Playing South Dakota Hold 'emThe Bar in Tea might still strike out, and Greenfield's Law

I had a buddy drop me a note as part of a larger group asking if there were some people who might be interested in getting together on the weekend to play poker. It would be a $5 or $10 buy in to cover snacks, etc, and that would be about it.

Having come in second in a family tournament of Texas Hold 'em this weekend, and remembering when I'd play penny ante' poker (5 card draw) on occasion as a youth with my mom and one of her friends - I said I'd love to, but it would have to be during the week. (that Brookings commute again).

Did someone mention poker and money? Immediately, I got a note from another friend who knows a thing or two about law who pointed out a fact that most people were ignoring.

22-25-1. Gambling defined--Keeping gambling establishment--Letting building for gambling -Misdemeanor. Any person who engages in gambling in any form with cards, dice, or other implements or devices of any kind wherein anything valuable is wagered upon the outcome, or who keeps any establishment, place, equipment, or apparatus for such gambling or any agents or employees for such purpose, or any person who knowingly lets any establishment, structure, place, equipment, or apparatus for such gambling is guilty of a Class 2 misdemeanor.

Darned technicalities. You would have thought that this would have ended things there. Everyone agreed to bring their own munchies, and no money would be involved. This spawned more commentary, and one of the correspondents added a thing or two about how pretty soon, we'll be able to play as we had originally intended legally in bars:

A friend of my mom got fined at a bar he owns for running a poker night. He is actually going to have a thing on the next election vote this coming Nov to make poker nights at bars legal in the state.

Now, knowing a thing or two about elections - or at least thinking I do - I decided to inform everyone why it just wasn't as simple as that. (And you can wonder out loud why I have friends who will put up with me):

The petition language can be found here:
http://www.sdsos.gov/electionsvoteregistration/electvoterpdfs/gamblingterm.pdf

According to state election law, to be on the ballot the person has to submit 16,728 VALID signatures to the Secretary of State's Office by May 2, 2006. They started about December 16th.

If and only IF they complete the first hurdle, then it's put to a vote of the people. And the odds aren't with them. According to the Secretary of State's website: "Forty-one initiatives have been on the ballot. Sixteen of these have passed for a 39.0% success rate."

South Dakota might be a gambling state, but my prediction is that despite the current popularity of Texas hold 'em at the moment, this measure is going to be put down like a broken legged horse.

Imparting the repository of useless wisdom that my brain contains, I thought this clarified the status of the measure - but to my suprise and glee, some really interesting things started to come forth about the measure to legalize Texas Hold 'Em..

The person who we'll call "the knower of laws" (who originally pointed out that our proposed method of entertainment was legally on the fringe until we changed it) then hit us all with a further clarification of the Texas Hold em measure. One that Mr. Todd Erks of Tea, SD - the sponsor of the measure to legalize the games in South Dakota - better start considering as he promotes this measure:

It is unconstitutional. The state constitution only allows for Deadwood, the state lottery and charitable gaming. All other gambling is illegal under SD Cont.Art. III sec. 25.

§ 25. Games of chance prohibited--Exceptions. The Legislature shall not authorize any game of chance, lottery, or gift enterprise, under any pretense, or for any purpose whatever provided, however, it shall be lawful for the Legislature to authorize by law, bona fide veterans, charitable, educational, religious or fraternal organizations, civic and service clubs, volunteer fire departments, or such other public spirited organizations as it may recognize, to conduct games of chance when the entire net proceeds of such games of chance are to be devoted to educational, charitable, patriotic, religious, or other public spirited uses. However, it shall be lawful for the Legislature to authorize by law a state lottery or video games of chance, or both, which are regulated by the state of South Dakota, either separately by the state or jointly with one or more states, and which are owned and operated by the state of South Dakota, either separately by the state or jointly with one or more states or persons, provided any such video games of chance shall not directly dispense coins or tokens. However, the Legislature shall not expand the statutory authority existing as of June 1, 1994, regarding any private ownership of state lottery games or video games of chance, or both. The Legislature shall establish the portion of proceeds due the state from such lottery or video games of chance, or both, and the purposes for which those proceeds are to be used. SDCL 42-7A, and its amendments, regulations, and related laws, and all acts and contracts relying for authority upon such laws and regulations, beginning July 1, 1987, to the effective date of this amendment, are ratified and approved. Further, it shall be lawful for the Legislature to authorize by law, limited card games and slot machines within the city limits of Deadwood, provided that 60% of the voters of the City of Deadwood approve legislatively authorized card games and slot machines at an election called for such purpose. The entire net Municipal proceeds of such card games and slot machines shall be devoted to the Historic Restoration and Preservation of Deadwood.

But when you look at it, the initiated measure is simply that - an initiated measure and not a change in the state constitution. So, that really begs the question. Is a change in state law sufficient to allow games like this to occur in bars?

The "knower of laws" continued and did discuss SD 191, sponsored by Senator Brock Greenfield:

Until SB 191 passes, all card games except at Deadwood are illegal. If SB 191 passes then charitable card games would be legal (remember the constitution allows charitable games). The way some bars are doing it legally is to not have a buy in or entry fee and a 3rd party donates the prizes (ie Budweiser). To be gambling you must have chance, prize and consideration. If you take away one of these 3 elements it is not gambling.

But if you go back and look at the language of the ballot measure as it rewrites a bit of chapter 22-25, it says:

The person or entity hosting the contest may award prize money that is obtained from the entry fees of the competitors. No money in addition to the entry fee may be bet or wagered on the outcome of the contest....

Now, the ballot measure also tries to make the statement that "the role of the entrants skill is equal to or greater than the role of chance in determining the final outcome." BUT that element of chance in the game still exists, which begs the issue - who cares what state law is, because whether or not it would still qualify as gambling allowed in South Dakota is ultimately going to be decided by the constitution.

So as the ballot measure is putting forth, it looks like if the measure passed you would still have the problem with the test of "chance, prize and consideration" which could run afoul of the constitution.

Making this even more interesting, the correspondent who's mom lives down that way also had this to add:

Yes it is the one. He has the signatures last I heard. I think he is getting a lot more to make sure they are all legal voters before sending it in.

I have no idea if it will pass. A lot depends on who will fight it.

Apparently the Texas Hold 'Em measure may be fighting the toughest opponent of all. The South Dakota Constitution.

Stay tuned.