Daniels v. Mobley

737 S.E.2d 895

Charles DANIELS, d/b/a The Poker Palace

v.Earle C. MOBLEY, in his official capacity as Commonwealth's Attorney for the City of Portsmouth.

Record No. 121242.

Supreme Court of Virginia.

Feb. 28, 2013.

Thomas C. Goldstein (John C. Lynch, Virginia Beach; Ethan G. Ostroff, Virginia Beach; Tejinder Singh; Troutman Sanders; Goldstein & Russell, on briefs), for appellant.

Mark R. Colombell (Robert R. Musick; ThompsonMcMullan, on brief), for appellee.

Amici Curiae: Fraternal Order of Police of Virginia, Inc., Virginia Moose Association, Portsmouth Catholic Regional School, and Charities, Inc. (George H. Bowles, Virginia Beach; Joseph R. Pope, Richmond; Williams Mullen, on brief), in support of appellant.

Present: All the Justices.

OPINION BY Justice S. BERNARD GOODWYN.

Charles P. Daniels, doing business as the Poker Palace, appeals from a judgment enteredby the Circuit Court of the City of Portsmouth in a declaratory judgment action. The circuit court ruled that Daniels failed to establish that Texas Hold ‘Em poker is not illegal gambling under Code § 18.2–325 and that Code § 18.2–328 is unconstitutionally vague. We conclude that the request for declaratory judgment concerning the legality of Texas Hold ‘Em poker under Code § 18.2–325 failed to present a justiciable controversy over which the circuit court could exercise jurisdiction and that the circuit court did not err in determining Code § 18.2–328 to be constitutionally valid.

Facts and Background

Charles Daniels operated Boulevard Bingo, a charitable bingo hall in the City of Portsmouth for twenty-two years. In 2006, Daniels began hosting games of Texas Hold ‘Em poker at the hall for the Virginia Fraternal Order of Police. These games were popular, and in 2010 Daniels leased and renovated the space adjacent to the bingo hall and named it the Poker Palace. Daniels hosted Texas Hold ‘Em games and tournaments, primarily for charity, in the Poker Palace.

On July 26, 2010, Earle C. Mobley, the Commonwealth's Attorney for the City of Portsmouth, sent Daniels a letter stating:

After careful consideration, I have come to the conclusion that any and all poker games, or other forms of gambling not sanctioned by the Commonwealth of Virginia will be viewed by my office as illegal under Section 18.2–325 of the Code of Virginia, 1950 as amended.

I have notified the Portsmouth Police Department of my decision to prosecute any illegal gambling. Effective immediately, any violations of the statute will be subject to investigation and/or prosecuted. To avoid prosecution you must cease and desist any and all forms of illegal gambling, forthwith.

Daniels thereafter met with Mobley and decided to close the Poker Palace to avoid prosecution.

Daniels filed a declaratory judgment action in the Circuit Court of the City of Portsmouth to determine whether the game of Texas Hold ‘Em constitutes illegal gambling under Code § 18.2–325 and whether Code § 18.2–328 is facially unconstitutional and should be found void for vagueness.

The case proceeded to a one-day bench trial in which Daniels presented the testimony of (1) an expert in casino math, Robert Hannum, (2) a math Ph.D., James Klinedinst, and (3) a world champion poker player, Gregory Raymer. At the conclusion of Daniels' case, Mobley made a motion to strike, which the circuit court took under advisement. Mobley declined to put on evidence and renewed his motion to strike. After a recess, the circuit court granted the motion to strike on the basis that “a game of Texas Hold ‘Em for [a] single player can last 24 hours or it could last for one hand, and all the evidence indicates that the outcome of any one hand is uncertain; and so it is clear to me that this violates the statute as written; and, therefore, I will grant the motion to strike in regard to the claim that it is not illegal gambling under the statute [Code § 18.2–325].” ¹

Thereafter the circuit court heard argument on whether Code § 18.2–328² is unconstitutionally vague because of the definition of “illegal gambling” stated in Code § 18.2–325(1). The circuit court held that the statute is not unconstitutionally vague because it provides fair notice and an individual of ordinaryintelligence can discern its meaning. Daniels appeals.

We granted an appeal on the following assignments of error:

1. The trial court erroneously held that Virginia's gambling statute, Va.Code § 18.2–325, can be violated whenever the outcome of a game is to any degree uncertain, as opposed to when chance predominates over skill in determining the outcome.

