Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
24858 - Johnson, et al. v. Collins Entertainment Co., Inc. et al.

Davis Adv. Sh. No. 37
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Joan Caldwell Johnson, Brice Anderson,

Lorraine Witherspoon

Baker, Faye Blaylock, Sara Edell

Boan, Mike Brewer, Mike Brown,

Ronald Callahan, Sandra Coulter,

Lisa Crum, Andreas Drutis,

Crystal Gayle Edwards, Darryl

Bernard Epps, Buster Elfin Floyd,

Deanna Kay Franz, William

Joseph Harnett, Jr., George

Henley, Loretta Jones, Margaret

Locklear, Tammy Locklear, Linda

McCleod, William McCormick,

Hugh Meise, Patty Miller, Andrew

Nobles, Gary Padgett, Mary

Pinchback, Vardry Pittman, Albert

J. Samra, Mason Skeenes, Danny

Kaye Smith, Jim Stolz, Amber

Strickland, Charles Stubbs, Lonya

Thigpen, James Thompson, Joseph

Chester Walker, Jessie Williams,

Valerie Williams, and on behalf of

themselves and all others similarly

situated, Plaintiffs,

and

Charles Molony Condon, as

Attorney General for the State of

South Carolina, Intervenor,



v.



Collins Entertainment Co., Inc.,

Ace Amusement, LLC, American

Amusement Co., Inc., American

Amusement of Aiken, Inc., B&J

Amusement, Best Amusement Co.,

Broyles & Lutz, Inc., CBA Games,



p.48


Johnson v. Collins Entertainment Co., Inc





Inc., Carousel Amusements, Coley,

Inc., Drew Industries, Fast

Freddies, Great Games, Inc.,

Greenwood Music Co., Inc., H & J

of South Carolina, Inc., Holliday

Amusement Co. of Charleston, Inc.,

Hoyts Music Co., Inc., Huckleberry

Amusement, Inc., Ingram

Investments, J.M. Brown

Amusement Co., Inc., Joytime

Distributors & Amusement, Larry

Wolfe Amusement, MHJ Corp.,

MHS Enterprises, Inc., Martin

Coin Machine, Inc., McDonald

Amusement Co., Midlands Gaming

Corp., Orangeburg Amusement,

Inc., Pedroland, Inc., R.L. Jordan

Oil Co. of North Carolina, Red Dot

Amusements, Rosemary Coin

Machines of Florence, Inc., Scott's

Vending Inc. of Columbia, Sumter

Petroleum Co., Tim's Amusement,

Inc., Video-Matic Amusements,

Inc., H. Hugh Andrews, II, Pamela

A. Andrews, Dwavne I. Bohannon,

J.M. Brown, Don E. Broyles, Grace

E. Coley, Fred Collins, J. Samuel

Cox, Kenneth G. Flowe, Carey

Hardee, Scott G. Hogue, Lowell E.

Holden, Patricia Holliday, Warren

P. Holliday, Henry E. Ingram,

Steven E. Lipscomb, Tim Mahon,

Jimmy Martin, Jr., Cynthia

McDonald, James McDonald, Allan

Schaefer, David R. Simpson, Ron

Simpson, Mickey H. Stacks,

William Darwin Wheeler, Hershel

L. Williamson, and A.J. Wilson,

Jr., in their individual and

corporate capacities as

representatives of all others

p.49


Johnson v. Collins Entertainment Co., Inc





similarly situated, Defendants.

On Certification from the United States District Court for

the District of South Carolina

Joseph F. Anderson, Jr.,

United States District Judge

Opinion No. 24858

Heard April 8, 1998 - Filed November 19, 1998



CERTIFIED QUESTIONS ANSWERED



Wilburn Brewer, Jr, of Nexsen, Pruet, Jacobs & Pollard, of

Columbia; Lawrence Edward Richter, Jr., and Saul

Gliserman, both of Richter Law Firm, of Mt. Pleasant;

Robert R. Bridwell, of Columbia; Richard Mark Gergel, W.

Allen Nickles, III and Carl Lewis Solomon, all of Gergel,

Nickles & Grant, of Columbia; Joseph Preston Strom, Jr.,

and Tom Young, both of Strom & Young, of Columbia; and

Richard K, Walker, of Phoenix, Arizona, for Plaintiffs Joan

Caldwell Johnson, et al.



Attorney General Charles Molony Condon, Chief Deputy

Attorney General John W. McIntosh, Deputy Attorney

General Zeb C. Williams, III, Assistant Deputy Attorney

General Robert Dewayne Cook, Assistant Attorneys General

Reginald I. Lloyd and Christie Newman Barrett, all of Office

of the Attorney General, of Columbia, for Intervenor the

State of South Carolina.



Oscar William Bannister, Jr. and James W. Bannister, both

of Hill, Wyatt & Bannister, of Greenville; Robert E. Blakely,

of Notre Dame, Indiana; and Timothy Clayton Youmans, of

the Collins Companies, of Columbia, for Defendant Collins

Entertainment. Zoe Sanders Nettles, Dwight Franklin

Drake, Robert Bruce Shaw, Benjamin Rush Smith, III and

C. Mitchell Brown, all of Nelson, Mullins, Riley &

p.50


Johnson v. Collins Entertainment Co., Inc.





Scarborough, of Columbia; A. Camden Lewis and Mary

Geiger, both of Lewis, Babcock & Hawkins, of Columbia, for

Defendants American Amusement Company, et al. David E.

Belding, of Columbia, for Defendants Red Dot Amusements,

et al. Timothy Gene Quinn, of Columbia, for Defendant

Carousel Amusement. Richard A. Harpootlian and Robert

G. Rikard, both of Richard A. Harpootlian, P.A., of

Columbia, for Defendant Coley, Inc. David E. Taylor, of

Columbia, for Defendant B&J Amusement. Anne Sumner

Douds, of Kiker & Douds, of Beaufort for Defendant Ingram

Investments. John C. Lindsay, Jr., of Lindsay & Lindsay,

of Bennettsville; and J. Boone Aiken, III, of Coleman, Aiken

& Chase, P.A., of Florence, for Defendant Pedroland, Inc.

Matthew A. Henderson, of Henderson, Brandt & Vieth, of

Spartanburg, for Defendant R. L. Jordan Oil of North

Carolina.





FINNEY, C.J.: This matter is before the Court on certification from the

United States District Court to answer the following questions.



1. What are the factors to be considered and standards to be applied

in determining whether a particular type of activity is a lottery as

prohibited by the South Carolina Constitution?



2. Do the Type II and Type III machines constitute lotteries in

violation of the South Carolina Constitution?1





PROCEDURAL HISTORY





Plaintiffs, purporting to represent themselves and others similarly

situated, initiated this action for damages and injunctive relief in the State

circuit court in June 1997. Defendants own or operate video gaming devices




1 The machines at issue are all video gambling devices that are

physically present and licensed for operation in this state as Class III

machines (subtypes II and III) under S.C. Code Ann. § 12-21-2720(A)(3).

Type II include the games of lotto, bingo and the traditional game of keno.

Type III include games such as poker and black jack as well as one

variety of keno.



p.51


Johnson v. Collins Entertainment Co., Inc





(video poker machines) under authority of licenses issued by the South

Carolina Department of Revenue. Defendants removed the action to Federal

District Court because the asserted claims included a cause of action under

the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S.C. §§

1961 et seq. Subsequently, additional plaintiffs and defendants were added,

and the complaint was amended to allege that video poker games are being

operated in violation of Article XVII, § 7 of the South Carolina Constitution,

which prohibits lotteries.





