On Thursday, attorneys for the Commonwealth of Kentucky filed a 20 page response brief to the state’s Supreme Court. The case pits Kentucky Justice and Public Safety Cabinet Secretary J. Michael Brown against the Interactive Media Entertainment and Gaming Association (iMEGA).
The response brief was actually due on Wednesday, June 17th. Upon submitting the document on Thursday, Commonwealth attorneys were also asked to file a Motion for Enlargement. In it, the state’s legal team expounded on the reason for the one day delay: “In this action, ten separate parties have sought to participate in this litigation as amicus curaie parties, with many such motions still pending, and numerous parties currently litigating this case as Appellees.” The Commonwealth added that, based on iMEGA’s brief being submitted on June 3rd, it “calculated a due date for the filing of a Reply Brief in this action on Thursday, June 18th.”
Despite the confusion, Commonwealth attorneys officially submitted the brief on Thursday to the Kentucky Supreme Court. The highest court in the Bluegrass State is not obliged to take the case and no indication has been given as to when a possible hearing could occur. The brief begins with an argument that Brown has standing to bring a civil suit against the owners of 141 internet gambling domain names that were seized by the Justice and Public Safety Cabinet last September at the urging of Governor Steve Beshear. If successful, the seizure and forfeiture would result in the domain names of industry behemoths like PokerStars and Full Tilt Poker being inaccessible not only in Kentucky, but also around the world.
Besides standing, another dispute in the case is whether the State is spearheading a civil trial to prosecute a criminal illegal gambling charge. The brief asserts, “The text of the statute contains no such language. It does not reference a conviction, criminal action, or even person against whom a criminal action might be brought… This case was brought as a civil proceeding, not out of a desire to be creative.” The 141 internet gambling domain names in question were seized on the grounds that they constituted illegal gambling devices, a term that has traditionally referred to tangible objects like slot machines and roulette wheels that would be employed in an underground casino.
On whether the State had jurisdiction to seize the domains, Commonwealth attorneys explain, “The true intention or will of the legislature is the law, not the literal language of the statute… Courts must consider the intended purpose of the statute, the reason and spirit of the statute, and the mischief intended to be remedied.” On the national level in the United States, online poker players have run into a similar dilemma with the Wire Act, which has traditionally applied to local telephone carriers and online sports betting outfits. Based on recent funds seizures by the Southern District of New York, the 50 year-old law has been interpreted by the U.S. Government as potentially covering online poker.
The brief spends considerable real estate on the question of whether Kentucky can seize property like a domain name, which is not located within its borders. One of its main arguments focuses on the Civil Asset Forfeiture Reform Act, which was introduced in the 1990s by current Poker Players Alliance (PPA) Chairman Alfonse D’Amato in the U.S. Senate. The Commonwealth notes that a subsection of the bill “addresses a problem that arises whenever property subject to forfeiture under the laws of the United States is located in a foreign country… It is probably no longer necessary to base in rem jurisdiction on the location of the property if there have been sufficient contacts within the district in which the suit is filed.” Senator D’Amato’s first name is incorrectly given as “Alphonse.”
The brief also alludes to a suit brought by the PPA’s Washington State Director, Lee Rousso, who filed legal action arguing that the State’s harsh stance on internet gambling constituted a violation of the Commerce Clause of the United States Constitution. The Kentucky brief explains, “The Rousso court ultimately concluded that the State’s interests in protecting its citizens from the ills associated with gambling outweighed the relatively small cost imposed on out-of-state businesses.” In Washington, playing online poker is a Class C felony.
iMEGA and the Kentucky Justice and Public Safety Cabinet now await word on whether the state’s Supreme Court will take up the case.
