Attorneys Slam Beshear's Attempted Online Casino Grab

Erik Lycan, attorney for Kentucky, was asked by the judge if the state had a right to seize a bus that was taking customers to Indiana

The Kentucky Court of Appeals heard oral arguments yesterday from a range of lawyers petitioning the court to vacate the decision by Judge Thomas Wingate to move forward to a forfeiture hearing against 141 online casinos.

The attorneys presented a multitude of reasons the lower court's ruling to put the domain names of the Internet gambling sites up for seizure by the state. Leading the process was Jon Fleischaker, representing the Interactive Media Entertainment and Gaming Association.

Fleischaker pointed out a new contention among the arguments against Governor Steve Beshear's case, saying that the state had used a mish-mash of civil and criminal law to arrive at the conclusion they desired. Fleischaker told the appellate judges, "It is not sufficient for the state or a lower court judge to decide on their own that there is a criminal violation."

The attorney also discussed established legal precedents, such as the US Sixth Circuit Court case that ruled domain names were the equivalent of billboards, hardly the "gambling devices" Kentucky viewed them as. He said the First Amendment allowed out-of-state casinos to advertise on billboards, even though gambling may be illegal.

Erik Lycan, attorney for Kentucky, was asked by the judge if the state had a right to seize a bus that was taking customers to Indiana's legal casinos as a "gambling device.' This is similar to the question posed previously here at Online Casino Advisory, in which it was asked if Kentucky would shut roads as gambling devices leading horse players to more attractive racinos. Shockingly, Lycan anwered yes, that the state had such a right.

Arguments were also presented offering the viewpoints that have been expressed since Wingate's original decision, that the state has no jurisdiction in the case, and that the move violates several clauses of the Constitution, including the Commerce Clause and the First Amendment.

William Johnson, a revered Kentucky lawyer known as the "dean of Kentucky attorneys", said the law been applied, written in 1974, had no concept of domain names, and that the legislature could have corrected this at any time, but have chosen not to, and the judicial and executive branches do not have authority to expand the law.

A decision on the appeal may come as soon as next week, although both sides said they would appeal if they lost. By the time the case works its way through the legal system, Congress may have made the issue moot by legalizing and regulating Internet gambling.