In December 1997, the plaintiffs filed a motion for a preliminary

injunction seeking to have the court enjoin the defendants from continuing to

operate their video poker games because the games are illegal lotteries under

the State Constitution and are violative of state statutes. The parties agreed that

the constitutional issue could override the statutory issues. The South

Carolina Attorney General has intervened and joined in the motion for

injunctive relief. The District Court allowed the parties to engage in

extensive discovery prior to a hearing on the motion for a preliminary

injunction. Based upon evidence presented at the motion hearing, that Court

made factual findings and issued an Order of Certification to the South

Carolina Supreme Court pursuant to South Carolina Appellate Court Rule

228.





ANALYSIS





Rule 228(b), SCACR,2 contemplates that the South Carolina Supreme

Court will base its answers to the questions certified exclusively upon the

findings of fact by the District Court and, if necessary, the record in this

matter.





In considering Question 1, we look to the applicable provision of the

State Constitution, which reads:


2 A certification order shall set forth the questions of law to be

answered, all findings of fact relevant to the questions certified, and a

statement showing fully the nature of the controversy in which the

questions arose. The Supreme Court may request the original or copies of

all or of any portion of the record before the certifying court to be filed

with the Court, if, in the opinion of the Supreme Court, the record or a

portion thereof may be necessary in deciding to accept or in answering the

questions. Rule 228(b), SCACR.

p.52


Johnson v. Collins Entertainment Co., Inc





No lottery shall ever be allowed or be advertised by newspapers,

or otherwise, or its tickets be sold in this State. The game of

bingo, when conducted by charitable, religious or fraternal

organizations exempt from federal income taxation or when

conducted at recognized annual State and county fairs, shall not

be deemed a lottery prohibited by this section.



S.C. Const. art. XVII, § 7.3





The Constitution does not prohibit games of chance or gambling per se;

with the exception that it is unlawful for public officials to engage in

"gambling or betting on games of chance." S.C. Const. art. XVII, §8. The

framers of our Constitution clearly distinguished between "lottery" and

"gambling or betting on games of chance." Adhering to the constitutional

distinction, the South Carolina statutory scheme includes sections that

specifically deal with lottery, gaming, and betting. See, e.g., S.C. Code Ann.

§§ 16-19-10 to 16-19-30 (lotteries); S.C. Code Ann. § 16-19-40 (prohibiting

games of chance or gambling devices at state and county fairs); and S.C. Code

Ann. § 16-19-60 (coin-operated pinball machines). This distinction between

lottery and other forms of gaming, found within the text of the Constitution

itself, supports the conclusion that its framers used the term "lottery" in a

narrow sense. This conclusion accords with that of the South Dakota

Supreme Court in a similar case:



[B]y separately stating the terms 'game of chance' and 'lottery,'

the framers of the original [constitutional] provision intended the

term 'game of chance' to be broad in scope, including most forms

of gaming, and the term 'lottery' in the narrower sense


3 Prior state constitutions included the following language similar to

the current lottery prohibition provision. "Lotteries, and the sale of lottery

tickets, for any purpose whatever, are prohibited, and the General

Assembly shall prevent the same by penal laws." S.C. Const. art. XIV, § 2

(1868). "No lottery shall ever be allowed, or be advertised by newspaper,

or otherwise, or its tickets be sold in this state; and the General Assembly

shall provide by law at its next session for the enforcement of this

provision." S.C. Const. art. XVII, § 7 (1895). In 1975, the constitutional

provision prohibiting lotteries was amended and remains in effect to this

date.

p.53


Johnson v. Collins Entertainment Co., Inc





contemplating the sale of tokens or tickets to large numbers of

people for the chance to share in the distribution of prizes for the

purpose of raising public revenue.



Poppen v. Walker, 520 N.W.2d 238, 245 (S.D. 1994).





The Constitutional exemption for bingo4 is consistent with a narrow

reading of the word "lottery" since bingo is commonly defined as a game

derived from lotto, which in turn is based on lottery,5 or a form of lottery

often played simultaneously by hundreds or thousands of people.6 However,

the fact that bingo is generally considered a lottery, and meets the common

definition of lottery, does not prove that other forms of gambling are lotteries.

Further, it does not undermine the conclusion that the term lottery is

narrowly construed.





The Court in Rountree v. Ingle, 94 S.C. 231, 77 S.E. 931 (1913)7

distinguished lotteries from gambling by stating: "Our statute makes not only

the promoter of a lottery, but the adventurers in it liable to indictment . . .

The purchaser of a lottery ticket in this State is therefore in a different plight

from one who loses money in gambling . . . who may recover the amount paid

out."





The Court in Darlington Theatres characterized a lottery as a form of

gambling which provided for the distribution of prizes by lot or chance.

Darlington Theatres Inc. v. Coker, 190 S.C. 282, 2 S.E.2d 782 (1939). While

every lottery is a gaming device, not every gaming device is a lottery within

the generally recognized meaning of the word- Accordingly, not all forms of


4 The game of bingo, when conducted by charitable, religious or

fraternal organizations exempt from federal income taxation or when

conducted at recognized annual State and county fairs, shall not be

deemed a lottery prohibited by this section. S.C. Const. art. XVII, § 7.

5 Encarta 97 Encyclopedia (Microsoft deluxe ed. 1996)

6 2 The New Encyclopedia Britannica 218 (15th ed. 1997).

7 The Court decided the question of plaintiff's right to ownership of a

prize claimed by the defendant who recovered the winning lottery ticket

after it had been discarded by the plaintiff. Rountree v. Ingle, supra.

p.54


Johnson v. Collins Entertainment Co., Inc





gambling are violative of our constitution. In 1818, this Court narrowly

construed the term "lottery" as "a term of art" noting that "otherwise it may

mean any thing, as in common parlance it is applied to one half of the

ordinary occurrences or accidents of life." State v Pinchback, 9 S.C.L. 128 (2

Mill) (1818) The Pinchback Court emphasized the necessity of restricting

application of the term lottery to only one class of adventures or hazards. In

doing so, the Court stated that an activity "may be an adventure or hazard

without a lottery; every throw of the die, even for an ordinary wager, is an

adventure or hazard and I am sure it never yet entered the mind of any man

that it constituted a lottery." State v. Pinchbeck, supra.







Likewise, the Court in Darlington Theatres found it apparent that "the

constitutional and legislative prohibition is directed at a special type of vice

in the fields of advertising and gift enterprises -- the type that has come to

be denominated both in the law and in common parlance by the word lottery."

Darlington Theatres, 190 S.C. at 290, 2 S.E.2d at 786. The Court held the

statutes enforcing the constitutional prohibition against lotteries were

"undoubtedly directed at a particular type of gaming or gambling which has

become commonly known as a lottery, and not the prohibition of games of

chance of all kinds." Id.

The Darlington Theatres decision addresses the definition of lottery in

some detail. The word lottery has no technical, legal meaning, but must be

construed in the popular sense. Darlington Theatres, 190 S.C. at 292, 2

S.E.2d at 786. Lottery is "a species of gaming, which may be defined as a

scheme for the distribution of prizes or things of value by lot or chance among

persons who have paid, or agreed to pay, a valuable consideration for the

chance to obtain a prize." Darlington Theatres, supra. The definition of

lottery involves a "scheme for raising money by selling chances to share in a

distribution of prizes; more specifically, a scheme for the distribution of prizes

by chance among persons purchasing tickets, the correspondingly numbered

slips, or lots, representing prizes or blanks, being drawn from a wheel on a

day previously announced in connection with the scheme of intended prizes."

