Martin v. Stewart

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMY MARTIN; LUCKY STRIKE LLC, 

Plaintiffs-Appellants,

v.

ROBERT STEWART, as Chief of the

South Carolina Law Enforcement

Division; HENRY MCMASTER, as  No. 06-1829

Attorney General of the State of

South Carolina; RALPH HOISINGTON,

as Solicitor of the Ninth Judicial

Circuit,

Defendants-Appellees.



Appeal from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(2:06-cv-00400-DCN)

Argued: May 24, 2007

Decided: August 29, 2007

Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.

Reversed and remanded by published opinion. Judge Motz wrote the

majority opinion, in which Judge Traxler joined. Judge Wilkinson

wrote a dissenting opinion.

COUNSEL

ARGUED: James Mixon Griffin, Columbia, South Carolina, for

Appellants. Clyde Havird Jones, Jr., Senior Assistant Attorney Gen-

2 MARTIN v. STEWART

eral, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAR-

OLINA, Columbia, South Carolina, for Appellees. ON BRIEF:

Richard A. Harpootlian, Columbia, South Carolina, for Appellants.

Henry Dargan McMaster, Attorney General, John W. McIntosh, Chief

Deputy Attorney General, Robert D. Cook, Assistant Deputy Attor-

ney General, OFFICE OF THE ATTORNEY GENERAL OF

SOUTH CAROLINA, Columbia, South Carolina, for Appellees.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this case, the district court dismissed federal constitutional chal-

lenges to two South Carolina statutes regulating video poker, on the

ground that Burford v. Sun Oil Co., 319 U.S. 315 (1943), mandated

abstention. Because resolution of these challenges neither requires a

court to adjudicate difficult questions of state law, nor disrupts state

efforts to establish through a complex regulatory process a coherent

policy on a matter of substantial public concern, this case falls well

outside the narrow category of cases to which Burford abstention may

apply. Accordingly, we reverse the judgment of the district court and

remand the case for further proceedings consistent with this opinion.

I.

The parties do not dispute the material facts. Jimmy Martin and

Lucky Strike, LLC (collectively Martin), brought this action against

three South Carolina officials in their official capacities: Robert Stew-

art, Chief of the State Law Enforcement Division; Henry McMaster,

Attorney General; and Ralph Hoisington, Solicitor of the Ninth Judi-

cial Circuit (collectively the State). Martin sought to enjoin enforce-

ment of two South Carolina statutes criminalizing certain "device[s]

pertaining to games of chance." S.C. Code Ann. §§ 12-21-2710 &

-2712 (2006). Like all statutes regulating "gambling enterprises," such

legislation lies well within "the state’s police power." Johnson v. Col-

lins Entm’t Co., 199 F.3d 710, 720 (4th Cir. 1999). Martin does not

contend to the contrary, nor does he assert that the South Carolina

statutes violate any state law or policy. Rather, Martin maintains that

the challenged statutes violate the Constitution of the United States.

MARTIN v. STEWART 3

The South Carolina legislature enacted the provisions at issue in a

1999 amendment to South Carolina’s gambling laws. See 1999 S.C.

Acts 1319-23. The first provision, section 12-21-2710,1 makes it

unlawful for a person to "keep on his premises or operate" certain

gaming machines, including "device[s] pertaining to games of

chance." S.C. Code Ann. § 12-21-2710. A violation of this statute

constitutes a misdemeanor, punishable by a fine not to exceed $500,

imprisonment for no more than a year, or both. Id.

The second challenged provision, section 12-21-2712, directs law

enforcement officers to seize machines prohibited by section 12-21-

2710 and bring them before a county magistrate. S.C. Code Ann.

§ 12-21-2712. The magistrate must determine whether the machine

1

Section 12-21-2710 provides in full:

It is unlawful for any person to keep on his premises or oper-

ate or permit to be kept on his premises or operated within this

State any vending or slot machine, or any video game machine

with a free play feature operated by a slot in which is deposited

a coin or thing of value, or other device operated by a slot in

which is deposited a coin or thing of value for the play of poker,

blackjack, keno, lotto, bingo, or craps, or any machine or device

licensed pursuant to Section 12-21-2720 and used for gambling

or any punch board, pull board, or other device pertaining to

games of chance of whatever name or kind, including those

machines, boards, or other devices that display different pictures,

words, or symbols, at different plays or different numbers,

whether in words or figures or, which deposit tokens or coins at

regular intervals or in varying numbers to the player or in the

machine, but the provisions of this section do not extend to coin-

operated nonpayout pin tables, in-line pin games, or to automatic

weighing, measuring, musical, and vending machines which are

constructed as to give a certain uniform and fair return in value

for each coin deposited and in which there is no element of

chance.

Any person violating the provisions of this section is guilty of

a misdemeanor and, upon conviction, must be fined not more

than five hundred dollars or imprisoned for a period of not more

than one year, or both.

S.C. Code Ann. § 12-21-2710 (2006).

4 MARTIN v. STEWART

violates any law and, if it does, order its destruction. Id.2 South Caro-

lina law entitles a machine owner to a post-seizure hearing before a

magistrate to determine the machine’s legality and to an appeal of that

decision to higher courts. See Mims Amusement Co. v. S.C. Law

Enforcement Div., 621 S.E.2d 344, 351 (S.C. 2005). No pre-

enforcement mechanism exists for testing a particular machine’s

legality.

Martin filed this action in federal court in the District of South Car-

olina, asserting that sections 12-21-2710 and 12-21-2712 violate the

Equal Protection and Due Process Clauses of the Fourteenth Amend-

ment. Although the district court had federal question jurisdiction to

consider these constitutional claims, see 28 U.S.C. § 1331 (2000), the

State moved to dismiss. Believing the Burford doctrine required

abstention, the district court granted the motion. Martin v. Stewart,

438 F. Supp. 2d 603, 608-09 (D.S.C. 2006). Martin noted a timely

appeal and we have jurisdiction to consider this appeal under 28

U.S.C. § 1291 (2000).

We review a district court’s decision to abstain under Burford for

abuse of discretion. Harper v. Pub. Serv. Comm’n, 396 F.3d 348, 357-

58 (4th Cir. 2005). A district court abuses its discretion whenever "its

decision is guided by erroneous legal principles." United States v.

Under Seal (In re Grand Jury), 478 F.3d 581, 584 (4th Cir. 2007)

(internal quotation marks omitted); see also Koon v. United States,

518 U.S. 81, 100 (1996) ("A district court by definition abuses its dis-

cretion when it makes an error of law."). Consequently, "there is little

or no discretion to abstain in a case which does not meet traditional

abstention requirements." Dittmer v. County of Suffolk, 146 F.3d 113,

116 (2d Cir. 1998) (internal quotation marks omitted).

2

Section 2712 reads in full:

Any machine, board, or other device prohibited by Section 12-

21-2710 must be seized by any law enforcement officer and at

once taken before any magistrate of the county in which the

machine, board, or device is seized who shall immediately exam-

ine it, and if satisfied that it is in violation of Section 12-21-2710

or any other law of this State, direct that it be immediately

destroyed.

S.C. Code Ann. § 12-21-2712 (2006).

MARTIN v. STEWART 5

II.

The Supreme Court has repeatedly instructed that "federal courts

have a strict duty to exercise the jurisdiction that is conferred upon

them by Congress." Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

716 (1996); see, e.g., Deakins v. Monaghan, 484 U.S. 193, 203 (1988)

("[T]he federal courts have a virtually unflagging obligation to exer-

cise their jurisdiction . . . ." (internal quotation marks omitted));

England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 415 (1964)

("‘When a Federal court is properly appealed to in a case over which

it has by law jurisdiction, it is its duty to take such jurisdiction.’"

(quoting Willcox v. Consol. Gas Co., 212 U.S. 19, 40 (1909)));

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) ("[The

Supreme Court] ha[s] no more right to decline the exercise of juris-

diction which is given, than to usurp that which is not given.").

Abstention doctrines constitute "extraordinary and narrow excep-

tion[s]" to a federal court’s duty to exercise the jurisdiction conferred

on it. Quackenbush, 517 U.S. at 716, 728 (internal quotation marks

omitted). These exceptions require the denial of discretionary relief

when "principles of federalism and comity" outweigh the federal

interest in deciding a case. See id. at 716, 728. To cabin that discre-

tion and ensure that abstention "remains the exception, not the rule,"

the Supreme Court has "carefully defined . . . the areas in which such

abstention is permissible." New Orleans Pub. Serv., Inc. v. Council of

New Orleans, 491 U.S. 350, 359 (1989) (NOPSI) (internal quotation

marks omitted).

