Fourth Circuit Issues Bitterly Divided Abstention Opinion In Constitutional Challenge To S.C. Statutes Regulating Video Poker
In dissent, Judge Wilkinson argued that a state's decision whether to allow legalized gambling lies at the heart of the state's police power, and a challenge which calls for an interpretation of the state's law and an inquiry into the state's enforcement practices would most properly be heard in state court. "It is hard to imagine a greater intrusion into the processes of state government," Judge Wilkinson wrote, "than use of the federal judicial process for a top-to-bottom review of the regulatory and enforcement measures necessary to the implementation of any gambling policy." He concluded, "The majority deprives the state of a significant measure of control over issues touching not simply the pros and cons of gambling but the very tone and quality of life within state borders. This is not federalism."
One may be tempted to put this case on the list of recent decisions reflecting an evident shift in the Fourth Circuit's composition. After all, here we have two Clinton appointees in the majority, with a Reagan appointee (Judge Wilkinson) alone in dissent under the banner of federalism. But the Fourth Circuit, when it was a conservative court, had split on Burford abstention, with the very conservative Judge Luttig dissenting from majority opinions written by Judge Wilkinson, accusing the majority of charting a course in the area of federal court abstention that was too broad and not required by Supreme Court precedent. See First Penn-Pacific Life Ins. Co. v. Evans, 304 F.3d 345 (4th Cir. 2002) (Judge Wilkinson majority opinion; Judge Luttig dissenting); Johnson v. Collins Entertainment Co., 199 F.3d 710 (4th Cir. 1999) (same).
By the way, Johnson itself was a case implicating video poker in South Carolina. It was a suit against South Carolina video poker operators. In that case the district court rejected abstention, and the Fourth Circuit held that the district court abused its discretion by not abstaining under Burford. Judge Wilkinson's majority opinion in Johnson was based on reasoning similar to the reasoning in his dissent today, i.e., interference with a state regulatory regime (legalized gambling) at the heart of the state's police power.