190 S.C. at 292-93, 2 S.E.2d at 787.8


8 The dissent relies on the three element test of prize, consideration,

and chance derived from our decision in Darlington Theatres. This test

was used in Darlington Theatres to determine whether a drawing of

signature cards qualified as an illegal lottery. The general character of

the form of gaming in that case, a drawing with "tickets." was not in

p.55


Johnson v. Collins Entertainment Co., Inc





Historically, in the early 1800's, a lottery was typically a government-

sponsored means of raising revenue by selling tickets for prizes awarded by

lot. See Ronald J. Rychlak, Lotteries, Revenues and Social Costs: A

Historical Examination of State-Sponsored Gambling, 34 B.C.L.Rev. 11 (1992).

A "lottery" in its narrowest sense is conurionly defined as "a gambling game

. . . in which a large number of tickets are sold and a drawing is held for

certain prizes."9 Since its original ratification in 1868 the constitutional

provision has specified "tickets" as part of the prohibited lottery activity. See

1868 S.C. Const. art. XIV, § 2. Use of the word "tickets" indicates the

framers' narrow conception of a lottery as commonly understood, i.e., gambling

involves "tickets" and a drawing by lot.





CONCLUSION





We emphasize that the first question before this Court pertains to

whether a particular activity is a lottery prohibited by the state constitution.

The parties focus on the broader issue of chance. However, as the district

judge noted in the Order of Certification, it is unnecessary to define the

meaning of the term chance if this Court finds video gaming devices are not

lotteries. We find lottery is a term of art and video gaming devices do not

come within the plain and ordinary meaning of "lottery" because they do not

involve a drawing and "tickets" or other indicium of entitlement to a prize.10

We have made this finding based on the longstanding definitions and

distinctions enunciated in Darlington Theatres, Rountree, and Pinchback.

This Court is constrained to give the words of our Constitution their plain and

ordinary meaning. See Davis v. County of Greenville, 313 S.C. 459, 443

S.E.2d 383 (1994)(language of constitution given its plain and ordinary

meaning).


question. The issue there was simply whether a lack of consideration

removed the scheme from the definition of a prohibited lottery.





9 Random House Dictionary of the English Language Second Edition

Unabridged (1987).

10 Electronic ticketing would not necessarily preclude finding a

lottery where electronic registration is the functional equivalent of a

lottery ticket, i.e., evidence of one's entitlement to a prize over claims by

competing ticket-holders.



p.56


Johnson v. Collins Entertainment Co., Inc





Question 2 asks us to apply the legal definition of lottery to preliminary

findings of fact so that the conclusions of this Court may be considered by the

District Court Judge in determining whether to issue a preliminary injunction.

As stated in the Order of Certification, no finding of this Court will be binding

for entry of any permanent injunction or for the award of damages by the

District Court. We answer the second question with the caveat that we are

giving a response only to an interlocutory question of fact. Hence, the answer

of this Court to Question 2 is that Type II and III machines do not constitute

lotteries in violation of the South Carolina Constitution.





Deliberations on this matter were conducted within an atmosphere

charged with the knowledge of the potentially grave and far-reaching

consequences of our decision, regardless of the manner in which we responded

to the questions certified. We are bound by the parameters set out in the

State Constitution, statutes, and common law which direct our decision-

making process. We are persuaded, and legal authority directs, that the

alleged deleterious effect of an activity upon society is not a proper basis upon

which the Courts may declare unlawful any such activity. If the results of

our conclusions are "inimicable to public welfare, then it would be a matter

for legislative action, and not one for the Courts." Darlington Theatres, supra,

at 789. The judiciary does not play a role in determining whether video poker

machines should be allowed or prohibited in our State. For this reason we

must not abuse the language of our constitution to force a solution to an issue

that rightfully must be resolved by our General Assembly.





CERTIFIED QUESTIONS ANSWERED.



MOORE, A.J., and Acting Associate Justice Charles W.

Whetstone, Jr., concur. TOLL, A.J., dissenting and concurring

in separate opinion. BURNETT, A.J., dissenting in separate

opinion.





p.57


Burnett, A.J. (dissenting): In my opinion, the Type II and

Type III video gaming machines described in the district court's

certification order constitute lotteries within the meaning of the South

Carolina Constitution. Accordingly, I respectfully dissent. In offering my

dissent, I recognize "[t]his Court must construe the constitution and laws

of this State without concern for political or popular opinion." Martin v.

Condon, 324 S.C. 183, 189, 478 S.E.2d 272, 275 (1996).





QUESTIONS OF LAW





Pursuant to Rule 228, SCACR, the South Carolina Supreme

Court agreed to answer the following two questions of law for the United

States District Court:



I What are the factors to be considered and standards to be

applied in determining whether a particular type activity is a

lottery as prohibited by the South Carolina Constitution?



II Do the Type II and Type III machines described [in the

certification order] constitute lotteries in violation of the South

Carolina Constitution?





DISCUSSION

I.





A. Definition of Lottery





Obtaining its definition from the Random House Dictionary,

the majority holds a lottery is "a gambling game ... in which a large

number of tickets are sold and a drawing is held for certain prizes."1d This

definition equates a lottery with a raffle and ignores the South Carolina

Constitution and this Court's long-standing legal precedent.





With the adoption of the State Constitution in 1868, lotteries

were constitutionally prohibited for the first time in South Carolina. S.C.

Const. art. XIV, § 2 (1868)("Lotteries, and the sale of lottery tickets, for

any purpose whatever, are prohibited, and the General Assembly shall


1d Random House Dictionary of the English Language 1137 (2nd. ed.

1987).


Johnson et al. v. Collins Entertainment Company, Inc., et al.





prevent the same by penal laws."). Similarly, the 1895 Constitution

prohibited lotteries. S.C. Const. art. XVII § 7 ("No lottery shall ever be

allowed, or be advertised by newspaper or otherwise, or its tickets sold in

this state; and the General Assembly shall provide by law at its next

session for the enforcement of this provision.").





In 1974, the citizens of South Carolina voted to amend the

anti-lottery provision of the Constitution. This amendment was ratified by

the General Assembly in 1975. The current anti-lottery provision of the

South Carolina Constitution states as follows:



No lottery shall ever be allowed or be advertised by

newspapers, or otherwise. or its tickets be sold in this State.

The game of bingo, when conducted by charitable, religious or

fraternal organizations exempt from federal income taxation or

when conducted at recognized State and county fairs, shall not

be deemed a lottery prohibited by this section.



S.C. Const. art. XVII, § 7 (emphasis added).





The underscored language of this provision, which has

remained virtually unchanged since 1868, is unambiguous. It prohibits all

lotteries. If the framers of the Constitution had intended to only prohibit

ticket lotteries, as asserted by the majority, the constitutional prohibition

would have expressly limited the prohibition to ticket lotteries. To the

contrary, the South Carolina Constitution has never limited a lottery to a

scheme which issues tickets or "other indicium of entitlement to a prize,"

as asserted by the majority today.