For example, Younger v. Harris, 401 U.S. 37 (1971), permits fed-

eral courts to abstain from hearing cases that would interfere with a

pending state criminal proceeding. Pursuant to Railroad Commission

v. Pullman Co., 312 U.S. 496 (1941), courts may abstain when the

need to decide a federal constitutional question might be avoided if

state courts are given the opportunity to construe ambiguous state

law. Another doctrine, articulated in Louisiana Power & Light Co. v.

City of Thibodaux, 360 U.S. 25 (1959), allows abstention in cases

raising issues "intimately involved with [the State’s] sovereign pre-

rogative," where proper adjudication might be impaired by unsettled

questions of state law. And in Burford, the Court recognized that

courts may abstain when the availability of an alternative, federal

6 MARTIN v. STEWART

forum threatened to frustrate the purpose of a state’s complex admin-

istrative system. Burford, 319 U.S. at 331-32; see also Quackenbush,

517 U.S. at 725; Ala. Pub. Serv. Comm’n v. S. Ry. Co., 341 U.S. 341

(1951).

To be sure, these discrete abstention doctrines "are not rigid

pigeonholes into which federal courts must try to fit cases." Pennzoil

Co. v. Texaco Inc., 481 U.S. 1, 11 n.9 (1987). Overlapping rationales

motivate these doctrines and considerations that support abstaining

under one will often support abstaining under another. Id. But at the

same time, the Supreme Court has never allowed abstention to be a

license for free-form ad hoc judicial balancing of the totality of state

and federal interests in a case. The Court has instead defined specific

doctrines that apply in particular classes of cases. See NOPSI, 491

U.S. at 359. In this case, the district court relied solely on Burford absten-

tion.3

The Burford doctrine "justif[ies] the dismissal of a federal action"

in a "narrow range of circumstances." Quackenbush, 517 U.S. at 726.

Burford permits abstention when federal adjudication would "unduly

intrude" upon "complex state administrative processes" because

either: (1) "there are difficult questions of state law . . . whose impor-

tance transcends the result in the case then at bar"; or (2) federal

review would disrupt "state efforts to establish a coherent policy with

respect to a matter of substantial public concern." NOPSI, 491 U.S.

at 361-63 (internal quotation marks omitted). Moreover, the Supreme

Court has directed that "Burford allows a federal court to dismiss a

case only" when presented with these "extraordinary circumstances."

Quackenbush, 517 U.S. at 726-27. Courts must balance the state and

federal interests to determine whether the importance of difficult state

3

The State also moved to abstain on the basis of Younger, 401 U.S. 37.

The district court did not reach this contention and so, although Younger

abstention would seem not to apply here, we do not reach the issue

either. Moreover, the State has expressly conceded the inapplicability of

Pullman abstention. See Defs.’ Reply Br. Supp. Mot. Dismiss 11 ("We

are not arguing abstention under [Pullman,] which authorizes a federal

court to abstain when construction of a state statute may alleviate a con-

stitutional concern. No construction of the State’s forfeiture of gambling

devices statutes is necessary . . . .").

MARTIN v. STEWART 7

law questions or the state interest in uniform regulation outweighs the

federal interest in adjudicating the case at bar. NOPSI, 491 U.S. at

362. "This balance only rarely favors abstention." Quackenbush, 517

U.S. at 728.

The Supreme Court has consistently refused to abstain under Bur-

ford when neither of these criteria were met. See, e.g., NOPSI, 491

U.S. at 361-62 (holding district court abused its discretion in abstain-

ing when no "state-law claim" is involved and adjudication of pre-

emption claim "would not disrupt the State’s attempt to ensure

uniformity"); Colo. River Water Conserv. Dist. v. United States, 424

U.S. 800, 815 (1976) (holding district court abused its discretion in

abstaining under Burford when "state law to be applied appear[ed] to

be settled" and federal adjudication would not "impair efforts to

implement state policy"); McNeese v. Bd. of Educ., 373 U.S. 668, 674

(1963) (declining to abstain when "no underlying issue of state law

control[s]" and "[t]he right alleged is . . . plainly federal in origin and

nature").

We too have limited Burford abstention to cases in which these

criteria were met. Compare First Penn-Pacific Life Ins. Co. v. Evans,

304 F.3d 345, 350 (4th Cir. 2002) (holding abstention proper when

federal adjudication would interfere with state receivership proceed-

ings and "disrupt[ ] the state’s efforts to provide a unified method" for

liquidation of debtor’s assets) (internal quotation marks omitted), and

Collins, 199 F.3d at 720, 723-24 (holding abstention proper when fed-

eral adjudication would require federal court to "answer disputed

questions of state gaming law that . . . powerfully impact the welfare

of [state] citizens" and requested relief would "effectively establish[ ]

parallel federal and state oversight of the [state] video poker indus-

try"), with Harper, 396 F.3d at 358 (holding district court abused its

discretion in abstaining when case "involves [the] vital federal ques-

tion" of whether state law is constitutional and "federal jurisdiction

[would not] impede the formation of core state policies"), Gross v.

Weingarten, 217 F.3d 208, 224 (4th Cir. 2000) (holding abstention

improper when case involved no "difficult questions of state law . . .

whose importance transcends the result in the case at bar" and federal

adjudication "would not [disrupt] state efforts to establish a coherent

policy") (internal quotation marks omitted), and Neufeld v. City of

Baltimore, 964 F.2d 347, 350-51 (4th Cir. 1992) (holding district

8 MARTIN v. STEWART

court abused its discretion in abstaining when case presented no "dif-

ficult questions of state law" and a "federal decision [would not] dis-

rupt the efficacy of an important and coherent state policy").

In sum, a federal court may abstain under Burford from its "strict

duty to exercise" congressionally conferred jurisdiction, Quacken-

bush, 517 U.S. at 716, only when the importance of difficult questions

of state law or the state’s interest in uniform regulation outweighs the

federal interest in adjudicating the case at bar. The State recognizes

that these principles control the abstention inquiry here and, with

them in mind, we turn to the case at hand.

III.

Martin seeks a single remedy: an injunction against the enforce-

ment of sections 12-21-2710 and 12-21-2712. He maintains that these

statutes violate his Due Process and Equal Protection rights under the

Fourteenth Amendment of the United States Constitution. Specifi-

cally, Martin argues that section 12-21-2710, which provides for

criminal penalties, is void for vagueness because it fails to give fair

notice of forbidden conduct and allows arbitrary enforcement, thus

violating the Due Process Clause. He also contends that the failure of

both statutes to provide a pre-enforcement mechanism for determin-

ing the legality of an amusement device and the State’s discriminatory

enforcement of these statutes violates the Equal Protection Clause.

These claims present no difficult questions of state law whose

importance outweighs the federal interest in adjudicating Martin’s

constitutional case. Nor do these claims threaten a state interest in

uniform regulation that outweighs the federal interest in adjudicating

the case. Accordingly, Burford does not permit abstention here.

A.

The Due Process challenge to section 12-21-2710 involves no diffi-

cult question of state law because, as the State itself recognizes, and

in fact argues, section 12-21-2710 is "well defined by the [Supreme

Court of South Carolina’s] many interpretations." Brief of Appellees

at 37. See, e.g., Sun Light Prepaid Phonecard Co. v. State, 600 S.E.2d

MARTIN v. STEWART 9

61, 64 & n.6 (S.C. 2004) (holding that a device "pertain[s] to [a]

game[ ] of chance" because it contains an "element of chance" and is

not "part of a legitimate promotion" to sell a product).

Indeed, in State v. DeAngelis, 183 S.E.2d 906, 908 (S.C. 1971), the

state court rejected a vagueness challenge to precisely the same lan-

guage — "games of chance of whatever name or kind" — that Martin

targets, holding that "[a]n analysis of [the statute’s] wording con-

vinces us that a man of reasonable intelligence is given fair notice of

the machines proscribed [and that] the statute cannot be used in a

capricious or discriminatory manner."4 Thus, the state law component

of a vagueness challenge — whether limiting constructions apply to

the language — is settled: the State’s highest court has expressly held

that the statutory text is to be given its ordinary meaning. The remain-

ing question — whether the statute’s ordinary meaning is unconstitu-

tionally vague — is a matter of federal law. Thus, because state law

is now "clear and certain," Burford abstention is inappropriate.

