Wash. Lawyer Challenges State over Controversial I-Gaming Legislation

9 July 2007

A lawyer is challenging a controversial law in Washington that makes online gambling a felony in the state.

Renton, Wash.-based attorney Lee Rousso on Friday filed a lawsuit in King County Superior Court against the state of Washington, alleging that Senate Bill 6613, enacted in March 2006, violates the Commerce Clause in the United States Constitution.

SB 6613, sponsored by state Sen. Margarita Prentice, amended the Washington State's Gambling Act of 1973 to ban Internet gambling. Violation of the new law is a felony and comes with a hefty price of five years in prison, a $10,000 fine or both. Furthermore, the law does not make a distinction between the casual bettor and the gambling enterprise.

Rousso, a poker aficionado who qualified for the 2005 World Series of Poker through PokerStars.com, said he filed the suit because he was offended by the law.

"I think it was a horrible law," he said. "Internet poker is not a problem and it was a grossly inappropriate response from the state."

Rousso believes SB 6613 was passed only to protect the state's land-based casino industry from otherwise legal out-of-state competition.

"Sen. Prentice, who obviously is not opposed to gambling in general, takes substantial campaign contributions from brick-and-mortar casinos in this state, the intended and presumed beneficiaries of SB 6613," Rousso said in a prepared statement.

Rousso said the law is not only the harshest law of its type in the United States, but is riddled with flaws.

According to the statute, Rousso said, a citizen who to stays at home and gambles on the Internet while drinking herbal tea, for instance, is a greater menace to society than someone who drives to a bricks-and-mortar casino to play poker for a few hours while drinking alcohol and then drives home intoxicated.

Moreover, the state can confiscate any winnings or property acquired with the winnings a player earns from gambling on the Internet.

"Acts performed in the privacy of one's own home should enjoy a strong presumption of legality absent a showing of actual harm to the individual, his neighbors, or society as a whole," Rousso said.

In an attempt to remedy that flaw, state Rep. Chris Strow in January introduced House Bill 1243, which would provide an affirmative defense for a citizen found in violation the law as long as they prove they were gambling for recreational purposes, for money or not, and they were in their home.

Strow decided not to introduce a bill that would strip the felony language in SB 6613 because it still leaves some enforcement tools to go after some other elements in the gambling world unrelated to Internet gambling, which was the actual driver behind the Class C felony.

Strow voted in favor of SB 6613, but he said he was unaware of the Class-C-felony language in the bill. He said it was slipped in on the Senate-side after it passed the House.

Nonetheless, when he discovered the felony language had been added, he spoke up.

"I just told them (Senate), 'There is absolutely no reason you should be making Internet gaming--particularly if you're doing it for recreational purposes from your own home--a felony, or, frankly, a gross misdemeanor.'"

Strow's bill died in session, but Rousso said if he does not get this lawsuit resolved favorably in court he would contact Strow to reintroduce the legislation in the 2008 legislative session.

While the basis for Rousso's suit is a violation of the Commerce Clause, he lists other Constitutional violations as well. He alleges the law violates the Equal Protection Clause by subjecting Washington residents exclusively to punishment for interactions with residents of the other states, and the Cruel and Unusual Punishments Clause by treating Internet usage as a separate crime from playing poker at an unlicensed card room.

Furthermore, Rousso said that state lawmakers have made misleading and errant public statements regarding the relationship between current state and federal Internet gambling laws.

"The only federal law clearly applicable to Internet gambling is the Wire Act, which has been modified by the Interstate Horserace Betting Act and the Unlawful Internet Gambling Enforcement Act (UIGEA)," he said, adding that the UIGEA does not make it a federal crime to play Internet poker or operate an Internet poker Web site.

Rousso said the state's claim that the enactment of SB 6613 was required by federal law is unfounded and is unsupported by the Constitution. He intends to prove that it should be barred by federal law.

"If you don't change the law, you agree with it," he said.

The state should be served with the complaint in the next few days and then has 20 days to respond, Rousso said. After that he is filing for an expedited trial, so it should be resolved, one way or another, in about six weeks, he added.

Click here to view a copy of the complaint.

Emily Swoboda is the senior staff writer at IGamingNews. She lives in St. Louis, Mo.