Court of Appeals Judge Levinson Stepping Down; Heading To Iraq

NC Court of Appeals Judge Eric Levinson (who recently ran for the State's Supreme Court) is stepping down and heading to Iraq. He will be the senior U.S. Department of Justice official in Iraq, living in the Green Zone of Baghdad. Gov. Easley will appoint a replacement for Levinson, who would've been up for reelection for his Court of Appeals seat in 2008. Levinson's a Republican, so this move will affect the political makeup of the 15-member Court of Appeals.

Superior Court Issues Ruling In Religious Oath Case

Today Wake County Superior Court Judge Paul Ridgeway issued a fascinating opinion in the ACLU's complaint that the only religious text made available by the State to swear in witnesses and jurors in NC courtrooms is the Christian Bible. Judge Ridgeway held that the oath may be administered on sacred texts other than the Christian Bible. His opinion, which includes an interesting historical analysis, ultimately turns on stare decisis, based on an 1856 decision of the NC Supreme Court. As for the State's argument that such a ruling would present administrative and practical difficulties--such as requiring courts to maintain a library of religious texts--Judge Ridgeway held that a court may use its inherent power to minimize such difficulties. For example, a court may, as a general policy, require anyone who wishes to be sworn on a sacred text other than the Christian Bible to bring a personal copy to the courtroom. Anyhow, his opinion make for interesting reading.

COA Heard Argument Today In Lottery Suit

Today the Court of Appeals heard oral argument in the lawsuit challenging the constitutionality of the state lottery, which the General Assembly passed two summers ago. Former Justice (and current GOP gubernatorial candidate) Bob Orr argued for the plaintiffs. The suit challenges the procedure under which the lottery bill was passed in the General Assembly. For WRAL's coverage of today's argument, see here.

The Horseplay Defense

The award for the weird case of the day goes to this unpublished case. The issue in the case was whether a temporary staffing agency (Staffmark) was liable to a lumber company (Briggs) for workers' comp payments made by Briggs for an employee injured by a temp sent by Staffmark.

Staffmark assigned a temp, Richardson, to Briggs to work as a material handler. One day, after his shift ended, Richardson walked toward the breakroom behind employee Laynoina Baker. Richardson jumped onto Baker's back and put him in a "hold" for several minutes. When Richardson finally released the hold, Baker fell to the ground and suffered a broken wrist, requiring the payment of medical benefits under a workers' comp policy.

Staffmark had signed an indemnification agreement with Briggs which required Staffmark to indemnify Briggs for any claims arising from acts of temps "in the course of their employment."

Staffmark argued that Richardson was not acting in the course of his employment but instead was merely engaging in "horseplay" when he jumped Baker and put him in a hold for several minutes.

The Court of Appeals agreed with the horseplay defense. Thus, Staffmark had no duty to indemnify Briggs.

COA Decisions Today

In a series of decisions today, the Court of Appeals:

* expounded on the contract doctrines of impossibility and frustration of purpose (see here);

* suggested that if a plaintiff doesn't discount its damages to present value for the jury, the burden my be on the defendant to present present-value evidence or risk being stuck with the full (non-discounted) amount sought by the plaintiff (see here);

* suggested that a discovery admission per Rule 36 may be changed from admit to deny (or vice versa) via a Rule 26(e) "supplement" (see here);

* held that a defendant's objection to the trial court's failure to charge the jury with defendant's proposed instructions isn't sufficient to preserve an appellate challenge to the trial court's decision to charge the jury with plaintiff's proposed instructions; the defendant must object to the instructions delivered to preserve the appellate challenge (see here); and

* affirmed a Rule 11 sanction for a plaintiff's attorney's filing of a charging lien (see here).

What Is A Manifest Injustice Under Appellate Rule 2?

Last week in State v. Hart (see post below) the NC Supreme Court clarified that, notwithstanding its 2005 Viar decision, the Court of Appeals retains the discretion to review the merits of an appeal when the appellant has violated the appellate rules, so long as the discretion is exercised consistent with Rule 2. Rule 2 allows the appellate courts to suspend or vary the requirements of the rules "[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest." The Supreme Court correctly observed that it has typically invoked Rule 2's "manifest injustice" standard in criminal cases because of the high stakes for the defendant (e.g., imprisonment or death).