County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 196

4

The dissent makes the exceedingly odd argument that the DeAngelis

holding that the term "games of chance" must be given its ordinary

meaning somehow renders the statute more difficult to interpret and that

we engage in "circular" reasoning in holding to the contrary. See post at

25. In fact, DeAngelis resolves any possible difficult state law question

and directs a long recognized mode of statutory construction that federal

courts are well equipped to undertake. Equally unavailing is the dissent’s

suggestion that advances in gambling technology have lessened DeAn-

gelis’s significance. See post at 24-27. The Supreme Court of South Car-

olina has specifically rejected an argument that technological changes

lessen the force of its prior interpretations of gambling statutes. See State

v. 192 Coin-Operated Video Game Machs., 525 S.E.2d 872, 878-79 (S.C.

2000) ("Although slot machines have changed since the 1960s, the sub-

stance of [section 12-21-2710] has not. The relevant portions of the cur-

rent version outlaw the same conduct as its predecessor."). That the

South Carolina legislature has revised its gambling statutes without fur-

ther defining "games of chance," provides additional support for finding

DeAngelis continues to be authoritative. Id. at 879 ("The legislature is

presumed to be aware of [the South Carolina Supreme] Court’s interpre-

tation of its statutes. If the General Assembly considered [the Court’s

interpretations] outdated, it could have changed the statute . . . .") (cita-

tions omitted).

10 MARTIN v. STEWART

(1959); see also Colo. River, 424 U.S. at 815 (holding case "does not

fall within" Burford doctrine when state law "appears to be settled").

For similar reasons, Martin’s discriminatory enforcement claim

presents no difficult question of state law. To prevail on that claim,

Martin must demonstrate that (1) he was similarly situated to persons

not prosecuted; and (2) a discriminatory purpose motivated this dif-

ferent treatment. See United States v. Armstrong, 517 U.S. 456, 465-

66 (1996). The first inquiry requires a court to determine which video

poker machines are prohibited by statute, but such an inquiry hardly

involves a difficult state law question given that DeAngelis held that

"a [person] of reasonable intelligence is given fair notice of the

machines proscribed." 183 S.E.2d at 908. If the district court should

determine that state law enforcement treats parties similarly situated

under the statute differently, the remaining question is purely federal

— whether an impermissible purpose motivated this different treat-

ment.

Finally, Martin’s claim regarding the lack of a pre-enforcement

mechanism for determining a machine’s legality presents no state law

question at all because indisputably South Carolina provides no pre-

enforcement mechanism. Thus, resolving this claim involves no inter-

pretation of any state law, but only the determination of whether set-

tled South Carolina law violates federal constitutional rights.

Therefore, none of Martin’s challenges presents difficult questions of

state law, let alone difficult questions whose importance outweighs

the federal interest in adjudicating Martin’s claims.5

B.

Nor do any of Martin’s claims threaten a state interest in uniform

regulation. Martin launches a facial attack on the state statutes as a

5

Martin presses, perhaps without having pled, a claim that the lack of

a preenforcement mechanism violates the Due Process Clause under Ex

Parte Young, 209 U.S. 123 (1908). In any event, this claim neither pre-

sents a difficult question of state law (the statute indisputably lacks such

a mechanism) nor threatens the State’s interest in uniformity (if success-

ful, all enforcement will be enjoined). Consequently, the district court

erred by applying Burford abstention to this claim.

MARTIN v. STEWART 11

whole — precisely the sort of case federal courts often and expertly

entertain. See Alliance of Am. Insurers v. Cuomo, 854 F.2d 591, 601

(2d Cir. 1988) (declining to abstain under Burford when "case is a

direct challenge to the constitutionality of a state statute, a contro-

versy federal courts are particularly suited to adjudicate"). If Martin

should succeed, the district court would enjoin all enforcement of the

statutes at issue; such relief could not possibly threaten their uniform

application.6

Moreover, contrary to the State’s suggestion, Brief of Appellees at

20, "there is, of course, no doctrine requiring abstention merely

because resolution of a federal question may result in the overturning

of a state policy." Zablocki v. Redhail, 434 U.S. 374, 379-80 n.5

(1978). Therefore, "the threat that the federal courts might decide the

entire state system unconstitutional is not a valid justification for Bur-

ford abstention." Neufeld, 964 F.2d at 351. Rather, this "sort of risk

is present whenever one attacks a state law on constitutional grounds

in a federal court." Bath Mem. Hosp. v. Me. Health Care Fin.

Comm’n, 853 F.2d 1007, 1013 (1st Cir. 1988).

As then-Judge Breyer explained in refusing to abstain from decid-

ing similar constitutional challenges to several state statutes:

The plaintiffs do not seek individualized review of fact- (or

cost-) specific regulatory decision making. To the contrary,

they attack the statute as it is written. Permitting a federal

court to decide this kind of constitutional claim would not

interfere significantly with the workings of a lawful state

system, as such intervention threatened in Burford . . . .

6

The dissent frets that litigation of Martin’s discriminatory enforce-

ment claim will require "discovery [that] would put South Carolina’s

regulatory regime through the wringer," post at 28, but cites no authority

for the proposition that normal discovery burdens can justify Burford

abstention. Moreover, Martin cannot obtain any discovery on his dis-

criminatory enforcement claim unless he makes a "credible showing"

that no "legitimate prosecutorial factor" separates his operations from

those not prosecuted, United States v. Khan, 461 F.3d 477, 498 (4th Cir.

2006).

12 MARTIN v. STEWART

Id. at 1014.

Justice Breyer’s words reflect an important distinction, which the

State fails to recognize, between federal claims that rest on an alleged

predicate violation of state law and those that do not. Federal claims

that rest on allegations that a state agency or private actors violated

state law can sometimes undermine a state’s efforts to regulate uni-

formly — if the federal court interprets state law differently than the

state enforcement agency or the state forum that would otherwise hear

the dispute. When a "federal" claim rests on a violation of state law,

we consider it a "state law [claim] in federal law clothing." Collins,

199 F.3d at 721 (internal quotation marks omitted). Because of the

diminished federal interest in adjudicating such claims and the height-

ened threat they pose to uniform state regulation, federal courts have

less interest at stake in adjudicating such claims and often abstain in

such cases. Id.; see, e.g., Burford, 319 U.S. at 317 (due process claim

that state agency unreasonably applied state law); Collins, 199 F.3d

at 722 (civil RICO claim dependent on violations of state law for

predicate acts).

But federal claims, like those at issue here, which do not rest on

finding a violation of state law, are federal not only in "clothing," but

also in fact. Such claims are "plainly federal in origin and nature," are

independent of any state law violation, and do not threaten uniform

state regulation. McNeese, 373 U.S. at 674. The Burford doctrine does

not permit a federal court to abstain from deciding them. See, e.g., id.;

NOPSI, 491 U.S. at 362, 364 (holding "Burford abstention is not justi-

fied" when "primary claim" is that state body violated "federal law");

Harper, 396 F.3d at 358 (holding that "[a]pplying Burford here was

inappropriate" because, unlike Collins, 199 F.3d at 719, case "in-

volves a vital federal question" — the constitutionality of a state stat-

ute); Neufeld, 964 F.2d at 350 (holding Burford did not apply to

claims challenging state statute on federal constitutional grounds).

Because Martin’s claims neither involve difficult questions of state

law nor threaten a state interest in uniform regulation, the Burford

doctrine does not justify abstention here.

IV.

Notwithstanding the State’s agreement as to the undisputed mate-

rial facts and its acknowledgment of controlling legal principles, it

MARTIN v. STEWART 13

insists that Burford does require abstention in this case. The State’s

position rests on two fundamental errors: (1) a serious mischaracter-

ization of Martin’s claims and (2) an equally serious misreading of

our opinion in Collins.

A.

First, the State iterates and reiterates that Martin seeks to have

"classes and categories of machines declared ‘legal’ under South Car-

olina law" or to have a federal court "replace [South Carolina’s forfei-

ture system] with a method of [Martin’s] own choosing." Brief of

Appellees at 3. These assertions, repeated at oral argument and at

least ten times in the State’s brief, see id. at 2, 3, 9, 10, 14, 21, 50,

53, are simply not accurate. Martin seeks only "injunctive relief pro-

hibiting the enforcement of" two state statutes, which he claims vio-

late the United States Constitution.

