Mims Amusement v. Law Enforcement Div.

• Citation: 621 S.E.2d 344
• Decision Date: 03 October 2005
• Docket Number: No. 26046.,26046.
• Court: United States State Supreme Court of South Carolina
• Parties: MIMS AMUSEMENT COMPANY, Respondent, v. SOUTH CAROLINA LAW ENFORCEMENT DIVISION, Appellant.

Page 344

621 S.E.2d 344

MIMS AMUSEMENT COMPANY, Respondent, v. SOUTH CAROLINA LAW ENFORCEMENT DIVISION, Appellant.

No. 26046.

Supreme Court of South Carolina.

Heard June 16, 2005.

Decided October 3, 2005.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert D. Cook, Senior Assistant Attorney General C. Havird Jones, Jr., and Assistant Attorney General Elizabeth R. McMahon, all of Columbia, for Appellant.

James M. Griffin, of Columbia, for Respondent.

Justice BURNETT:

This appeal raises the novel issue of whether a party has a right to a jury trial, under the state constitution, in a civil forfeiture proceeding involving an allegedly illegal video gaming machine. We certified this case for review from the Court of Appeals pursuant to Rule 204(b), SCACR, on the motion of Appellant, the South Carolina Law Enforcement Division (SLED). We now reverse the circuit court's ruling that a right to a jury trial exists in such a case.

FACTUAL AND PROCEDURAL BACKGROUND

Law enforcement officials seized a Safari Skill video game belonging to Mims Amusement Co. (Owner) from a sports bar and grill in Berkeley County. SLED agents presented the machine to a magistrate pursuant to S.C.Code Ann. § 12-21-2712 (2000). The magistrate found the machine was an illegal gambling device in violation of S.C.Code Ann. § 12-21-2710 (2000) and ordered its destruction.

Owner moved for a post-seizure hearing and demanded a jury trial on the factual issue of whether the machine was an illegal gambling device. The magistrate granted a post-seizure hearing to Owner, but denied the request for a jury trial. Owner appealed the denial of its request for a jury trial to the circuit court.

The circuit court determined that all devices seized pursuant to Section 12-21-2710 are not necessarily illegal gambling devices because a magistrate must, as required by Section 12-21-2712, make a factual determination on the legality of a particular machine. The circuit court remanded the case to the magistrate, with instructions that when the magistrate finds there is no factual dispute about the illegality of the machine, then it may order the machine destroyed pursuant to the statute. However, when there is a factual dispute about the illegality of a particular machine, Owner is entitled to a jury trial to determine the issue. This appeal follows.

ISSUE

Did the circuit court err in ruling that the owner of a video game machine seized by law enforcement authorities has a constitutional right to a jury trial in a civil forfeiture proceeding to determine whether the machine is an illegal gambling device?

STANDARD OF REVIEW

In a case raising a novel question of law, the Court is free to decide the question with no particular deference to the lower court. The Court must decide the question based on its assessment of which answer and reasoning best comport with the law and public policies of this state and the Court's sense of law, justice, and right. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000) (citing S.C. Const. art. V, §§ 5 and 9, S.C.Code Ann. §§ 14-3-320 and -330 (1976 & Supp.2004), and S.C.Code Ann § 14-8-200 (Supp.2004)); Osprey, Inc. v. Cabana Ltd. Partnership, 340 S.C. 367, 372, 532 S.E.2d 269, 272 (2000) (same); Clark v. Cantrell, 339 S.C. 369, 378, 529 S.E.2d 528, 533 (2000) (same); Antley v. New York Life Ins. Co., 139 S.C. 23, 30, 137 S.E. 199, 201 (1927) ("In [a] state of conflict between the decisions, it is up to the court to `choose ye this day whom ye will serve'; and, in the duty of this decision, the court has the right to determine which doctrine best appeals to its sense of law, justice, and right.").

LAW AND ANALYSIS

SLED argues the circuit court erred in ruling the owner of a video gaming machine seized by law enforcement authorities has a constitutional right to a jury trial in a civil forfeiture proceeding to determine whether the machine is an illegal gambling device. SLED contends the ruling was erroneous because (1) a video game machine which violates the statute is contraband per se, just as illegal liquor or drugs, because an illegal gambling device does not have a normally lawful purpose; (2) the magistrate's determination of whether a machine is an illegal gambling device is not the type of case in which the right to a jury trial was secured at the time of the adoption of the state constitution; (3) this Court has recognized that illegal gambling devices are contraband per se, and the due process required is a post-seizure hearing before a magistrate to show why a particular machine should not be forfeited; (4) the courts have never granted a jury trial in the seizure and destruction of illegal gambling devices; and (5) the forfeiture of illegal gambling devices is a strong deterrent to the possession and operation of such a devices, and granting a right to a jury trial would undermine the deterrent effect and cause unnecessary delays and problems in enforcement of the law.