2. The trial court erroneously held that the Texas Hold ‘Em Poker games hosted at the Poker Palace qualify as gambling under Section 18.2–325 because the outcome of those games is uncertain. In making this error, the court misinterpreted both the term “uncertain,” as noted in the first assignment of error, as well as the word “outcome.”

3. The trial court erroneously held that its broad reading of the gambling statute did not render the statute unconstitutionally vague.

Mobley presents the following assignments of cross-error:

1. The circuit court erred by not granting the special plea and dismissing the action on the grounds that Mobley, a Constitutional officer, was immune from declaratory actions under the doctrine of sovereign immunity.

2. The circuit court erred by not granting the demurrer on the grounds that Daniels lacked standing to challenge a criminal statute under which he had not been charged.

Analysis

The declaratory judgment statute, Code § 8.01–184, provides:

In cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed and no action or proceeding shall be open to objection on the ground that a judgment order or decree merely declaratory of right is prayed for. Controversies involving the interpretation of deeds, wills, and other instruments of writing, statutes, municipal ordinances and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.

Therefore, a circuit court cannot acquire jurisdiction over a declaratory judgment action unless the proceeding involves an actual adjudication of rights. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle Cnty. Bd. of Supervisors (“ Charlottesville Fitness ”), 285 Va. 87, 98, 737 S.E.2d 1, 6 (2013) (“The prerequisites for jurisdiction ... may be collectively referred to as the requirement of a ‘justiciable controversy.’ ”). A justiciable controversy, for purposes of declaratory judgment, must involve “specific adverse claims, based upon present rather than future or speculative facts.” City of Fairfax v. Shanklin, 205 Va. 227, 229, 135 S.E.2d 773, 775 (1964).

For a justiciable controversy to exist, it must be possible for the circuit court to render a decree yielding specific relief, such that the plaintiff's rights will be thereby affected. Charlottesville Fitness, 285 Va. at 98, 737 S.E.2d at 6 (citing W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 299 (1996) and Erie Ins. Group v. Hughes, 240 Va. 165, 170, 393 S.E.2d 210, 212 (1990)). “Thus, when the ‘actual objective in the declaratory judgment proceeding [i]s a determination of [a] disputed issue rather than an adjudication of the parties' rights,’ the case is not one for declaratory judgment.” Id. at 99, 737 S.E.2d at 7 (quoting Green v. Goodman–Gable–Gould Co., 268 Va. 102, 108, 597 S.E.2d 77, 81 (2004)); see, e.g., Board of Supervisors v. Town of Purcellville, 276 Va. 419, 435–36, 666 S.E.2d 512, 520 (2008) (allowing judgment for declaration of rights under written agreements to guide the parties in their future interactions).

It is beyond question that this Court may consider, sua sponte, whether a requisite justiciable controversy exists under the declaratory judgment statute, as the declaratory judgment statute was not intended to vest the courts with authority to render advisory opinions. See Martin v. Ziherl, 269 Va. 35, 40, 607 S.E.2d 367, 369 (2005); Shanklin, 205 Va. at 229–30, 135 S.E.2d at 775–76. In his complaint, Daniels requested that the circuit court declare “that Texas Hold ‘Em is not ‘illegal gambling’ under Code § 18.2–325.” The instant case presents a scenario in which the declaratory judgment petitioner seeks a declaration that a generalized activity does not violate a particular statute. We conclude that such request concerns a determination of a disputed issue rather than a request for an adjudication of rights, and thus does not present a justiciable controversy.

The case of Williams v. Southern Bank of Norfolk, 203 Va. 657, 125 S.E.2d 803 (1962), is instructive to our determination. The bank financed Williams' car dealership and took liens on the vehicles; when Williams sold a car, he was to pay off the lien. Id. at 660, 125 S.E.2d at 805. Williams sold eight vehicles without promptly paying off the liens, and the bank informed its attorney, who in turn reported this information, with the bank's consent, to the Commonwealth's attorney. Id. at 660–61, 125 S.E.2d at 806. Williams was charged with eleven counts of larceny, of which all but two were nolle prossed. Id. at 661, 125 S.E.2d at 806. Williams was found not guilty of those counts and threatened to bring actions for malicious prosecution against the bank. Id. at 660, 125 S.E.2d at 805. The bank filed a declaratory judgment action, seeking to prevent Williams from bringing his actions at law, and the circuit court ruled in its favor. Id. at 658–59, 125 S.E.2d at 804–05.

This Court reversed, holding:

The petition of [the] Bank does not ask for the construction of definite rights expressed in written instruments or statutes. It alleges no controversy between the parties as to the right of [the] Bank to make a defense at...