This would be a different case if Martin had, in fact, sought a fed-

eral declaration that specific machines were lawful under South Caro-

lina law or a federal injunction seeking replacement of the State’s

forfeiture mechanism with one of the court’s design. In such circum-

stances, adjudication of Martin’s claims might lead a federal court to

"effectively commandeer[ ] South Carolina’s enforcement efforts."

Collins, 199 F.3d at 723. But, like the plaintiffs in a case in which the

Second Circuit recently reversed a district court’s dismissal on Bur-

ford grounds, Martin does not "collateral[ly] attack . . . a final deter-

mination" made by any state administrative agency "or seek to

influence a state administrative proceeding." Dittmer, 146 F.3d at

117. Rather, like those plaintiffs, Martin presents only "a direct facial

attack on the constitutionality of a state statute," the kind of "contro-

versy federal courts are particularly suited to adjudicate." Id. (internal

quotation marks omitted); see also Baran v. Port of Beaumont Navig.

Dist., 57 F.3d 436, 442 (5th Cir. 1995) (holding "facial challenge" to

state statute on federal constitutional grounds does not implicate "the

policy concerns of Burford" and so "abstention under that doctrine

would be inappropriate"). In sum, Martin’s actual claims, unlike the

fictional ones described by the State, are not proper candidates for

Burford abstention.

14 MARTIN v. STEWART

B.

Moreover, and just as significantly, the State misreads Collins. To

be sure, in Collins we properly recognized that "[t]he regulation of

gambling enterprises lies at the heart of the state’s police power," 199

F.3d at 720, and the case at hand, like Collins, involves state regula-

tion of gambling.

But we did not abstain in Collins because it involved the regulation

of that important state interest. Abstention on that basis would be

improper. Neither Collins nor any other case holds that Burford

abstention is appropriate whenever federal litigation affects an impor-

tant state interest. Indeed, both the Supreme Court and this court have

specifically rejected the view that a strong state interest alone could

justify Burford abstention. See County of Allegheny, 360 U.S. at 191-

92 (rejecting the suggestion that "abstention is justified . . . any time

a District Court is called on to adjudicate a case involving the State’s

power of eminent domain"); Educ. Servs., Inc. v. Md. State Bd. for

Higher Educ., 710 F.2d 170, 173 (4th Cir. 1983) (acknowledging "the

important and sensitive nature of state educational regulation," but

holding "Burford abstention rests on additional concerns beyond the

mere presence of an important state administrative regime, concerns

not present here"); see also Hachamovitch v. De Buono, 159 F.3d

687, 698 (2d Cir. 1998) (noting "numerous cases have indicated that

Burford abstention is not required even in cases where the state has

a substantial interest if the state’s regulations violate the federal con-

stitution").

Instead, we abstained in Collins because we concluded that the

criteria for Burford abstention were met. That is, (1) federal adjudica-

tion there would require a federal court to "answer disputed questions

of state gaming law that . . . powerfully impact the welfare of [state]

citizens" and (2) the relief sought would "effectively establish[ ] par-

allel federal and state oversight of the [state] video poker industry."

Collins, 199 F.3d at 720, 723-24.7

7

We concluded that the district court order reviewed in Collins "effec-

tively commandeered [the State’s] enforcement efforts" by "impos[ing]

on [the defendant video poker operators] an extensive set of require-

ments." Id. at 718, 723. We noted as an example that "the district court

mandated that defendants post a designated ‘clarifying sign’ on each

video poker machine" and required detailed record keeping. Id. at 718.

MARTIN v. STEWART 15

In contrast, federal adjudication in this case would not require a

federal court to "answer disputed questions of state law," nor would

the relief sought establish "parallel federal and state oversight."

Although the statutes challenged here regulate gambling, unlike Col-

lins, issues of federal law — the constitutionality of those statutes

under the Fourteenth Amendment — dominate this action. As we rec-

ognized in Harper, 396 F.3d at 358, Burford abstention is "inappro-

priate" in such a situation. In Harper we contrasted Collins, in which

"issues of state law . . . dominated," with a case involving precisely

the same kind of "vital federal question" as that at issue here — a

challenge to the constitutionality of a state statute. Id. (internal quota-

tion marks omitted). We concluded that the district court had abused

its discretion in abstaining in such a case. Id. So it is here.

Contrary to the State’s apparent belief, Collins did not create a

"video-poker abstention" doctrine that forever insulates South Caro-

lina statutes regulating gambling from federal constitutional chal-

lenge. The district court abused its discretion in abstaining here under

Burford because adjudication of Martin’s claims, unlike the claims

advanced in Collins, neither presents difficult questions of state law

whose importance transcends the case at bar, nor threatens the State’s

interest in uniform regulation.

V.

Although the dissent concedes that "abstention must be carefully

cabined," post at 32, and takes no issue with our statement of the Bur-

ford doctrine, it would hold that the district court properly abstained

here. It relies on factors totally irrelevant to the "extraordinary and

narrow" Burford doctrine, e.g., the absence of a federal gambling stat-

ute, the effect of the Fourteenth Amendment and 42 U.S.C. § 1983

(2000) on federal-state relations, the history of gambling regulation,

the burdens of discovery, and the alleged federalization of gambling

policy. The dissent fails to apply the actual Burford doctrine because

it cannot — if it did so it would have to hold that the district court

abused its discretion in abstaining here.

The dissent’s analysis appears to be motivated by its preference

that cases like Martin’s be brought in state court. See, e.g., post at 18

("I see no indication in this case that the South Carolina state courts

16 MARTIN v. STEWART

have defaulted in any fashion on their obligation to entertain federal

constitutional challenges to the operation of state gambling laws.");

id. at 31 ("[T]he sky will not fall whenever state courts resolve a fed-

eral question."). Although we share the dissent’s respect for our state

colleagues, "‘[w]hen a Federal court is properly appealed to in a case

over which it has by law jurisdiction, it is its duty to take such juris-

diction . . . . The right of a party plaintiff to choose a Federal court

where there is a choice cannot be properly denied.’" England, 375

U.S. at 415 (quoting Willcox, 212 U.S. at 40) (omission in original).

Martin chose to file his claims in a federal forum created by Congress

— we cannot deny him that choice even if we disagree with it.

Because Martin’s claims do not meet the "extraordinary and nar-

row" criteria for Burford abstention, the judgment of the district court

is

REVERSED AND REMANDED.

WILKINSON, Circuit Judge, dissenting:

There are few decisions more central to state authority than

whether to allow legalized gambling, how extensively, and under

what terms. Plaintiffs’ lawsuit calls for both the interpretation of state

law at the heart of the state’s regulatory scheme and an extensive

inquiry into the state’s enforcement practices. While plaintiffs may

certainly challenge South Carolina’s exercise of its police powers as

unconstitutional, the district court was within its authority to conclude

that plaintiffs’ constitutional challenge would be most properly heard

in state court.

Congress has given no indication that it wishes to sweep most fed-

eral challenges to state gambling policy into federal court. I do not

believe that the general grant of federal concurrent jurisdiction in 42

U.S.C. § 1983 manifests any congressional intention to abrogate the

discretion of federal district courts to defer under Burford to the com-

plex state administrative and judicial mechanisms involved in regulat-

ing gambling enterprises.

And it is not only congressional intent that I believe has been

offended. In holding that the district court abused its discretion by

MARTIN v. STEWART 17

abstaining, the majority diminishes the capacity of trial courts to per-

form the judicious balancing that lies at the heart of any exercise of

equitable discretion. The majority also disrespects the role of state

courts: while we properly defer to federal administrative agencies

under Chevron Step Two, somehow the federal courts are now to be

prohibited from showing even a lessened deference to state adminis-

trative and judicial systems operating in their own areas of expertise.

Further, because federal courts will make an understandable effort to

avoid inconsistency and interference with the states, the majority

approach will also in time shortchange litigants. Finally, the majority

diminishes the values of our federal system, which can hardly be

served in this most traditional area of state competence by having the

federal appellate courts call the shots. I am at a loss to understand

what aims of law are furthered when the federal circuit courts under-

cut the legitimate institutional interests of so many other actors within

our legal system.

This dispute is not confined simply to the case at hand. It touches

on the basic application of abstention principles to state regulatory

regimes in the most sensitive areas of state sovereignty — an issue

that has been rife with conflicting approaches. "[L]ower courts con-

tinue to disagree as to when [Burford] abstention is appropriate."

Erwin Chemerinsky, Federal Jurisdiction § 12.2, at 784-85 & nn.

