There is a great deal of discussion in our community regarding the proposed California online poker legislationand one of its key clauses, the “bad actor” verbiage that would prevent companies that served US players following the passage of the Unlawful Internet Gambling Enforcement Act from being involved with the California online poker industry. Now, a noted academic professor and legal scholar has sounded off on the situation, agreeing with many that such language is “probably” unconstitutional.

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Laurence H. Tribe (pictured), a noted professor of constitutional law at the Harvard Law School who has argued over 30 cases in front of the US Supreme Court, issued his legal analysis of the two bills that are currently in front of the California General Assembly. Those bills, Senate Bill 1366 sponsored by State Senator Lou Correa and Assembly Bill 2291 sponsored by Representative Reggie Jones-Sawyer, both contain the “bad actor” clause and, as such, would be “unlikely to survive a Constitutional challenge on several grounds,” according to Tribe.

One of those grounds is that the “bad actor” clause is being used to determine that a company committed a crime. “Under settled principles,” Tribe wrote, “a law is an unconstitutional bill of attainder if it legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” In Tribe’s opinion, both bills would fall into that description.

The provisions in the bills to prevent the usage of any software, player lists, mailing lists, or personnel that worked with a company “harms those companies in rendering that property valueless as an object of sale or licensing to others.” Furthermore, Tribe cited that the “arbitrary” cutoff date, set in the bills as December 31, 2006, could see a court “persuaded to invalidate the cutoff date under the Equal Protection Clause.”

“Taking all these infirmities in the bills into account, I believe that they should not, and would not, survive federal constitutional attack,” Tribe concluded.

Tribe’s analysis is in line with another notable name in the legal community. Paul Clement, who served under President George W. Bush as Solicitor General of the United States, has previously said that several previous versions of online gambling and poker legislation that have included “bad actor” language are “plagued with constitutional infirmities.”

One of the major players in the push for California online poker legislation, and one of the supporters of removal of the “bad actor” language from the bills, has been the Poker Players Alliance. Commenting on the continuing fight, PPA Executive Director John Pappas (pictured) told PocketFives, “I have not seen Professor Tribe’s opinion, but his conclusion is the same as other constitutional experts, such as former US Solicitor General Paul Clement, who have stated that these types of provisions are unconstitutional. I think it is past time to put the ‘bad actor’ language to rest and have the industry work toward passing bills and not throwing their competitors under the bus.”

Currently, the legislation in California has stalled, although there has been one hearing regarding the subject of online poker regulation that was well-received. Time is becoming an issue on the subject, however, as the California General Assembly will be heading to recess on July 3 and won’t reconvene until August 4. Then, the legislative session will end on August 31. Any bills that haven’t been passed by that point will have to be resubmitted when the new General Assembly is seated in 2015.

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