Judge Harold Lee convicted in AZ gambling probe Re: Ace High Card Room
12-08-2011
, 01:21 PM
12-08-2011
, 01:35 PM
12-08-2011
, 01:40 PM
12-08-2011
, 01:43 PM
12-08-2011
, 03:39 PM
12-08-2011
, 03:45 PM
12-08-2011
, 03:52 PM
12-08-2011
, 04:09 PM
12-08-2011
, 04:20 PM
A quick reminder of why the Arizona Department of Gaming gets to decide what "Benefit" means with regard to gambling in Arizona. This was written by a friend of mine, a bit of an expert on the subject of administrative law here in Arizona. He would, because of his position, like to remain anonymous.
If you'd like to take shots at it, I'll gladly pass them along to my friend.
Quote:
This is not legal advice and I am not your attorney. For legal advice, contact an attorney licensed to practice law in your jurisdiction.
The Palimax has been doing just fine articulating on 2+2 the information I have passed on to him. But now with IAAL's post, it seems there is still some doubt about how the law applies to poker clubs in AZ, so I think I need to reinforce some aspects of what I have had him convey to you, so that the uncertainty can finally be put to bed.
I don't know whether IAAL is a real attorney or just MrPokerAZ's gimmick alt or buddy. I will grant the benefit of the doubt that he is a real attorney, however like many real attorneys, he seems to have overlooked the administrative line of authority, which is at the center of why ADOG is doing what they are doing right now and succeeding at it. This by no means disparages IAAL; most retired attorneys and a great majority of practicing ones are out of touch with the ascendancy of administrative law on the legal landscape today, so they know little about it. Administrative law is a dry specialization. It is not as glamorous as litigation or criminal practice, so few attorneys care about it. But the importance of the practice area has, in the past few decades, grown very significant -- as is easily evidenced by the thousands upon thousands of pages of Federal Register churning out regulations every month.
IAAL correctly emphasizes that statutory law is the top dog, but any layperson knows that. (Technically, U.S. Code would supersede state statute, and then there are things like treaties and Constitutions to deal with, but who's counting?) Actions of state agencies are governed by the state's Administrative Procedure Act, which is codified in statute at A.R.S. Title 41, Chapter 6. (A.R.S. §§ 41-1001 through 41-1092.12) and which basically tracks the federal APA and thus should hold no surprises for a lawyer from another state. In Arizona, among the provisions in that Chapter is Article 10, which governs Administrative Hearings through OAH (meaning the case is heard by an ALJ, an Administrative Law Judge). The ADOG is not included among the exempted agencies in A.R.S. § 41-1092.02(A)(1) through (A)(14). In fact, whaddya know! The ADOG's OWN STATUTE, A.R.S. § 5-602(F), states that its adjudicative proceedings are conducted according to A.R.S. Title 41, Chapter 6, Article 10!
This means an adverse party does not get to contest ADOG in a regular court until first exhausting the administrative adjudication process, unless that party had one hell of a threshold issue to press (and, paradoxically, this would be the one place where Judge Lee's BIA corruption folderol would actually be the type of issue needed, though I wouldn't want to have money riding on the strength of that particular argument) or unless ADOG waived the administrative hearing. ADOG does not maintain administrative rules at 19 A.A.C. 4 where they once existed (and it's strange that they do not, as A.R.S. § 5-601 exempts them from the formal rulemaking process, but whatever), so in determining the reach of ADOG's authority, all that must be considered is what they are allowed to do adjudicatively and then (after exhaustion) in regular court.
As The Palimax has painstakingly repeated, the fundamental case in administrative law is Chevron v. NRDC, a Supreme Court case from 25 years ago that established the legal test for an agency's authority: Did the agency have the statutory authority to interpret law on the subject matter? If yes, was their interpretation within the scope of that authority? If the agency did have the authority and the agency's interpretation was NOT CLEARLY CONTRARY to the underlying legislation, the ALJ or court is MANDATED to find in favor of the agency. This is not optional. The agency wins if those two elements are met. For the benefit of lay readers: Because the Supreme Court has ruled it, all lower courts are required to rule the same way. They don't get to decide case-by-case.
