Petition for Writ of Certiorari — Stewart v. Martin (No. 07-1074)
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O7LO7&FEB 13 2008
6, OFFICE OF THE CLERK
No. 07A48
In The Supreme Court of the United States
Robert Stewart, as Chief of the South Carolina Law
Enforcement Division, Henry McMaster, as Attorney
General of the State of South Carolina and Ralph
Hoisington, as Solicitor of the Ninth Judicial Circuit,
Petitioners,
vs.
Jimmy Martin and Lucky Strike, LLC,
Respondents.
On Petition For Writ Of Certiorari To The United
States Court Of Appeals For The Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
ROBERT D. COOK
Deputy Attorney General
Counsel of Record
HENRY DARGAN McMASTER
South Carolina Attorney General
C. HAVIRD JONES, JR.
Senior Assistant Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
(803) 734-3736
Attorneys for Petitioners.
February 13, 2008
QUESTION PRESENTED FOR REVIEW
Does abstention under Burford v. Sun Oil Co.,
319 U.S. 315 (1943) apply to a facial constitutional
challenge that South Carolina’s anti-gambling statutes
violate the Due Process and Equal Protection Clauses
when South Carolina has created complex state
administrative and judicial mechanisms that provide
timely and adequate state court review of gambling
forfeiture decisions and when this Court has previously
ruled that the virtually identical South Carolina
statutes are not violative of these Clauses of the
Fourteenth Amendment?
il
PARTIES TO THE PROCEEDINGS
Petitioners Robert Stewart, as Chiefofthe South
Carolina Law Enforcement Division, Henry McMaster,
as Attorney General of the State of South Carolina and
Ralph Hoisington, as Solicitor of the Ninth Judicial
Circuit, were Defendants in the District Court and
Appellees in the Court of Appeals.
Jimmy Martin and Lucky Strike, LLC, were
Plaintiffs in the District Court and Appellants in the
Court of Appeals and are Respondents here.
iii
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW
PARTIES TO THE PROCEEDINGS
TABLE OF AUTHORITIES ...1...........-.. vi
PETITION FOR A WRIT OF CERTIORARI ...... 1
a oy one oe a ae 6 bine wo ae 1
I i a Sa ial ea a ee eee ee 1
STATUTORY PROVISIONS INVOLVED ........ 1
a es a re eis ir le 2
STATEMENT OF THE CASE ................. 2
Procedural Background ................. 2
South Carolina Gambling Law ........... 4
REASONS FOR GRANTING THE PETITION .... 7
eT see rrr 7
3 OVERVIEW OF THE CASE ............. 9
ll. THE MAJORITY’S DECISION IS
INCONSISTENT WITH THE DECISIONS OF
THIS COURT REGARDING BURFORD
i ree ee eee re er er 14
A. BURFORD AND ITS PROGENY ... 14
iV
B. NOPSI DOES NOT RENDER BURFORD
ABSTENTION UNWARRANTED HERE
Jc EREEN ORES Wa Eee 17
C. THE MAJORITY CREATED AN
EXCEPTION TO BURFORD
UNRECOGNIZED BY THIS COURT 23
Ill. THE MAJORITYS DECISION FURTHER
ADDS TO THE CONFUSION IN LOWER
FEDERAL COURTS REGARDING
BURFORD’S APPLICABILITY, AND IS
INCONSISTENT WITH DECISIONS IN
OTHER CIRCUITS AS WELL AS THE
Pet ye | 5 marae sree seen 25
IV. BURFORD ABSTENTION IS ESPECIALLY
APPLICABLE HERE BECAUSE OF THIS .-
COURTS SUMMARY AFFIRMANCE IN
HOLLIDAY, WHICH REJECTED SIMILAR
CONSTITUTIONAL CHALLENGES MADE
AGAINST THE VIRTUALLY IDENTICAL
SCUTH CAROLINA STATUTES IN
QUESTION IN THIS CASE. ........... 30
A. HOLLIDAY DECISION
B. EFFECT OF HOLLIDAY ......... 32
eS | een or ae Peat a arurrar ea 37
Vv
TABLE OF AUTHORITIES
FEDERAL CASES:
Alabama Public Service Commission v. Southern Ry.
Ce ee es A CRIED ook 6 as paw wise we ee 15, 16, 21
Ankenbrandt v. Richards, 504 U.S. 689 (1992) ... 17
Ayotte v. Planned Parenthood, 546 U.S. 320 (2006)
Bath Memorial Hospital v. Maine Health Care Fin.
Comm., 853 F.2d 1007 (1* Cir. 1988) ........... 27
Bennis v. Michigan, 516 U.S. 442 (1996)
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)
Se Se ciaia hee 4 Wag aes Ke abe aed ee 18
Be Sky as bE ew ee fa ee Se ee eee 16
Burford v. Sun Oil Co., 319 U.S. 315 (1943) . 3, 4, 8-
10, 12-18, 23-27, 29, 30, 35, 36
Calero-Toledo v. Pearson Yacht Leasing Co, 416 U.S.
ON 4. 0G) 0s 5 oink ny ae waa ew eek eee 35
Capital Bonding Corp. v. New Jersey Supreme Court,
127 F.Supp.2d 582 (D.N.J. 2001) ........... 26, 27
vi
Chiropractic America v. Lavecchia, 180 F.3d 99 (3d Cir.
BR rr eee ere ee 18, 26, 27
Chun v. State of N.Y., 807 F.Supp. 288 (S.D.N.Y. 1992)
iSée eS eek ee Cae oes ti eee 13
City of Chicago v. Morales, 527 U.S. 41 (1999) ... 33
Colorado River Water Conserv. Dist. v. U.S., 424 U.S.
PI iste Sn ee hr, tee eee 12, 17, 24
Comm. Party v. Whitcomb, 414 U.S. 441 (1974) .. 32
Durant v. Bennett, 54 F.2d 634 (W.D.S.C. 1931) .. 34
Fralin and Waldron, Inc. v. Martinsville, 493 F.2d 481
i a 8 | oie oe és bee 27
Gonzales v. Carhart, ___ U.S. __, 127 S.Ct. 1610
i sg whe se are ee 33
Great Lakes Dredge and Dock Co. v. Huffman, 319 U.S.
Ee ee mee soe Ped ae nd > 5 EN 16
Harrison v. NAACP, 360 U.S. 167 (1959) ....... 12
Heckler v. Chaney, 470 U.S. 821 (1985) ......... 21
Hicks v. Miranda, 422 U.S. 332 (1975) ...... 32, 36
Holliday v. State, 335 U.S. 803 (1948), (affirming 78
F.Supp. 918 (W.D.S.C. 1948)) .. 3, 5, 6, 8, 13, 19, 30-
36
vil
Intl. Eateries of America, Inc. v. Bd. of County
Commrs., 838 F.Supp. 580 (S.D.Fla. 1993) ...... 27
Jernigan v. State of Miss., 812 F.Supp. 688 (S.D. Miss.
I a re ae ag graces Ms lee nea 27, 29
Johnson v. Collins Entertainment Co., 199 F.3d 710(4™
I Sh SO alee ag ea eetare ise, Meine ag ete ore 13
Kolender v. Lawson, 461 U.S. 352 (1983) ........ 33
La. Power and Light Co. v. Thibodaux, 360 U.S. 25
(1959) (Brennan, J. et al. dissenting) ........... 11
Lawton v. Steele, 152 U.S. 133 (1894) ....... 34, 35
Mandel v. Bradley, 432 U.S. 173 (1977) ......... 32
Martin v. Creasy, 360 U.S. 219 (1959) .... 11, 16, 24
Martin v. Stewart, 438 F.Supp.2d 603 (D.S.C. 2006).
