaming Commission rule-making authority to balance the respective rights of private property owners and the patron, the court wrote, but it didn't outright ban the card-counting practice.

"Grand Victoria may not simply take refuge in the common law right of exclusion, inasmuch as is the public policy of this State that gambling is subject to 'strict regulation'... and the Commission has been given the exclusive authority to set rules of riverboat casino games," the court wrote. "The Commission did not enact a provision against card counting and Grand Victoria did not seek a prohibition by rule amendment. No law, regulation, or duly promulgated rule advised Donovan that the skill of card counting was prohibited."

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  3. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

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