That is where Substantive Policy Statements come in. It is true that substantive policy statements are advisory only. It says so right on them, and A.R.S. § 41-1091 agrees. However, they still have legal weight when applied to a Chevron analysis, and because of the way Chevron works in practice, an SPS is EFFECTIVELY, for practical purposes, the law. This is the difference between a layperson reading the statutes and drawing conclusions, and someone who has been to law school and passed the bar who knows how a court conducts a legal analysis. See, to contest Chevron, an adverse party must either attack the agency's interpretation as being contrary to statute, or challenge that the agency did not make a clear interpretation in the first place. An agency, knowing that those are its two fronts to defend, can lock one front down by putting the public on notice as to what its interpretation is. The agency does this by issuing an SPS. This, in effect, shifts the burden to the challenger. In fact, it's stronger than a mere burden shift. It makes the clarity of the agency's interpretation into what is called a THRESHOLD ISSUE. This means an adverse party who takes on the agency in front of an ALJ or in court has to reach that issue before they can even get to the substantive interpretation, and that makes the entire case unwieldy and difficult to win. Pragmatically speaking, the issuance of an SPS or promulgation of a rule shuts down that line of attack entirely and leaves only the Chevron question of whether the agency acted contrary to statute. The SPS can be a powerful tool. Agencies know this. Why else would they spend time and money issuing statements that are "advisory only"?
I will repeat that because it is at the crux of why ADOG's "pamphlet" matters: By issuing a Substantive Policy Statement, an agency puts the public ON NOTICE as to what its interpretation is. An adverse party challenging the interpretation must pass the threshold question of whether the interpretation is clear or not, or forgo that line of attack, because if the interpretation was not clear, there would be nothing to challenge on substance, therefore if they are challenging it on substance it must be clear. An adverse party who wants to challenge the SPS has to do just that, in front of an ALJ, not in court, separately, before challenging the underlying interpretation. Few do. Then the only issue remaining is whether the agency acted contrary to its authority. Unless the evidence clearly shows that the agency did, the agency wins the Chevron analysis, wins in front of the ALJ, and then wins again in court if the case proceeds to litigation.
Thus, applying that to what has happened in Arizona:
Most of what Schnaubelt and Mr. Poker posted are just wishful thinking, and IAAL appears to concede as much, though it sounds like he is engaging in some of the wishful thinking himself. Unfortunately that's not how the law works. You don't get to do what you want just because you wish the law were different. Hope is not a strategy. Stop pretending the law says something other than what it says, and work to change it. You know how. It takes a bit more elbow grease than typical internet slacktivism, but it's what will be necessary to achieve the result you want.
As to the debate over my legal credentials, people are free to draw the conclusion they like from the content of my statements. I have to work with the Office of the AG and with various people in and among the state agencies, and I'd rather not leave internet footprints that might even suggest the appearance that I have broken any professional courtesy of keeping my mouth shut about the specific work I have done with them. Plus I don't need random internet nuts looking me up in Martindale-Hubbell. So far I have no qualms about anything The Palimax has posted, and I'd like it to stay that way. If that's not good enough for you, I don't care.
My God, I've spent an hour writing this. That'll be $275. I accept cash or precious metals.
The Palimax has been doing just fine articulating on 2+2 the information I have passed on to him. But now with IAAL's post, it seems there is still some doubt about how the law applies to poker clubs in AZ, so I think I need to reinforce some aspects of what I have had him convey to you, so that the uncertainty can finally be put to bed.
I don't know whether IAAL is a real attorney or just MrPokerAZ's gimmick alt or buddy. I will grant the benefit of the doubt that he is a real attorney, however like many real attorneys, he seems to have overlooked the administrative line of authority, which is at the center of why ADOG is doing what they are doing right now and succeeding at it. This by no means disparages IAAL; most retired attorneys and a great majority of practicing ones are out of touch with the ascendancy of administrative law on the legal landscape today, so they know little about it. Administrative law is a dry specialization. It is not as glamorous as litigation or criminal practice, so few attorneys care about it. But the importance of the practice area has, in the past few decades, grown very significant -- as is easily evidenced by the thousands upon thousands of pages of Federal Register churning out regulations every month.
IAAL correctly emphasizes that statutory law is the top dog, but any layperson knows that. (Technically, U.S. Code would supersede state statute, and then there are things like treaties and Constitutions to deal with, but who's counting?) Actions of state agencies are governed by the state's Administrative Procedure Act, which is codified in statute at A.R.S. Title 41, Chapter 6. (A.R.S. §§ 41-1001 through 41-1092.12) and which basically tracks the federal APA and thus should hold no surprises for a lawyer from another state. In Arizona, among the provisions in that Chapter is Article 10, which governs Administrative Hearings through OAH (meaning the case is heard by an ALJ, an Administrative Law Judge). The ADOG is not included among the exempted agencies in A.R.S. § 41-1092.02(A)(1) through (A)(14). In fact, whaddya know! The ADOG's OWN STATUTE, A.R.S. § 5-602(F), states that its adjudicative proceedings are conducted according to A.R.S. Title 41, Chapter 6, Article 10!