Ee Ue eae ee ar ee ee ee eae es ae ee ee ee Sh ree Ere tee 1
Martin v. Stewart, 499 F.3d 360, 25 A.L.R. Fed.2d 687
rR Ig i). otal bg bw acs ae kee aa es mie ad 1
McNeese v. Bd. of Ed., 373 U.S. 668 (1963) ...... 11
Monongahela Power Co. v. Schriber, 322 F.Supp.2d 902
i oN gg din ala a aS Oe A ee 23
Moore v. Sims, 442 U.S. 415 (1979) ...... 11, 22-24
vill
New Orleans Public Service Inc. v. Council of City of
New Orleans, 491 U.S. 350 (1989) . 13, 16-19, 21-24,
30, 36
Papachristou v. City of Jacksonville, 405 U.S. 156
COTE bok id 5 Kb eee LR eee ee ee 33
Pennsylvania Video Operators v. U.S., 731 F.Supp. 717
(W.D. Pa. 1990), affd., 919 F.2d 136 (3d Cir. 1990)
Posadas de Puerto Rico Associates v. Tourism Co. of
Puerto Rico, 478 U.S. 328 (1986) .............. 35
Procunier v. Navarette, 434 U.S. 555 (1978) ..... 32
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)
1k RPK WAR a 11, 12, 23, 24
Rizzo v. Goode, 423 U.S. 362 (1976) ............ 21
Russell v. Giles County, 105 F.Supp.2d 841 (M.D. Tenn.
SEED dx eau a:b bce -e 66 Oo a a hes oa eee 27
Sierra Club v. City of San Antonio, 112 F.3d 789 (5
Ce. Be) 6 kk hee os ee ek Oe eee eee 26
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779
CEG, ae ke ok hn ee ae eee eee 10
U.S. v. Edge Broadcasting Co., 509 U.S. 418 (1993)
SS dawn eas 066 eed bine 35
1x
U.S. v. Salerno, 481 U.S. 739 (1987) ........... 19
United States v. Armstrong, 517 U.S. 456 (1996) . 18
United States v. Korpan, 354 U.S. 271 (1957) .... 35
United States v. Mazurie, 419 U.S. 544 (1975) ... 19
Village of Hoffman Estates v. Flipside, 455 U.S. 489
Oh hn ek cee eedeudeseewereasacteds 19
Wainwright v. Stone, 414 U.S. 21 (1973) ........ 34
Younger v. Harris, 401 U.S. 37 (1971) ... 12, 22, 2
STATE CASES:
Alexander v. Martin, 192 S.C. 176, 6 S.E.2d 20 (1939)
sew weteeecerceececseeeee 6, 34
Allendale Sheriff's Office v. Two Chess Challenge II,
361 S.C. 581, 606 S.E.2d 471 (2004) .. 2,5, 7, 8, 10,
21
Ingram v. Bearden, 212 S.C. 399, 47 S.E.2d 833 (1948)
Mims Amusement Co. v. SLED, 366 S.C. 141, 621
S.E.2d 344 (2005)
x
Squires v. SLED, 249 S.C. 609, 155 S.E.2d 859 (1967)
State v. 192 Coin-Operated Video Game Machines, 338
S.C. 176, 525 S.E.2d 872 (2000) ........... 5, 7, 34
State v. DeAngelis, 257 S.C. 44, 183 S.E.2d 906 (1971)
State v. Four Video Slot Machines, 317 S.C. 397, 453
# & 7 fy er rr ee et 7
State v. Kizer, 164 S.C. 383, 162 S.E. 444 (1932) . 6,
State v. One Coin Operated Video Game Machine, 321
S.C. 176, 467 S.E.2d 443 (1996) ................ 7
Sun Light Prepaid Phonecard Co. v. State, 360 S.C. 49,
og eee eee 7
Westside Quik Shop, Inc. v. Stewart, 341 S.C. 297, 534
S.E.2d 270 (2000), cert. den. 531 U.S. 1029 (2000)
n.0 PO OS 5: N Oe ee warn eee ee eee 4,5,7
FEDERAL CONSTITUTIONAL AND STATUTORY
PROVISIONS:
- 23 Foe fs ree yr l
xi
STATE CONSTITUTIONAL AND STATUTORY
PROVISIONS:
a a ke ae a eee 4
South Carolina Code Ann. Section 12-21-2710 (2006)
a a se ee id ee 2-6, 27
South Carolina Code Ann. Section 12-21-2712 (2006)
ee ee sca a ak eng ere 2-6, 19, 27, 31
OTHER AUTHORITIES:
Davies, “Pullman and Burford Abstention: Clarifying
the Roles of State and Federal Courts in Constitutional
Cases,” 20 U.C. Davis L.R. 1, 11 (1986) ......... 17
Wise and Christensen, “Sorting Out Federal and State
Judicial Roles In State Institutional Reform:
Abstention’s Potential Role,” 29 Fordham Urb. L. J.
I, en fi a Se ae ee et a a Ge Wt a 25
Wright, Miller and Cooper, 17A Federal Practice and
EE EE SS PEF Ma amen re ger 16
Young, “Federal Court Abstention and Administrative
Law From Burford to Ankenbrandt,” 42 DePaul L. Rev.
Te oe a me ob a ee 25
]
PETITION FOR A WRIT OF CERTIORARI
The Attorney General of South Carolina on
behalf of himself, the Chief of the South Carolina Law
Enforcement Division and the prosecutor for the Ninth
Judicial Circuit of South Carolina, respectfully
petitions this Court for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Fourth Circuit in this case..
OPINIONS BELOW
The district court’s opinion granting Petitioners’
Motion to Dismiss (Pet. App. a51-a63) is reported at
438 F.Supp.2d 603 (D.S.C. 2006). The court of appeals
opinion is reported at 499 F.3d 360, 25 A.L.R. Fed.2d
687 (4 Cir. 2007). (Pet. App. al-a47). The order
denying the Petition for Rehearing and Rehearing En
Banc is found at Pet. App. a64-a65.
JURISDICTION
The court of appeals entered its judgment on
August 29, 2007. A petition for rehearing and
rehearing en banc was denied on September 20, 2007.
Pet. App. a64-a65. The Court extended the time for
filing the Petition for Certiorari until February 15,
2008. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
South Carolina’s yambling statutes being
challenged as unconstitutional are codified at S.C.
2
Code Ann. Sections 12-21-2710 and 12-21-2712.
(2006). Pet. App. a66-a67.
STATEMENT
STATEMENT OF THE CASE
Procedural Background
South Carolina’s anti-gambling statutes [S.C.
Code Ann. Sections 12-21-2710 and 12-21-2712 (2006)},
see Pet. App. a-66-a67, provide that slot machines,
video poker machines, specific video games and any
“other device pertaining to games of chance” are illegal
and may not be possessed. Such possession is a crime.
Pursuant to Section 12-21-2712, law enforcement
officers must seize these devices and take them before
a magistrate, who determines their legality under § 12-
21-2710, on a machine-by-machine basis. Allendale
Sheriff's Office v. Two Chess Challenge II, 361S.C. 581,
606 S.E.2d 471 (2004). Devices violative of Section 12-
21-2710 are ordered destroyed, subject to the right of
the owner to aost-seizure hearing and appeal. Mims
Amusement Co. v. SLED, 366 S.C. 141, 621 S.E.2d 344
(2005).
Respondents sought declaratory and injunctive
relief in federal court, contending that Sections 12-21-
2710 and 12-21-2712 violate the Due Process and
Equal Protection Clauses. Specifically, Respondents’
Complaint contends that Section 12-21-2710 is void for
vagueness, and thus violates the Due Process Clause.
Moreover, it is alleged that the failure of the two
statutes to provide a pre-enforcement mechanism for
3
determining the legality ofa particular type of machine
or device contravenes the Equal Protection Clause.
Finally, Respondent contends the State has
discriminatorily enforced these statutes. Pet. App. a68-
a8 1.
The District Court dismissed the action,
abstaining under Burford v. Sun Oil Co., 319 U.S. 315
(1943). Pet. App. a51-a63. Respondents appealed, and
the Fourth Circuit panel reversed, over a vigorous
dissent by Judge Wilkinson. The majority deemed
Burford inapplicable essentially because Respondents
are challenging the “facial” constitutionality of Sections
12-21-2710 and 12-21-2712. In the view of the
majority, Respondents’ claims “present no difficult
questions of state law whose importance outweighs the
federal interest in adjudicating Martin’s constitutional
case,” nor do the claims “threaten a state interest in
uniform regulation that outweighs the federal interest
in adjudicating the case.” Jd. at al2. The panel
concluded that if successful, Respondents would be
entitled to have enjoined “all enforcement of the
statutes at issue; such relief could not possibly
threaten their uniform application.” Jd. at al5.
