Update of the kentucky governor sieze

[Bad Boy]

It is actually getting hard to find info on this topic. When it was first started, the top of the news media was all over it, and then they began to stay quiet.

by PokerPages : Poker Information, Tournaments, Players, Poker Rules and Strategy, Learn Poker
Tue, Nov 18th, 2008 @ 12:00am

The Court of Appeals of Kentucky has set a date of December 12 to hear petitions to have the lower court ruling to seize 141 online poker and Internet gambling domain names overturned. In doing so, the Court of Appeals also granted a motion to stay (delay) the State's forfeiture hearing which had been scheduled for December 3rd.

Kentucky Gov. Stephen Beshear and Michael J. Brown, the state's Secretary of Justice and Public Safety, had sought the seizure of the 141 online gambling domain names in an effort to protect Kentucky's own gambling industry from competition by online gambling sites (click here for related article).

The Interactive Media Entertainment & Gaming Association (iMEGA), an Internet trade association in Washington, DC, asked the appeals court to stay the forfeiture hearing ordered by district court Judge Thomas Wingate scheduled for Dec. 3rd, until the appeals court had an opportunity to consider iMEGA's petition to have the lower court seizure ruling overturned.


The appeals court also decided to combine iMEGA's petition with a narrower petition filed by Interactive Gaming Council (IGC), of Vancouver, BC, an international online gambling trade group.


The hearing to consider the petitions is scheduled for Dec. 12th in Louisville Kentucky.

Both groups contend that the lower court lacked jurisdiction to order the domain seizures. iMEGA contends that the lower court misapplied Kentucky's specific "gambling devices" law in order to provide a rationale for permitting the seizures. iMEGA also argues that Kentucky's actions violate the Commerce Clause of the US Constitution, and that Secretary Brown lacked the authority to initiate the seizure action in the first place.

"We're please that the Court of Appeals has given us the opportunity to challenge these seizures," said Joe Brennan Jr., iMEGA's chairman. "The commonwealth has tried to take these domains for their own financial gain, violating Kentucky law, exceeding their jurisdiction, and setting a terrible precedent in the process."

"This matter has generated concerns across the online world about abuse of governmental power," added Brennan. "Kentucky is opening the door for any government - state and local, foreign and domestic - to use what amounts to blackmail to achieve its ends. If this precedent is allowed to stand, it's not hard to imagine a government like China utilizing this kind of seizure power to prevent free media, like the New York Times, from reaching their citizens."

None of the 141 domain names are owned by individuals or companies are located in Kentucky. Gov. Beshear claimed the Internet gambling sites were taking money from the state's own gambling businesses, calling them "leeches on our community".

The following was reported earlier, which has lead to the above article:

by PokerPages.com
Thu, Oct 30th, 2008 @ 12:00am

Despite devoting considerable time and resources in leading the challenge to block the commonwealth of Kentucky's recent attempt to seize 141 online poker and gambling domain names, the legal team for the Interactive Media Entertainment and Gaming Association (iMEGA) has stated they feel they are more than capable of pursuing cases against the Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006 and Kentucky at the same time.

UIGEA STATUS: DoJ Files Brief in Response to iMEGA Appeal

The US Department of Justice has just filed their response brief with the US 3rd Circuit Court of Appeals, in response to case iMEGA brought to Federal court challenging the constitutionality of UIGEA. The case is now named iMEGA v. Mukasey, et al, reflecting the change in government staff.

iMEGA's appeal follows a ruling by Judge Mary Cooper (US District Court, Trenton) that established iMEGA's associational standing to challenge UIGEA on the behalf of its members and the Internet gambling industry, but was dismissed by Judge Cooper without considering the constitutional issues raised in iMEGA's challenge (click here for related article).

The brief filed by the US DoJ's attorneys asserts that iMEGA could not argue UIGEA should be "void for vagueness", according to an article on iMEGA's website. The brief also claims iMEGA did not raise the issue at the trial level, and that nonetheless UIGEA is NOT sufficiently vague in order to meet the standard necessary for declaring it unconstitutional.

"It's hard to believe the government is making that claim, when Judge (Mary J.) Cooper herself preserved due process concerns in her decision," said Joe Brennan Jr., iMEGA's chairman.

It's also incredible that the DoJ thinks the UIGEA is not sufficiently vague, when representatives of the U.S. Department of the Treasury and Federal Reserve System testified at the congressional UIGEA hearing April 2, 2008, that U.S. financial institutions will face challenges in attempting to comply with UIGEA. Since most payment systems are not well designed to comply with this law, it will be very difficult to shut off payment systems for use of Internet gambling transactions, said Ms. Louise Roseman, Director, Division of Federal Reserve Bank Operations and Payment Systems, Board of Governors of the Federal Reserve System. "The implementing statute will not be iron clad at all."

In addition, the government asserted in its 24-page brief that iMEGA lacked the standing to represent individual gamblers.

iMEGA's legal team now has 15 days to submit a brief responding to the government's arguments. After that, it will be up to a three-judge panel (yet to be named) as to when oral arguments may be heard from both parties.

"We're very confident today, after reviewing the government's brief, that we are on track for having this law overturned," Brennan said. "We're looking forward to the opportunity, once this fatally flawed law has been dealt with, to work toward a reasonable, common sense approach by our country to Internet gaming, one that above all affirms our rights and their place in the online world."


