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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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