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Boardwalk Regency Corp. v. Attorney General

Decided: December 7, 1982.

BOARDWALK REGENCY CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, AND AMERICAN BACKGAMMON CHAMPIONSHIPS, INC., A CORPORATION OF THE STATE OF NEVADA, PLAINTIFFS,
v.
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT



Gruccio, A.j.s.c.

Gruccio

[188 NJSuper Page 373] In this action plaintiffs Boardwalk Regency Corporation and American Backgammon Championships, Inc. seek a declaratory judgment that a proposed backgammon tournament scheduled to be held on March 16-20, 1983 at the Boardwalk Regency casino hotel would not violate any state laws and therefore would not subject plaintiffs to criminal prosecution by defendant in the event the tournament is held. Pursuant to consent order, discovery was conducted on an expedited basis and trial was held on November 30, 1982 upon a stipulation of facts. The stipulation, received in evidence as Joint Exhibit 1, together with other exhibits and credible evidence offered at trial, revealed the following.

The main event, or "main draw," of the subject tournament is comprised of the following three divisions: beginner, intermediate and championship. Players seeking to enter any division of the tournament would be required to post a nonrefundable entry fee of $50 (beginner level), $150 (intermediate) or $250 (championship). Entrants are required to fill out an application form, and a cursory screening of all applications received is performed. Money prizes are to be awarded to the tournament winners from a "prize pool," consisting of the players' entry fees plus $20,000 to be contributed by plaintiff Boardwalk Regency Corporation. To win prize money a player must either win three matches or rounds in the main draw of the tournament or achieve first, second, third or fourth place in each division overall. (A player who loses in any of the first three rounds has a chance to re-enter the tournament and to place in his respective division if he posts a second entry fee and enters the "Second Chance" bracket.)

As to the game itself, backgammon is a board game in which two opposing players attempt to advance all 15 of their respective markers off the board before their opponent does. Moves are made in accordance with the numbers indicated on two dice which are rolled at the start of each player's turn.*fn1 In the tournament format, a victory in a game is worth one or more points, and several points are needed to win a match or round from an opponent. Seven points are needed to win a round in the beginner division, 11 in the intermediate division and 15 points are required for winning a match in the championship level of the tournament.

Defendant submits that the proposed tournament, with the requirement of a nonrefundable entry fee for all players and substantial cash prizes for the winners, violates one or more of the criminal laws of this State. Plaintiffs' position is that the game of backgammon does not depend "in a material degree upon an element of chance," and therefore is not "gambling" or a "contest of chance" prohibited under New Jersey's recently enacted Code of Criminal Justice, N.J.S.A. 2C:37-1 et seq.

I

The starting point for this inquiry must be the New Jersey Constitution (1947), Art. IV, ยง VII, par. 2, which reads:

No gambling of any kind shall be authorized by the Legislature unless the specific kind, restrictions and control thereof have been heretofore submitted to, and authorized by a majority of the votes cast by, the people at a special election or shall hereafter be submitted to, and authorized by a majority of the votes cast thereon by, the legally qualified voters of the State voting at a general election.

This clear constitutional expression renders irrelevant plaintiffs' statutory argument that the new Criminal Code, by implication, recognizes backgammon as a contest of skill and not constituting gambling. Even if the court were to read N.J.S.A. 2C:37-1 et seq. in the manner advanced by plaintiffs, this statutory interpretation would be insignificant in the light of the constitutional mandate forbidding the Legislature from authorizing any gambling except by a referendum-type vote of the people.*fn2

Thus, the issue which first and foremost must be determined is whether the proposed backgammon tournament constitutes "gambling of any kind" under the New Jersey Constitution. An uninterpreted Criminal Code enacted by the Legislature over 30 years after the constitutional enactment offers little guidance or weight to the constitutional definition of "gambling of any kind."

The history of New Jersey legislative and constitutional actions with respect to gambling that led up to the adoption of the above-cited provision in the 1947 Constitution is informatively set forth in Justice Jacobs' opinion in Carll & Ramagosa, Inc. v. Ash, 23 N.J. 436, 438-441 (1957). In sum, that history demonstrates a clear, longstanding and comprehensive policy against gambling, except where specifically authorized by the people. Id. at 445.

Consistent with this longstanding anti-gaming policy, our courts have adopted a broad definition of what constitutes gambling in decisions respecting statutory predecessors to N.J.S.A. 2C:37-1 et seq.*fn3 That broad definition, set forth in Martell v. Lane, 22 N.J. 110 (1956), and reaffirmed in Carl & Ramagosa, supra, depicts gambling as "including wagers, the staking of money or other things of ...


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