But this raises the question: What is a "manifest injustice" in a civil case, particularly in private litigation (as opposed to public litigation brought by or against the government)? In such cases typically it is money or property rights at stake. How could there be a "manifest injustice" if the appellate court declined to review the merits of an appeal involving money or property? What would the standard be for determining what is and is not a "manifest injustice"?

Who knows? As Justice Scalia once commented, "manifest injustice" might mean “almost anything” and “is just a surrogate for policy preferences.” Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 857 (1990) (Scalia, J., concurring).

A strong argument could be made that a “manifest injustice” in this context would be something tantamount to a “plain error,” so that Rule 2 would permit the appellate court to entertain the merits of an appeal to prevent a party from being subjected to a plain error by the lower court. (Federal courts have held that, in the context of a motion for reconsideration, a “manifest injustice” is defined as an error by the court that is direct and obvious—i.e., manifest.) Under this meaning, the appellate court would, after finding a rule violation, have to determine whether the lower court committed an obvious mistake before invoking Rule 2 to issue a disposition on the merits.

One might argue that a "manifest justice" could include the dismissal of an appeal for a technical rule violation that doesn't impede comprehension of the issues on appeal or prejudice the other party. But there are problems with such a gloss on Rule 2, not the least of which is that it would embroil the courts in controversies over which rules and violations are "technical" and likely lead to a crazy quilt of inconsistent decisions on that front--undermining the policy of "uniformity," contrary to the Supreme Court's admonition in Hart.

(The State, in its appellate brief in Hart, argued: "[I]t is not the perceived innocuous nature of a rules violation that matters when an appellate court decides whether to exercise its discretion under Rule 2. The question is not how bad the violation is; the question is whether there is a significant issue of importance in the public interest that should be reached despite the rules violation or an injustice which appears manifest to the court.")

One may predict that the judges who took a zero-tolerance view of rules violations after Viar likely will continue that approach by emphasizing the narrowness of Rule 2 and by finding no "manifest injustice" in private civil appeals.

NC Supreme Court "Welcome Home Gala" Tomorrow

Tomorrow the North Carolina Supreme Court Historical Society is hosting a "Welcome Home Gala" to honor the NC Supreme Court's return to its building, the Justice Building, which has been renovated the past two years, forcing the Justices to move to a different location. Tours of the building are being offered at two set times in the afternoon, and two historical cases will be reargued (seating may no longer be available for the arguments). A private gala reception follows at the Museum of History. Individual tickets cost $50. For more information, call Danny Moody at 919-831-5920.

Hearing Today On ACLU Suit Over Christian Bible In Courtrooms

Today Wake County Superior Court Judge Paul Ridgeway heard arguments in the ACLU's suit to add non-Christian religious texts to the courtroom for swearing witnesses and jurors, a case on which we posted previously. For coverage of today's hearing, see the Winston-Salem Journal here and the News & Observer here and WRAL's video coverage here.

SCT Issues First Amendment Decision In Suit Against Pastor

Last Friday, in Harris v. Matthews, the SCT held, 5-2, that the First Amendment's religion clauses wouldn't permit a dispute over church property to go forward, on the basis that adjudication would entangle the courts in ecclesiastical matters. Justice Newby wrote the opinion. Justices Hudson and Timmons-Goodson dissented.

The Majority Decision

Plaintiffs, as members of a non-profit corporation Baptist church, brought a derivative action against their pastor, alleging that he converted church funds, breached a fiduciary duty owed to the church and its members, and engaged in a civil conspiracy to convert money and assets of the church. The majority held the case must be dismissed on the basis that it's an internal church governance dispute, the adjudication of which would entangle the courts in ecclesiastical matters in violation of the First Amendment's religion clauses. The majority held that "in order to address plaintiffs' claims, the trial court would be required to interpose its judgment as to both the proper role of these church officials and whether each expenditure was proper in light of [the church's] religious doctrine and practice, to the exclusion of the church's duly constituted leadership.”

