Last I heard, Lee Rousso lost this case at the lowest level, and it was going on appeal. What has happened since then?

Appeals Courts usually take quite some before resolving their cases. Lee's case is still ongoing.

Skallagrim

Hi, Lee Rousso here.

I've challenged the Washington statute on Commerce Clause grounds. The Commerce Clause says that Congress shall regulate commerce between the states and with foreign countries. I believe Washington has violated that rule.

I lost in the lower court on May 15 of last year. I am now before the Court of Appeals. Oral argument in my case is set for March 4, 2009. A ruling by the Court of Appeals may take 6 months or more, so we probably won't hear anything until this Fall.

The Court of Appeals will examine the issues a lot more carefully than the lower court, so I'm cautiously optimistic that I will win on appeal.

Thanks for asking!

Lee

As a WA poker player, I wish you the best of luck and hope that the court looks at this carefully and realizes what a joke this law is.

Is there anything I can do as a Washington State resident to help? I wish you luck and thank you.

Ditto... I'd like to help any way I can.

Thanks Lee for your hard work on this.

Thanks for all your offers of help. I don't think there is a lot we need to do until we find out how the Court of Appeals rules.

I had my oral argument yesterday. I thought it went really well. At least one of the judges really seemed to "get it". We will get a ruling in about six months. Once that comes down, we'll know what to do next.

Lee Rousso

Good luck Lee!

Keep up the good work and I am assuming that the Poker Players Alliance is helping you?

Let me know if there is anything I can do to help you from Oregon.

Lee Rousso is the Washington State Director for the PPA.

He is also one damn good lawyer IMHO and has done 99% of the work on this case himself. He knows if he ever needs any help from any of the rest of the lawyers who are part of the PPA all he has to do is ask.

Thanks Lee and good luck!

Skallagrim

Did he also have a role in the Betcha.com case ?

Yes, I represented Betcha.com in Superior Court and then in the Court of Appeals. A very nice win!!!

Lee Rousso

Unfortunately, according to the Seattle P-I's website, Rousso did not win at the Court of Appeals.

http://www.seattlepi.com/local/404156_poker23ww.html

Also, a link to the opinion:

http://www.courts.wa.gov/opinions/in...name=617796MAJ

Sad but true. The court didn't mess around, taking less than three weeks to decide. I guess they didn't like my case very much!

I respectfully disagree, of course, so I will try and take it to the next highest court, the Washington State Supreme Court. The Supreme Court will usually take any case that involves constitutional issues, so I should get at least one more shot.

Lee Rousso

Thanks for fighting it Lee. Good luck at the state Supreme Court!

Disappointing ruling. GL with the Supreme Court Lee.

IMO only federal courts will enforce the Dormant Commerce Clause doctrine.

JP, was wondering when you might weigh in with an opinion on this development . Reading the opinion it seemed as if the court was trying to come to the decision it did despite rejecting almost all of the state's arguments. What is your opinion on the logic they used to uphold the decision. Are there any obvious or just potential flaws you see?

In reading the decision, it appears that the skill vs. chance argument is dismissed and they cite a 1913 decision as the main precedent towards the end of the opinion. Further, the court states:

However, given the recent victories in other states on the skill v. chance issue, would it be advantageous to bring cases to challenge that 1913 precedent?

Also, the court interprets the UIGEA correctly and denies the state authority to claim jurisdiction over the internet w/r/t gambling.

The other interesting point is that the court takes the view that since the Gambling Act applies equally to intrastate and interstate commerce for the WA resident, it does not violate the Commerce Clause. I find that to be a huge weakness in their reasoning as the whole point of the Commerce Clause is to prevent the states from interferring with interstate commerce (especially by their own citizens), which is precisely what the Gambling Act does. This Act is similar to the various state liquor laws that have been struck down as they do not allow citizens to do business with out of state wineries by mail order.

I hope that the Feds may see the jurisdiction and Commerce Clause issues differently.

Good luck, Lee.

My view is not based on the case law, but on the prejudices of state court judges. IMO, they will bend over backwards, do hand stands and hold noses etc. to uphold a state law against the US Constitution, especially the Commerce Clause. Look at the appellate court in the Kentucky domain name case. The court did not grant the Writ of Mandamus on any constitutional jurisdiction standards, but ruled that Mullah Wingate had misinterpreted Kentucky law by a 2-1 decision.

Is the bolded part really true or is it to prevent a state from passing laws that favor intrastate businesses over interstate businesses? In the situation with out-of-state wineries did the law allow mail order sales by in-state wineries (which would be protectionism) or disallow all mail order sales (which would fit your definition).

In Lee's case it appears to me as a layman that the flaw in their reasoning would have to be that the method of gambling (over the internet or at a B&M casino) is immaterial. To compare to the winery example, I just visited wine.com and a popup immediately came up asking which state I would be shipping to. I picked Utah and was taken to a page that indicated that "due to state regulations they can not ship to that state." Why? I think the answer is that all liquor and wine sales in Utah are through state owned liquor stores. No Utah winery can make mail order sales within the state. I'm guessing they can also not make retail mail order sales to people in other states either. (If they could that would seem to be a valid argument for protectionism as well.)

I think (but am not sure to what extent) the 21st Amendment superseded the Commerce Clause with regard to alcohol:

Amendment 21 - Amendment 18 Repealed. Ratified 12/5/1933.

1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Thanks TE. I think your are correct. This would seem to cede a certain degree of control of interstate sales of alcholic beverages to the states. I'm not sure if this invalidates my contention or not (that the dormant commerce clause is to stop protectionism, not to prevent states from interfering with interstate commerce entirely). Regardless, it does mean the winery case isn't 100% applicable to internet poker.

Is there anything that would prevent the sale of something through mail order where it is legal to sale in the state of the seller, but not the buyer? I think obg had a story about requirements for selling toy guns through ebay to California residents that seems to fit.

Edit: I should make it clear that IMO the Washington law is protectionism as Lee contends, but protectionism of the B&M casinos. It seems what needs to be overcome is the court's finding (at least as I read it) that the delivery method of the product makes it different.

How about a proposition to license and tax poker in WA and give the tax to schools or roads, which are woefully underfunded?

This is a nice summary of the decision, which was in 2005. Granholm v Heald

I would also add internet gaming to that list. This decision, along with my favorite medical marijuana SCOTUS decision, allows the Feds to control any economic activity through the Commerce Clause. Especially in this case, where the 21st Amendment clearly provides for the states' jurisdiction.