108-09 (4th ed. 2004). "Confusion over the scope of Burford abounds

. . . ." Gordon G. Young, Federal Court Abstention and State Admin-

istrative Law from Burford to Ankenbrandt, 42 DePaul L. Rev. 859,

866 (1993).

In the gambling context, specifically, similar confusion reigns, with

some courts refusing to abstain, and others deciding abstention is

appropriate when a federal court is confronted with challenges to state

gambling laws. Compare Hotel & Rest. Employees & Bartenders Int’l

Union Local 54 v. Danziger, 709 F.2d 815 (3d Cir. 1983), judgment

vacated on other grounds by Brown v. Hotel & Rest. Employees &

Bartenders Int’l Union Local 54, 468 U.S. 491 (1984)(refusing to

apply Burford abstention to challenges to portions of state gambling

scheme); Turf Paradise, Inc. v. Ariz. Downs, 670 F.2d 813 (9th Cir.

1982)(same) with Johnson v. Collins Entm’t Co., 199 F.3d 710 (4th

Cir. 1999)(abstaining under Burford from deciding challenges to state

gambling regime); G2, Inc. v. Midwest Gaming, Inc., 485 F.Supp.2d

18 MARTIN v. STEWART

757 (W.D.Tex. 2007) (same); Metro Riverboat Assocs., Inc. v. Bally’s

Louisiana, Inc., 142 F.Supp.2d 765 (E.D.La. 2001)(same); Diamond

Game Enter. v. Howland, 1999 WL 397743 (D.Or. 1999)(same).

While factual differences no doubt exist between these cases, there is

a basic divide between those who believe Burford abstention has

some modest utility in the face of constitutional challenges to state

regulatory regimes and those who do not.1

I see no indication in this case that the South Carolina state courts

have defaulted in any fashion on their obligation to entertain federal

constitutional challenges to the operation of state gambling laws. I see

no way in this case to avoid the interpretation of difficult questions

of state law and interference with state regulatory policies. I see no

sign in this case that interpretation of the terms of any federal statute

involving gambling is at issue or that Congress has done anything to

remove the choice among different approaches to gambling regulation

from its historic venue in the states.

Given the absence of any specific manifestation of congressional

jurisdictional intent in the area of gambling, I remain unconvinced

that the general expression of federal jurisdictional authority pursuant

to § 1983 is enough to divest district courts of their discretion to

accord respect to state regulatory choices regarding gaming policy

and state court review of those choices. While I recognize that the

Fourteenth Amendment and § 1983 re-ordered federal and state rela-

tionships (including the relationships between federal and state

courts) in the most fundamental way, I do not think it re-ordered these

relationships to such an extent as to render Burford abstention virtu-

ally inapplicable to all constitutional challenges in federal court to

1

Lower courts have also abstained from deciding cases involving state

gambling schemes under other abstention doctrines. See Taylor v. Siegel-

man, 230 F.Supp.2d 1284 (N.D. Ala. 2002)(abstaining from plaintiffs’

challenge to state gambling statute under Younger v. Harris, 401 U.S. 37

(1971)); Club Ass’n of W.Va., Inc. v. Wise, 156 F.Supp.2d 599

(S.D.W.Va. 2001) (abstaining from a challenge to state gambling statutes

under R.R. Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941));

Chun v. State of New York, 807 F.Supp. 288 (S.D.N.Y. 1992)(abstaining

from a challenge to state gambling scheme under both Pullman and Bur-

ford v. Sun Oil Co., 319 U.S. 315 (1943)).

MARTIN v. STEWART 19

specialized state regulatory regimes. I see nothing to justify the

majority’s holding that no reasonable district court could, in these cir-

cumstances, stay its hand.

I.

Federal courts have reason to tread cautiously in addressing a

state’s regulation of gambling, because such schemes of regulation lie

at "the heart of the state’s police power." Collins, 199 F.3d at 720. In

fact, few activities have been so consistently treated as being at the

core of state sovereignty. Id. South Carolina, in particular, has long

exercised its police power in this area, developing over time a com-

plex and comprehensive system to regulate gambling activity.

A.

The Supreme Court has treated the regulation of gambling as a

quintessential state function for more than a century. See United

States v. Edge Broad. Co., 509 U.S. 418, 426 (1993); Posadas de

Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341

(1986); Marvin v. Trout, 199 U.S. 212, 224 (1905). Our circuit has

recognized police power authority in this area time and again. See,

e.g., Helton v. Hunt, 330 F.3d 242, 246 (4th Cir. 2003); Casino Ven-

tures v. Stewart, 183 F.3d 307, 310 (4th Cir. 1999). The authority of

the states as to gambling is a matter of broad consensus among our

sister circuits. See Gulfstream Park Racing Ass’n v. Tampa Bay

Downs, Inc., 399 F.3d 1276, 1278 (11th Cir. 2005) ("The regulation

of gambling lies at ‘the heart of the state’s police power.’") (quoting

Collins, 199 F.3d at 720); United States v. Washington, 879 F.2d

1400, 1401 (6th Cir. 1989) ("The enactment of gambling laws is

clearly a proper exercise of the state’s police power in an effort to

promote the public welfare."); Medina v. Rudman, 545 F.2d 244, 251

(1st Cir. 1976) (same); Boynton v. Ellis, 57 F.2d 665, 666 (10th Cir.

1932) (same).

State control over gambling has also been reinforced by Congress.

While federal interests may sometimes be affected by gambling — as,

for instance, when casinos are established on Indian reservations or

in United States waters — Congress has generally "sought to extend,

20 MARTIN v. STEWART

not curb, state police power in this field." Casino Ventures, 183 F.3d

at 311.

In exercising their police power, states may reasonably conclude

that gambling brings an "increase in local crime, the fostering of pros-

titution, the development of corruption, and the infiltration of orga-

nized crime." Posadas, 478 U.S. at 341. They may also conclude that

gambling fosters addiction and exploits human weakness, drawing

down the assets of those who can least afford to gamble money away.

See Collins, 199 F.3d at 720; Posadas, 478 U.S. at 341.

At the same time, states often invoke the police power to control

gambling rather than prohibit it. States may well conclude that per-

mitting gambling enhances public welfare by allowing citizens free

choice in their recreational pursuits and by spurring economic growth

through gambling-related business enterprises. In addition, gambling

can generate tax revenue that may fund schools, public works, and

other government programs. See Collins, 199 F.3d at 720. States may

also conclude that legalized gambling is a lesser evil, believing the

activity’s harms can best be harnessed when the activity is subject to

regulation and kept in plain view.

The diversity of views towards gambling has given rise to schemes

of regulation that are nearly as varied as the states establishing them.

Several states — Utah and Hawaii, for example — forbid commercial

gambling altogether. See Utah Const. Art. VI, § 27; Hawaii Rev. Stat.

§ 712-1223 (2006). Many others — more than two-thirds, as of 1999

— allow government-controlled gambling in the form of lotteries.

National Gambling Impact Study Commission Final Report ("NGISC

Report") (1999), available at http://govinfo.library.unt.edu/ngisc/

reports/fullrpt.html, Page 2-1 (last visited July 19, 2007). Some states,

such as Nevada, New Jersey, and Mississippi, have gone further, per-

mitting privately run gambling within their borders. And there are

variations even among these. Nevada, for instance, allows slot

machines virtually anywhere, including at airports and supermarkets.

On the other hand, Mississippi and New Jersey concentrate legalized

gambling in limited areas, the former restricting gambling to coastal

counties and riverboats, and the latter restricting gambling to Atlantic

City alone. NGISC Report 2-4; 2-7; 3-5. Regardless of the particular

scheme, states that allow legalized gambling impose a unique mix of

MARTIN v. STEWART 21

controls on gambling venues, including licensing requirements, num-

ber, size, and type of site standards, and advertising limitations.

I would be hard-pressed to identify any field of regulation about

which there is broader or deeper consensus on the appropriateness of

state control.

B.