In fact, with the passage of the constitutional amendment in

1974, the citizens of this State specifically recognized that the game of

bingo is a lottery prohibited by article XVII, § 72d By adopting the

amendment, the citizens of South Carolina legalized the playing of bingo

in certain limited instances. Under the majority's definition, however, the


2d Army Navy Bingo, Garrison No. 2196 v. Plowden, 281 S.C. 226, 314

S.E.2d 339 (1984)(bingo is a lottery); Bingo Bank. Inc. v. Strom, 268 S.C.

498, 501, 234 S.E.2d 881, 883 (1977)("'[T]he game of bingo' under the 1975

amendment refers to the game previously played illegally by charitable

organizations throughout the State.").

p.59


Johnson et al. v. Collins Entertainment Company, Inc., et al.





playing of bingo would be legal in all circumstances since the game does

not involve the issuance of tickets. See Knight v. State ex rel. Moore, 574

So.2d 662, 669 (Miss. 1990)('[A]ny attempt to equate a bingo card with a

lottery ticket would be superficial at best and unpersuasive at worst.").

The majority's definition is contrary to the citizens' understanding of the

constitutional provision.





Further, the constitutional prohibition against the sale of

lottery tickets does not limit and/or characterize lotteries as a form of

gambling in which tickets are sold. Instead, it merely forbids the sale of

lottery tickets, in addition to the operation of lotteries and the

advertisement of lotteries. Similarly, in many jurisdictions, the term

"lottery" is not limited to "ticket lotteries," even though the constitutions in

those jurisdictions, like the Constitution in this State, refer to tickets. Ill.

Const. art. IV, § 27 ("[T]he general assembly shall have no power to

authorize lotteries or gift enterprises for any purpose, and shall pass laws

to prohibit the sale of lottery or gift enterprise tickets in this state."); Kan.

Const. art. XV, § 3 ("Lotteries and the sale of lottery tickets are forever

prohibited."); La. Const., art. XIX, § 8 ("Lotteries and the sale of lottery

tickets are prohibited in this State."); Ohio Const. art. XV, § 6 ("Lotteries,

and the sale of lottery tickets, for any purpose whatever, shall forever be

prohibited in this State, except that the General Assembly may authorize

an agency of the state to conduct lotteries . . . ."); Oregon Const. art. XV, §

17 ("Lotteries, and the sale of lottery tickets, for any purpose whatever,

are prohibited, and the legislative assembly shall prevent the same by

penal laws."); Tenn. Const. art. XL § 5 ("The Legislature shah have no

power to authorize lotteries for any purpose and shall pass laws to prevent

the sale of lottery tickets in this State."); W.Va. Const. art. VI, § 36 ("The

legislature shall have no power to authorize lotteries or gift enterprises for

any purpose, and shah pass laws to prohibit the sale of lottery or gift

enterprise tickets in this State; . . . .").





Finally, the majority's definition of "lottery" ignores this

Court's holding in Darlington Theatres v. Coker , 190 S.C. 282, 2 S.E.2d

782 (1939), where, after considering various definitions,3d the Court


3d The majority asserts the issue before the Court in Darlington

Theatres was not the definition of lottery but whether the element of

consideration existed in a particular scheme. To the contrary, the

definition of lottery was the precise issue before the Court.

p.60


Johnson et al. v. Collins Entertainment Company, Inc., et al.





ultimately concluded:



to constitute a lottery or a scheme in the nature of a lottery, it

is essential that three elements be present, to wit: (1) The

giving of a prize, (2) by a method involving chance, (3) for a

consideration paid by the contestant or participant.



Id. S.C. at 291, S.E.2d at 786. The majority of other jurisdictions have

adopted the same three element test in defining the term "lottery" in their

own constitutional provisions prohibiting lotteries.4d


4d See Opinion of the Justices, 692 So.2d 107, 110 (Ala. 1997)("A

'lottery,' as we have defined that term, contains the following three

elements: (1) [a] prize, (2) awarded by chance, (3) for a consideration."

(internal citations omitted)); see also Youngblood v. Bailey, 459 So.2d 855

(Ala. 1984)(recognizing three element test in interpreting constitutional

lottery provision); In re Interrogatories of Governor Regarding Sweepstakes

Races Act, 585 P.2d 595, 598 (Colo. 1978)(en banc)(in interpreting constitutional

provision, Court declared, "Our cases have established that a

lottery is present when consideration is paid for the opportunity to win a

prize awarded by chance."); National Football League v. Governor of State

of Delaware, 435 F. Supp. 1372, 1383 (D. Del. 1977)(in interpreting

constitutional provision, Court stated, "It is unquestioned that there are

three elements necessary to a lottery: prize, consideration, and chance.");

see also Affiliated Enterprises v. Waller , 5 A.2d 257, 259 (Del. Super.

1939); Iris Amusement Corp.. v. Kelly , 8 N.E.2d 648, 651 (Ill.

1937)(interpreting constitutional and statutory provisions, the court found

"a lottery consists of three essential parts or elements -- i.e. (1) a chance,

(2) for a prize, (3) for a price."); State ex rel. Stephan v. Finney , 867 P.2d

1034, 1043 (Kan. 1994)("Clearly, the term lottery, as used in art. 15, § 3 of

the Kansas Constitution, has been defined by this court as any game,

scheme, gift, enterprise, or similar contrivance wherein persons agree to

give valuable consideration for the chance to win a prize or prizes."); Otto

v. Kosofsky, 476 S.W.2d 626, 629 (Ky. 1971), cert. denied. 409 U.S. 912, 93

S.Ct. 227, 34 L.Ed.2d 173 (1972)(in interpreting constitutional provision,

court found "[al lottery is a scheme for the distribution of prizes or things

of value purely by lot or chance among persons who have paid or agreed

to pay a consideration for the chance to share in the distribution.");

Gandolfo v. Louisiana State Racing Com'n, 78 So.2d 504, 509 (La. 1954)(in

interpreting constitutional provision, court stated, "Lottery has been

p.61


Johnson et al. v. Collins Entertainment Company, Inc., et al.




defined as a scheme for the distribution of prizes by lot or chance."); State

ex rel. Home Planners Depository v. Hughes, 253 S.W. 229, 230 (Mo.

1923)(en banc)(In determining whether a certain scheme was a lottery

"within the meaning of section 10 of article 14 of the Constitution, which

forbids the authorization of lotteries or gift enterprises for any purpose,"

the court stated "'lottery' . . . includes every device whereby anything of

value is, for a consideration, allotted by chance.... Consideration, chance,

prize -- these are the elements."); State ex rel. Gabalac v. New Universal

Congregation of Living Souls, 379 N.E.2d 242, 244 (Ohio Ct. App. 1977)(In

interpreting constitutional provision, court rejected the argument that

"lottery" includes all gambling, but nevertheless declared, "A lottery is a

scheme whereby a monetary consideration is paid and the winner of the

prize is determined by lot or chance."); Hendrix v. McKee, 575 P.2d 134,

139 (Or. 1978)(en banc)(in interpreting constitutional provision, Court

reaffirmed the definition of a lottery as "any scheme whereby one, on

paying money or other valuable thing to another, becomes entitled to

receive from him such a return in value, or nothing, as some formula of

chance may determine. . . ." (quoting State v. Schwemler, 60 P.2d 938

(1936)); see also State v. Coats 74 P.2d 1102, 1106 (Oreg. 1938)('Three

things are necessary to constitute a lottery, viz., prize, chance, and

consideration."); Roberts v. Communications Inv. Club of Woonsocket , 431

A.2d 1206, 1211 (R.I. 1981)("It is well settled that a 'lottery' proscribed in

either a state constitution or statute is defined as a scheme or a plan

having three essential elements: consideration, chance, and prize.");