KENTUCKY STATUS: Petition to Block Court Decision Filed

Last week iMEGA's attorneys filed a 55-page petition to the Kentucky Court of Appeals for a writ of mandamus, to block a lower court's decision allowing Kentucky to seize 141 domain names. Kentucky's lawyers have sought these domain names, all related to Internet gaming and advertising, in an effort to protect Kentucky's own in-state gambling operations from competition, and to extract tens of millions of dollars in penalties from the domain registrants.

iMEGA identifies a number of procedural and legal errors by Judge Wingate in its writ. One major argument is that the judge wrongfully found jurisdiction against the domain names despite the fact that they are not tangible and have no presence in Kentucky.

The writ also claims Judge Wingate was in error when he applied the Kentucky statue that pertains to the seizure of "gambling devices" which, iMEGA argues, refers only to physical items located in the state and not to intangible domain names.

Due to this and other matters, Pokerlisitngs reported that Judge Wingate has delayed the forfeiture hearing in this case from November 17 to December 3.

[Bad Boy]

As I have said before, I follow this sieze with heart, but as before not much info is being reported.
Basically, this case, is in limbo, and will continue for months.
It is all about Judges see how words are written and how lawyers feel the words are written, or as to what they mean.
Who cares as to what is what, do what the people want, whichis to play poker online. Come to reality lawmakers, judges and lawyers. It is not the 16th and 17th century, it's the 21st century. People want to play.

Kentucky Appeal Heard (Update)
Quick decision anticipated



December 14, 2008 (InfoPowa News) -- Pretty much as expected, there was no immediate decision Friday on the iMEGA and IGC vs. Kentucky state hearing in the Kentucky Appeals Court in Louisville ... but the good news is that almost all of those present felt that the three judges hearing the case were very well prepared, asked many pertinent and probing questions, and that an early decision looks likely.

The plaintiffs were contesting an earlier Franklin County Circuit Court ruling by Judge Thomas Wingate that supported the astounding presumption by state governor Steve Beshear that he has the authority and jurisdiction to seize and ultimately confiscate the Internet domain names of online gambling and other companies domiciled elsewhere in the world. The case, involving some 141 domains, has major implications for Internet commerce everywhere, and has attracted widespread media coverage and criticism from Net Neutrality organizations (see earlier reports).

Judge Wingate's rulings are on hold pending the Appeal Court findings, which will hopefully show that he has overeached his jurisdiction and authority in the matter.

Not all perspectives on the case were heard Friday, although earlier briefs were considered. Attorneys for the various organizations who had filed amicus briefs -- EFF, the Center for Democracy and Technology, the Poker Players Alliance and the ACLU-Kentucky -- were denied a speaking slot before the judges.

Friday's hearing had been preceded by the opposing lawyers submitting briefs and arguments to Judges Michelle Keller, Michael Caperton and Jeff Taylor who heard the case. Other written submissions from friends of the court were also considered, and it was clear from the outset that the three Appeal Court judges were very well versed in the facts of the issue.

The hearing, which took just over 50 minutes, provided a platform for final oral arguments from legal representatives of companies impacted by the Wingate ruling, as well as iMEGA and IGC.

The judges asked many relevant and probing questions before retiring to consider their finding, which will be released at a date yet to be determined.

The Associated Press news agency, which covered the hearing, reported that William Johnson, a lawyer who represents five of the websites, said Kentucky's laws do not spell out that the state can seize domain names. Because lawmakers haven't acted since the law was written in 1974, the state lacks the authority to seize the websites and shut them down, Johnson said.

"If they had wanted to correct this law, they could have done so annually," Johnson said. "That is a matter for the legislature to decide."

Attorney Jon L. Fleischaker, representing the trade body iMEGA, said that the lower court had not properly applied Kentucky criminal statutes permitting forfeiture and confiscation, because there had been no previous criminal finding to support such action. Fleischaker argued that in order for Kentucky to use the seize and confiscate statute, there first had to be a criminal complaint followed by a conviction or a guilty plea. In other words, only after there is a finding of a violation of the criminal code could the seizure statute be used.

"What they have done is turn the law on its head," Fleischaker claimed. "If they want to bring a criminal case, they should bring a criminal case."

"It is not sufficient for the state or a lower court judge to decide on their own that there is a criminal violation -- they have to go through a criminal proceeding first," he added.

The iMEGA representative said that the lower court hearing had also misapplied the definition of "gambling appliances" to extend to Internet domains. The state criminal statute definition of "gambling devices" which could be seized and confiscated could not be applied to an Internet domain, he argued.

The judges examined this argument with the state's lawyers, who continued to assert that because the domain gave access to the gambling website it could be construed as a gambling device.

Eric Lycan, an attorney who represented the Kentucky Justice Cabinet, which is handling the case for the state, rather than the state's Attorney General, described the online gambling sites in strong terms as a "massive, global, offshore criminal enterprise" whose owners know they are violating the laws of nearly every state in the country by fostering gambling via the Internet. He made the arguable allegation that over 80 percent of the websites' revenue comes from the United States, and that this gave individual states like Kentucky the right to exercise jurisdiction.

"They [the online gambling sites] are doing this because they don't think anyone can catch them," Lycan said.

Judge Michelle Keller asked Lycan the pertinent question of why the state doesn't handle the illegal gambling the same way it handles illegal drug transactions -- by making both the sale, purchase and use of the drugs against the law. "It's illegal to sell the drugs and it is also illegal to use the drug," Keller said. "I don't see much of a difference here."

Lycan responded by claiming that the decision to only criminalize the offering of gambling was a decision made by lawmakers. "The legislature specifically exempted the player from the legislation," Lycan said.

The jurisdictional aspects of the case arose on several occasions and were debated.

William Johnson, representing some of the affected websites, argued that the sites were located offshore and that Kentucky cannot exert authority over property that is not within its boundaries.

For the state, Lycan responded that this was irrelevant as the offending websites were accessible within the state.