Justice Brady's Concurrence: Jefferson's Metaphor Of A "Wall Of Separation Between Church And State" Has Been Misused; Government Need Not Be Neutral Between Religion And Irreligion

Justice Brady presumably knows a thing or two about church operations: according to his official bio, "Justice Brady is a conservative Southern Baptist" who serves on the personnel committee of his church and on the board of a Baptist seminary. In this case Justice Brady was compelled to write separately to share his views on the metaphor of a "wall of separation" between church and state. He put it this way: "as Joshua and the tribes of Israel were compelled to march around the walls of Jericho as the priests blew the horns, I am compelled to write separately to provide a word of caution: While the metaphor of a 'wall of separation between church and state' may fit nicely in a case such as the one sub judice, it is generally a misplaced metaphor that should not occupy such a lofty position in religious freedom jurisprudence." Justice Brady then reviewed the exchange of correspondence between Thomas Jefferson and the Danbury Association of Baptists to show that Jefferson's metaphor "'has been wrenched torturously out of context in many circumstances to require 'neutrality on the part of government between religion and irreligion.'"

NC SCT Grants PDR To Review "Easement Within Easement" Jury Charge In Condemnation Case

Today the Supreme Court granted review in Level 3 Communications v. Couch. The case concerns the proper jury instruction for valuing an "easement within an easement." (Womble Carlyle represents the petitioner, Level 3.)

Level 3, a telecommunications company, possesses by statute the power of eminent domain. In exercising that power in this case to condemn an easement for laying fiber optic cable, a controversy arose about valuing the easement.

At trial, Level 3 requested the following instruction: "You are instructed that if you find that the Level 3 easement is within land already burdened by an existing easement, you are to award damages only for the additional burden caused by the Level 3 easement. In other words, you are to consider the Respondents' land not in its pristine and [u]nencumbered state, but encumbered by any easements exist[ing] prior to the Level 3 easement. You are to award the difference in the fair market value of Respondents' land subject to the existing easement, immediately before and immediately after subjecting it to the additional easement imposed by Level 3."

The trial court declined to give that instruction. The jury returned a verdict exponentially larger than should've been the case. The Court of Appeals affirmed, unanimously holding in an unpublished decision that the trial court's charge conveyed the substance of the charge requested by Level 3.

This is an important case, because easement-within-easement condemnations are quite common. They arise with telecommunications, powerline, railroad, and highway easements. The Court of Appeals' decision, if left standing, could encourage more valuation disputes if landowners sense that they might be able to capture in litigation a higher value than the minimal value of the marginal additional burden (if any) imposed by an easement running over an already existing easement.

SCT Applies U.S. Constitution's Contract Clause Against County

In Wiggs v. Edgecombe County, deciced today, the SCT held that the Contract Clause in Article I, Section 10 of the U.S. Constitution precluded the County from applying an ordinance which purported to modify the terms of a local law enforcement officer's separation allowance.

When Officer Wiggs retired, he began receiving a special separation allowance. When he applied for a new job with the RDU Airport Authority, the County passed an ordinance providing for the termination of a retiree's benefits if the retiree becomes employed by a local government participating in the retirement system. As a result, Wiggs didn't seek employment with the Airport Authority.

Instead he sued the County and challenged the ordinance. The Contract Clause says, "No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ." The SCT held that the Clause precluded the County from retroactively changing the terms and conditions of Wiggs' special separation allowance. The SCT held that the ordinance would do just that and, therefore, it would be unconstituitonal to apply the ordinance to Wiggs.

For the NC SCT's landmark Contract Clause case, see Faulkenbury v. Teachers' & State Employees' Ret. Sys., 345 N.C. 683, 690, 483 S.E.2d 422, 427 (1997).

SCT Issues Major Decisions On Rule Violations

We've been waiting for the Supreme Court (SCT) to clarify its 2005 decision in Viar v. N.C. Dep't of Transportation. That decision has been read by many judges on the Court of Appeals (COA) to impose something close to a zero-tolerance policy for appellate rules violations, including nonprejudicial violations that don't impede comprehension of the issues on appeal. Viar has generated a great deal of controversy at the COA, including a number of strong dissenting opinions in cases where the majority dismissed appeals or declined to reach issues briefed on appeal.

Two of those cases were appealed to the SCT based on dissenting opinions: Walsh v. Town of Wrightsville Beach (civil case) and State v. Hart (criminal case). In each case the majority dismissed arguments briefed on appeal (refusing to address the merits). They did so because they concluded that Viar required dismissal when the appellant fails to comply with the appellate rules. Both cases concerned problems related to assignments of error.

Today's Decisions

Today the SCT issued its decisions in the two cases. In Hart the SCT addressed the scope of Viar and unanimously held that the COA has misunderstood Viar. The SCT reversed and remanded to the COA to determine Appellate Rule 2 (permitting suspension of the rules to prevent "manifest injustice") warranted a consideration of the merits of the appeal and whether the appellant should receive a less severe sanction than dismissal. Hart was written by Justice Hudson, who witnessed first-hand the COA's struggle with Viar when she was on the COA.

