Kan. justices strike down law targeting gambling devices

Monday, April 11, 2011

TOPEKA, Kan. — A Kansas law aimed at keeping gambling machines out of bars and other businesses is unconstitutional because it’s broad enough to apply to any computer and even games such as “Twister” and “Chutes and Ladders,” the state Supreme Court ruled late last week.

The law struck down by the justices on April 8 is part of a 2007 act that also allowed state-owned casinos and slot machines at dog- and horse-racing tracks. The casino and slots provisions aren’t affected by the court’s unanimous ruling, but the decision creates a possible opening for legislators who’d like to revise them.

The Supreme Court ruled in a challenge to a law outlawing “gray machines” and accompanying statutes that allow the Kansas Lottery to confiscate them and make it a felony for a person to put such machines where they can be used by the public.

The first law defines a gray machine as a “mechanical, electro-mechanical or electronic device” that can be used for gambling, if it is not authorized by the lottery or linked to the lottery’s central computer, or if it can simulate a game played on a legal gambling machine. Justice Eric Rosen said any computer — even the one he used to write the court’s opinion — would qualify.

“Telephones can be used for making or placing bets,” Rosen wrote. “Both ‘Chutes and Ladders’ and ‘Twister’ children’s games use spinners, which are mechanical devices and which can, of course, be used for gambling.”

Even before the 2007 law, Kansas outlawed non-lottery gambling machines in bars and other businesses, and made the possession and use of gambling devices illegal.

But Rebecca Rice, a Lindsborg attorney representing bar owners David Dissmeyer, Lester Lawson and Terry Mitchell, said those older laws required the state to show machines were being used for gambling. The older laws also were more precise in defining gambling machines.

Rice said the 2007 law doesn’t require the state to show that a machine actually was used for gambling before confiscating it and prosecuting the owner.

“We think everything was outlawed,” she said.

In ruling on the bar owners’ lawsuit in 2009, Shawnee County District Judge Charles Andrews disagreed, concluding that even under the 2007 law, the older definition of gambling devices applied. But Rosen wrote in the Supreme Court’s opinion that the newer law is clear on its face and, “few or no devices, tools or machines are legal” if they’re available for public use.

Rice said there’s no need for legislators to revise the 2007 law on gray machines with the older laws against illegal gambling still in effect.

“Hopefully, they’ll leave it alone,” she said.

Key legislators’ opinions differed, though they agreed lawmakers should wait to deal with the issue until next year so they have time to study it thoroughly. In theory, legislators could tackle it when they return April 27 from their annual spring break to wrap up their business for the year.

Senate Majority Leader Jay Emler, a Lindsborg Republican, said he is worried gray machines will proliferate if legislators don’t eventually act. But House Minority Leader Paul Davis, a Lawrence Democrat, said that before taking up the issue, legislators should determine how common the machines are and whether they’re likely to become more numerous.

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