(emphasis in original).
The Petitioners sought rehearing, which was
denied on September 20, 2007. Pet. App. a64-a65.
Petitioners again contended that Burford abstention is
applicable notwithstanding Respondents’ claims that
Sections 12-21-2710 and 12-21-2712 are
unconstitutional. Moreover, Petitioners argued that
this Court’s summary affirmance in Holliday v. State,
4
335 U.S. 803 (1948), (affirming 78 F.Supp. 918
(W.D.S.C. 1948)), which upheld a three-judge court’s
determination that similar predecessor provisions of
these South Carolina statutes do not violate the Due
Process and Equal Protection Clauses, strongly
supports Burford abstention. fd. at al14-al130. The
time for filing having been extended by the Court, our
Petition is timely.
South Carolina Gambling Law
South Carolina long ago sought to prohibit
gambling devices. In 1931, the Legislature enacted a
comprehensive ban in what is now Sections 12-21-2710
and 12-21-2712. These provisions, with certain
exceptions, remain today largely unchanged. Westside
Quik Shop v. Stewart, 341 S.C. 297, 300-302, 534 S.E.2d
270, 271-272, (2000), cert. den. 531 U.S. 1029 (2000) [history
of statutes discussed]. The additions, since 1931,
largely focus upon video poker. Following extensive
debate, Act No. 125 was enacted in 2000, and added
video poker and other video games to the statutes’ ban.
Pursuant to the statute, slot machines, video poker
machines, keno, blackjack, and other devices
“pertaining to games of chance,” are declared illegal per
se.! Possession constitutes a crime, and law
* As noted above, in 2000, by Act No. 125, the Legislature
amended the statute to add video poker machines [“video game
machine with a free play feature operated by a slot or thing of
value”] and other video games such as blackjack, keno, lotto, bingo
orcraps. However, except for minor consolidations, the remainder
of Section 12-21-2710, including the language “pertaining to
(continued...)
5
enforcement is authorized to seize such devices and
take them to a magistrate for determination of
illegality. The magistrate must order devices deemed
illegal under Section 12-21-2710 destroyed.’
An owner may seek a post-seizure hearing to
contest the magistrate’s initial determination of
illegality. State v. 192 Coin-Operated Video Game
Machines, 338 S.C. 176, 525 S.E.2d 872 (2000).
Forfeiture is machine-by-machine before the
magistrate — the exclusive forum for such matters.
Allendale County Sheriff's Office, 361 S.C. supra at
587, 606 S.E.2d supra at 474. The owner may appeal
to the circuit court, and then to the appellate courts.
Mims Amusement Co. v. SLED, supra. The statutes’
purpose is clear: forfeiture of gambling devices “serves
a deterrent purpose both by preventing the further
illicit use of the property and by imposing an economic
penalty, thereby rendering the illegal behavior
unprofitable.” Westside, 341 S.C., supra at 304, 534
S.E.2d supra at 273 (2000), citing Bennis v. Michigan,
516 U.S. 442, 452 (1996).
In 1948, a wide-ranging constitutional attack
was launched in federal court against these statutes.
In Holliday v. State, supra, plaintiff sought to enjoin
these virtually identical statutes as violative of the
Due Process and Equal Protection Clauses, alleging the
‘(...continued)
games of chance,” has been present since 1931.
* The language of Section 12-21-2712 has remained
virtually unchanged since 1931.
6
laws “unconstitutional, null and void and in violation
of the Fourteenth Amendment of the United States
Constitution.” 78 F.Supp., id., at 921. A three-judge
court upheld the anti-gambling statutes as
constitutional, as “clearly a valid exercise of the police
power of the State of South Carolina, and constitute[ ]
no attempt on the part of the state to deprive plaintiff
of his property without due process of law.” Id. at 925.
According to the three-judge court, “[t}]he General
Assembly of South Carolina, under its police power,
had the right to declare such machines gambling
machines per se, and as such illegal in the State of
South Carolina.” Id.
Holliday also contended before this Court that
these statutes violate both Due Process and Equal
Protection. See, Pet. App. a131-a160. (Appellant’s
Jurisdictional Statement and Brief). Holliday’s
arguments, like Respondents’, were that the statutes
arbitrarily deprived him of innocent property by
declaring his particular gaming devices contraband per
se and thus subject to destruction pursuant to present
§ 12-21-2712. Id. at al38. However, this Court
summarily affirmed the three-judge court, thus finding
the statutes constitutionally valid. 335 U.S. 803
(1948).
Sections 12-21-2710 and 12-21-2712 and its
predecessors have been consistently enforced and
upheld by the state Supreme Court. Over the decades,
- muchcase law regarding these provisions’ applicability
and constitutionality has been adjudicated. See, State
uv. Kizer, 164 S.C. 383, 162 S.E. 444 (1932): Alexander
7
v. Martin, 192 S.C. 176, 6 S.E.2d 20 (1939); State v.
Appley, 207 S.C. 284, 35 S.E.2d 835 (1945); Ingram uv.
Bearden, 212 S.C. 399, 47 S.E.2d 833 (1948); Squires v.
SLED, 249 S.C. 609, 155 S.E.2d 859 (1967); State v.
DeAngelis, 257 S.C. 44, 183 S.E.2d 906 (1971); State v.
Four Video Slot Machines, 317 S.C. 397, 453 S.E.2d
896 (1995); State v. One Coin Operated Video Game
Machine, 321 S.C. 176, 467 S.E.2d 443 (1996); State v.
192 Coin-Operated Video Game Machines, supra;
Allendale County Sheriff's Office v. Two Chess
Challenge II, supra; Westside, supra; Sun Light
Prepaid Phonecard Co. v. State, 360 S.C. 49, 600 S.E.2d
61 (2004); Mims Amusement Co. v. SLED, supra.
These cases have addressed the statutes’ conformity
with procedural due process (State v. Kizer, supra;
State v. 192 Coin-Operated Video Game Machines,
supra); alleged vagueness (State v. DeAngelis, supra);
purported Equal Protection violations (State v. 192
Video Game Machines, supra; Sun Light, supra); trial
by jury (Mims Amusement Co., supra); and the
statutes’ alleged unconstitutional “taking” (Westside,
supra). The statutes have been applied to slot
machines, pin ball machines, remnants of machines,
and video games. Over the years, the state Supreme
Court has diligently applied these gaming statutes
consistently with the federal Constitution.
REASONS FOR GRANTING THE PETITION
Summary of Argument
In this case, the Fourth Circuit panel, by a 2-1
split, reversed the District Court’s decision to abstain
8
under Burford. Essentially, the panel’s majority found
abstention unwarranted, premised upon the illogic
that, because Respondents allege the forfeiture
statutes are facially unconstitutional as vague and
discriminatory, Burford is inapplicable. In the
circumstances of a ‘facial” attack upon the State’s
regulatory scheme, concluded the majority, federal
court intervention does not “possibly threaten [the] ...
uniform application” of the State’s regulatory scheme.
Pet. App. a15 (emphasis in original).
The majority thus created a new exception tothe
Burford doctrine, an exception which this Court has
rejected, and one which is inconsistent with decisions
in other circuits. Indeed, it did so, mindful that this
Court previously concluded in Holliday, supra that the
similar predecessor forfeiture statutes to South
Carolina’s amended version do not violate the Due
Process and Equal Protection Clauses. These are the
very constitutional provisions which Respondents
assert here, and it is these provisions which form the
basis for the majority’s “facial” exception to Burford.
With the panel’s ruling, Respondents and other
federal plaintiffs may now avoid the state forfeiture
process altogether, as well as disregard state court
interpretations concerning that process. See, e.g.