This means an adverse party does not get to contest ADOG in a regular court until first exhausting the administrative adjudication process, unless that party had one hell of a threshold issue to press (and, paradoxically, this would be the one place where Judge Lee's BIA corruption folderol would actually be the type of issue needed, though I wouldn't want to have money riding on the strength of that particular argument) or unless ADOG waived the administrative hearing. ADOG does not maintain administrative rules at 19 A.A.C. 4 where they once existed (and it's strange that they do not, as A.R.S. § 5-601 exempts them from the formal rulemaking process, but whatever), so in determining the reach of ADOG's authority, all that must be considered is what they are allowed to do adjudicatively and then (after exhaustion) in regular court.
As The Palimax has painstakingly repeated, the fundamental case in administrative law is Chevron v. NRDC, a Supreme Court case from 25 years ago that established the legal test for an agency's authority: Did the agency have the statutory authority to interpret law on the subject matter? If yes, was their interpretation within the scope of that authority? If the agency did have the authority and the agency's interpretation was NOT CLEARLY CONTRARY to the underlying legislation, the ALJ or court is MANDATED to find in favor of the agency. This is not optional. The agency wins if those two elements are met. For the benefit of lay readers: Because the Supreme Court has ruled it, all lower courts are required to rule the same way. They don't get to decide case-by-case.
That is where Substantive Policy Statements come in. It is true that substantive policy statements are advisory only. It says so right on them, and A.R.S. § 41-1091 agrees. However, they still have legal weight when applied to a Chevron analysis, and because of the way Chevron works in practice, an SPS is EFFECTIVELY, for practical purposes, the law. This is the difference between a layperson reading the statutes and drawing conclusions, and someone who has been to law school and passed the bar who knows how a court conducts a legal analysis. See, to contest Chevron, an adverse party must either attack the agency's interpretation as being contrary to statute, or challenge that the agency did not make a clear interpretation in the first place. An agency, knowing that those are its two fronts to defend, can lock one front down by putting the public on notice as to what its interpretation is. The agency does this by issuing an SPS. This, in effect, shifts the burden to the challenger. In fact, it's stronger than a mere burden shift. It makes the clarity of the agency's interpretation into what is called a THRESHOLD ISSUE. This means an adverse party who takes on the agency in front of an ALJ or in court has to reach that issue before they can even get to the substantive interpretation, and that makes the entire case unwieldy and difficult to win. Pragmatically speaking, the issuance of an SPS or promulgation of a rule shuts down that line of attack entirely and leaves only the Chevron question of whether the agency acted contrary to statute. The SPS can be a powerful tool. Agencies know this. Why else would they spend time and money issuing statements that are "advisory only"?
I will repeat that because it is at the crux of why ADOG's "pamphlet" matters: By issuing a Substantive Policy Statement, an agency puts the public ON NOTICE as to what its interpretation is. An adverse party challenging the interpretation must pass the threshold question of whether the interpretation is clear or not, or forgo that line of attack, because if the interpretation was not clear, there would be nothing to challenge on substance, therefore if they are challenging it on substance it must be clear. An adverse party who wants to challenge the SPS has to do just that, in front of an ALJ, not in court, separately, before challenging the underlying interpretation. Few do. Then the only issue remaining is whether the agency acted contrary to its authority. Unless the evidence clearly shows that the agency did, the agency wins the Chevron analysis, wins in front of the ALJ, and then wins again in court if the case proceeds to litigation.
Thus, applying that to what has happened in Arizona:
- Per A.R.S. § 13-3302, social gambling is not unlawful, and regulated gambling IF "conducted in accordance with the statutes, rules, or orders governing the gambling."
- A.R.S. § 13-3301 defines "regulated gambling" as tribal compact gaming or other limited forms of gambling that meet a number of very specific conditions (i.e. not you guys.)
- Per A.R.S. § 5-601.02(C), an Indian tribe may conduct gambling as "regulated gambling." This statute is the functional authority of the tribal compact.
- Per A.R.S. § 5-601(D), ADOG HAS THE AUTHORITY TO ADMINISTER THE TRIBAL COMPACT. This is the cornerstone of their adjudicative reach.
- Because of the ramifications of A.R.S. § 41-1092.03(A)(1) and (A)(2), ADOG must provide public notice of their interpretation of any statute, rule, or other authority that would include or exclude a person from their jurisdiction. This would include A.R.S. §§ 13-3001 et seq. as those statutes determine what types of gambling are lawful by virtue of being governed under the compact or other law.
- In fact, if ADOG DOESN'T make rules or issue SPSes interpreting the statutes that determine what kind of gambling is lawful, the public can COMPEL ADOG to do so under A.R.S. § 41-1001.01(A), particularly (A)(8) and (A)(9).
