An Indianapolis man banned from a riverboat casino's blackjack table because he counts cards just wants the casino to
follow the rules, same as he does, his attorney told the Indiana Supreme Court on Wednesday.
"Grand Victoria has admitted that my client did nothing wrong," said Marc Sedwick, Tom Donovan's attorney.
The casino on the Ohio River at Rising Sun maintains that it, like any private business, has the common-law right to choose not to do business with anyone "for any reason or no reason," casino attorney Peter Rusthoven said.
But Justice Frank Sullivan Jr. had an idea what the reason might be.
"What you object to about him is that he's too good," he told Rusthoven.
Donovan, a retired computer programmer, said he's won about $65,000 playing blackjack since 1999. He learned to count cards by taking an online class in it after hearing a radio station interview an expert card counter.
Donovan sued the Grand Victoria Casino and Resort after it banned him from the blackjack table in 2006. The casino won the suit in a Marion County court, but the state appeals court reversed that decision and the casino asked the high court to weigh in.
"I'm not cheating at all. It's just using my brain," Donovan said.
Neither the state nor the casino has rules forbidding card counting, Sedwick said. In fact, he argued, state guidelines encourage players to keep track of their own scores.
Rusthoven countered that that applied only to the cards laid out on the table, not those left in the deck.
The core of the dispute comes down to which set of rules should apply: the common law that predates legalized gambling or the state regulations governing gaming. Sedwick pointed to a New Jersey Supreme Court ruling that cited that state's regulations in siding with a card counter who had been banned from a casino there.
"Gaming is a statutory creature" that didn't exist in common-law times, Sedwick argued, so state regulations should apply. Those regulations don't bar card counting, and the casino never asked the state gaming commission to enact a rule forbidding it, he said.
"The issue this court faces," Rusthoven said, "is whether the common-law right to exclude anybody for any reason or no reason has been abrogated by the commission's silence."
He argued it hadn't, and the commission couldn't be expected to anticipate every possible circumstance in its rules.
"Everybody who watches movies knows if somebody tries to count cards, casinos don't like it sometimes," Rusthoven said.
State Gaming Commission Director Ernie Yelton said that before the Court of Appeals ruling, it was generally understood that common law allowed casinos to ban card counters, as they are allowed to do in most states. He said two or three casinos approached the commission since the Court of Appeals decision, seeking a rule granting them the specific authority to bar card counters.
But the commission is waiting to see what the court decides, Yelton said.
"We're not taking a position on this," he said. "I respect the authority of the court in these decisions."