Allendale, supra. It is evident Respondents do not like
these state court decisions such as requiring “machine
by machine” forfeiture adjudicated in a post-seizure
proceeding. Pet. App. a77. [alleging Respondents’
desire to market a “legal” machine in South Carolina].
Now, armed with a well-crafted complaint, machine
9
owners and other plaintiffs may proceed directly to
federal court, having bypassed the state enforcement
scheme on the basis that the federal Constitution
insures a right to place machines on the market prior
to a forfeiture proceeding. Such avoidance of the state
forfeiture process upends the abstention doctrine and
undermines the structure of federalism it preserves.
Here, in reversing the District Court’s decision
to abstain under Burford, the majority rejected the
lower court’s concern for avoiding entanglement in the
intricacies of state gambling law. Instead, the majority
found that since Respondents’ claims constitute a
“direct attack on the constitutionality of a statute, ‘the
kind of controversy federal courts are particularly
situated to adjudicate ...,” such claims “are not proper
candidates for Burford abstention.” Pet. App. a19-a20.
However, in dissent, Judge Wilkinson astutely rejected
the non-existence of any rule exempting “facial” claims,
stating that the Fourteenth Amendment has not
“reordered” federa] and state relations “as to render
Burford abstention virtually inapplicable to all
constitutional challenges in federal court to specialized
regulatory schemes.” Pet. App. a28.
I. OVERVIEW OF THE CASE
This case invokes the fundamental principle of
“Our Federalism” established by the Founding Fathers.
At stake is South Carolina’s ability under our federal
system to perform the core state function of regulating
gambling — through a system of seizure and forfeiture
of contraband gambling devices and other “games of
chance” — without intrusion by the federal courts.
10
South Carolina has had its forfeiture system
proscribing slot machines and other “games of chance”
in place since 1931. In 2000, after much debate and
deliberation, the forfeiture statutes were amended by
the South Carolina legislature to add “video poker” and
other video games to the _ statutes’ previous
longstanding ban. In addition, in recent years, the
state Supreme Court has further clarified these
statutes, concluding that owners of seized machines
are entitled to a post-seizure (not a pre-seizure)
hearing, and that forfeiture is “machine-by-machine.”
In other words, legality under state law is not
determined upon the basis of an entire class or
category of machines, but only those individual
machines seized and brought before the magistrate are
adjudged. Allendale, supra; Mims, supra.
Justice Kennedy perhaps said it best: America’s
dual sovereignty structure is a work of “genius,”
premised upon the idea that “our citizens would have
two political capacities, one state and one federal, each
protected from incursion by the other.” U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995),
(Kennedy, J. concurring). Abstention protects these
sacred values, thus enabling federal courts to exercise
“wise discretion” by restraining “their authority
because of ‘scrupulous regard for the rightful
independence of state governments ....” Burford, 319
U.S., supra at 332. A federal court, in employing its
equitable powers, thus may refrain from exercising
jurisdiction if, upon balancing federal and state
interests involved, determines “the State’s interests are
paramount and ... a dispute would best be adjudicated
Srp ail
1]
in a state forum.” Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 728 (1996). Such circumstance
warranting abstention includes the “avoidance of the
hazard of unsettling some delicate balance in the area
of federal-state relationships.” La. Power and Light
Co. v. Thibodaux, 360 U.S. 25, 32 (1959) (Brennan, J.
et al. dissenting).
The abstention doctrine, as articulated through
the decisions of this Court, does not recognize a “facial”
constitutional claim exception, as the majority created,
particularly where, as here, questions of racial
discrimination or other fundamental rights are not
involved, and a timely and adequate mechanism to
review violations of any constitutional rights is
available. Compare, McNeese v. Bd. of Ed., 373 U.S.
668 (1963). To exempt altogether such constitutional
claims effectively disregards the State’s interest,
embroils federal courts in the State’s “internal affairs,”
thereby undermining the principle of federalism.
McNeese, Id. at 677 (Harlan, J. dissenting). As Justice
Rehnquist wrote in Moore v. Sims, 442 U.S. 415, 427
(1979), “{t]he breadth of a challenge to a complex state
statutory scheme has traditionally militated in favor of
abstention, not against it.” (emphasis in original).
Martin v. Creasy, 360 U.S. 219, 224 (1959)
recognizes that there is no broad rule eliminating
abstention, as the majority fashioned. In Creasy, even
though the lower court enjoined the State's
administrative scheme as violative of Due Process,
abstention was required to “avoid[]... the unnecessary
impairment of state functions.” Quackenbush, supra
12
also cautioned that a rigid, “per se” approach to
Burford’s applicability is inconsistent with Burford’s
flexibility. 517 U.S., supra at 730. See also, Younger
v. Harris, 401 U.S. 37, 45 (1971) [state cour‘s are
competent to address the constitutionality of state
statutes]; Harrison v. NAACP, 360 U.S. 167, 176 (1959)
[notwithstanding “facial” claims, abstention warranted
to avoid “unnecessary interference by the federal courts
with proper and validly administered state concerns.”);
Colorado River Water Conserv. Dist. v. U.S., 424 U.S.
800, 814 (1976) [“[i]t is enough that exercise of federal
review of the question in a case and in similar cases
would be disruptive of state efforts to establish a
coherent policy with respect to a matter of substantial
public concern.”}]. Accordingly, this case raises the
critical question of whether Burford is avoided merely
by alleging “facial” unconstitutionality of the governing
statutory scheme or, instead abstention is determined
by carefully balancing the federal and state interests
involved.
In not balancing these interests, the majority's
decision is especiall« troubling. First, is the adverse
effect upon the State’s deterrence of gambling — its core
function. For decades, without interruption, South
Carolina has discouraged gambling by criminalizing
gambling devices and “games of chance” and forfeiting
them as contraband per se. Now, that core state
process is threatened by a federal action seeking to
bypass the rulings of the South Carolina Supreme
Court determining the manner in which that forfeiture
system operates under state law.
13
Secondly, New Orleans Public Service Inc. v.
Council of City of New Orleans, 491 U.S. 350, 361
(1989) (NOPSI) recognized that Burford is particularly
applicable where the constitutional challenge is “of
minimal federal importance ....” This Court’s summary
affirmance in Holliday v. State, supra — upholding the
almost identical predecessor South Carolina statutes to
those attacked here, against similar constitutional
challenges — should have convinced the majority to
revisit its establishment of any “facial” exception to
Burford. Disregard of Holliday’s controlling impact
undermines respect for this Court’s precedents.
Moreover, the majority's decision is at odds with
those in other circuits. These rulings essentially
recognize that Burford s applicability depends not upon
the claim alleged, but upon the proper balancing of
federal and state interests involved and the assurance
that the state procedures adequately protect
constitutional claims. Other courts have concluded
Burford is applicable, notwithstanding constitutional
challenges to statutes, regulations, court rules, or local
ordinances. Where the state’s regulation of gambling
is the subject of inquiry in federal court, Burford
abstention has been considered particularly warranted.
See, Johnson v. Collins Entertainment Co., 199 F.3d
710, 720 (4 Cir. 1999) [deterrence of gambling lies “at
the heart of the state’s police power.”]; Chun v. State of
N_Y., 807 F.Supp. 288, 292 (S.D.N.Y. 1992) [“(t)he
scope of laws regulating gambling and lotteries is
clearly a matter of predominately local concern.”}
Thus, as dissenting Judge Wilkinson recognized,
14
Burford’s applicability “in the most sensitive areas of
state sovereignty [is] an issue that has been rife with
conflicting approaches.” Pet. App. a25. Unless this
Court squarely addresses abstention’s applicability
when a “facial” constitutional challenge is made to a
state regulatory regime, Burford’s doctrine is undercut
and respect for state sovereignty undermined. The
majority's decision leaves the fate of abstention in the
hands of the creative drafter of the complaint, who can
avoid state processes by alleging the entire regulatory
regime is constitutionally defective. As Judge
Wilkinson observed, the majority’s decision sends the
“troubling message” that the abstention doctrine can be
“skirtfed]” by “characterizing claims such as this as
mere facial challenges.” Pet. App. a43.