Secretary of State v. St. Augustine Church/St. Augustine School, 766

S.W.2d 499, 501 (Tenn. 1989)(in affirming recognition of the three element

test by quoting Tennessee precedent -- that "[b]y the great weight of

authority, in order that a transaction may be a lottery, three elements

must be present consideration, prize and chance" -- court held that bingo

dearly constituted a lottery under the Tennessee Constitution); Albertson's

Inc. v. Hansen, 600 P.2d 982, 985 (Utah 1979)(In interpreting

constitutional and statutory provisions restricting lotteries, Court declared,

"to be a lottery, this scheme must involve 'property' (or 'prize'), a

distribution by 'chance,' and the payment of 'any valuable consideration for

the chance."'); State ex el. Evans v. Brotherhood of Friends, 247 P.2d 787,

796 (Wash. 1952)(en banc)(in interpreting constitutional provision, theP>

court declared, "The overwhelming weight of authority is to the effect that

slot machines as here involved and of the usual type and variety are

lotteries."); State v. Hudson, 37 S.E.2d 553, 558 (W.Va. 1946)("The

p.62


Johnson et al. v. Collins Entertainment Company, Inc., et al.





I do agree with the majority's assertion that a lottery is a form

of gambling. However, it does not necessarily follow that "lottery" must be

defined narrowly as a scheme in which a large number of tickets are sold

and a drawing is held for a certain prize.5d In fact, this definition leaves

unanswered questions. How many tickets must be sold for a scheme to

constitute a lottery? If one person buys one thousand tickets and another

buys one ticket, is the game a lottery? If the prize is altered by the

number of players, i.e., the prize is determined by the number of

participants, is the prize "certain?"6d





I adhere to the three element test established in Darlington

Theatres, supra, to define the term "lottery." While the framers of the

South Carolina Constitution could not contemplate computer simulated

games when drafting the anti-lottery provision of the Constitution, they

nonetheless intended to prohibit lotteries, i.e., all schemes involving

consideration, chance, and prize. The Constitution is a flexible document

applicable to changing times and conditions. Knight v. Hollings, 242

S.C. 1, 4, 129 S.E.2d 746, 747 (1963)("[A] constitutional provision ... is not to

be viewed solely in the light of conditions existing at the time of its

adoption, being intended not to obstruct the progress of the state but


essential elements of a lottery are consideration, prize and chance, and,

where they are present and chance predominates, even though skill or

judgment may enter to some extent in the operation of a particular

scheme or device, the scheme or device is a lottery."); Coca-Cola Bottling

Co. of Wisconsin v. La Follette 316 N.W.2d 129, 132 (Wis. Ct. App.

1982)(In considering the state's constitutional and statutory provisions

restricting lotteries, the Court stated, "At common law, there are three

elements of a lottery -- a prize, chance, and a consideration.").





5d The majority relies on Rountree v. Ingle, 94 S.C. 231, 77 S.E. 931

(1913), and State v. Pinchback, 9 S.C.L. (2 Mill) 128 (1818), as holding the

definition of "lottery" must be narrowly construed. Rountree did not

discuss the definition of lottery. Pinchback involved the application of a

penal statute and the decision was issued before any constitutional

provision prohibiting lotteries.





6d The majority provides no legal authority, and I have located none,

which requires a "certain prize" as an element of a lottery.



p.63


Johnson et al. v. Collins Entertainment Company, Inc., et al.





rather to meet and be applied to new conditions and circumstances as they

may arise . . . .") Accordingly, any scheme which meets the definition of

lottery is prohibited by the Constitution. See 38 Am.Jur.2d, Gambling § 5

(1968)("It has been said that the word 'lottery' is generic, and that it

includes every device whereby anything of value is, for a consideration,

allotted by chance.").





B. Chance





Since I adhere to the three element test established in

Darlington Theatres, it is necessary that I define the role of chance in

deciding whether a particular scheme is a lottery.7d





1. The Parties' Arguments







In determining the role of chance, the defendants maintain

the "British Rule" or "Pure chance doctrine" is the established law in South

Carolina. Under this doctrine, only a scheme in which the result is

determined solely by chance is a lottery; if skill plays any part, the scheme

is not a lottery. Braddock v. Family Finance Corporation, 506 P.2d 824

(Idaho 1973)(a scheme is considered a lottery when a participant's

judgment plays no part in the selection and award of the prize).

Defendants base their argument on Powell v. Red Carpet Lounge 280 S.C.

142, 311 S.E.2d 719 (1984), and the reception statute.8d





The plaintiffs contend the Court should adopt the "American

Rule" or "dominant factor doctrine" in determining whether a game is one

of skill or chance. Under the dominant factor doctrine, "a scheme

constitutes a lottery where chance dominates the distribution of prizes,

even though such a distribution is affected to some degree by the exercise

of skill or judgment." Morrow v. State, 511 P.2d 127, 129 (Alaska 1973).


7d Because the parties appear to agree on the definitions of

consideration and prize, I will not define those terms.





8d S.C. Code Ann. § 14-1-50 (1977)("All, and every part, of the common

law of England, where it is not altered by the Code or inconsistent with

the Constitution or law of this State, is hereby continued in full force and

effect in the same manner as before the adoption of this section.").

p.64


Johnson et al. v. Collins Entertainment Company, Inc., et al.





2. Analysis





In my opinion, the British rule or pure chance doctrine is not

the established law in South Carolina. Red Carpet id., is not controlling.

In Red Carpet, the sheriff seized the defendant's coin-operated machines to

determine the legality of their existence and possession. The Court

specified there was no allegation of illegal use of the machines. The Court

determined the possession of the machines did not violate the constitution

and, further, as there was no indication the machines were used for illegal

purposes, the lottery issue was not involved. Red Carpet did not in any

manner describe the role of chance in determining whether a scheme is a

lottery.





Moreover, in accordance with the reception statute, the

common law of England is ordinarily presumed to govern if there is no

South Carolina authority to the contrary. State ex rel. McLeod v. Sloan

Construction Co., Inc., 284 S.C. 491, 328 S.E.2d 84 (Ct.App. 1985). This

statute does not, however, preclude the Court from interpreting the

Constitution and declaring the law of South Carolina. This is the first

occasion in which the Court has considered the role of chance within the

meaning of the term "lottery."





I reject the pure chance doctrine. Under the doctrine, any

skill, however minimal, is sufficient to remove a scheme from the

definition of lottery. Under the pure chance doctrine many obviously

chance-based games, such as guessing contests, would not be lotteries. For

instance, a mathematician might more accurately predict the number of

marbles in a glass bowl than a non-mathematician. However, certain

unknown elements, such as the thickness of the glass and number of

marbles hidden from view, would make an exact calculation impossible.

Under the pure chance doctrine, some skill would be exercised in

determining the number of marbles and the contest would not be a lottery.

See State ex Inf. McKittrick v. Globe-Democrat Pub. Co., 110 S.W.2d 705

(Mo. 1937)(en banc).





