Shooting Dragons

The Kansas Supreme Court declined to address the merits of the claimed legality of a arcade game

POM of Kansas owns and distributes Dragon’s Ascent, an arcade game that challenges players to shoot dragons for prizes that they can redeem for cash. Concerned their game might be labeled an illegal gambling device, POM sought state agencies’ approval before launching in Kansas. When the agencies declined to weigh in, POM moved forward anyway and filed this lawsuit. 

The lawsuit seeks a judgment declaring that the Kansas Expanded Lottery Act does not apply to Dragon’s Ascent, that the game complies with Kansas’ criminal gambling statutes, and that those statutes are unconstitutionally vague. But before reaching these questions, we must consider our constitutional authority to answer them. And that consideration resolves this case.

Standing

Having already established that POM failed to make a prima facie showing that prosecution is impending and probable, we readily conclude there is no “credible threat of prosecution.” We note some tension in the Attorney General’s position: having argued that POM lacked standing for its previous claim because there was no threat of prosecution, the office nonetheless maintains that there is standing for this claim. When pressed at oral argument, appellate counsel suggested that a statute’s sheer ambiguity might itself constitute an injury because one cannot conform conduct to an indecipherable law. But absent concrete present or future harm, even the most perplexing legislative provision cannot create standing. To hold otherwise would render the case-or-controversy requirement meaningless. 

In sum, none of POM’s three claims meet our standing requirements. Though uncertainty about the legal status of Dragon’s Ascent may create practical difficulties for POM, those difficulties do not establish jurisdiction when our state Constitution requires an actual case or controversy.  We therefore affirm the order of the district court dismissing POM’s claims on the Expanded Lottery Act and the legality of Dragon’s Ascent for lack of subject-matter jurisdiction. We also vacate the district court’s ruling on whether the criminal gambling statutes are unconstitutionally vague for failing to provide fair notice of whether a device provides an award “as the result of chance,” and we remand the matter for the district court to dismiss that claim.