Il. THE MAJORITY’S DECISION IS
INCONSISTENT WITH THE DECISIONS
OF THIS COURT REGARDING BURFORD
ABSTENTION.
A. BURFORD AND ITS PROGENY
In Burford and its progeny, this Court has
ordered abstention notwithstanding the assertion of
constitutional claims. Burford, itself involved a due
process claim. Yet, this Court concluded abstention
was warranted, explaining that
{aJlthough a federal equity court does
have jurisdiction of a _ particular
proceeding, it may in its sound discretion,
whether its jurisdiction is invoked on the
grounds of diversity of citizenship or
otherwise, ‘refuse to enforce or protect
15
legal rights, the exercise of which may be
prejudicial to the public interest’; for it ‘is
in the public interest that federal courts
of equity should exercise their
discretionary power with proper regard
for the rightful independence of state
governments in carrying out their
domestic policy.’
319 U.S., supra, at 317-318 (emphasis added).
Importantly, the state provided a “unified method for
the formation of policy and determination of cases by
the Commission and by the state courts.” Id. at 333-
334. Judicial review of the Railroad Commission’s
order was “expeditious and adequate.” Id. at 334.
Burford’s doctrine was reaffirmed in Alabama
Public Service Commission v. Southern Ry. Co., 341
U.S. 341 (1951). Again, a due process claim was raised.
Nevertheless, the Court required abstention,
explaining that
[e]quitable relief may be granted only
when the District Court, in its sound
discretion exercised with the ‘scrupulous
regard for the rightful independence of
state governments which should at all
times actuate the federal courts ... is
convinced that the asserted federal right
cannot be preserved except by the
extraordinary relief of an injunction in
the federal courts.’ ... Whatever rights
appellee may have are to be pursued
through the state courts.
16
Id. at 349-350.
And, Martin v. Creasy, supra, as here, involved
a constitutional challenge to a statute as written. In
reversing the three-judge court’s enjoining of the
highway access statute as violative of the Fourteenth
Amendment, the Court concluded that “[t]he
circumstances which should impel a federal court to
abstain from blocking the exercise by state officials of
their appropriate functions are present here in a
marked degree.” 360 U.S., supra at 224. Emphasizing
that the state statute provides a “procedure through
which the full measure of {plaintiffs’] ... rights under
the United States Constitution will be preserved ...,”
the Court abstained. Abstention was based upon “the
unnecessary impairment of state functions.”* Jd.
NOPSI, supra clarified Burford. There,
abstention was deemed inappropriate to a challenge
that a rate order was federally pre-empted. NOPSI
summarized the “Burford doctrine” as follows:
[w]here timely and adequate state-court
review is available, a federal court sitting
in equity must decline to interfere with
the proceedings or orders of state
administrative agencies: (1) when there
3 Creasy is a form of “Burford type abstention. ...” BT Inv.
Managers, Inc. v. Lewis, 559 F.2d 950, 955 (5" Cir. 1977); Wright,
Miller and Cooper, 17A Federal Practice and Procedure § 4244
[citing Creasy as a Burford type case]. See also, Great Lakes
Dredge and Dock Co. v. Huffman, 319 U.S. 293, 298 (1943) [“It is
in the public interest that federal courts of equity should exercise
their discretionary power to grant or withhold relief so as to avoid
needless obstruction of the domestic policy of the states.”]
17
are “difficult questions of state law
bearing on policy problems of substantial
public import whose importance
transcends the result in the case at bar”;
or (2) where the exercise of federal review
of the question in a case and in similar
cases would be disruptive of state efforts
to establish a coherent policy with respect
toa matter of substantial public concern.”
491 U.S., id. at 361, quoting Colorado River Water
Conserv. Dist. v. U.S., 424 U.S. supra.*
B. NOPSI__DOES NOT RENDER
BURFORD ABSTENTION
UNWARRANTED HERE
Contrary to the Fourth Circuit’s suggestion
otherwise, Pet. App. at al8, NOPSI does not disqualify
Respondents’ constitutional claims as a “candidate” for
Burford abstention. This Court’s two-pronged test
specified in NOPSI for Burford applicability is
alternatively stated, such that “Burford does not
require unclear questions of state law.” Davies,
“Pullman and Burford Abstention: Clarifying the Roles
of State and Federal Courts in Constitutional Cases,”
20 U.C. Davis L.R. 1, 11 (1986). Nor does NOPSI
suggest in this test that “facial” constitutional claims
are not subject to Burford. The key question for
Burford abstention is instead whether adjudication in
federal court would “unduly intrude into the processes
* In Ankenbrandat v. Richards, 504 U.S. 689, 706 (1992),
this Court suggested that Burford is applicable to judicial
proceedings, as well as administrative.
18
of state government or undermine the State’s ability to
maintain desired uniformity.” 491 U.S. id. at 363.
Thus, NOPSI lends no comfort to the Fourth
Circuit's creation of a “facial” exception to Burford.
Importantly, NOPSI’s “facial” claim was based upon
preemption of an order, rather than a “facial”
constitutional claim. There is a_ considerable
distinction between the two. See, Chiropractic America
v. Lavecchia, 180 F.3d 99, 108 (3d Cir. 1999)
{distinguishes preemption from a “facial” constitutional
attack; “[a] reviewing federal court would be required
to delve beyond the text of the regulations to adjudicate
Appellants’ constitutional claims.”]. Moreover, it is
rare that a “facial” claim sweeps away an entire
statute. Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 504 (1985) [Partial, rather than facial
invalidation, is the “normal rule.”]; Ayotte v. Planned
Parenthood, 546 U.S. 320, 328-29 (2006) [*... when
confronting a constitutional flaw in a statute, we try to
limit the solution to the problem.”].
Here, discriminatory enforcement is alleged. As
stated in United States v. Armstrong, 517 U.S. 456, 466
(1996), a discriminatory enforcement claim is “not
based on the ground [the statute] is unconstitutional
on its face,” but challenges “the manner of its
administration.” Such a claim is, therefore, generally
a mixed question of law and fact. Unlike NOPSI, this
claim cannot be adjudicated based upon a purely
“facial” analysis.°
* Moreover, unlike NOPSI, Respondents, in reality, allege
certain state law violations as well as constitutional claims. They
(continued...)
19
Likewise, Respondents other Due Process and
Equal Protection contentions cannot be characterized
solely as “facial” claims. A facial vagueness claim
“means a claim that the law is ‘invalid in toto — and
therefore incapable of any valid application.” Village
of Hoffman Estates v. Flipside, 455 U.S. 489, 494 n. 5
(1982). As United States v. Mazurie, 419 U.S. 544, 550
(1975) emphasizes, “... vagueness challenges to statutes
which do not involve First Amendment freedoms must
be examined in the light of the facts of the case at
hand.” (emphasis added). Respondents’ Due Process
and Equal Protection claims are thus not “facial” in
NOPSI’s sense. Holliday, supra clearly demonstrates
that Respondents cannot “establish that no set of
circumstances exists under which ... [these] Act[s]
would be valid.” U.S. v. Salerno, 481 U.S. 739, 745
(1987).
5(...continued)
assert that “[djefendants have permitted the possession and
operation of devices pertaining to games of chance that have been
specifically ruled illegal in prior judicial rulings in video arcades
catering to young children ....” Pet. App. a76. Yet, Section 12-21-
2712 requires law enforcement officers to seize “any” illegal
machine or device and take before the magistrate. While
Respondents characterize their claim as Equal Protection-based,
they also are alleging a state law violation. Moreover,
Respondents’ complaint asserts the goal to design and
manufacture “a legal video amusement machine to be operated
within the State of South Carolina,” yet are “unwilling” to “risk”
prosecution and seizure. Pet. App. at a77. In effect, Respondents
argue that their machines - in contrast to others’ — are “legal”
under state law, i.e. not “games of chance.” Thus, their contention
is essentially that the state may misperceive the nature of their
machines and thus “misapp]ly] its lawful authority,” or that the
State will not “properly weigh relevant state law factors ....”
NOPSI, 491 U‘S. at 562.