Instead, I would hold, where the dominant factor in a

participant's success or failure in a particular scheme is beyond his

control, the scheme is a lottery, even though the participant exercises

some degree of skill or judgment. If a participant's skill does not govern

the result of the game, the scheme contains the requisite chance necessary

to constitute a lottery. On the other hand, if through the exercise of skill

p.65


Johnson et al. v. Collins Entertainment Company, Inc., et al.





or judgment a participant can determine the outcome, the scheme is not a

lottery.9d My opinion is supported by the majority of jurisdictions which

have considered this question.10d Only three jurisdictions adopt the pure


9d I note the language in Darlington Theatres, supra, "by a method

involving chance," suggests even the minimal involvement of chance in a

scheme is sufficient to constitute a lottery.





10d United States v. Marder , 48 F.3d 564, 569 (1st Cir.), cert. denied,

514 U.S. 1056, 115 S.Ct. 1441, 131 L.Ed.2d 320 (1995)(Under

Massachusetts law, "[C]hance must predominate over skill in the results of

the game, or the element of chance must be present in such a manner as

to thwart the exercise of skill or judgment in a game."); Johnson v.

Phinney , 218 F.2d 303, 306 (5th Cit. 1955)("With respect to the element of

chance, the authorities are in general agreement that if such element is

present and predominates in the determination of a winner, the fact that

players may exercise varying degrees of skill is immaterial; and the game

or device is a lottery."); National Football League v. Governor , supra at

1385 ("I conclude that the legislative interpretation of the term lottery

together with the weight of authority in other jurisdictions would persuade

the Delaware Supreme Court that 'lottery' should be interpreted to

encompass not only games of pure chance but also games in which chance

is the dominant determining factor."); Morrow v. State, supra at 129 ("We

agree that the sounder approach is to determine the character of the

scheme under the dominant factor rule."); State ex Inf. McKittrick v.

Globe-Democrat Pub. Co., supra, at 713 ("[A] contest may be a lottery even

though skill, judgment, or research enter thereinto in some degree, if

chance in a larger degree determine[s] the result."); People v. Settles, 78

P.2d 274, 277 (Cal. App. Dep't. Super. Co.1938)("The test of the character

of a game or scheme as one of chance or skill is which of these factors is

dominant in determining the result."); Finster v. Keller , 96 Cal. Rptr. 241

(Cal. Ct. App. 1971); In re Interrogatories, supra at 598 ("Article XVIII,

Section 2 [of the Colorado Constitution] is violated if chance is the

controlling factor in the award."); Tinder v. Music Operating, Inc., 142

N.E.2d 610, 614 (Ind. 1957)("In a lottery the winning of a prize is

dependent primarily, if not solely, upon chance. In none of said cases was

the prize dependent upon the skill or manipulation of the player. This is

a significant factor not contemplated in a lottery."); Commonwealth v.

Lake 57 N.E.2d 923, 925 (Mass. 1944)("[A] game is now considered a

lottery if the element of chance predominates and not a lottery if the

p.66


Johnson et al. v. Collins Entertainment Company,





chance doctrine.11d


element of skill predominates."); State v. Hahn, 72 P.2d 459, 461 (Mont.

1937), overruled on other grds. State v. Bosch, 242 P.2d 477 (Mont.

1952)("The test of the character of the game is not whether it contains an

element of chance or an element of skill, but which is the dominating

element that determines the result of the game."); State v. Steever , 246

A.2d 743 (N.J. Super. Ct. App. Div. 1968)(football pool was lottery because

it involved substantial element of chance); Hoff v. Daily Graphic, Inc., 230

N.Y.S. 360, 363 (N.Y. Sup. Ct. 1928)("The test of the character of the game

is not whether it contains an element of chance or an element of skill, but

which is the dominating element that determines the result of the game.");

State v. Stroupe, 76 S.E.2d 313, 317 (N.C. 1953)("[T]he test of the

character of [the game] ... is not whether it contains an element of

chance or an element of skill, but which of these is the dominating

element that determines the result of the game . . . ."); Stevens v.

Cincinnati Times-Star Co., 73 N.E. 1058, 1061 (Ohio 1905)("[I]f the

dominating, determining element is one of chance, that element gives

character to the whole scheme."); Commonwealth v. Laniewski, 98 A.2d

215, 217 (Pa. Super. Ct. 1953)("It is sufficient that chance be the dominant

factor."); Roberts v. Communications Investment Club of Woonsocket,

supra. at 1211 ("In deciding whether the element of chance is present, we

adopt, as have most jurisdictions which have faced this issue, the

'dominant factor' doctrine, under which a scheme constitutes a lottery

when an element of chance dominates the distribution of prizes, even

though such a distribution is affected to some degree by the exercise of

skill or judgment."); D'Orio v. Startup Candy Co., 266 P. 1037, 1038 (Utah

1928)(chance must be dominating element); Seattle Times Co. v. Tielsch,

495 P.2d 1366 (Wash. 1972)(en banc)(dominant factor test); State v.

Hudson, supra at 558 ("[A] lottery exists, even though skill, judgment or

research enters to some extent, if chance predominates in the

determination of the result."); see also State v. Wassick, 191 S.E.2d 283

(W.Va. 1972); State v. Dahlk, 330 N.W.2d 611, 617 (Wis. Ct. App.

1983)("Chance rather than skill must therefore be the dominant factor

controlling the award in a lottery. Most jurisdictions apply the 'dominant

factor' test, by which a scheme is a lottery if chance dominates even

though some degree of skill or judgment is present.").





11d See Opinion of the Justices, supra (as long as there is some degree

of skill, that activity differs from a lottery); Braddock v. Family Finance

p.67


Johnson et al. v. Collins Entertainment Company, Inc., et al.





II





Applying the elements of consideration, prize, and chance to

the video gaining machines described in the district court's certification

order, I reach the following conclusions:





A. Consideration





According to the certification order, play on all of the video

gaming machines "requires the payment of money directly into the

machines." Order, p.6. The payment of money in order to play a video

game is consideration.





B. Prize





With regard to all of the video gaming machines, the

certification order finds "[t]he player can receive cash at the conclusion of

play for any accumulated credits, Order, p.6. A cash award is

clearly a prize.







C. Chance





The certification order describes the Type II and Type III video

game devices, in part, as follows:



The machines at issue are microprocessor based devices with

random number generators . . . .



Specific operation of the games on the machines varies

significantly. In each case, however, significant facets of the

game are controlled by the selection of a card. number, or icon

by the random number generator... In each case, . . . . the

random selection is critical to the play of the game because it

determines the numbers, cards, or icons which, in turn,

determine whether the player wins or loses the game. The

random selections occur independent of the control or direction


Corp., supra (any skill or judgment practiced by the participant removes

the enterprise from the category of lottery); State v. Coats, supra (if any

substantial degree of skill or judgment is involved, it is not a lottery).



p.68


Johnson et al. v. Collins Entertainment Company, Inc., et al.





of the player. regardless of the player's skill. knowledge, or

experience.





In most instances, all decisions made by the player that might

affect the outcome of the game are made before the last

random selection. In the remaining instances, the last act may

be the player's decision not to risk an already strong hand by

subjecting it to an additional random act.





In the process of designing the games, the manufacturers use

mathematical models to determine the 'optimum play.'

Optimum play models establish the rate of financial return a

player using the best possible strategy for maximizing winning

potential can expect to receive... The pay tables are adjusted

by the manufacturers so that, over time, oven optimum play

would result in a return of less than 100%. In other words the

machines are designed to return, on average, less than one

dollar for each dollar spent. even with players using the best

possible strategies....