In response, Owner contends (1) the State may not deprive an owner of his property without due process of law, which in this instance includes the right to a jury trial; (2) the state constitution, this Court's precedent, and court rules guarantee Owner a right to a jury trial in magistrate's court to determine the legality of a particular machine; (3) a video game machine is not contraband per se because it may normally be used for lawful purposes, provided it is not in violation of Section 12-21-2710; and (4) whether a particular machine is an illegal game of chance or a legal game of skill may involve a material factual dispute which a party has a right to ask a jury to resolve.

We decide this case in light of the recent history of video gambling in South Carolina, which mushroomed from a rather clandestine and inauspicious beginning in 1986 into a multi-billion dollar business by its demise in July 2000. See e.g. Johnson v. Collins Entertainment Co., 88 F.Supp.2d 499 (D.S.C.1999) (outlining the below-the-radar development of $2.5 billion video poker industry in South Carolina, legislative attempts to regulate it, and state appellate court decisions on issues relating to the industry), vacated by Johnson v. Collins Entertainment Co., 199 F.3d 710 (4th Cir.1999) (vacating district court's order because it improperly ruled on unsettled issues of state law); Westside Quik Shop, Inc. v. Stewart, 341 S.C. 297, 534 S.E.2d 270 (2000) (tracing history of anti-gambling statutes and subtle development of video poker industry); Johnson v. Collins Entertainment Co., 349 S.C. 613, 564 S.E.2d 653 (2002) (addressing various certified questions from district court relating to special inducements and cash payouts by video poker operators); Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 528 S.E.2d 647 (1999) (Court enjoined a public referendum as an unconstitutional delegation of legislative authority; Court further held statutory ban on cash payouts by video poker operators was severable from unconstitutional provision and thus enforceable as of July 1, 2000).¹

Gaming devices in general have long been recognized as legitimately within the police power of the State to control or take by forfeiture. Westside Quik Shop, Inc. v. Stewart, 341 S.C. 297, 303, 534 S.E.2d 270, 273 (2000) (citing Lawton v. Steele, 152 U.S. 133, 136, 14 S.Ct. 499, 38 L.Ed. 385 (1894)). Gaming machines have been illegal and subject to forfeiture as contraband in this state since the 1930s. Id. at 300, 534 S.E.2d 270, 534 S.E.2d at 271. This Court consistently has deferred to the Legislature's determination of which gaming devices must be sacrificed for the public welfare. Furthermore, forfeiture 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. Id. at 304, 534 S.E.2d at 273 (citing Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996) and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686-87, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974)).

An action for forfeiture of property is a civil action at law. 192 Coin-Operated Video Game Machines, 338 S.C. at 184, 525 S.E.2d at 876; State v. Petty, 270 S.C. 206, 208, 241 S.E.2d 561, 562 (1978). Under S.C.Code Ann. § 12-21-2712 (2000),² video gaming machines that are operated or possessed in violation of S.C.Code Ann. § 12-21-2710 (2000)³ are subject to forfeiture as contraband per se. Westside Quik Shop, 341 S.C. at 303, 534 S.E.2d at 273; 192 Coin-Operated Video Game Machines, 338 S.C. at 189, 525 S.E.2d at 879. A claimant's right to due process of law in the seizure of video game machines is satisfied when he receives a post-seizure hearing, and due process does not mandate a pre-seizure hearing. 192 Coin-Operated Video Game Machines, 338 S.C. at 196-97, 525 S.E.2d at 883. Thus, we have decided that machines declared illegal by a magistrate or conceded to be illegal by the owner are contraband per se, and a claimant is entitled only to a post-seizure hearing.

In support of its argument, Owner points to this Court's observation in State v. Kizer, 164 S.C. 383, 162 S.E. 444 (1932), that owners of nickel slot machines could have brought a claim and delivery action, to be tried before a jury, rather than continually and improperly seeking injunctions to prevent law enforcement authorities from seizing particular machines. We have overruled Kizer "to the extent it permits the destruction of allegedly illegal property without any opportunity for the owner to contest the magistrate's determination of illegality." 192 Coin-Operated Video Game Machines, 338 S.C. at 196-97, 525 S.E.2d at 883 (emphasis added). We held in 192 Coin-Operated Video Game Machines that examination of a video gaming machine in magistrate's court, with the availability of a post-seizure hearing, provides...