20
Judge Wilkinson correctly recognized that
Respondents’ claims are not “facial.” He noted that the
essence of Respondents’ claims are for discriminatory
enforcement and to support such claim they desire
extensive discovery. Pet. App. a43-a45. In his view,
the majority “exalts form over substance ...,” Jd. at a42,
in characterizing Respondents’ equal protection claim
as “facial”:
... plaintiffs’ equal protection challenge
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
federal court to pass upon the rationality
of South Carolina’s strategy for 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.
Pet. App. a43-a44.
Moreover, as Judge Wilkinson noted concerning
Respondents’ “vagueness” claim, “... 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.” Id.
at a36. And, with regard to Respondents’ contention
that a pre-seizure mechanism is constitutionally
21
required, he recognized that in areas of traditional
local control, “‘state courts are fully competent to —
adjudicate constitutional challenges to local ...
decisions.” Jd. at a47. Thus, unlike NOPSI, which
involved a truly “facial” claim, Respondents’ claims are
clearly “entangled in a skein of state law” which must
be untangled before any federal action can proceed.
491 U.S. at 362. In essence, Respondents’ federal
action is based upon a desire to “design and
manufacture a legal video amusement machine [under
state law] to be operated within the State of South
Carolina ....” Pet. App. at a77. A federal court, faced
with their Due Process and Equal Protection claims,
will inevitably become enmeshed in the details of
South Carolina’s anti-gambling statute and invariably
must apply the State’s “game of chance” requirement
to a specific factual situation. Such intrusion by the
federal judiciary significantly threatens the State’s
interest in maintaining uniformity in the treatment of
an “essentially local problem ....” Alabama Pub. Serv.
Comm’n., 341 U.S., supra at 347.
As stated, South Carolina enforces its gambling
laws, based upon a “machine by machine” forfeiture
analysis. An amusement machine can instantly
become an illegal per se gambling device with a slight
computer modification. Allendale, supra. Thus, as
Heckler v. Chaney, 470 U.S. 821, 831 (1985) states, the
“decision not to enforce often involves a complicated
balancing of a number of factors which are peculiarly
within its expertise.” Where “the exercise of authority
by state officials is attacked, federal courts must be
constantly mindful of the ‘special delicacy of the
adjustment to be preserved between federal equity
power and state administration of its own law.” Rizzo
22
v. Goode, 423 U.S. 362, 378 (1976).
For all these reasons, the Fourth Circuit’s
reliance upon NOPSI or other cases for its novel “if
facial constitutional claims are alleged, no possible
threat to uniformity is imposed” reasoning is entirely
misplaced. Indeed, such analysis is at odds with this
Court’s decisions regarding the applicability of
abstention to constitutional claims. Moore v. Sims,
supra, although a Younger abstention case, is highly
instructive. There, abstention was warranted even
though Plaintiffs facially attacked provisions of Texas
law authorizing emergency custody of children. As the
Fourth Circuit did here, the District Court refused to
abstain, intimating that Plaintiffs’ challenge to the
entire Texas statutory scheme as unconstitutional
rendered abstention inapplicable. Justice Rehnquist
demonstrated why such reasoning is flawed:
[t}hus, the District Court suggests that
the more sweeping the challenge the
more inappropriate is abstention, and
thereby inverts traditional abstention
reasoning. The breadth of a challenge to
a complex state statutory scheme has
traditionally militated in favor of
abstention, not against it. This is evident
in a number of distinct but related lines
of abstention cases which, although
articulated in different ways, reflect the
same sensitivity to the primacy of the
State in the interpretation of its own laws
and the cost to our federal system of
government in federal court
interpretation and subsequent
23
invalidation of parts of an integrated
statutory framework.
442 U.S., supra at 427 (emphasis in original). While
Moore involved Younger abstention, Burford and
Younger are closely related. Monongahela Power Co. v.
Schriber, 322 F.Supp.2d 902, 915 (S.D. Ohio 2004). See
also, NOPSI, 494 U.S. supra at 365 [*... the mere
assertion of a substantial federal constitutional
challenge to state action will not alone compel the
exercise of federal jurisdiction.”].
C. THE MAJORITY CREATED AN
E I T D
UNRECOGNIZED BY THIS COURT
Accordingly, in fashioning an exception to
Burford for “facial” constitutional claims, the majority
wrongly applied Burford cases, including NOPSI.
Again, Quackenbush, supra, rejects a “rigid” or “per se”
approach to Burford. While Burford requires a
“balance [which] only rarely favors abstention,” still,
that “balance” must be made.°® It is error tc determine
° True, the Court of Appeals ostensibly applied the test for
Burford abstention articulated in NOPSI, See, 491 U.S. at 361-
363. Yet, clearly the so-called “facial” attacks Respondents make
against South Carolina’s statutes drove the majority's analysis.
Moreover, as Judge Wilkinson noted, the majority's conclusion
that no difficult questions of state law are here involved is
incorrect. The District Court, faced with Respondents’ vagueness
claims, will inevitably become enmeshed in applying the statutes
“pertaining to games of chance” language on a machine-by-
machine basis as state law requires. Further, concerning
Respondent's claim that no mechanism for advance approval of a
class of machines exists, the District Court will again run
(continued...)
24
that an attack upon the statutes “as written” results in
Burford abstention’s inapplicability. Although the fact
that a state policy may be overturned is no reason to
abstain, 491 U.S., supra, at 363, a “facial”
constitutional attack upon a state policy or state
regulatory statutes ts no reason not to abstain. See,
Creasy, supra; Moore v. Sims, supra, Colorado River,
421 U.S., supra at 815, n. 14 [Although the burden may
. be greater, Burford may apply, even where there is “a
federal basis for jurisdiction.”] Rather than concluding
that “facial” constitutional attacks upon the state’s
regulatory scheme are not “proper candidates” for
Burford, a federal court must carefully balance federal
and state interests, determining whether “the State’s
interests are paramount and that a dispute would best
be adjudicated in a state forum.” Quackenbush., 517
U.S. supra at 728.
The majority failed to engage in such balancing,
giving no weight to the fact that state law assigns toa
magistrate the determination of legality of all
gambling devices seized, subject to timely and
adequate judicial review. Instead, the Court severely
devalued the State’s interest in prohibiting gambling
and in maintaining uniformity in that deterrence — by
placing all emphasis upon Respondents’ “facial”
claims. And, by discounting completely the inevitable
entanglement of Respondents’ claims with South
Carolina’s regulatory anti-gaming scheme aimed at
“games of chance,” the majority was also unfaithful to
Burford. Such an analysis undermines the flexibility
which Burford encourages and thwarts the principles
®(__ continued)
headlong into the machine-by-machine requirement of state law.
25
of federalism and comity which Burford protects.
lil, THE MAJORITYS DECISION FURTHER
ADDS TO THE CONFUSION IN LOWER
FEDERAL COURTS REGARDING
BURFORD’S APPLICABILITY, AND IS
INCONSISTENT WITH DECISIONS IN
OTHER CIRCUITS AS WELL AS THE
FOURTH CIRCUIT.
Judge Wilkinson’s dissent expressed concern
about the reigning confusion in the lower federal courts
over Burford’s applicability, noting that the “issue [is]
rife with conflicting approaches.” Pet. App. a25. Other
commentators agree wholeheartedly with his
assessment. As one authority has_ observed,
“[cJonfusion over the scope of Burford abounds ....”
Young, “Federal Court Abstention and Administrative
Law From Burford to Ankenbrandt,” 42 DePaul L. Rev.
859, 866 (1993). And, as another commentator has
written,
[m]Juch confusion surrounds the factors
federal courts should consider in deciding
whether to grant Burford abstention ... .
Supreme Court formulations of Burford
have been abstract, leading to a variety of
views concerning its requirements among
the federal circuits.
Wise and Christensen, “Sorting Out Federal and State
Judicial Roles In State Institutional Reform:
Abstention’s Potential Role,” 29 Fordham Urb. L. J.
387, 399 (2001). By adopting a “per se” rule for so-
called “facial” challenges, the majority compounds the
26
confusion dramatically.