In Walsh the SCT, in a one-sentence per curiam order, reversed and remanded for reconsideration in light of the reasoning in Hart.

The SCT Holds That The COA Has Misinterpreted And Misapplied Viar

In today's Hart decision the SCT said it needed to correct a "misapplication" of Viar. The SCT clarified (as Judge Geer and others on the COA have maintained) that Viar was not such significant decision. According to the unanimous SCT today:

• Viar held (only) that the COA "acted improperly when it reviewed issues not raised or argued by the appellant," i.e., that the COA "improperly applied Rule 2 when it created an appeal for the appellant and addressed issues not raised or argued."

• Viar held that the COA "improperly applied Rule 2 under those particular circumstances," but "the Viar holding does not mean that the Court of Appeals can no longer apply Rule 2 at all."

• When Viar said that an appeal is “subject to” dismissal for rules violations, it didn't mean that an appeal "shall be" dismissed for any violation. Rather, “subject to” means that dismissal is one possible sanction.

• The COA has "misapplied" and "misinterpreted and improperly extended Viar": "In Viar, we neither admonished the Court of Appeals to avoid applying Rule 2, nor did we state that the court may not review an appeal that violates the Rules, even when rules violations 'd[o] not impede comprehension of the issues on appeal or frustrate the appellate process.'"

• "To the extent that the Court of Appeals has interpreted [Viar and other SCT cases] to require dismissal in every case in which there is a violation of the Rules of Appellate Procedure, we expressly disavow this interpretation."

• "[E]very violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure."

But Rule 2 Still Governs

Having disavowed the strict interpretation of Viar, the SCT nonetheless suggested that an appeal must be dismissed unless the case warrants application of Rule 2.

The SCT offered these guideposts on Rule 2:

• "Rule 2 must be applied cautiously."

• "Rule 2 was intended to be limited to occasions in which a 'fundamental purpose' of the appellate rules is at stake, which will necessarily be '"rare occasions."'"

• Although the SCT has applied Rule 2 in civil cases, "the Court has done so more frequently in the criminal context when severe punishments were imposed."

• "While an appellate court has the discretion to alter or suspend its rules, exercise of this discretion should only be undertaken with a view toward the greater object of the rules."

• "Before exercising Rule 2 to prevent a manifest injustice, [the Court] must be cognizant of the appropriate circumstances in which the extraordinary step of suspending the operation of the appellate rules is a viable option. Fundamental fairness and the predictable operation of the courts * * * depend upon the consistent exercise of this authority." Inconsistent application of the rules may detract from the deference which federal habeas courts will accord to their application in cases invoking a procedural bar to review. "Therefore, it follows that our appellate courts must enforce the Rules of Appellate Procedure uniformly. "

The SCT in Hart (a criminal case) thus remanded to the COA to consider whether to exercise such Rule 2 discretion and whether other sanctions should be imposed pursuant to Rule 25(b) or Rule 34. And, as noted, the SCT reversed Walsh (a civil case) and remanded for reconsideration in light of Hart.

We'll have more commentary about today's decisions later. But suffice it to say for now that Rule 2's "manifest injustice" standard is no panacea for those troubled by the fallout from Viar.

Split COA Panel Uses Non-Delegable Duty To Make Arguable Independent Contractor Agent

In a State v. Wilson, a split decision , the COA yesterday used the non-delegable duty theory not to hold the one out-sourcing the non-delegable duty liable, but to hold the person to whom the duty was out-sourced an agent and therefore liable under a criminal statute applicable only to agents and employees.

In Wilson, the defendant was a prison health care provider found guilty of committing sexual acts with an inmate. A statute the defendant was found to have violated applied to "a person . . . who is an agent or employee" of an institution having custody of the the victim of the sexual act. N.C. Gen. Stat. sec. 14-27.7. At trial, the defendant sought to introduce evidence that he was not an agent or employee of the sheriff's department that ran the prison but was instead an independent contractor. The trial excluded the evidence, and the COA upheld the ruling.