For decades, the South Carolina General Assembly has sought to

balance "the revenue gained from licensing and taxation of [gam-

bling] against the social costs of gambling addiction." Collins, 199

F.3d at 716. In doing so, the General Assembly has tried a number

of plans to determine the appropriate level of gambling control, and

has developed numerous mechanisms to enforce its regulations. The

South Carolina General Assembly initially banned all gambling, with

the exception of "coin operated nonpayout machines with a free play

feature" as long as the machines did not disburse "money or property"

to a player. S.C. Code Ann. § 16-19-60 (Law. Co-op. 1976) (amended

to delete the word "property," see Act effective June 18, 1986, Part

II, § 26(B), S.C. Acts 540). The state later experimented with legal-

ized electronic gambling from 1982 to 2000, exempting "video games

with a free play feature" from prohibition. 1982 S.C. Act No. 466.2

And in State v. Blackmon, 403 S.E.2d 660, 661-62 (S.C. 1991), the

South Carolina Supreme Court held that nonmachine cash payouts

from these video gaming machines were legal under S.C. Code Ann.

§ 16-19-60 (Supp. 1999).3

Such machines are now once again forbidden by South Carolina

law. It is presently "unlawful for any person to keep on his premises

or operate or permit to be kept on his premises or operated within this

State" certain gambling devices. The devices prohibited include "any

vending or slot machine, or any video game machine with a free play

2

Codified as S.C. Code Ann. § 52-15-10 and subsequently recodified

as § 12-21-2710. In 1997, this section was amended to limit the exemp-

tion to those video games "which meet the technical requirements pro-

vided for in Section 12-21-2782 and Section 12-21-2783." 1997 S.C. Act

No. 155, Pt. II, § 54(B).

3

Repealed effective July 1, 2000, by 1999 S.C. Act No. 125, Pt. I, § 8.

22 MARTIN v. STEWART

feature operated by a slot in which is deposited a coin or thing of

value, or other device operated by a slot in which is deposited a coin

or thing of value for the play of poker, blackjack, keno, lotto, bingo,

or craps" as well as "any punch board, pull board, or other device per-

taining to games of chance of whatever name or kind . . . ." S.C. Code

Ann. § 12-21-2710 (2006).

South Carolina has long employed a multi-tiered regulatory struc-

ture — comprised of legislative, executive, administrative, and judi-

cial mechanisms — to enforce its gambling laws. Currently, no fewer

than five different state entities are part of this effort. First, State Law

Enforcement Division (SLED) officers have the authority to enforce

South Carolina’s gaming statutes. See S.C. Code Ann. § 23-3-15

(2006). According to plaintiffs, at least one SLED officer has received

specialized training on whether a particular video game machine qual-

ifies as a "game of chance."

Second, the South Carolina Attorney General issues opinion letters

that construe the statutory scheme and provide guidance to SLED

officers. See, e.g., Letter from Attorney General Charles M. Condon

to South Carolina Law Enforcement Division Chief Robert M. Stew-

art (May 8, 2000), available at www.sctax.org/Publications/vg/

opn5800.pdf (last visited July 19, 2007).

Third, after SLED officers seize machines they consider to be in

violation of state law, the devices are brought before state magistrates.

These magistrates, who have expertise in the particulars of South Car-

olina’s gaming laws,"immediately examine" each machine and make

a determination of their legality as the machines are configured at that

time. See S.C. Code Ann. § 12-21-2712 (2006); Allendale County

Sheriff’s Office v. Two Chess Challenge II, 606 S.E.2d 471 (S.C.

2004). These magistrates provide specialized review of the machines,

determining whether they constitute an illegal "game of chance"

under § 12-21-2710, the very provision a federal court would need to

interpret to evaluate plaintiffs’ claims. Further, the magistrates serve

to place "some restraint" upon law enforcement officers "who repre-

sent the executive authority of the state . . . ." State v. Kizer, 162 S.E.

444, 449 (S.C. 1932), overruled on other grounds by State v. 192

Coin-Operated Video Game Machs., 525 S.E.2d 872 (S.C. 2000).

MARTIN v. STEWART 23

Fourth, a machine owner may appeal a magistrate’s decision

through the state court system, which has heard scores of cases defin-

ing the contours of the state’s gambling laws. See, e.g., 192 Coin-

Operated Video Game Machs., 525 S.E.2d 872; Westside Quik Shop

Inc. v. Stewart, 534 S.E.2d 270 (S.C. 2000), overruled in part by Byrd

v. City of Hartsville, 620 S.E.2d 76 (S.C. 2005); Joytime Distribs. &

Amusement Co. v. South Carolina, 528 S.E.2d 647 (S.C. 1999); John-

son v. Collins Entm’t Co., 508 S.E.2d 575 (S.C. 1998); Martin v. Con-

don, 478 S.E.2d 272 (S.C. 1996); Blackmon, 403 S.E.2d 660.

Fifth, the South Carolina Department of Revenue issues biannual

licenses to owners of video game machines that remain legal. See S.C.

Code Ann. § 12-21-2720 (2006) (allowing video machines, with a

license, for the playing of music, kiddy rides, "machines for the play-

ing of amusements or video games, without a free play feature, or

machines of the crane type operated by a slot . . . and a machine for

the playing of games or amusements, which has a free play feature,

operated by a slot . . . and the machine is of the nonpayout pin table

type with levers or ‘flippers’ operated by the player in which the

course of the balls may be altered or changed . . . ."). In sum, South

Carolina has established a specialized scheme to interpret and enforce

laws that lie at the center of state sovereignty.

II.

As the district court recognized, abstention was warranted here

because plaintiffs’ lawsuit threatens to trammel South Carolina’s

highly reticulated regulatory regime. Plaintiffs raise three claims.

First, they assert that § 12-21-2710’s prohibition against possessing

any "device pertaining to games of chance of whatever name or kind"

is void for vagueness. Second, plaintiffs challenge South Carolina’s

gambling scheme on equal protection grounds, asserting that they are

"being subjected to discriminatory enforcement of the laws pertaining

to video game machines. . . ." Brief of Appellants at 5. Finally, plain-

tiffs challenge the post-seizure procedure by which South Carolina

determines the legality or illegality of a particular video gaming

device. The district court was entitled to abstain from deciding these

claims, for reasons I shall discuss in turn.

24 MARTIN v. STEWART

A.

Plaintiffs first claim that the provision forbidding "devices pertain-

ing to games of chance of whatever name or kind" is void for vague-

ness on the theory that "its prohibitions are not clearly defined."

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Specifically,

plaintiffs contend that this provision could be read to outlaw Monop-

oly, simple card games, and personal computer and cell phone games

such as minesweeper and solitaire. See Brief of Appellants at 5. While

I emphatically do not embrace the proposition that every vagueness

challenge to a state statute in federal court warrants abstention, nei-

ther do I subscribe to the view that every unclear question of state law

forecloses abstention in favor of a federal vagueness challenge. Con-

trary to the majority’s contention that plaintiffs’ challenge "involves

no difficult question of state law," ante at 8, plaintiffs’ claim that

"games of chance" is "not clearly defined" is certainly plausible

enough that the district court’s decision to abstain cannot be consid-

ered an abuse of discretion. Indeed, federal court involvement here

will interfere with the detailed, individualized analysis required to

determine what constitutes a "game of chance" and will inescapably

intrude upon South Carolina’s regulatory system.

In this case, in order to evaluate plaintiffs’ vagueness challenge, the

federal court would have to define "games of chance," a task it cannot

complete without delving into the "meaning, interpretations, and the

general regulatory context" of § 12-21-2710. Martin v. Stewart, 438

F.Supp.2d 603, 607 (D.S.C. 2006). The meaning and precise applica-

tion in any given case of "games of chance" lie at the core of South

Carolina’s regulation of gaming; interpreting this provision would

therefore enmesh the federal court in a question of state law that bears

not simply on a "policy problem[ ] of substantial public import," New

Orleans Pub. Serv., Inc. v. Council of the City of New Orleans

("NOPSI"), 491 U.S. 350, 361 (1989), but arguably on "the most

hotly contested issue in South Carolina in recent years." Collins, 199

F.3d at 715.

The majority’s conclusion that no "difficult question of state law"

is presented here is astounding, insofar as its basis is the South Caro-

lina Supreme Court’s 1971 holding that "a man of reasonable intelli-

gence is given fair notice of the machines proscribed" by the

MARTIN v. STEWART 25

provision. Ante at 10 (citing State v. DeAngelis, 183 S.E.2d 906, 908

(1971)). While the majority says that the statutory text is "clear and

certain" because it is given its "ordinary meaning," ante at 9, that cir-

cular formulation begs the question of what its ordinary meaning even

is. Further, such highly generalized formulations of the provision’s

meaning elide every difficult question the state courts must face when

interpreting and applying § 12-21-2710. Far from being "clear and

certain," the provision outlawing "games of chance" is one that South

Carolina state courts must apply, on a machine-by-machine basis, to

a complex and ever-changing cadre of gambling technology. Indeed,

the development of video gaming machine technology and of the state

courts’ application of § 12-21-2710 to that technology demonstrate

that the meaning and treatment of "games of chance" present "diffi-

cult questions of state law" from which the district court legitimately

abstained.