Order, pp.6-8 (emphasis added).





The order specifically describes the Type II games as follows:



The second category of games ("Type II") include the games of

lotto, bingo, and the traditional game of keno. The player

deposits his or her money, the player makes some decision, a

random selection occurs, and the outcome of the game is

determined. Although the player makes some decision in the

process of playing these games, such as by selecting an

arbitrary number, the player's decision does not affect the role

that chance plays in the outcome of the game.



Order, p.9 (emphasis added).





As noted in the certification order, one of the defendants'

expert mathematicians testified Type II games operate purely on chance.

The district judge stated, "[i]t is, therefore, without dispute that Type II

games are pure games of chance." Order, p.12.







Under either the pure chance doctrine or dominant factor

p.69


Johnson et al. v. Collins Entertainment Company, Inc. et al





doctrine, chance governs the outcome of a Type II video game. I would

hold Type II games constitute lotteries in violation of Article XVII, § 7 of

the South Carolina Constitution.





With regard to Type III games, the certification order finds:

The third category of games ("Type III") includes games such as

poker and black jack as well as one variety of keno. In these games,

the player makes a variety of decisions at one or more points during

play of the game. The decisions the player makes may affect the

continued play and the ultimate results of the game in a variety of

ways.





First, the player may make decisions as to how to continue to play.

For instance, in a poker game the player will decide which cards to

keep and which to discard. While this decision could be based on

sheer caprice, it would normally be based on the player's view of the

probability of receiving certain replacement cards that would

constitute a winning hand. This decision may also be influenced by

the player's analysis of the relative value of the given hands that

could be received. In other words, a player faced with two or more

possible "good" options may be willing to try for the less likely hand

if the payout is high enough to justify the increased risk...





In short, the Type III games are the most complex and diverse

.... Still, some features are common to all machines .... In

particular, each game begins with the random selection of

cards, numbers, or other icons. The player sees these and is

given an opportunity to make one or more decisions. A second

random selection is then made by the machine. The ultimate

outcome is, therefore, influenced by, but is not entirely

determined by the player's decisions. However. regardless of

skill, knowledge, or experience, a player cannot alter the

probabilities inherent in the play of any Type I, Type II, or

Type III video machine games. Neither can the player modify

the function of the random number generator, or the random

delivery of cards, numbers, or icons.





Further, in any particular play, the odds of obtaining a particular

card or combination of cards after discard are weighted against the

player.

p.70


Johnson et al. v. Collins Entertainment Company, Inc. et al





Order, pp.9-11 (emphasis added).





Whether chance predominates over skill is not easily answered

with regard to the Type III games because the parties define "skill"

differently. The plaintiffs maintain since play is completed by a random

act outside the control of a player or by a player's decision to stand on the

result of a prior random act, and the odds are stacked against a player,

chance predominates. In effect, the plaintiffs define "skill" as the ability to

affect the odds of obtaining a given card and, ultimately, the outcome of

the game.





On the other hand, the defendants define "skill" as a player's

ability to maximize the numbers of credits or dollars won through

knowledge of probabilities and consideration of the potential payoff. One

of the defendants' experts presented a mathematical model which

compared the results of a player using optimum game strategy with a

player acting entirely randomly. Since the most skilled player would win

back 96.5% of his credits and the most unskilled player would win back

31% of his credits, the expert concluded skill predominated over chance.





Another of the defendants' experts testified, with regard to

video blackjack, differing play strategies could produce differences in

excess of 50% in returns expected from the best and worst players. In the

modified keno game, "Double Up Keno," there would be even greater

differences in the expected returns of the best and worst players. The

district court noted "[t]his testimony was based on the same form of

mathematical model discussed [by the defendants' previous expert]."

Order, p.19.





As noted in the defendants' expert's mathematical model, the

probability of obtaining a particular hand does not increase, regardless of

a player's level of skill. Although a skilled player (unlike an unskilled

player) can improve his chances of winning and maximize those winnings,

his ability to affect the outcome of a game, i.e., actually obtain the

winning card, is determined by the random number generator. Similarly,

if two players both exercise optimal strategy, chance would determine

which player, if either, would obtain a given card. A player's skill, no

matter how good or poor, does not control the random "deal" of the cards.







In my opinion, skill should be defined in terms of the ability to

obtain the desired outcome - a certain card - rather than the ability of one

p.71


Johnson et al. v. Collins Entertainment Company, Inc., et al.





player to play more judiciously than another.12d As noted by the

certification order, a video poker player is unable to control the random

selection of cards, in spite of his skill, knowledge, or experience. Since the

player cannot improve the likelihood he will obtain a certain card, I

conclude chance dominates over skill in the operation of the Type III video

game machines. My conclusion is supported by authority from numerous

other jurisdictions13d Accordingly, the Type III video machines are lotteries


12d See State ex Inf. McKittrick v. Globe-Democrat Pub. Co., supra at

717 ("The rule that chance must be the dominant factor is to be taken in a

qualitative or causative sense rather than in a quantitative sense.").





13d United States v. Marder, supra (evidence supported finding chance

predominated over skill in playing video poker); Games Management, Inc.

v. Owens, 662 P.2d 260, 264 (Kan. 1983)("[t]he small amount of skill

required to play [video games of 'Double-Up' (poker) and 'Twenty-One'

(version of blackjack)] is clearly overshadowed by pure chance" where the

winner is determined by random appearance of cards over which the

player has no control); Garano v. State , 524 N.E.2d 496, 500 (Ohio

1988)(In finding video poker machines are games of chance, "[t]he fact that

an element of skill may be involved in a game does not override the fact

that elements of chance exist and, therefore, the game can be classified as

a game of chance."); Commonwealth v. Two Electronic Poker Game

Machines, 465 A.2d 973, 978 (Pa. 1983)(In playing video poker machine,

"the element of chance predominates and the outcome is largely

determined by chance."); United States v. Dobkin, 423 S.E.2d 612, 614

(W.Va. 1992)("[A]lthough there is some element of skill involved, poker or

any electronic simulation thereof, is a game of chance."); Score Family Fun

Center, Inc. v. County of San Diego, 275 Cal.Rptr. 358 (Cal. App. 4 Dist.

1990)("Mini-Boy 7" video game which offers games of draw poker, seven

card stud, blackjack, baccarat, hi-lo, double-up, and craps, is game of

chance); Plato's Cave Corporation v. State Liquor Authority , 496 N.Y.S.2d

436, 438 (N.Y.A.D. 1 Dept. 1985)("Although there is a degree of skill in

playing poker, 'the outcome depends in a material degree upon an element

of chance,' i.e. the draw of the cards." (internal cites omitted)); Collins

Coin Music of North Carolina v. North Carolina Alcoholic Beverage

Control Comn., 451 S.E.2d 306, 308 (N.C. App. 1994)("[A]lthough a

player's knowledge of statistical probabilities can maximize his winnings in

the short term, he cannot determine or influence the result since the cards

are drawn at random.").

p.72


Johnson et al. v. Collins Entertainment Company, Inc. et al.





and, therefore, illegal under Article XVII, § 7 of the South Carolina

Constitution.





CONCLUSION





The majority suggests it is the General Assembly's role to

determine whether video gambling is inimical to the public welfare and, if

so, respond with appropriate legislation. I agree. Nonetheless, this Court

is ultimately responsible for interpreting the South Carolina Constitution.