Decisions in other circuits disagree with the
Court of Appeals’ “facial” exception. For example, the
Fifth Circuit has stated quite clearly in Sierra Club v.
City of San Antonio, 112 F.3d 789, 795 (5™ Cir. 1997)
that “Burford abstention does not so much turn on
whether the plaintiffs cause of action is alleged under
federal or state law, as it does on whether the
plaintiffs claim may be ‘in any way entangled in a
skein of state law that must be untangled before the
federal case can proceed.” And, in Capital Bonding
Corp. v. New Jersey Supreme Court, 127 F.Supp.2d 582
(D.N.J. 2001), the District Court abstained under
Burford notwithstanding that Plaintiffs claim
constituted a “facial challenge” to a New Jersey
Supreme Court rule for notice and removal of insurers
from the New Jersey Bail Registry. The Court noted
that “[wJe are thus presented with murky federal
constitutional claims of questionable merit.” Jd. at
595. Finding that the “Plaintiff has ample opportunity
for review of the new Rule and any implementation
thereof,” /d., at 594, the Court relied upon the Third
Circuit’s decision in Chiropractic America v. Lavecchia,
supra, in abstaining under Burford. Quoting
Lavecchia, which involved Burford abstention in the
context of constitutional challenges to chiropractic
regulations, the Capital Bonding Court stated that
“... certain matters are of state concern to
the point where federal courts should
hesitate to intrude; and they may also
concern judicial ‘economy, the notion that
courts should avoid making duplicate
efforts or unnecessarily deciding difficult
27
questions.” —
127 F.Supp.2d at 591, quoting Chiropractic America,
180 F.3d at 103 (quoting Bath Memorial Hospital v.
Maine Health Care Fin. Comm., 853 F.2d 1007, 1012
(1™ Cir. 1988)).
An earlier Fourth Circuit decision, Fralin and
Waldron, Inc. v. Martinsville, 493 F.2d 481 (4™ Cir.
1974) is also inconsistent with the Court of Appeals’
reasoning in thiscase. Fralin involved a constitutional
challenge to a zoning ordinance. As here, Plaintiffs
claims raised questions of vagueness and arbitrary
enforcement. Yet, the Fourth Circuit required
abstention, because state adjudication would “avoid
needless friction in federal-state relations over the
administration of purely state affairs.” 493 F.2d, Id. at
483. See also, Russell v. Giles County, 105 F.Supp.2d
841, 848 (M.D. Temn. 2000) [the Court abstained
under Burford even though constitutional claims were
mounted against the Tennessee Public Indecency Act.];
Intl. Eateries of America, Inc. v. Bd. of County
Commrs., 838 F.Supp. 580 (S.D.Fla. 1993) [Burford
abstention warranted in suit challenging
constitutionality of adult entertainment ordinance].
Another case, Jernigan v. State of Miss., 812
F.Supp. 688 (S.D. Miss. 1993), referenced by Judge
Wilkinson in his dissent, is also highly instructive.
While not directly involving Burford abstention, this
case employed an abstention approach which is the
polar opposite of the Fourth Circuit's reasoning.
Jernigan involved the application ofa gambling statute
similar to Sections 12-21-2710 and 12-21-2712.
Plaintiff sued in federal court claiming his machines
28
were legal under Mississippi law and their use thus
protected by the federal Constitution. Seizure of his
machines, he argued, deprived him of property without
due process.
The District Court, however, abstained under
Younger v. Harris, supra. Relying upon a similar Third
Circuit decision, Pennsylvania Video Operators v. U.S.,
731 F.Supp. 717 (W.D. Pa. 1990), affd., 919 F.2d 136
(3d Cir. 1990), the Mississippi Court concluded as
follows:
... Jernigan claims that he will lose
money if state or federal law enforcement
officials seize his video poker machines.
However, the court ... does not view this
as “a potential irremediable
constitutional violation of sufficient
magnitude to warrant the interference of
this court in either state or federal law
enforcement.”
[NJeither can declaratory relief
properly be granted.... [PJlaintiff alleges
... that his due process right to “a hearing,
prior to the seizing of [his] equipment or
personal property” is threatened ... by
criminal proceedings. Defendants argue,
inter alia, that plaintiff has no property
interest in his video poker machines and
that ... his due process rights could not be
implicated by any seizure of those
machines. Jernigan does not dispute that
the ownership, possession, control or
transportation of machines such as his
29
could be declared illegal by the state
legislature or by Congress as a valid
exercise of government police powers. Nor
does he dispute that he would not have a
property interest in the machines if they
had been declared illegal by these
statutes. His claim appears to be simply
that his machines are not, in fact,
“gambling devices” within the meaning of
any of the subject statutes. ... [H]e wants
an injunction against defendants' seizing
his machines or prosecuting him for his
ownership of these machines. It is
apparent from the record in this case that
the question whether a _ particular
machine is a “gambling device” depends,
under either state or federal law, on the
various features of the machine....
{[C]lonsideration of the various
characteristics of each game and machine
is the core of analysis under the statute.
812 F.Supp. at 692-693. The Court’s reasoning in this
case vividly illustrates why Judge Wilkinson’s dissent
was correct. Without abstention, the federal court
inevitably will be required to plunge headlong into the
thicket of South Carolina gambling law. A federal
district judge will necessarily function as a “super
magistrate” in this case.
Accordingly, the lower federal courts do not read
Burford consistently. This Court should reconcile
these varying approaches.
30
IV. BURFORD ABSTENTION IS ESPECIALLY
APPLICABLE HERE BECAUSE OF THIS
COURT'S SUMMARY AFFIRMANCE IN
HOLLIDAY, WHICH REJECTED SIMILAR
CONSTITUTIONAL CHALLENGES MADE
AGAINST THE VIRTUALLY as
SOUTH CAROLINA STATUTES
QUESTION IN THIS CASE.
A. HOLLIDAY DECISION
The State’s interest in having this case
“adjudicated in a state forum” is_ substantially
enhanced by this Court’s summary affirmance decision
in Holliday, supra. Undoubtedly, the “minimal”
nature of the constitutional question was important in
the Burford decision to abstain. NOPSI, 491 US.,
supra at 361.
Likewise, based upon Holliday, the Respondents’
constitutional issues are of “minimal federal
importance.” For purposes of Respondents’ claims, the
similar predecessors to the current South Carolina
forfeiture statutes were upheld as constitutional
against Due Process and Equal Protection Clause
challenges — Respondents’ same claims here. Pet. App.
a68-a81. Like Respondents, Holliday brought a pre-
enforcement federal action to enjoin these provisions.
Holliday claimed these South Carolina statutes were
unconstitutional, null and void and in
violation of the Fourteenth Amendment
..., because the statutes treat, embrace,
regard and include the same _ coin-
operated amusement machines of the
31
plaintiff as gambling devices per se and
subject them to seizure and destruction
as gambling devices per se although they
are ultimately innocent and are not
gambling devices per se; that their
intended seizures and destruction, or any
seizures and destruction of them are and
would be, in violation of plaintiffs
constitutional rights ....
78 F.Supp. at 921. As today, South Carolina law then
banned devices “pertaining to games of chance of
whatever name or kind.” Moreover, the statutes in
Holliday mirrored present § 12-21-2712, requiring law
enforcement to seize machines and take before a
magistrate for review and subsequent destruction.
A three-judge Court concluded that Holliday’s
machines were “games of chance” because they “do not
give a certain uniform return value for each coin
deposited.” Jd. at 925. Thus, the federal question was
whether South Carolina’s anti-gambling laws violated
the Fourteenth Amendment. Concluding that “South
Carolina’s policy is to suppress gambling,” which “is
illegal in South Carolina,” Jd. at 921, the three-judge
court held that the forfeiture statute is “clearly a valid
exercise of [South Carolina’s] ... police power ... and
constitutes no attempt on the part of the State to
deprive plaintiff of his property without due process of
law.” Id. at 925.
