From the judgment:
"The Court found that Ivey and Sun breached their contract with Borgata to play Baccarat in compliance with the CCA by violating N.J.S.A. 5:12-115(a)(2) and (b) when they knowingly engaged in a scheme to create a set of marked cards and then used those marked cards to place bets based on the markings."
That's the finding I disagree with, and seems to be the point that the entire judgment rests on.
Section 12 of the act [1] falls under "Sanctions", which to me is the first clue that this section is intended to apply to the casino, not the customer. I do concede that the wording "any person" would also include customers.
Let's take a look at 5:12-115(a)(2) and see if we can narrow down exactly what Ivey and Sun are supposed to have done here:
"It shall be unlawful...knowingly to deal, conduct, carry on, operate or expose for play any game or games played with cards, dice or any mechanical device, or any combination of games or devices, which have or tampered with, or placed in a condition, or operated in a manner, the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal chance of the game which could determine or alter the result of the game."
Well they certainly didn't deal, operate or expose the cards to play - the casino did that. There is an argument that without players, the game can't exist, so let's accept that both parties are responsible for "conducting" and "carrying on" the game.
The cards were weren't tampered with - they were imperfect, but is that the same as "marked"? I don't believe so, and I think the judges assertion that they are should be challenged on this. Regardless, "Placed in a condition, or operated in a manner" does seem like a reasonable way to describe the rotation of specific cards. The CCA makes no assumption or distinction about who places or operates them, so we don't need to get into whether it was the casino or the player who did this. It happened and that's enough.
Strip out the bits that Ivey/Sun can't possibly have done and we're left with this:
"It shall be unlawful...knowingly to conduct [or] carry on any game or games played with cards, which have in any manner been marked, or placed in a condition, or operated in a manner, the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal chance of the game which could determine or alter the result of the game."
So, to the result. The use of the words "tends to" means that it doesn't matter that it's a private room with no public to be deceived. The question the law asks as it applies to this case is:
Given that Baccarat has a predetermined result at the time of dealing (there is no option for either player or dealer to influence the cards which will be drawn in the course of the game - the only variable is the stake), does the act of rotating a card, without changing its position in the deck:
- tend to deceive the public? I don't see how it possibly can.
- OR tend to alter the normal random selection of cards? Certainly not.
- OR tend to alter the normal chance of the game which could determine or alter the result of the game? It can't alter the result. It can't determine the result - there are still three to five cards which are entirely chance. It DID alter the normal chance of the game in this case, but does it "tend to"? From the article: "Baccarat is a casino game well known for unique and superstitious rituals," Hillman noted in an October opinion. "Thus, Sun telling the dealer to turn a card in a certain way did not raise any red flags for Borgata." That suggests to me that it does not "tend to" affect the chance, which is the test required by the law.
On the argument above, I would suggest that Ivey and Sun were not in breach of 5:12-115(a)(2) at all. 5:12-115(b) simply says "It shall be unlawful knowingly to use or possess any marked cards, loaded dice, plugged or tampered with machines or devices." They didn't posess them, and I don't believe using the casino's standard cards, which meet the casino's own quality requirements, can be considered to be using "marked" cards. If they are, and the casino are still using the same cards, they're now knowingly in possession of marked cards themselves.
Then we get to 5:12-115(c):
"Any person who violates this section is guilty of a crime of the fourth degree and subject to the penalties therefor, except that the amount of a fine may be up to $50,000, and in the case of a person other than a natural person, the amount of a fine may up to $200,000."
The Golden Nugget case hinged on the point that the deck wasn't shuffled. Since the CCA requires random decks, it has no provision for games played with a non-random deck. The argument is that because the CCA made no provision for the game, it can't have been a legal game under the CCA, and therefore it should be void. This case is completely different - even if we accept that Ivey breached the CCA, the CCA already makes provision for such a breach, and specifies the appropriate remedy should it occur.
There's also the small point that the DGE has investigated the Golden Nugget case and concluded that there was no breach of the CCA [2] - while it may not be a court decision, it should have some weight.
It looks to me like the judge has this very wrong, and any lawyer worth his money should be able to deal with it on appeal.
[1] http://www.nj.gov/casinos/actreg/act/docs/cca-article09.pdf
[2] https://www.casino.org/news/golden-nugget-new-jersey-unshuff...