Is Texas Hold 'em a game of chance or skill? An Ada County judge says Idaho law is too vague to make call

cmsewell@idahostatesman.comJune 25, 2014 

STATESMAN ARCHIVE PHOTO / SCOTT LEWIS

Idaho law prohibits gambling, which it defines as games of chance including poker but not "bona fide contests of skill … in which awards are made only to entrants."

In Idaho, it's legal to enter pool, golf, bass fishing, chess, rodeo or other tournaments where people pay to play and test their skill. The most skillful walk away with cash prizes.

In July, Mike Kasper paid to play in a Texas Hold 'em tournament, one of many he's entered.

"Everybody would pay the same entry fee. It would go into a pot and everyone who was in the tournament would compete for that pot. Usually, they would have first, second, third and maybe fourth place."

Kasper didn't get to finish the tournament. Instead, he got a misdemeanor charge.

Kasper and more than a dozen others were charged with gambling when Boise police raided two poker houses operating out of office complexes on Emerald Street.

Most of the players pleaded guilty and paid fines of about $400. But Kasper and Jared Leuzinger decided to fight the charges on the grounds that Texas Hold 'em is a game of skill, not chance, and Idaho law is fuzzy when it comes to defining games of skill.

Last month, Ada County Magistrate Judge James Cawthon dismissed the charges against Kasper and Leuzinger because of the defense's "uncontroverted evidence" showing Texas Hold 'em to be a contest of skill and the "vagueness" of state code.

The city attorney asked the judge to reconsider, writing: "The statute and constitution are clear: gambling, including poker, is prohibited in the state of Idaho." A hearing is set for July 28.

DOUBLE STANDARD

In its case, the city called one witness - a Boise police officer who went undercover at the Emerald Street poker house.

Under cross-examination, Officer Scott Nicholls acknowledged he played poker for fun - and for money - with friends and fellow members of the BANDIT task force, Boise police department's vice and narcotics unit, according to audio of the hearing.

"Did you ever turn in your friends for playing an illegal game?" Kasper's attorney, Michael Bartlett, asked.

"No," Nicholls answered.

Poker tournaments and cash games are popular in the Treasure Valley, Kasper said.

"You could probably find a game every single day," he said. "There is probably a game going on every hour of every day someplace."

But when it comes to arrests, gambling is a rare charge. "It is a complete double standard," Kasper said.

According to Idaho State Police crime reports, from 2008 to 2012, three gambling citations were issued in Ada County.

Last year, Boise police issued gambling citations to 17 people stemming from the two Emerald Street raids. So far this year, Boise police department has issued none.

Nicholls said the department was alerted to the two Emerald poker houses in separate but nearby office complexes by a call to the mayor's hotline from a business owner and a tip via Crime Stoppers.

The business owner said parking and other activities from the poker games were affecting his business.

Nicholls said his superiors decide which complaints get pursued and which do not.

"When it comes from the mayor, which is the boss of our chief, it takes priority," Nicholls said.

A variety of messages come into the mayor's hotline. Staff members review the messages and, if warranted, forward them to the appropriate department for follow-up, city spokesman Adam Park told the Statesman. "As a matter of process, whenever we get a call related to any kind of police activity, we immediately forward it to police," Park said.

'MIASMA OF ... RANDOMNESS'

During the hearing, the defense emphasized several occasions when police knew illegal poker games were underway but did nothing to stop them.

One defense witness testified about two occasions when law enforcement officers happened upon a game in progress. They were there for unrelated reasons and issued no warning or citations.

It is this disconnect - cops playing poker themselves, or looking the other way when encountering games - that figured into the judge's decision to dismiss the charges.

"It is a very perplexing picture of sometimes you can play Texas Hold 'em, and sometimes you cannot," Cawthon wrote. "Based on the evidence of the defense, based on the state's presentation and argument at hearing, the prosecution and enforcement is transformed in a miasma of inconsistent and injudicious randomness."

SKILLFUL GAME, VAGUE LAW

Bartlett introduced Idaho witnesses from golf, pool and tournament bass fishing, including the city of Boise golf director, a seven-time pool champion and a championship bass fisherman. All testified that in their respective disciplines, entry fees are paid to participate. Cash awards are made based on how well a person finishes - the way Texas Hold 'em tournaments operate.

"If 'bona fide contests of skill' does not apply to Texas Hold 'em, it should not apply to golf or rodeo or fishing or pool," Bartlett said.

But state law does not clearly define "bona fide contests of skill" or "poker," which differs from illegal casino-type games such as blackjack, baccarat, keno and slot machines because the players compete against each other for stakes and no house bank is involved. That's more like pari-mutuel horse-race betting, which is legal in Idaho.

"It unconstitutionally forces citizens to guess at the meaning of the law," Bartlett said in his motion to dismiss the charges.

The judge called the prosecution response to the defense's case "bewildering."

"In these two specific cases, in light of arguments and evidence presented, the Court cannot discern how a person of common intelligence could know from these cases what conduct was prohibited," Cawthon stated.

Cawthon specifically limited his ruling to the two men on the specific circumstances of their case. Other judges are not required to follow his ruling or his logic.

"It would be persuasive rather than precedent," Bartlett said. "It does not bind the other courts."

But one Idaho legal battle already has cited Cawthon. In May, the state sued the Coeur d'Alene Tribe to shut down its new poker room at its casino in Worley. The tribe argued Texas Hold 'em is not illegal gambling but a contest of skill, and submitted Cawthon's May 15 decision.

Whether the decision will have any effect remains to be seen. On Monday, U.S. District Judge Lynn Winmill denied the state's request for a temporary ban, saying the state and tribe have 60 days to seek arbitration before they can sue each other.

Cynthia Sewell: 377-6428, Twitter: @CynthiaSewell

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