In upholding the exclusion of independent contractor evidence, the COA looked to the non-delegable duty doctrine. Under the non-delegable duty doctrine, certain duties, like access to medical care for prisoners or a safe workplace for employees, are considered so important that they are deemed non-delegable, and the employer or party with that non-delegable duty may not escape liability for failure to fulfill that duty by, for example, out-sourcing the duty to an independent contractor.

In Wilson, the COA used the non-delegable duty in reverse. The COA reasoned that if the defendant is considered an agent of the party with the non-delegable duty for purposes of holding the party with the non-delegable duty liable, then the defendant is also considered an agent of that party under Section 14-27.7, which applies to agents and employees.

Judge Wynn dissented. Judge Wynn noted that Wilson was not a case like the precedent the majority used in its reasoning, where the issue was whether the State could be absolved of liability for a non-delegable duty by out-sourcing to an independent contrator, but that this case presented a different question of whether an independent contractor may be deemed an agent of the State based on the State's non-delegable duty.

Judge Wynn said that the implications of the Wilson holding could be far-reaching. Indeed they could. For example, in the employment context, employers have a non-delegable duty to maintain a safe workplace for employees. If an employer outsources that non-delegable duty to an independent contractor, under the non-delegable duty doctrine, the employer remains on the hook for the independent contractor's failure to provide for workplace safety. Applying the logic of Wilson, the independent contractor would, however, be deemed an agent of the employer. And employer's agents are covered by the employer's workers' compensation exclusivity and not exposed to ordinary tort liability. Does the Wilson logic mean that such independent contractors are shielded from exposure and that workers' comp. insurers are covering different folks than they may realize?

Another Deficient Assignment Of Error

We've posted a lot about Court of Appeals decisions dismissing appeals or issues for rules violations. Sometimes the decisions are puzzling.

Take this case decided today. The plaintiff sued his insurer after an accident. The complaint alleged the insurer willfully refused to pay plaintiff under the terms of the insurance policy. The complaint pleaded that the insurer's actions constituted "unfair" practice as defined by G.S. 58-63-15, based on the insurer's alleged failure to conduct a reasonable investigation of the claim and to make a reasonable settlement. It's well settled that Chapter 75 (providing a private right of action for "unfair" acts and practices) is the vehicle for obtaining a remedy for an insurer's alleged "unfair" claim settlement practices in violation of 58-63-15(11).

The defendant moved for summary judgment, and the motion was granted. The trial court issued a bland summary judgment order with no findings and only the generic conclusion that there were no genuine factual issues and the insurer was entitled to judgment as a matter of law. Presumably the trial court held that plaintiff's evidence couldn't establish a violation of Chapter 58, with the consequence that plaintiff had no remedy under Chapter 75. Neither the motion for summary judgment nor the trial court's order cited Chapter 75.

Plaintiff assigned error to the "Trial Court's entry of Summary Judgment in favor of the Defendant on the grounds that there were material issues of fact and therefore the granting of the Defendant's Motion was erroneous as a matter of law."

The Court of Appeals held that the plaintiff's assignment of error was deficient because it didn't mention Chapter 75. But why does this matter? By way of analogy, it's as if the Court held that when a trial court grants summary judgment on a First Amendment claim, the assignment of error must mention 42 U.S.C. 1983. This seems to be a hyper-technicality. What's particularly odd is that the Court of Appeals held this past year, in an insurance case, that assignments of error are essentially irrelevant when an appeal is taken from a summary judgment order. See Nelson v. Hartford Underwriters Ins. Co., 630 S.E.2d 221, 226-28 (N.C.App. 2006). In fact, in another case today decided by a different panel, Nelson was cited for the proposition that "assignments of error related to summary judgment will be heard on the merits despite technical deficiencies where those deficiencies do not prevent a review of the issues." What could be more technical than demanding that an assignment of error in a Chapter 58 unfair-claim-settlement case must cite Chapter 75?

The Court of Appeals also faulted the plaintiff because his appellate brief didn't cite Chapter 75 or argue that the trial court erred on Chapter 75. (It bears note that neither the defendant's summary judgment motion nor the trial court's order mentioned Chapter 75.) But the issue was whether the insurer was entitled to summary judgment on a 58-63-15(11) violation, as the trial court held; the plaintiff's appellate brief addressed the merits of that Chapter 58 issue, and the viability of a private action under Chapter 75 apparently turned on the resolution of that issue. In fact, the plaintiff's appellate brief discussed Gray v. N.C. Ins. Underwriting Ass'n, 529 S.E.2d 676 (N.C. 2000), which held that a violation of 58-63-15(11) is a violation of Chapter 75. Yet the Court of Appeals held that "Plaintiff's discussion of Chapter 58 is insufficient to satisfy preservation of his Chapter 75 claim." It's not clear what the plaintiff's brief could've argued about Chapter 75 in addition to his argument that there was a genuine issue of material fact whether the insurer committed an act prohibited by 58-63-15(11).

