Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:06-cv-00400-DCN)
The opinion of the court was delivered by: Gregory, Circuit Judge:
Argued: September 18, 2012
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Motz joined.
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. Â§Â§ 12-21-2710 and 12-21-2712, which prohibit certain "device[s] pertaining to games of chance." Appellants put forward two theories: first, that Â§ 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 (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.
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 ...