RALEIGH -- A state law banning video poker machines except on the Cherokee reservation could be struck down if the state Court of Appeals upholds a lower court ruling.
The lawyer for a Fayetteville amusement machine vendor told a three-judge panel Wednesday that North Carolina lacks consistency when it allows Cherokee Indians to profit from gambling while banning other groups from operating video poker machines.
At issue is a 2006 state law that made machines illegal except on the Cherokee reservation. A trial court judge in Wake County overturned the law in February.
Appeals judges peppered vendor attorney Hugh Stevens with pointed questions about a federal American Indian gambling law that provides the Cherokees exclusive gaming rights. At several points in the hearing, the judges appeared highly skeptical of Stevens' position that the state law should be struck down.
"The legislature has said this is a crime for everyone but the Indian tribe," Stevens said. "It's not a comprehensive public policy in that it favors one group over all others."
Special Deputy Attorney General Mark Davis, representing Gov. Beverly Perdue, said the ban is legal and consistent with the federal gambling act and that state legislators had acted well within their discretion on the issue.
"The General Assembly sets the public policy in North Carolina, unless they act unconstitutionally," Davis told the judges. "The plaintiffs are trying to tell the General Assembly what public policy should be. It doesn't work that way. It's the other way around."
The challenge to the state's gaming laws is being mounted by Ralph Amick, president of the New Vemco Music Co., a business that owns and operates video games, vending machines, jukeboxes and pool tables. The company also operated video poker machines prior to the ban and is a member of an amusements trade group with a long history of backing gaming legalization.
The hearing was held in a small conference room in a Fayetteville Street office tower because the court's usual quarters are being renovated. More than 20 county sheriffs from across the state packed the temporary courtroom to show their opposition to overturning the state's video poker ban, while members of the media were relegated to watching the court proceedings on TV monitors in an adjoining kitchen.
It could be weeks or months before the appeals court rules.
Former Gov. Jim Hunt negotiated the state's compact with the Eastern Band of the Cherokee Indians in 1994, allowing the tribe to build Harrah's Cherokee Casino. In 2000, Gov. Mike Easley extended the agreement until 2030.
According to court filings, the casino now attracts more than 3.5 million visitors a year and earns annual revenue in excess of $250 million.
In February, Wake County Superior Court Judge Howard Manning Jr. ruled in Amick's favor, concluding that the federal Indian Gaming Regulatory Act "does not permit a state to ban the possession and operation of video gaming machines elsewhere in the state while allowing their possession and operation on tribal lands."
Regardless of how the appeals court rules, both sides are likely to ask the state Supreme Court to hear the case.
If Amick prevails, legislators could face the difficult decision of whether to legalize video poker and other gambling games statewide or to outlaw it everywhere, including on the Cherokee reservation.
