Why is the Borgata Closed?
Although rumors are swirling of an end to New Jersey’s government shutdown, as of this hour the state, and its casinos, are closed for business. It is pretty remarkable, when you think about it, that a huge and productive industry has been closed for lack of immediate government oversight. Linda Kassekert, chair of the New Jersey Casino Control Commission (CCC), lamented the turn of events:
Today, I had to do something that none of my predecessors ever had to do…..and something I hope and pray none of my successors will have to do. Today, New Jersey shut down its casino industry. This is something that no one ever wanted to see happen, but, as you know, Gov. Corzine ordered the shutdown of non essential state services on an orderly basis. On Sunday, after consulting with casino executives, security officials, with the Division of Gaming Enforcement, New Jersey State Police as well as Mayor Levy and Chief of Police Mooney, I issued an order for the cessation of gaming as of 8 o’clock this morning.
Why did the Borgata, and like-palaces of bad decision-making, have to close?
The easy answer is that gambling is presumptively illegal, authorized by 24-hour operation of the CCC. Easy, true, and boring.
Another way to think about this problem is that the common law, which ordinarily permits businesses to operate by making contracts and tort law run, doesn’t really exist in the casino floor. In a way, this argument looks a little bit like the argument in Erie. Is there a common-law of gambling? (The argument being that business can’t exist without some enabling authority). Folks who teach and think about gambling law probably knew this off of the top of their head. Others look to Westlaw.
As it turns out, this issue is pretty murky. In Campione v. Adamar of New Jersey, 714 A.2d 299 (1998) the New Jersey Supreme Court held that where the Jersey Casino Control Commission offers an adequate administrative remedy to a gambler’s claim, then the CCC is the exclusive jurisdiction for the complaint. Further, where no traditional common law cause of action exists, the courts will not imply one as arising from the casino regulations. Thus, there appears to be no action for breach of contract against a casino who takes your bet and then refuses to pay your winnings, because (I think) there is no traditional contract claim arising out of a bet, and because there is a remedy before the CCC. Similarly, there is no tort action arising from the CCC’s regulations on “inadequate or defective slot machine slottage”; or possibly misleading advertisements. Only where a pre-existing common law basis exists for a claim, such as a discrimination claim, can patrons of a casino bring an action in civil court.