Evatte v. Cass, 217 S.C. 62, 65, 59 S.E.2d 638, 639 (1950)("[T]he final

responsibility of interpreting the Constitution rests upon this Court."). I

construe Article XVII, §7 of the South Carolina Constitution as

prohibiting all schemes which meet the definition of "lottery," including the

video gaming machines described in the federal district court's certification

order.







p.73




TOAL, A.J. (concurring and dissenting): Because I profoundly disagree

with the analysis and conclusions reached by the majority, I must join my

brother Justice Burnett's opinion in substance. I concur in Justice Burnett's

answer to the first certified question. He has set forth the legal standard

which should be used to define the term lottery as it appears in South

Carolina's Constitution in a manner which is faithful to our Court's

precedents and well within the mainstream of American court decisions. I

also concur with Justice Burnett's answer to the second certified question in

which he applies his definition of lottery to the machines in question and

concludes that Type II and Type III video gaming machines do constitute

lotteries under our constitution.





However, I write separately to express the view that the United States

District Court for the District of South Carolina is free to answer the second

question as Justice Burnett and I do. In order to explain this view, I concur

only in that portion of the majority's opinion which concludes that since the

second certified question asks us to decide a factual question, no such finding

will be binding on the federal district court for purposes of entry of any

permanent injunction or award of damages. Since our opinions regarding the

application of any of the proposed tests are advisory, it is within the federal

district court's prerogative to decide whether Type II and Type III machines

are unconstitutional. My own advice to the federal court is that under any

of the definitions of lottery put forth by this Court today, Type II and Type

III machines are clearly unconstitutional in South Carolina. Each of these

points is discussed below.





A ADVISORY NATURE OF OPINIONS





The federal district court asked this Court to answer two certified

questions. The first question asked us to provide South Carolina's legal

definition of a lottery. The second question asked us to apply that definition

to the preliminary findings of fact in this case, i.e., to decide a factual

question. In answering the second certified question, the majority advises the

federal district court that under their definition of lottery, the video poker

machines at issue here do not constitute lotteries under the South Carolina

Constitution. Justice Burnett and I disagree with them.





As noted by Chief Justice Finney and stated in the Order of

Certification, "no finding of this Court will be binding for entry of any

permanent injunction or for the award of damages by the District Court."

This Court may accept certified questions only to answer questions of law.

Rule 228(a), SCACR. Thus, this Court's determination of whether Type II





p.74


Johnson et al. v. Collins Entertainment Company, Inc. et al.





and Type III are in fact "lotteries" under our Constitution does not bind the

federal district court. This determination is ultimately in the hands of the

federal district court.





B. APPLICATION OF THE MAJORITY TEST





Under Justice Burnett's test, in which I join, Type II and Type III

machines are clearly unconstitutional. The majority, on the other hand,

advises that under its test, Type II and Type III machines are not

unconstitutional lotteries. However, I believe that even under the test

proposed by the majority, the federal district court can conclude that Type II

and Type III machines constitute a lottery under our Constitution.







The majority concludes that the video gaming machines are not

unconstitutional lotteries because they do not involve (1) a drawing and (2)

"tickets" or other indicium of entitlement to a prize.





Although the majority finds that the video gaming machines do not

involve a "drawing," the majority fails to consider that the machines at issue

here function in the same manner as most modem popular lotteries. These

popular lotteries involve a random generation of numbers to determine the

winning combination. The "drawing" does not depend upon the number of

people playing the lottery. As such, single person play would not negate the

fact that a drawing takes place. Similarly, in this case, all of the video

gaming machines are microprocessor based devices with random number

generators. A player wins if the right combination of numbers is generated

by the machine. Thus, a drawing occurs by the machines' random generation

of numbers, irrespective of the number of people playing.





As for the second requirement of "tickets," even the majority recognizes

that the definition of "tickets" should take into account modern technology.

The majority states in footnote 10 of its opinion that '[e]lectronic ticketing

would not necessarily preclude finding a lottery where electronic registration

is the functional equivalent of a lottery ticket . . . ." In the instant case,

although a player does not receive an actual ticket or token prior to playing

the game, his opportunity to win is symbolized by the activation of the

machine upon the insertion of money and the compilation of his credits or

plays displayed during the game. Upon the insertion of money, the machines

reveal the player's monetary credit with that game. The machines keep track

of the player's initial credit and any "free plays" the player wins during his

game. These credits are what the player exchanges with the store owner for

cash. There is no practical difference between a physical ticket evidencing



p.75


Johnson et al. v. Collins Entertainment Company, Inc. et al.





the right to play for a prize and an electronic representation of such a right

in the form of free play credits. Furthermore, the right to receive the cash

prizes from the machine owners is physically represented by the ticket the

player receives when he cashes out a game. That prize amount is limited by

statute.





Finally, although the majority opinion does not discuss the requirement

of chance, it is patently clear Type II and Type III video machines would

satisfy even a pure chance standard. As stated in the Order of Certification,

all of the machines are microprocessor based devices with random number

generators. The random selections occur independent of the control or

direction of the, player, regardless of the player's skill, knowledge, or

experience. (Ord. p. 6-7). The bottom line is that a player cannot alter the

probabilities inherent in the play of Type I, Type II, or Type III video

machine games. (Ord. p. 10).





Thus, in my view, under any of the tests proposed today, Type II and

Type III video game machines are illegal lotteries under the South Carolina

Constitution. Of course, the final application of the law to the facts of this

case rests wholly within the discretion of the federal district court. It may v

ery well be that the federal district court, having asked our advice on the

application of our lottery test to the facts before it, will accept the advice of

the majority. I simply express the view that these opinions give the federal

district court a range of choices.





C. CONCLUSION





Although no solid consensus has been reached in this case, the

members of this Court have attempted with mutual respect and in utter good

faith to reconcile our positions on the South Carolina Constitution's anti-

lottery provision and its application to video gaming machines. As part of t

he judicial branch of government, our role is limited to discerning the

meaning and application of existing law. Naturally, interpretations may vary

among members of any court. My profound disagreement with my brothers

in the majority is matched by my enduring respect for their sincerity and

integrity. Although many appellate courts transform passionate philosophical

disagreement into permanent rupture of the court's collegiality,1e this Court




1e See E. Lazarus, Closed Chambers: The First Eyewitness Account of the

Epic Struggles Inside the Supreme Court, Times Books, Random House, 1999.

In an act of consummate disloyalty to the court he once served, the author,

a former law clerk, describes bitter division within our highest court.

p.76


Johnson et al. v. Collins Entertainment Company, Inc. et al.





will not splinter over any given opinion.2e We have each considered and

circulated many drafts of these opinions. I offer this glimpse into the

deliberations of conference in order to underscore the complexity of this

matter and gravity of our consideration. We are greatly divided on this case,

but one truth about our Constitution in which we are all united is that we

have no role to play in answering the broader policy questions of whether

video gaming machines and other lotteries should be allowed, prohibited, or

regulated in South Carolina. These policy decisions can only be made by the

statutory enactment of the General Assembly, regulatory action of the

executive agencies so empowered, or by further Constitutional mandate of the

people of South Carolina.






2e Eminent contemporary southern historian Dr. Walter Edgar proposes

as his working thesis for South Carolina: A History, University of South

Carolina Press, 1998, that the hallmark of South Carolinians is our impulse

to conduct ourselves so as to achieve "the good order and harmony of the

whole community."





p.77