In addition to being a skilled chess player, my partner John Leonard is also no stranger to the inside of a casino. While I don’t think he’s ever made a virtual wager, I thought he’d enjoy summarizing the following case, which challenges Washington’s Internet gambling prohibition. Thank you to Mr. Rousso for sharing the discovery request linked to below. -MHE

On the first day of the 2007 World Series of Poker Main Event, Lee Rousso, a resident of King County, State of Washington, filed a lawsuit in the King County Circuit Court asking that that State’s law barring internet gambling be declared unconstitutional. The law was passed in 2006, and became effective in June of that year.

According to the complaint filed in the suit, Rousso, from June, 2003 to June, 2007, regularly logged on to pokerstars.com, described as the “world’s leading internet poker site,” and played poker against other Pokerstar customers. Although most of Rousso’s internet poker playing involved “play money,” some of the games were allegedly played for virtual chips that represented real money.

Noting, among other things, that internet poker is not illegal under federal law, and that gambling, including poker, are legal in the State of Washington, Rousso charged in his suit that the Washington law outlawing internet poker was unconstitutional in that it violated the Commerce Clause of the United States Constitution because it: (1) discriminates against internet poker in favor of legal “brick-and-mortar” casinos in the State of Washington; (2) places an undue burden on interstate commerce; (3) places an undue burden on international commerce; and (4) infringes upon the federal regulation of internet gambling, and violates the General Agreement on Trade & Tariffs (the “GATT Treaty”). Rousso also charged that the law violates the U.S. Constitution’s prohibitions against cruel and unusual punishment, and because of its vagueness, violates the 14^th Amendment’s guarantee of due process of law to citizens of the several states.

Unfortunately for Rousso, despite his impressive complaint, the suit has thus far not gone well. In response to his complaint, the State of Washington served upon him a demand for production of information that, according to Rousso, is confidential and protected from disclosure by the Fifth Amendment’s protection against self-incrimination. The lower court then denied Rousso’s request for a protective order with respect to the production of the requested information, a decision that Rousso has appealed to the Division One Court of Appeals.

However, conceding that the State had won the first round of the case, Rousso has stated that he has waiting in the wings a substitute plaintiff who could come in to the case, or perhaps file a new case, pursuing the same constitutional challenges to the Washington law that are at issue in the present lawsuit.

I’ll be watching this one closely, and will update as further information becomes available. Knowing, however, how difficult it is to get a state statute declared violative of the U.S. Constitution, I believe that Mr. Rousso is in for an uphill fight.

One question that comes to mind is why Mr. Rousso did not seek to have the statute declared invalid under the Washington State Constitution. While I readily admit that I am not a Washington lawyer, and know nothing about the Washington Constitution, I am aware of the growing trend of citizens of the states seeking relief from allegedly oppressive statutes under their respective state constitutions, which in many cases offer expanded constitutional protections not available under the Constitution of the United States. Just a thought.

I pressed John for an example, and here’s what he came up with:

It appears to me that the following articles from Article I, Declaration of Rights, of the Washington Constitution apply directly to Mr. Rousso’s case. This is especially true of Article 12. Article 8 may not be directly applicable because it deals with the irrevocable grant of privileges and immunities, which I don’t think is what is involved in the statute that Mr. Rousso is challenging. I don’t understand why he didn’t raise these State Constitutional provisions in his Complaint.

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED.
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

SECTION 8 IRREVOCABLE PRIVILEGE, FRANCHISE OR IMMUNITY PROHIBITED.
No law granting irrevocably any privilege, franchise or immunity, shall be passed by the legislature.

Thanks again, John, for the guest post. For anyone interested, here’s the press release Mr. Rousso issued when the suit was first filed.