Last month, Kentucky Court of Appeals Judges Michael Caperton, Jeff Taylor, and Michelle Keller granted a motion filed by the Interactive Media Entertainment and Gaming Association (iMEGA) to stay the forfeiture of 141 internet gambling domain names, which includes those belonging to some of the largest online poker rooms in the world. If successful, the actions of Kentucky Justice and Public Safety Secretary J. Michael Brown and Governor Steve Beshear would make PokerStars.com and FullTiltPoker.com, among others, inaccessible not only in the Commonwealth of Kentucky, but also around the world. PocketFives.com sat down with iMEGA Chairman Joe Brennan to discuss what will unfold on Friday, when the parties will take the floor of the Court of Appeals.
The three-judge Court of Appeals panel will convene in Louisville at the Jefferson County Judicial Center at 10:00am Eastern Time on Friday. Unlike the previous hearing held in Judge Thomas Wingate’s courtroom in Frankfort, Kentucky, the proceedings in Louisville will last just 50 minutes. Brennan explained that the amount of time allotted, while it doesn’t appear lengthy, is in fact quite long. On how the event will unfold, “The Court divides the time roughly in half. Since it’s our petition that the court is considering, we will probably speak for the majority of the time, but considerable time will be granted to the Interactive Gaming Council (IGC) and Bill Johnson, who is representing several of the domain names.” The IGC, which is based in Vancouver, Canada, filed a separate petition for the Court of Appeals to intervene.
Both the Commonwealth and attorneys for iMEGA and the IGC have already filed briefs with the court. The former’s is about 70 pages long and tries to rebuke claims made by the two industry organizations that the Commonwealth did not have jurisdiction to seize the 141 domain names, that the actions by Beshear violate the Commerce Clause of the United States Constitution, and that internet gambling domain names are not “gambling devices” under Kentucky law. That term traditionally refers to slot machines or other objects that you would find in use in an underground casino.
The Poker Players Alliance (PPA) filed a 25 page amicus brief of its own which discusses why “poker is a legal game of skill, not an illegal game of chance, under Kentucky law.” In his write-up that was filed in October, Judge Wingate charged that “hands the players hold” ultimately determine the winner and therefore, poker is not a game of skill. The PPA fired back in its brief, claiming, “The lower court committed a serious error by failing to engage in any fact-finding before determining that poker is a game based on chance, rather than skill, and therefore prohibited by Kentucky’s anti-gambling laws.” Other parties which have submitted briefs in the case include the American Civil Liberties Union (more commonly called the ACLU), Network Solutions, the Electronic Frontier Foundation, and the Center for Democracy and Technology.
Once the 50 minute oral argument period has elapsed, the three judges will take the testimony logged as well as the briefs provided and make a decision. The timeline for a determination is up in the air, but Brennan expected a quick response. He told PocketFives.com, “Based on the read that we have, we don’t expect it to take that long. It may take a few weeks. When you look at the Federal Court level, when the iMEGA first challenged the Department of Justice in the New Jersey District Court, the judge said she’d get back to us in 30 days, but didn’t issue a decision until five months later.” Judge Mary Cooper, who heard the case in New Jersey, granted the organization standing to sue to declare the Unlawful Internet Gambling Enforcement Act (UIGEA) unconstitutional. That court case is also about to move onto the Appellate level and the three judges who will hear it may be named before the New Year.
Cake Poker, UltimateBet, and Absolute Poker are among a handful of the 141 sites in question that have ceased taking customers from Kentucky. In his ruling, Judge Wingate stated that affected domain names could be absolved if they imposed technology that blocks access by Kentucky residents. Jennifer Brislin, the Director of Communications for the Justice and Public Safety Cabinet, told PocketFives.com, “The Justice Department and Court need to be satisfied that these sites are using blocking mechanisms.”
While pursuing forfeiture of the 141 internet gambling domain names, many critics of the Commonwealth’s actions point out that TwinSpires.com, which is owned by Kentucky-based Churchill Downs Incorporated, continues to accept online wagers on horse racing. Moreover, the Kentucky Lottery offers an online second chance drawing for non-winning $10 and $20 ticket games. The second chance option was launched in September.
We’ll have a full rundown of the hearing for you right here on PocketFives.com.
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