- 1+2+3+4+5 = If you are conducting social gambling, you are outside ADOG's jurisdiction, and because of 6, you are entitled to know how ADOG interprets the meaning of "social gambling" in A.R.S. § 13-3301.
- Because of 7, ADOG issues an SPS explaining their interpretation of what "social gambling" means.
- By the authority in 4, executing as required in 5, ADOG's interpretation in 8 is the interpretation a court/ALJ will apply in determining whether gambling is "social gambling."
- To establish 9, a court/ALJ will decide whether a third party has obtained a "benefit." Fortunately, ADOG reached that issue in 8 as well.
- An adverse party is free to challenge ADOG's SPS itself under A.R.S. § 41-1001.01, though it seems pretty clear and straightforward as it is, so I doubt this approach would succeed.
- If an adverse party instead proceeds to adjudication or further to litigation, under Chevron, ADOG wins. Feel free to lose money appealing this.
- Don't like it? Change the underlying statute! The Arizona Constitution, Article 21, Section 1 provides you with a means to do this!
Most of what Schnaubelt and Mr. Poker posted are just wishful thinking, and IAAL appears to concede as much, though it sounds like he is engaging in some of the wishful thinking himself. Unfortunately that's not how the law works. You don't get to do what you want just because you wish the law were different. Hope is not a strategy. Stop pretending the law says something other than what it says, and work to change it. You know how. It takes a bit more elbow grease than typical internet slacktivism, but it's what will be necessary to achieve the result you want.
As to the debate over my legal credentials, people are free to draw the conclusion they like from the content of my statements. I have to work with the Office of the AG and with various people in and among the state agencies, and I'd rather not leave internet footprints that might even suggest the appearance that I have broken any professional courtesy of keeping my mouth shut about the specific work I have done with them. Plus I don't need random internet nuts looking me up in Martindale-Hubbell. So far I have no qualms about anything The Palimax has posted, and I'd like it to stay that way. If that's not good enough for you, I don't care.
My God, I've spent an hour writing this. That'll be $275. I accept cash or precious metals.
12-08-2011
, 04:23 PM
12-08-2011
, 08:24 PM
12-08-2011
, 08:26 PM
12-08-2011
, 08:55 PM
12-08-2011
, 09:11 PM
12-08-2011
, 09:13 PM
12-08-2011
, 09:28 PM
12-10-2011
, 04:22 AM
Palimax, ever cedeing power over to the DoG haha... The DoG hasnt defined benefit, AZ statutes have already, as quoted in your post. They got it right. Benefit has already been defined by the state statutes. So ADoG gets to interpret what that means, and they have.
That is why The Nuts got raided today. The owner, one Mr. Glazer, has been benefiting ala Lee style, and taking 20% of the dealer tips on top of button fees and seat rentals and dealer appreciations and $5k+ bad beat jackpots.
Mmmm more popcorn!
Interestingly, http://www.gm.state.az.us/misc-pdf/s...amblingweb.pdf lists much of the same info you posted regarding the DoG interpretation of "anything of value or advantage, present or prospective. They do a good job covering all the bases on poker rooms. The thing missing from your pdf vs mine tho is the "games of skill" section, including billiards, darts, trivia or ither intellectual games ((( what?! No poker included!?)))
In skill games, which must include poker, the "benefit" only comes, per DoG when the "promoters benefit from the proceeds".
PROCEEDS!
thanks DoG!
Explain to me how the PGA can lawfully benefit by charging pro golfers for the TPC in Scottsdale every February.
RIP the nuts card room
That is why The Nuts got raided today. The owner, one Mr. Glazer, has been benefiting ala Lee style, and taking 20% of the dealer tips on top of button fees and seat rentals and dealer appreciations and $5k+ bad beat jackpots.
Mmmm more popcorn!
Interestingly, http://www.gm.state.az.us/misc-pdf/s...amblingweb.pdf lists much of the same info you posted regarding the DoG interpretation of "anything of value or advantage, present or prospective. They do a good job covering all the bases on poker rooms. The thing missing from your pdf vs mine tho is the "games of skill" section, including billiards, darts, trivia or ither intellectual games ((( what?! No poker included!?)))
In skill games, which must include poker, the "benefit" only comes, per DoG when the "promoters benefit from the proceeds".
PROCEEDS!
thanks DoG!
Explain to me how the PGA can lawfully benefit by charging pro golfers for the TPC in Scottsdale every February.
RIP the nuts card room
12-10-2011
, 04:24 AM
12-10-2011
, 04:26 AM
12-10-2011
, 04:31 AM
12-10-2011
, 04:40 AM
12-10-2011
, 05:39 AM
12-10-2011
, 05:45 AM