Holliday appealed to this Court (Appellant’s
Jurisdictional Statement, Pet. App. a131-a139), asking
whether the South Carolina anti-gambling statutes
violated the Due Process and the Equal Protection
32
Clauses. Id. at al38. MHolliday’s Jurisdictional
Statement asserted that the gambling statute “has no
basis, is arbitrary and denies to the plaintiff his
fundamental rights under the equal protection of the
law clause and due process of law clause under [the] ...
14° Amendment....” Jd. This Court, however, expressly
affirmed the three-judge Court. 335 U.S. 843, supra.
B. EFFECT OF HOLLIDAY
In Mandel v. Bradley, 432 U.S. 173, 176, (1977),
this Court stated that
{s)ummary affirmances and dismissals for
want of a substantial federal question
without doubt reject the _ specific
challenges presented in the statement of
jurisdiction and do leave undisturbed the
judgment appealed from. They do prevent
lower courts from coming to opposite
conclusions on the precise issues presented
and necessarily decided by these actions.
And, in Hicks v. Miranda, 422 U.S. 332, 340 (1975), a
summary affirmance sustained “the constitutionality of
the very California obscenity statute ...” before the
Court. Hicks held it error to disregard this Court’s
decision because, where the issues “are substantially
the same,” the summary affirmance is dispositive. Id.
at 345, n. 14. The Court also has concluded that
determination of whether particular issues are “fairly
comprised” within the Jurisdictional Statement’s
questions is “not limited by the precise terms of the
question presented.” Procunier v. Navarette, 434 U.S.
555, 559, n. 6 (1978). See also, Comm. Party v.
33
Whitcomb, 414 U.S. 441, 451, n. 1 (1974) (Powell, J., et
al., dissenting) [jurisdictional statement “to include
every subsidiary question fairly comprised therein....”’].
Accordingly, Holliday concluded that South
Carolina statutes, similar to their current version, are
valid under the Due Process and Equal Protection
Clauses. Such ruling includes upholding the very
statutory language Respondents attack as vague —
“pertaining to games of chance of whatever name or
kind.” Respondents’ constitutional claims are thus
“fairly included” within Holliday’s issues decided.
While Respondents assert a “void-for-vagueness’” claim,
it is virtually the same one Holliday made here — that
“plaintiffs business [selling alleged gaming devices] is
inherently innocent ....”. Pet. App. al131-a160, a138.
Holliday argued that South Carolina’s forfeiture
statutes in making games of chance illegal per se “is
arbitrary and denies to the plaintiff his fundamental
rights under the equal protection clause and due
process of law clause ....” Id.
Generally, laws designating “innocent” conduct
criminal are candidates for void-for-vagueness claims.
See, City of Chicago v. Morales, 527 U.S. 41, 53 (1999);
Papachristou v. City of Jacksonville, 405 U.S. 156, 163
(1972). Moreover, “the void-for-vagueness doctrine
requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory
enforcement.” Gonzales v. Carhart, __ U.S. __, 127
S.Ct. 1610, 1616 (2007), quoting Kolender v. Lawson,
461 U.S. 352, 357 (1983). In Holliday, this Court
rejected arguments that the statutes’ breadth permitted
34
the arbitrary and discriminatory punishment of
innocent conduct. By summarily affirming the three-
judge court, the Court allowed the State to proceed
against Holliday’s machines. If this Court had thought
that the phrase “pertaining to games of chance” was
unconstitutionally vague in violation ofthe Due Process
Clause — a Clause Holliday asserted the statutes
violated — the three-judge court’s judgment would not
have stood. Indeed, the three-judge court defined
“games of chance” as those not giving “a uniform return
for each coin deposited.” 78 F.Supp. at 925. Neither
this Court nor the three-judge court deemed such a
definition unconstitutionally vague.’
Further, Respondents’ constitutional challenge to
lack of a pre-enforcement mechanism was also
necessarily decided in Holliday. Indeed, at the time
Holliday was adjudicated, both federal and state courts
had ruled — in accordance with Lawton v. Steele, 152
U.S. 133 (1894) — that an owner whose machines were
seized pursuant to the South Carolina statute was
entitled to no pre-seizure hearing under the Due
Process Clause. See, Durant uv. Bennett, 54 F.2d 634
(W.D.S.C. 1931) [judicial intervention after seizure is
constitutionally sufficient); State v. Kizer, supra [same],
overruled in part by State v. 192 Coin-Operated Video
. The three-judge court relied upon previous
interpretations of the state Supreme Court, such as Alexander v.
Martin, supra. For purposes of vagueness, this Court has
recognized that such claims must be adjudged in Light of the
statute’s construction by the highest court of the State.
Wainwright v. Stone, 414 U.S. 21, 22-23 (1973). Thus, there has
never been any difficulty in construing the statute's language and
this Court in Holliday, having Alexander v. Martin before it, saw
no such difficulty.
a
Game Machines, supra [post-seizure hearing required,
based upon Calero-Toledo v. Pearson Yacht Leasing Co,
416 U.S. 663 (1974)]. Whether Respondents’
contentions are based upon Equal Protection or
procedural Due Process, Holliday necessarily disposed
of the claim by allowing state enforcement to proceed.
In short, the claims in Holliday and this case are
essentially the same — that South Carolina statutes
arbitrarily punish innocent conduct (“legal” machines).
Yet, Holliday found no Due Process or Equal Protection
violations in these statutes.® Nevertheless, the majority
still refused to invoke abstention even though Holliday
8 Also, the Court has spurned the Due Process and Equal
Protection arguments which Respondents make in this case in the
specific context of treatment of contraband per se and the
regulation of gambling. A state is afforded considerable
constitutional leeway in the exercise of its police power to regulate
gambling. See, Posadas de Puerto Rico Associates v. Tourism Co.
of Puerto Rico, 478 U.S. 328, 341 (1986); U.S. v. Edge Broadcasting
Co., 509 U.S. 418, 426 (1993) [“gambling ... implicates no
constitutionally protected 1 ght.”]. Moreover, in Lawton v. Steele,
supra, the Court held that destruction of “public nuisances,” such
as gambling instrumentalities, may be accomplished, consistent
with Due Process, by “summary” proceedings. And, in Calero-
Toledo v. Pearson Yacht Leasing Co., supra, no preseizure
proceeding was required for the forfeiture of contraband.
Further, the Court has also reviewed a federal statute
similar to South Carolina’s and rejected the claim that the
language therein — “involved an element of chance” — is void for
vagueness. United States v. Korpan, 354 U.S. 271 (1957).
Accordingly, the constitutional claims in this case have
long been decided by this Court, thus furthering the necessity for
Burford abstention here. The federal interest in this case is
clearly “minimal.”
36
renders Respondents federal claims and the need for
having the matter decided by a federal court as
“minimal.” Undoubtedly, “lower courts are bound by
summary decisions by this Court ‘until such time as the
Court informs (them) that (they) are not.” Hicks v.
Miranda, 422 U.S., supra at 334. Accordingly, the
District Court’s decision to abstain should have been
affirmed.?
% While Burford was not raised in Holliday, — a case
decided in 1948 long before Burford was fully established — it is
easy to see from Holliday how a federal court will inevitably
become “enmeshed” or “entangled in a skein of state law.” NOPSI,
supra. In Holliday, the three-judge court first had to determine
whether in-line pin games were “game of chance” under South
Carolina law before it could address Holliday’s constitutional
claims against South Carolina’s forfeiture statutes. Today, even
more so, — where legality is adjudged on a “machine-by-machine”
basis — it is clear that a federal court will necessarily become ~
entangled in the intricacies of state law. As in Holliday, the
federal court will be required to insert itself into South Carolina
gambling law before it can proceed to decide the federal issues
before it. Judge Wilkinson, in his dissent discusses this
entanglement at considerable length. See, Pet. App. a36-a50. -
37
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
February 13, 2008.
Respectfully submitted,
ROBERT D. COOK
Deputy Attorney General
Counsel of Record
HENRY DARGAN McMASTER
South Carolina Attorney General
C. HAVIRD JONES, JR.
Senior Assistant Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
(803) 734-3736
Attorneys for Petitioners.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.