Martin v. Lloyd

• Decision Date: 21 November 2012
• Docket Number: No. 11–1405.,11–1405.
• Citation: 700 F.3d 132
• Parties: Jimmy MARTIN; Lucky Strike LLC, Plaintiffs–Appellants, v. Reginald I. LLOYD, as Chief of the South Carolina Law Enforcement Division; Scarlett A. Wilson, as Solicitor of the Ninth Judicial Circuit; Alan Wilson, as the Attorney General for the State of South Carolina, Defendants–Appellees, and Robert Stewart, as Chief of the South Carolina Law Enforcement Division; Henry McMaster, as Attorney General of the State of South Carolina; Ralph Hoisington, as Solicitor of the Ninth Judicial Circuit, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

700 F.3d 132

Jimmy MARTIN; Lucky Strike LLC, Plaintiffs–Appellants,

v.Reginald I. LLOYD, as Chief of the South Carolina Law Enforcement Division; Scarlett A. Wilson, as Solicitor of the Ninth Judicial Circuit; Alan Wilson, as the Attorney General for the State of South Carolina, Defendants–Appellees,andRobert Stewart, as Chief of the South Carolina Law Enforcement Division; Henry McMaster, as Attorney General of the State of South Carolina; Ralph Hoisington, as Solicitor of the Ninth Judicial Circuit, Defendants.

No. 11–1405.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 18, 2012.

Decided: Nov. 21, 2012.

ARGUED:James Mixon Griffin, Lewis, Babcock & Griffin, LLP, Columbia, South Carolina, for Appellants. Kenneth Paul Woodington, Davidson & Lindemann, PA, Columbia, South Carolina, for Appellees. ON BRIEF:Richard A. Harpootlian, Law Offices of Richard A. Harpootlian, Columbia, South Carolina, for Appellants. Alan Wilson, Attorney General, Robert D. Cook, Deputy Attorney General, C. Havird Jones, Jr., Senior Assistant Attorney General, Office of the Attorney General, Columbia, South Carolina, for Appellees Alan Wilson and Scarlett A. Wilson; William H. Davidson, II, Davidson & Lindemann, PA, Columbia, South Carolina, for Appellee Reginald I. Lloyd.

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge WILKINSON and Judge MOTZ joined.

OPINION

GREGORY, Circuit Judge:

Appellants Jimmy Martin (“Martin”) and Lucky Strike, LLC (“Lucky Strike”) appeal the district court's grant of summary judgment in an action to enjoin enforcement of two South Carolina statutes, S.C.Code Ann. §§ 12–21–2710 and 12–21–2712, which prohibit certain “device[s] pertaining to games of chance.” Appellants put forward two theories: first, that § 2710 is void for vagueness and thus violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Second, applying a little-used holding of Ex Parte Young, 209 U.S. 123, 145–48, 28 S.Ct. 441, 52 L.Ed. 714 (1908), they argue that the statutes violate their right to equal protection under the Fourteenth Amendment because they are required to risk imprisonment, fines and forfeiture of property to obtain a determination as to the legality of a game under the statutes. Because the statutes in question have a legitimate application, we affirm the district court's vagueness holding. We further conclude that the statutes do not fall within the scope of Ex Parte Young's holding. As such, we affirm the district court's ruling.

I.

Appellant Martin is a citizen of South Carolina in the business of developing and operating gaming machines. After the South Carolina legislature passed anti-gaming legislation in 1999 that outlawed a type of video poker game he was operating, Martin removed all of his machines from the state. See 1999 S.C. Act 125. He currently operates games only on Indian-owned sites in Oklahoma. Martin claims that he would like to develop a game that he can operate in South Carolina, but is unable to do so because he is unclear on the reach of the disputed statutes and unwilling to risk criminal prosecution if he unwittingly develops a non-compliant game.

Lucky Strike is a limited liability corporation which operates gaming machines in convenience stores and other locations. Lucky Strike has stated that since 2003, the South Carolina Law Enforcement Division (“SLED”), the agency tasked with enforcing the statutes, has confiscated and destroyed hundreds of its machines. Lucky Strike never challenged any of the seizures. Instead, it chose, along with Martin, to bring this facial challenge to the statutes.

