Video poker in hand of judge

Industry arguing against phase-out

A Wake County judge will decide as soon as today whether to delay a state law that would phase out video poker machines across North Carolina starting this weekend.

Superior Court Judge Narley Cashwell plans to rule on a request by video poker machine owners and players to block the law temporarily while they challenge its legality in court.

Under the law, which the General Assembly enacted this year, establishments with the current legal maximum of three video poker machines are to drop to two machines on Sunday, then to one by March and to none by July.

The legislature passed the ban partly at the behest of sheriffs and state law enforcement agencies that say commercial video poker spawns crime and corruption.

Affidavits state lawyers gave Cashwell "paint a very clear picture of the criminal law violations associated with the video poker industry that are occurring throughout North Carolina," said Eddie Caldwell, executive vice president and general counsel of the N.C. Sheriffs' Association.

But the industry is challenging the ban with a last-minute lawsuit.

It argues that the ban is unconstitutional, in part because the state has entered the gambling business with its "education lottery" and can't have a monopoly.

"The government ought not to be in the gambling business," said Raleigh lawyer Gene Boyce, whose firm is pressing the industry's case. "But if it is, then it shouldn't put other people out of business. It's just not right."

Mark Davis, a lawyer in the Attorney General's office who argued the state's position to the judge, declined to comment.

Davis and Boyce squared off Wednesday in the courthouse office of Judge Cashwell, who without explanation excluded the public and dozens of concerned business owners from the meeting on the industry's request for a temporary restraining order.

By law, Cashwell was entitled -- but not required -- to hear arguments in private.

The judge gave each side 7 1/2 minutes to argue its case, Boyce said. "I talked fast," he said.