For starters, not even primitive versions of the video gaming

machines involved in this case were in existence at the time of DeAn-

gelis. Such machines did not become commercially viable until the

mid- to late-1970s, when it first became economical to combine a

television-like monitor with a central processing unit. In fact, it was

not until Si Redd’s Coin Machines (SIRCOMA) introduced Draw

Poker in 1979 that such devices gained any measure of popularity.

See Ireck Galecki, "Video Poker History," Dec. 6, 2006, available at

http://onlinecasinopress.co.uk/video-poker-history.html (last visited

July 19, 2007); see also "History of Video Slot Machines," available

at http://www.videoslotmachines.com/history.htm (last visited July

19, 2007); "History of Video Poker," available at http://

www.videopoker247.com/history.html (last visited July 19, 2007).

Although the language "games of chance" can be found in the gaming

statute as of 1971, S.C. Code Ann. § 5-621 (Code 1962), and the cur-

rent statute, S.C. Code Ann. § 12-21-2710, the former was not part of

a larger statutory provision that includes reference to any type of

video gaming device. And although the majority is correct that "slot

machines have changed since the 1960s, [while] the substance of

[section 12-21-2710] has not," the difficult task of distinguishing law-

ful from unlawful games has been complicated dramatically by these

technological developments. Ante at 9, n.4 (citing 192 Coin-Operated

Video Game Machs., 525 S.E.2d at 878-79). In fact, technological

developments in the thirty-six years since DeAngelis bear very

26 MARTIN v. STEWART

directly on the line of demarcation between prohibited "games of

chance" and permitted "games of skill." Indeed, what may have been

clear to a "man of reasonable intelligence" regarding this distinction

in 1971 can simply no longer be so. The legality of a particular

machine must be determined on an individual basis at the time of sei-

zure, because "video machines may be manipulated so as to change

their nature from lawful to unlawful . . . ." Allendale County Sheriff’s

Office, 606 S.E.2d at 474.

Not surprisingly, evaluations of these machines are quite detailed.

For example, after a thorough examination of two Chess Challenge

II game machines, the magistrate judge in Allendale County found the

games lawful, relying in part on a detailed affidavit which explained,

"the Chess Challenge II game operates in a different manner from the

illegal games of chance . . . . Chess Challenge II operates utilizing a

repeating pattern and does not utilize features that would prevent a

player’s skill from determining the outcome of the game. In addition,

a player is able to identify the icons as they appear, and to time the

stopping of the game to increase the chance of winning." Id. at 472,

n.1.

And in Sun Light Prepaid Phonecard Co., Inc. v. State, 600 S.E.2d

61, 64 (S.C. 2004), the South Carolina Supreme Court held that

machines dispensing pre-paid, long distance telephone cards with

attached game pieces constituted illegal gambling devices, because a

detailed evaluation revealed that the machines (1) housed a video

screen with a gambling theme; (2) played celebration music after dis-

pensing a winning game piece; (3) froze if a pre-determined level of

prize money was attained; (4) contained two meters: one which

recorded the amount of money entering the machine and one (labeled

"WON") which "record[ed] the value of the prizes issued by the

machines"; (5) lacked a mechanism for returning change; and (6)

could be linked with other machines. Id. at 63.

My friends in the majority, however, refuse to allow the state

courts to undertake the delicate task of distinguishing between lawful

and unlawful games. Because South Carolina’s gaming statutes justi-

fiably call for a machine-by-machine determination of legality, the

majority’s notion that it somehow can interpret "games of chance" in

bulk, without disrupting South Carolina’s enforcement scheme, rides

MARTIN v. STEWART 27

roughshod over the scheme itself and the principles of federalism it

purports to observe.

It is thus no simple task for the South Carolina courts to interpret

and apply § 12-21-2710, which is entrenched in a highly reticulated

regulatory scheme, to a range of ever-changing, technologically

advanced devices. The majority’s insistence that the district court

abused its discretion in abstaining, however, will complicate state

tasks immeasurably. It threatens to "disrupt the State’s attempt to

ensure uniformity in the treatment of an ‘essentially local problem.’"

NOPSI, 491 U.S. at 362. Burford abstention exists to "protect[ ] com-

plex state administrative processes from undue federal interference."

Indeed, a case like this one, in which the federal court is called upon

to resolve a "difficult question[ ] of state law bearing on policy prob-

lems of substantial public import whose importance transcends the

result in the case then at bar," provides a paradigmatic example of the

circumstances justifying Burford abstention. NOPSI, 491 U.S. at 361

(quoting Colorado River Water Conservation Dist. v. United States,

424 U.S. 800, 814 (1976)). To say the district court abused its discre-

tion in abstaining is beyond erroneous.

B.

Plaintiffs also mount an equal protection challenge to South Caroli-

na’s gaming laws. Plaintiffs argue that because video gaming machine

owners are unable to obtain pre-enforcement review of the legality of

their business pursuits like other entrepreneurs can, South Carolina

makes use of "an arbitrary, capricious classification that is not ratio-

nally related to the purposes of the statute." Complaint at 10, par. 38.

Further, plaintiffs contend that they are "being subjected to discrimi-

natory enforcement of the laws pertaining to video game machines

. . . in an effort to restrict Plaintiffs’ meaningful participation in the

political process in South Carolina." Id., par. 39.

The majority asserts that plaintiffs merely "launch a facial attack

on the state statutes as a whole," thus presenting a case federal courts

"often and expertly entertain." Ante at 10-11. Such antiseptic treat-

ment of plaintiffs’ claim, however, exalts form over substance and

gives short shrift to the essence of plaintiffs’ challenge — namely that

the statute is being enforced against them in a discriminatory manner.

28 MARTIN v. STEWART

See Complaint at 10, par. 39. Simply describing a challenge as facial

does not necessarily make it so. Instead, courts must look to the

underlying import of the claim, not just to incantation of magic words

and labels. Here, plaintiffs clearly desire to sift through South Caroli-

na’s entire gambling enforcement scheme, to probe all its intricate

details in the name of discovery. See Brief of Appellants at 8-9. Rather

than recognizing the claim for what it actually is, the majority accepts

what it misguidedly purports to be.

By turning a blind eye to this claim’s true character, the majority’s

approach threatens one of two possible consequences, neither of

which is appealing. First, if the district court treats this as a true facial

challenge, rather than what plaintiffs desire it to be — an as-applied

challenge in the guise of a facial attack — plaintiffs’ claim will have

been unfairly decapitated. Under a facial challenge, plaintiffs can only

attack the statutory provision in the abstract, not ascertain whether it

could be enforced, discriminatorily or otherwise, against particular

machines — their true concern. This result leaves plaintiffs in the

unenviable position of wanting to be in federal court one day, but not

the next. At the same time, the majority sends the troubling message

to district courts that they can skirt potential abstention problems by

characterizing claims such as this as mere facial challenges. Thus, in

an effort to avoid interference with state law, federal courts may con-

strue complaints to present less serious challenges than they in fact

do.

The second potential consequence stems from the majority’s failure

to anticipate how plaintiffs intend for this litigation to unfold. Despite

the "facial" label applied to their discriminatory enforcement claim,

plaintiffs’ requested discovery here would put South Carolina’s regu-

latory regime through the wringer. And as the suit moves forward, the

district court will assuredly be forced to confront unsettled areas of

state law — a problem that easily could have been avoided through

adherence to traditional abstention principles.

Indeed, taken for what it truly is, plaintiffs’ equal protection chal-

lenge inevitably requires a detailed probing of South Carolina’s

enforcement scheme. Thus, it was clearly not an abuse of discretion

to abstain from adjudicating this claim. Plaintiffs not only ask a fed-

eral court to pass upon the rationality of South Carolina’s strategy for

MARTIN v. STEWART 29

enforcing its gambling laws, but also seek to delve into the strategy’s

details. Such an undertaking would inevitably require the federal

court to interpret and apply the state statute to various individualized

decisions made by the state in the enforcement of its gaming laws.

