Poker Is Poker Is Poker

Even as you read this, law-abiding citizens may be breaking the law without knowing it.

By local option, draw poker is legal in California, but stud poker is not. That is, if all the cards are dealt face down the game is legal, but if one or more cards are dealt face up the game is in violation of Penal Code 330. At least that’s the way the state interprets Penal Code 330, which doesn’t bar stud poker per se but does bar “stud horse poker.” The trouble is that no one can say for sure what studhorse poker is.

This comes to our attention because of the work of I. Nelson Rose, an associate professor at the Whittier College School of Law who is an expert on the law of gambling. At the behest of the Huntington Park Club, which wants to allow stud poker on its premises without anyone’s being arrested, Rose submitted a learned declaration to the Los Angeles Superior Court attempting to clarify things.

A hundred years ago, in 1885, the Legislature banned “stud horse poker.” Sixty-two years later, in 1947, the state attorney general issued an opinion that studhorse poker was the same as stud poker. All law-enforcement officials have followed that dictum since.

Rose did extensive research in law libraries, public libraries, computer data bases, used-book stores, Old West fiction, 19th-Century card-game rulebooks and the like. “I have been unable to uncover even a cursory contemporary reference or description of the rules of ‘stud horse poker,’ “he concluded. “It is my personal opinion that an expert, let alone a layman, would be unable to know what acts are illegal under the prohibition against ‘stud horse poker’ found in Penal Code 330.”

Rose rejects the contention that the Legislature in 1885 intended to ban all stud poker. He notes that in 1891 it banned “hokey pokey,” which is four-card stud. If the Legislature had intended to outlaw all stud poker in 1885, he asks, why would it have banned a specific stud-poker game six years later?

In Rose’s opinion, what the Legislature meant to outlaw 100 years ago were casino games in which the house is the bank and bets against all players. But poker--whether draw or stud--is a game in which participants play against each other, with the house merely providing the table. The state, however, wants to limit gambling. So it calls any new game a form of the dreaded and proscribed studhorse poker--even the ancient Chinese game of pai-gow, which is not even played with cards.

But the authorities are dealing from the bottom of the deck. Poker is poker. It’s silly for draw poker to be legal while stud poker is illegal. And it’s absurd to have a law on the books whose meaning is unknown. One of the purposes of criminal law is to tell citizens what they may and may not do. People are entitled to know what activities will get them into trouble.

Politics and poker are old bedfellows. Perhaps it’s time for the Legislature to straighten things out so that California citizens can, legally speaking, play with a full deck.