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ATTORNEY FOR APPELLANT Marc S. Sedwick Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Peter J. Rusthoven Paul L. Jefferson Matthew S. Winings Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE CASINO ASSOCIATION OF INDIANA Fred R. Biesecker John J. Thar Jenny R. Wright Indianapolis, Indiana

_____________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 49S02-1003-CV-00124 THOMAS P. DONOVAN,

Sep 30 2010, 2:27 pm

CLERK

Appellant (Plaintiff below), v. GRAND VICTORIA CASINO & RESORT, L.P., Appellee (Defendant below). _________________________________ Appeal from the Marion Superior Court, No. 49D05-0709-MI-39223 The Honorable Robyn L. Moberly, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0903-CV-259 _________________________________ September 30, 2010 Sullivan, Justice.

An owner of an Indiana business has long had the absolute right to exclude a visitor or customer, subject only to applicable civil rights laws. This long-standing common law right of private property owners extends to the operator of a riverboat casino that wishes to exclude a pa-

tron for employing strategies designed to give the patron a statistical advantage over the casino. The Riverboat Gambling Act, which gives the Indiana Gaming Commission exclusive authority to set the rules of licensed casino games, does not abrogate this common law right.

Background Grand Victoria Casino & Resort, L.P. ("Grand Victoria"), owns and operates a riverboat casino located in Rising Sun, Indiana. One of the games offered by Grand Victoria is blackjack. Thomas P. Donovan supplements his income by playing blackjack in casinos. Donovan is a selfdescribed "advantage player" who taught himself a strategy known as "card counting" that he employs when playing blackjack. Card counters keep track of the playing cards as they are dealt and adjust their betting patterns when the odds are in their favor. When used over a period of time, this method presumably ensures a more profitable encounter with the casino.

For a time, Grand Victoria allowed Donovan to play blackjack and card count if he wagered no more than $25 per hand. However, on August 4, 2006, Grand Victorias director of table games advised Donovan that Grand Victoria had decided to ban Donovan from playing blackjack, though Donovan would still be allowed to play other casino games. After Donovan indicated that he would not comply with Grand Victorias request, he was evicted and placed on Grand Victorias list of excluded patrons.

Donovan filed suit against Grand Victoria, alleging breach of contract and seeking a declaratory judgment that Grand Victoria could not exclude him from playing the game of blackjack for counting cards. The trial court granted summary judgment in favor of the casino on both counts.

Donovan appealed. The Court of Appeals affirmed summary judgment for Grand Victoria on the breach of contract claim,1 but it reversed summary judgment on the exclusion issue, holding that Donovan was entitled to a declaratory judgment that Grand Victoria had no right to exclude Donovan from blackjack for counting cards. The Court reasoned that Indiana has im1

This issue has not been raised on transfer by either party. We summarily affirm the Court of Appeals. Ind. App. R. 58(A)(2).

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plemented a comprehensive scheme for regulating riverboat gambling which partially abrogates a casinos common law right of exclusion. Donovan v. Grand Victoria Casino & Resort, L.P., 915 N.E.2d 1001, 1006 (Ind. Ct. App. 2009).

Grand Victoria sought, and we granted, transfer, thereby vacating the opinion of the Court of Appeals. Donovan v. Grand Victoria Casino & Resort, L.P., 929 N.E.2d 786 (Ind. 2010) (table).

Discussion

As set forth above, the Court of Appeals held that Grand Victoria had no right to exclude Donovan from blackjack for counting cards because Indiana has implemented a comprehensive scheme for regulating riverboat gambling that partially abrogates a casinos common law right of exclusion. Donovan, 915 N.E.2d at 1006. Grand Victoria maintains that its exclusion of Donovan from the game of blackjack was proper because at common law the arbitrary exclusion of a patron from places of privately owned amusements was not actionable absent a statute prohibiting such exclusion.

One of the time-honored principles of property law is the absolute and unconditional right of private property owners to exclude from their domain those entering without permission. See Brooks v. Chi. Downs Assn, 791 F.2d 512, 515-16 (7th Cir. 1986) (citations omitted); see also 2 William Blackstone, Commentaries on the Laws of England 2 (1766) (defining private property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe"). In Bailey v. Washington Theatre Co., this common law right was explicitly extended to proprietors of privately owned amusements. 34 N.E.2d 17, 19 (1941). The patron in Bailey had sought an order compelling access to a privately owned theatre. In denying the patron relief, this Court held that ",,[t]he proprietor of a theater, unlike a carrier of passengers, is engaged in a strictly private business. He is under no implied obligation to serve the public and . . . is under no duty to admit everyone who may apply and be willing to pay for a ticket." Id. (citation omitted). This long-standing principle of property law has been frequently reaffirmed, subject only to statutorily

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imposed prohibitions on exclusions for characteristics such as race and religion. Id.; see also Brooks, 791 F.2d at 515-16. But we have never had occasion to explore the application of this rule to the riverboat casino industry, which is the precise issue in this appeal. Donovans principal contention is that any common law right that casinos might enjoy to exclude patrons from its premises has been preempted by the Indiana Gaming Commissions ("IGCs") exhaustive regulation of the riverboat casino industry, especially its comprehensive regulation of every aspect of the game of blackjack. Grand Victoria responds that nothing in the Indiana Riverboat Gambling Act purports to abrogate common law exclusion rights; thus, absent express direction from the Legislature, the right remains intact. The Legislature authorized riverboat casino gambling in 1993 "to benefit the people of Indiana by promoting tourism and assisting economic development." Ind. Code

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