Section 2710 is part of South Carolina's legal framework regulating coin-operated machines and devices. It establishes that:

It is unlawful for any person to keep on his premises or operate or permit to be kept on his premises or operated within this State any vending or slot machine, or any video game machine with a free play feature operated by a slot in which is deposited a coin or thing of value, or other device operated by a slot in which is deposited a coin or thing of value for the play of poker, blackjack, keno, lotto, bingo, or craps, or any machine or device licensed pursuant to Section 12–21–2720 and used for gambling or any punch board, pull board, or other device pertaining to games of chance of whatever name or kind, including those machines, boards, or other devices that display different pictures, words, or symbols, at different plays or different numbers, whether in words or figures or, which deposit tokens or coins at regular intervals or in varying numbers to the player or in the machine, but the provisions of this section do not extend to coin-operated nonpayout pin tables, in-line pin games, or to automatic weighing, measuring, musical, and vending machines which are constructed as to give a certain uniform and fair return in value for each coin deposited and in which there is no element of chance.

Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned for a period of not more than one year, or both.

Section 2712 sets forth procedures for enforcement of § 2710:

Any machine, board, or other device prohibited by Section 12–21–2710 must be seized by any law enforcement officer and at once taken before any magistrate of the county in which the machine, board, or device is seized who shall immediately examine it, and if satisfied that it is in violation of Section 12–21–2710 or any other law of this State, direct that it be immediately destroyed.

II.

This Court reviews a district court's grant of summary judgment de novo, applying the same legal standards as the district court. Nader v. Blair, 549 F.3d 953, 958 (4th Cir.2008). Summary judgment is only appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. In determining whether a genuine issue of material fact exists, the Court views the evidence in the light most favorable to the non-moving party. Id.

A statute is unconstitutionally vague under the Due Process Clause if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); see also South Carolina Medical Ass'n v. Thompson, 327 F.3d 346, 354 (4th Cir.2003). When considering a facial challenge, courts first determine whether the enactment implicates a substantial amount of constitutionally protected conduct. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). If it does not, then the challenge should only succeed if the law is “impermissibly vague in all of its applications.” Id. at 494–95, 102 S.Ct. 1186. As we have explained, a facial challenge is ineffective if the statute has a “plainly legitimate sweep.” United States v. Comstock, 627 F.3d 513, 518 (4th Cir.2010) (quoting Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 202, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008)). However, where a statute imposes criminal penalties, the standard of certainty is higher and the statute can be invalidated on its face “even where it could conceivably have ... some valid application.” Wright v. New Jersey, 469 U.S. 1146, 1152, 105 S.Ct. 890, 83 L.Ed.2d 906 (1985) (quoting Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).

Because Appellants bring a facial attack, the first question is whether the statute implicates constitutionally protected conduct. The district court answered this question by pointing to the well-settled proposition that gambling “implicates no constitutionally protected right.” See United States v. Edge Broad. Co., 509 U.S. 418, 426, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993). The parties dispute whether § 2710 can be used to confiscate games that are not used for gambling.^* In any case, Appellants make no argument that § 2710 infringes on constitutionally protected conduct. The appropriate inquiry, then, is whether § 2710 is invalid “in all of its applications,” keeping in mind that, because this is a criminal statute, it must be more than a mere “conceivable application.” See Hoffman, 455 U.S. at 495, 102 S.Ct. 1186;Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. 1855.

Appellants concede in their Reply Brief that the statute, taken as a whole, is not impermissibly vague in all its applications. For instance, they do not dispute that poker, blackjack, keno, lotto, bingo and craps are clearly outlawed. However, they argue that one phrase in the statute—the blanket prohibition against possessing any “other device pertaining to games of chance of whatever name or kind,” is impermissibly vague in all its applications.

Even when bringing a facial challenge, a party may contest certain provisions of a statute without taking on the whole of the statute. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). However, a court is not confined to the plain language of the contested statute when assessing a void-for-vagueness claim. See Kolender, 461 U.S. at 355, 103 S.Ct. 1855. A federal court must “consider any limiting construction that a state court or enforcement agency has proffered.” Village of Hoffman Estates, 455 U.S. at 494 n. 5, 102 S.Ct. 1186. Further, when considering phrases or words within a statute, those phrases or words should be considered in the context of the statute as a whole. The Real Truth About Abortion, Inc. v. Fed. Election Comm'n, 681 F.3d 544, 554 (4th Cir.2012).

The Supreme Court of South Carolina has provided significant clarity to the disputed phrase by deciding several cases based, at...