Hearing set for Washington online poker lawsuit


Lee Rousso reported in the Poker Players Alliance forums that he has a Sept. 21 hearing date set for his lawsuit against the state of Washington in regards to its online gambling laws.

He was initially aiming for an Aug. 31 court date, but Sept. 21 was the earliest date available on the judge's calendar, according to Rousso. He will be submitting his brief on or before Aug. 24 for the hearing.

Rousso, a lawyer in Washington and the PPA representative for the state, filed the lawsuit against Washington on the first day of the World Series of Poker Main Event this year. His suit claims the state's ban on online poker is in direct violation of the U.S. Constitution.

As such he is seeking a declaratory judgment that the Internet Gambling Ban (IGB) is unconstitutional.

His first ground for the action is that the IGB violates the Commerce Clause of the Constitution, because it is a protectionist measure designed to discriminate against otherwise legal out-of-state businesses and in favor of in-state businesses.

"Gambling, Internet gambling and poker are all legal in Washington. Therefore, the obvious purpose of the IGB as it applies to Internet poker is to force Internet poker players to patronize in-state, brick-and-mortar casinos rather than Internet poker rooms, which are legal where domiciled and not illegal under federal law, or to switch their Internet gambling from poker to horse racing," says the lawsuit.

This makes it a discriminatory law and unacceptable under the Commerce Clause.

The gambling ban violates the Commerce Clause in two other ways as well according to Rousso's lawsuit. It places a burden on interstate commerce and on international commerce that isn't offset by a compelling state interest.

Where international commerce is involved, there is an even higher degree of Commerce Clause scrutiny, especially because of Internet poker's international nature, says Rousso in the lawsuit.

The law also violates the Commerce Clause because the federal government has already dealt with Internet gambling, and the law conflicts with the statutory scheme already set up and/or with the federal obligations set under international treaties.

According to Rousso's lawsuit, Congress has repeatedly refused efforts to amend the Wire Act to include Internet poker. It has also refused to extend criminal liability for Internet gambling to mere players.

Also, Congress has carved out an exemption to the Wire Act for fantasy sports, which remain a felony under Washington law when conducted on the Internet.

The law also violates federal obligations under the General Agreement on Trade & Tariffs that the United States agreed to as administered by the World Trade Organization because it allows some online betting, such as horse-race betting, but disallows other forms.

Rousso's fifth reason for judging the online gambling ban as unconstitutional is that it violates Amendment 8 of the Constitution prohibiting cruel and unusual punishments. His example is that online poker play is being treated differently than if someone was playing in an illegal land-based card room.

Playing in an unlicensed cardroom is a misdemeanor in Washington, but the online gambling ban makes online poker playing a Class C felony, equivalent to punishment for child pornography or threatening the Governor.

His final argument is that the ban violates Amendment 14 of the Constitution, guaranteeing citizens of the United States due process of law. Rousso's point is that the law is so vague that the typical citizen can't determine which acts are permitted and which are prohibited.

Part of his request is to also have the court issue a preliminary injunction to prohibit any enforcement of the gambling ban while the matter is pending as well as applying that injunction to all criminal proceedings and investigations based on alleged violations of the gambling ban.

That wouldn't come too soon for one Washington resident who ran an "honor-based betting platform" that was shut down in early July.

According to The Daily News in Longview, Wash., computers related to the Betcha.com business created and run by Nick Jenkins were seized. He is now seeking a restraining order against the state.

His business is being attacked by the online gambling ban, which Jenkins doesn't believe should affect his business.

His site provides a forum for people who want to make bets against each other on almost any topic. It works on an honor system similar to eBay, where people are personally responsible for their own commitments, and people receive negative or positive feedback for their actions.

The site doesn't take bets itself or back bets, the only money it deals with is the listings fee it charges for people to list their bet the site, usually between .5% and 1.5% depending on the odds and amounts.

Betcha.com isn't the first casualty from the online gambling ban either. In 2006, after the online gambling ban was passed in Washington, an online gambling guide that also didn't personally accept bets but advised viewers of the best online casinos was told to shut down.

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