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Online poker loses again in Washington
Online poker is still illegal in the state of Washington despite Lee Rousso's efforts.
On Monday, the Division I Court of Appeals in the state ruled against Rousso's appeal to remove the law that makes it illegal to play online poker in Washington.
It was a unanimous decision from judges Stephen Dwyer, Ronald Cox and J. Robert Leach.
"Yes, I was surprised by the ruling," Rousso told PokerListings.
"I thought I had briefed the issues well and presented them well at oral argument. I also thought I had the law right. So I was surprised, but hardly shocked, as it is hard to get a law overturned."
Rousso, a lawyer in Washington as well as the Poker Players Alliance state director, first filed his case against the online gambling laws on the first day of the World Series of Poker in 2007.
His argument is that the state's law, which makes it a felony for people to play online poker, fails to comply with the federal government's Wire Act. The Wire Act has never extended criminal liability to the players.
Rousso also believes the law is in direct violation of the U.S. Constitution's Commerce Clause, which forbids individual states from passing protectionist laws against other states' business.
The three Appeals Court judges ruled that the state's interest in regulating gambling outweighs the burdens on interstate commerce.
"Ultimately, given the importance of the State's interests in protecting its citizens from the ills associated with gambling, and the relatively small cost imposed on out-of-state businesses by complying with the Gambling Act, Rousso has failed to meet his burden of showing that the Gambling Act is 'clearly excessive,'" wrote the judges in their decision.
However, Rousso did find a silver lining in the ruling.
"I was encouraged that the court accepted my argument that Congress has not given the states unambiguous authority to regulate Internet gambling," Rousso said.
"That was a big point of dispute in this case. Instead, the court found that although Congress has not granted this authority, the state's interest still outweighs the burden on interstate and international commerce. So the decision was not a total rejection of my opinion."
Although Rousso has spent nearly two years battling Washington's online gambling ban in the courts, he's not ready to give up yet.
"When I filed my case, I thought it would take about two years to get to the Washington State Supreme Court, so I'm right on schedule," he said.
Rousso is already planning to take that next step of submitting the issue to the state supreme court. He said his sense is that the court would probably accept review of the case since it involves constitutional issues.
At this point, with all the work that has gone into the case, Rousso said another appeal doesn't involve much more work. There isn't much he can add to the case either.
"Instead, as cases go higher, the issues get narrower. I will focus like a laser beam on those points where I think the court of appeals got it wrong," Rousso said.
"In particular, I think the court of appeals erred by failing to contrast what is illegal with what is legal. If one does so, the protectionist nature of the Washington statute becomes much more apparent."
Rousso is referring to the fact that other forms of gambling are legal in the state. Washington has legal casinos and a state lottery.
With respect to the constitutional issue, Rousso said everyone should be concerned about state efforts to control and regulate the Internet. The Commerce Clause was enacted to prevent exactly that type of state action.
"Personally, I think the issue is important because it reflects a willingness of the government to unreasonably intrude in our personal lives," Rousso said. "Nonplayers should be equally concerned about the Nanny State and should be objecting as loudly as I am."
That's why Rousso will keep taking the case as far as he can.
"I'll keep going until they close the courthouse doors in my face," Rousso said. "I really think this is an issue for the Supreme Court of the United States, so I'm hoping that court will accept review after the Washington Supreme Court rules on the case."