Challenging The Dismissal Of An Appeal

The Court of Appeals today reaffirmed that when a trial court dismisses an appeal for an appellant's failure to perfect the appeal in a timely manner, that order may not be challenged by appeal but instead may be challenged only by a petition for a writ of certiorari per Appellate Rule 21. In today's case the trial court ruled that the appellant had not properly ordered the trial transcript, with the consequence that the appellant's timeline for serving a proposed record on appeal was not extended by the transcript order, with the ultimate consequence that the appellant failed to timely serve a proposed record (since an appellant gets more time to serve a proposed record when a transcript is ordered). On appeal the appellant challenged the trial court's order, but the Court of Appeals couldn't address the appeal, because such an order may be challenged only by way of a cert petition, which the appellant had not filed.

Multiple Sovereign Immunity Decisions Today

The Court of Appeals handed down multiple sovereign immunity decisions today, including this one and this one.

In one of the cases, a putative class action, the plaintiffs are individuals who have worked for state agencies under the classification of "temporary" employee for more than a year, and they allege they've been unlawfully denied the same benefits and privileges (leave, service credit, retirement benefits, and health insurance benefits) accorded to permanent employees of the State. The case reaffirms that sovereign immunity is not a defense to a claim brought directly under the NC Constitution or for a breach of contract claim (although sovereign immunity is not waived for an "implied contract" claim). The Court also held that sovereign immunity may not be waived by implication from the text of an administrative rule or regulation. On this issue the Court said: "If we were to hold, as plaintiffs request, that the Executive Branch's adoption of regulations bestowing rights on certain parties constitutes an implied waiver of sovereign immunity, we would in essence be allowing the Executive Branch to authorize suit against the State. To do so would be inconsistent with the well-established principle that '[i]t is for the General Assembly to determine when and under what circumstances the State may be sued.'"

Poker Is A Game Of Chance, The COA Holds

In a decision today raising the question whether poker is predominantly a game of chance or a game of skill, the Court of Appeals held it's a predominantly a game of chance. The case is Joker Club, L.L.C. v. Hardin.

The case arose when plaintiff sought permission from the government to open a poker club in Durham County. The government responded that the club would be illegal under N.C.G.S. 14-292. That statute, which has been on the books since the 19th Century (and which now explicitly exempts the state lottery), says that "any person or organization that operates any game of chance or any person who plays at or bets on any game of chance at which any money, property or other thing of value is bet, whether the same be in stake or not, shall be guilty of a Class 2 misdemeanor."

Plaintiff sought a declaratory judgment that poker is a game of skill, not a game of chance, and thus falls outside the statute. His witnesses included a consultant who runs poker tournaments, a casino manager from the Bahamas, and a professional poker player from Vegas. They testified that skill will prevail over luck in a poker tournament; that there are strategies a poker player may employ to improve mathematical odds; and that the skills include patience, self control, memory, the ability to analyze odds, and the ability to read people. One witness, a poker player from North Carolina, testified that his poker skills improved greatly since he began studying poker and reading books on winning poker strategies.

The State's witness, a law enforcement officer, testified that he has played poker for more than 39 years and that luck ultimately prevailed.

The Court of Appeals, in an opinion by Judge Calabria, held that poker is predominantly a game of chance, not skill, and contrasted billiards, chess, and bowling. The Court said that poker "presents players with different hands, making the players unequal in the same game and subject to defeat at the turn of a card." Poker, she said, is a game where more skilled players may defeat novices, but "novices may yet prevail with a simple run of luck," because a skilled player "is always subject to defeat at the turn of a card, an instrumentality beyond his control."

During oral argument the plaintiff analogized poker to golf, arguing that while a weekend golfer might by luck beat a professional like Tiger Woods on one hole, Tiger would prevail over 18 holes. The Court rejected the analogy.

This decision might come as a surprise to the fans of ESPN's televised poker tournaments. But it is consistent with the law of other jurisdictions.