Ed Leyden Speaks Out on Kentucky Online Gambling Case
Ed Leyden, the general counsel for the Interactive Media Entertainment and Gaming Association, spoke to Online Casino Advisory today concerning the Kentucky online casino domain name case. Leyden revealed what he thought were the key points in the decision rendered by the Kentucky Court of Appeals in dismissing Judge Thomas Wingate's forfeiture order, as well as some aspects of the future of iMEGA's case against the UIGEA.Leyden praised the appellate court for what he considers a properly constructed verdict. When asked about the narrow applicability of the ruling, as the court did not touch upon the greater issues of Constitutionality and Internet freedom, the iMEGA representative said that trying to render a decision without overreaching to establish precedent is standard for such proceedings.
Leyden noted that, by ruling on the subject of the definition of a "gambling device", the court was able to dismiss the order without imposing a broader result, something he says is "good judicial practice."
While the state has said it will appeal the ruling to the Kentucky Supreme Court, Leyden advised that a statement of appeal must first be written, explaining what facet of the decision is being appealed. At that point, the Supreme Court may decide to hear the case, accepting any briefs it requests. If the Court of Appeals is found to have mistakenly applied the device definition, then the case would probably be returned to the appellate court to consider the other briefs involving the Commerce Clause and jurisdiction.
Leyden noted that laws are constrained by the judicial rule of lenity, which means that "statutes are to be construed in the narrowest possible way." This applies to the use of "gambling device", which the state tried to widen in a most convoluted way to include domain names.
Leyden also says that the use of certain language in the opinions shows the court to have viewed the case skeptically, as Judge Keller referred to her "incredulity" at the stretch of the application of the Kentucky statute, and the specific mention of the absence of the Kentucky Attorney General in a case seeking to apply a criminal statute.
Leyden explained that the problem with definition that confounded Kentucky prosecutors may be even more telling in the iMEGA suit against the UIGEA, which famously has no definition of the illegal gambling whose payments it seeks to block. The case, in which iMEGA contends the UIGEA should be struck for vagueness, was bolstered by the Third Circuit Court's finding in the Internet Content Law case, in which it was ruled that broad-ranging laws such as bans and blocks could not be passed if a narrower means could achieve the same results, such as filtering.
