Rather than waiting for an appeal in the Kentucky case involving the forfeiture of 141 internet gambling domain names, the Interactive Media Entertainment and Gaming Association (iMEGA) fired back. The organization, which is based on Washington, D.C. and has been on the front lines of the fight for internet gambling in Kentucky against its Governor, Steve Beshear, filed a writ of mandamus on Wednesday, which essentially asks the State’s Court of Appeals to step in and overturn Judge Thomas Wingate’s ruling.
In a decision passed down about 10 days ago, Judge Wingate refused to dismiss the motion to seize 141 internet gambling domain names, including those belonging to PokerStars, Bodog, Ultimate Bet, Absolute Poker, Full Tilt Poker, Cake Poker, Microgaming, and Doyle’s Room. On Wednesday, iMEGA asked the Appeals Court to intervene. Ed Leyden, the President of iMEGA and one of the lawyers in the case, told Poker News Daily that waiting until after the final forfeiture hearing to appeal was not an option: “The forfeiture hearing would have been the death penalty. The damage would have already been done and the harm would have been irreparable. These proceedings should not have gone as far as they did.”
The final forfeiture hearing was originally scheduled for Monday, November 17th, but was recently pushed back until December 3rd. Joe Brennan, iMEGA’s Chairman and CEO, added in a press release posted on the organization’s website, “Since the lower court elected to ignore Kentucky law, and instead reached back to a law the current one supplanted to find a rationale justifying these seizures, we have no choice but to go to the Court of Appeals.”
iMEGA cites an incorrect interpretation of state law and lack of jurisdiction as reasons that the Court of Appeals should step in. Leyden commented, “The Court doesn’t have jurisdiction. The phrase ‘gambling devices’ doesn’t apply to domain names which aren’t property. Even if they were property, they’re not located in Kentucky. You have to look at the Constitutionality here. You have to look at it on the right level.” Leyden has argued in front of the court that Beshear’s seizure of internet gambling domain names tramples on the Commerce Clause of the United States Constitution, which states that Congress has the power to regulate commerce with other countries. In this case, the Commonwealth of Kentucky is instead asserting that right.
Although the schedule of the case at the Appellate level, if it were to occur, is not yet known, Leyden identified the following timeline: “We’re going to ask that whatever happens, the case down below is at least stayed depending upon what the Court of Appeals does. Right now, the lower court’s case is stayed until December 3rd, but it should be suspended or dismissed entirely. This has gone on long enough.”
One of the major news stories to appear this week concerned Microgaming sending out an e-mail to its affiliates notifying them that access by residents of 13 U.S. states to its online poker and casino clients would be disabled. A notable addition to the list of affected states was Kentucky. Doyle’s Room is one of the most well-known Microgaming Network sites. It is also on the list of domain names in the case. Each site was given 30 days from the date of Judge Wingate’s ruling to demonstrate that it had enacted geographically-targeted safeguards to ensure that access by residents of certain states was not possible.
The Petition to the Kentucky Court of Appeals, which can be found on iMEGA’s website, is a 239 page document that includes news articles, speeches by Beshear, and commentary on Judge Wingate’s ruling. In terms of whether the State has jurisdiction, the Petition reads, “The subject domain names are not located in Kentucky as required by United States Supreme Court holdings. In order to establish jurisdiction, the trial court… breached the doctrine of separation of powers by interpreting Kentucky’s statutory definition of ‘gambling device’ to include domain names.” Violations of free speech are also highlighted, as are the numerous other shortcomings that iMEGA feels were part of the Judge’s ruling.
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