For example, to substantiate claims of "discriminatory enforcement,"

plaintiffs would question which businesses SLED and other law

enforcement officers had previously investigated, how those investi-

gations compared with the investigation of gambling enterprises, and

whether any differences in enforcement methods were adequately jus-

tified. Cf. Willis v. Town of Marshall, 426 F.3d 251, 263 (4th Cir.

2005) (vacating summary judgment on plaintiff’s claims that she was

arbitrarily singled out for punishment under the Equal Protection

Clause because the district court denied discovery and plaintiff "had

no opportunity to demonstrate that others situated similarly in this

regard were not treated similarly").

The majority asserts that discovery burdens imposed upon states in

the course of adjudicating such discriminatory enforcement claims are

of no moment, asserting that normal discovery burdens cannot justify

Burford abstention. See ante at 11, n.6. To the contrary, these burdens

are of moment, and the prospect of them bears legitimately upon the

district court’s discretion in determining whether to abstain. While

discovery burdens do not of course require abstention, a trial judge

may forecast that rounds of federal discovery will draw the federal

court so deeply into the mechanisms of state administrative operations

that avoidance of that friction and interference is a permissible course.

This at least is true in areas such as gambling policy, where the states

— as a theoretical and an historic matter — may lay claim to sover-

eign interests.

I do not for a moment fault plaintiffs for their strategy. Rather I

commend the district court for recognizing that abstention was the

wise and prudent response. It is hard to imagine a greater intrusion

into the processes of state government than use of the federal judicial

process for a top-to-bottom review of the regulatory and enforcement

measures necessary to the implementation of any gambling policy.

The trial court below was justified in its conclusion that this assault

upon the "rightful independence of state governments in carrying out

their domestic policy" would be too much. See Burford, 319 U.S. at

318 (internal quotations omitted).

30 MARTIN v. STEWART

C.

Plaintiffs finally claim that South Carolina’s post-seizure forfeiture

scheme violates due process. To say that the district court abused its

discretion here is to ignore Burford’s counsel that abstention is appro-

priate when federal review would "disrupt state efforts to establish a

coherent policy with respect to a matter of substantial public con-

cern." NOPSI, 491 U.S. at 361-63. The district court was entitled to

leave undisturbed the considered judgment of the South Carolina

Supreme Court that the forfeiture of gaming machines pursuant to

§§ 12-21-2710 and 2712 accords with due process requirements. See

192 Coin-Operated Video Game Machs., 525 S.E.2d. at 883.

In 192 Coin-Operated Video Game Machs., the South Carolina

Supreme Court held that, to comport with the Due Process Clause,

§ 12-21-2712 must be construed to require that an owner of video

gaming machines be given a post-seizure hearing prior to forfeiture

of any seized devices alleged to have violated § 12-21-2710. 525

S.E.2d at 883. In so doing, the court overruled Kizer, 162 S.E. 444,

to the extent it allowed for the destruction of allegedly illegal

machines "without any opportunity for the owner to contest the mag-

istrate’s determination of illegality." 192 Coin-Operated Video Game

Machs., 525 S.E.2d at 883. However, the South Carolina Supreme

Court rejected the argument that § 12-21-2712 required a pre-seizure

hearing, reasoning that "[t]he most due process requires is a post-

seizure opportunity for an innocent owner ‘to come forward and

show, if he can, why the res should not be forfeited and disposed of

as provided by law.’" Id. (quoting Moore v. Timmerman, 276 S.E.2d

290, 293 (S.C. 1981)). The South Carolina Supreme Court has repeat-

edly affirmed this judgment. See, e.g., Mims Amusement Co. v. SLED,

621 S.E.2d 344, 351 (S.C. 2005) ("We conclude an owner’s right to

due process in the civil forfeiture of a video gaming machine under

the state constitution and pertinent statutes is satisfied when he is

given a post-seizure hearing before the magistrate, with the right to

appeal that ruling to circuit and appellate courts."); Westside Quik

Shop, 534 S.E.2d at 273 ("We have already determined that the forfei-

ture of gaming machines pursuant to these statutes accords with due

process requirements.").

The district court did not err in according respect to a series of

well-considered state decisions in such a core area of state preroga-

MARTIN v. STEWART 31

tive. Though I reiterate that abstention must be circumscribed, the sky

will not fall whenever state courts resolve a federal question. See U.S.

Const. art. VI ("This Constitution and the laws of the United States

. . . shall be the supreme Law of the Land; and the Judges in every

State shall be bound thereby. . . ."). They do so routinely, and the

Supreme Court has encouraged them to do so in matters central to

their sovereignty. In areas of traditional local control, such as land

use, the Court has made clear that "[s]tate courts are fully competent

to adjudicate constitutional challenges to local . . . decisions. Indeed,

state courts undoubtedly have more experience than federal courts do

in resolving the complex factual, technical, and legal questions related

to [such] regulations." San Remo Hotel v. City & County of San Fran-

cisco, 545 U.S. 323, 347 (2005). To think that the inferior federal

courts must pronounce the final word on every federal question

embedded in state law and imbued with attributes of state sovereignty

is to subscribe to misguided and ahistorical notions of federal suprem-

acy. The district court was entitled to take into account the fact that

"[p]laintiffs’ federal claims are secure in state court and are ultimately

subject to review." Martin, 438 F.Supp.2d at 607.

While "there is, of course, no doctrine requiring abstention merely

because resolution of a federal question may result in the overturning

of state policy," Zablocki v. Redhail, 434 U.S. 374, 380 n.5 (1978),

"[t]he adequacy of state court review diminishes plaintiffs’ interest in

a federal forum," and when — as here — a plaintiff’s claims could

also be raised in state court, this "militates in favor of abstention,"

Collins, 199 F.3d at 723 (citing Alabama Pub. Serv. Comm’n v. S. Ry.

Co., 341 U.S. 341, 349 (1951)). Plaintiffs’ true concern is not the

security of their constitutional claims in state court, but rather, the

unlikelihood that the state courts will be amenable to their endeavor

to replace South Carolina’s current scheme with a system of their own

design.

The South Carolina Supreme Court has rendered measured judg-

ment on this issue; all federal intervention can potentially do at this

stage is create a conflict with that judgment and throw South Caroli-

na’s efforts to regulate gambling into confusion. Indeed, for reasons

discussed throughout, the state’s interest in having its rulings pre-

served is uniquely strong here, as "all branches of South Carolina’s

government have spent considerable time and energy shaping and

32 MARTIN v. STEWART

reviewing the statutes being challenged." Martin, 438 F.Supp.2d at

607. I do not suggest the district court was obligated to abstain, but

neither do I think for a moment that its decision to do so was anything

close to an abuse of discretion.

III.

As to the factors the majority accuses me of thinking relevant —

"the absence of a federal gambling statute, the effect of the Fourteenth

Amendment and 42 U.S.C. § 1983 (2000) on federal-state relations,

the history of gambling regulation, the burdens of discovery, and the

alleged federalization of gambling policy," ante at 15 — I plead

totally guilty. I do in fact rely on such things, and I do in fact believe

they bear on the soundness of the exercise of federal district court dis-

cretion in the area of state gambling policy.

In one respect, I agree with the majority — that abstention must be

carefully cabined. Congress controls the jurisdiction of the federal

courts, and declining to exercise that jurisdiction is a decision federal

judges must take only cautiously and infrequently. The abstention

doctrines are not an escape for judges who cannot be bothered with

hard questions. Abstention remains the distinct exception, not the

general rule.

Having said that, Congress has shown no indication to displace the

states’ historic role in this area where no federal interest such as

Indian tribal lands or United States waters is present. Congress could

exercise its enumerated powers at any time to restrain the states’

residual powers over gambling operations, but I cannot find that it has

manifested any such intent. To reverse the considered judgment of a

trial judge in the context of a comprehensive regulatory scheme

backed by the core, historic interests of the state goes much too far.

It leaves our federal system a subject of lip service and not much

more.

The very fact of dual systems of government and dual systems of

courts creates some potential for inefficiencies and confusion.

Abstention is one of those sparingly utilized means necessary to

smooth the roughest edges and produce a more harmonious system.

The majority does more, however, than exacerbate tensions. It autho-

MARTIN v. STEWART 33

rizes lawsuits that will begin slowly to federalize — in all its aspects

— questions of state gambling policy. It will do what Congress has

declined to do. The majority deprives the state of a significant mea-

sure of control over issues touching not simply the pros and cons of

gambling but the very tone and quality of life within state borders.

This is not federalism. I respectfully dissent.