BID TO OVERTURN WASHINGTON STATE BAN ON INTERNET POKER STILL UNDECIDED

25 January 2008

Mired in paperwork - but further argument to be heard


Washington state lawyer Lee Rousso is a persistent man....he has to be, given the mountain of "discovery" paperwork he has been asked to provide on poker by a state government legal team. But there is light at the end of the tunnel following a senior judge's ruling that the issue of discovery be re-argued with a new judge.

The paperwork problem appears to be part of the government's attempts to sidetrack Rousso's litigation contesting a Washington state ban on Internet poker as illegal. Rousso has been fighting to have his day in court since last year, even contemplating running for governor in Washington state to replace Chris Gregoire in order to overcome the bureaucratic obstacles he faces.

The case became mired in argument over discovery paperwork when the state demanded information that Rousso believes is confidential and implicates his Fifth Amendment rights against self-incrimination. As the real case stalled, Rousso asked the King County Superior Court for a protective order shielding him from the demand, and was turned down.

Undeterred, Rousso took the decision to the Court of Appeals, where he received a more sympathetic hearing. The case was referred back to the lower court for the discovery issue to be reviewed and argued again before a fresh judge.

"The state wants me to produce massive amounts of information related to Internet poker," Rousso said in a recent interview with the Poker Player's Association, a pressure group trying to legalise online poker in the United States. "I think it should be sufficient to show that I was playing when the ban went into effect. This time around, I expect the court to give a much clearer answer as to what information is actually relevant to the suit."

Describing the discovery issue as a frustrating four month detour around the real issue of whether the Washington state ban was legal, Rousso said the Court of Appeals seemed fairly sympathetic to his case, and had noted that it raised interesting and potentially troubling questions.

"Somewhere, sometime, a court is going to have to decide if states can regulate Internet gambling," Rousso said. "It's inevitable, so it may as well be this case."

Rousso revealed that the Court of Appeals also called the scope of the state's discovery requests "troubling," and at oral argument the state even acknowledged that some of the interrogatories and requests for production may go beyond what is necessary to determine standing in the case - a startling admission in itself.

The determined lawyer is optimistic that things may move forward again following the higher court's directions. "We have a new judge now, and I have renewed optimism about getting my day in court, hopefully by around May 2008," he said.

Rousso first filed his attempt to overturn the Washington state ban midway through 2007, claiming that the state's online gambling ban fails to comply with the Wire Act passed by the federal government, which has never extended criminal liability to the players, whereas the Washington law makes it a felony to gamble online. Critics of the state ban have repeatedly pointed out that almost every other possible form of gambling is allowed in the state, and that political campaign and lobby funding from gambling companies is not unknown.

In view of this, Rousso is additionally accusing the state of attempting to protect its own gambling industry by imposing a ban on online gambling, which puts Washington in direct violation of the U.S. Constitution's commerce clause forbidding individual states from passing protectionist laws against other states' business.

Last year Rousso also consulted with fellow Seattle lawyer Nick Jenkins, whose nascent betting exchange site Betcha.com was shut down by the Washington State Gaming Commission after bitter exchanges over its legality.

Eventually Jenkins found himself detained on allegations that his site had accepted a 70 cent commission on an online bet placed by a policeman in Louisiana in a sting operation. After stressful weeks unsuccessfully attempting to get Governor Chris Gregoire to oppose a Louisiana extradition order, Jenkins and two colleagues had to present themselves to the Louisiana authorities where they were arrested and then released on bail with a hearing scheduled for January 2008.

It is not known whether this hearing took place, or what the result may have been.

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