It's 5:30 in the morning, and I kind of need to go to bed pretty soon. But I just finished reading the idiot Kentucky judge's decision, and have to comment.
Some things I think he gets right (such as that the domain names are property), some wrong. But to my mind the most obvious thing that he got wrong is the conclusion that the domain names do, in fact, fulfill the definition of "gambling devices" found in Kentucky statutes. See my previous post here on the question.
Here's the definition on the books:
(4) "Gambling device" means: (a) Any so-called slot machine or any other machine
or mechanical device an essential part of which is a drum or reel with insignia
thereon, and which when operated may deliver, as a result of the application of
an element of chance, any money or property, or by the operation of which a
person may become entitled to receive, as the result of the application of an
element of chance, any money or property; or (b) Any other machine or any
mechanical or other device, including but not limited to roulette wheels,
gambling tables and similar devices, designed and manufactured primarily for use
in connection with gambling and which when operated may deliver, as the result
of the application of an element of chance, any money or property, or by the
operation of which a person may become entitled to receive, as the result of the
application of an element of chance, any money or property;
It's highly doubtful whether a domain name can reasonably be considered a "device" at all. It's also doubtful whether it makes sense to say that a domain name was "manufactured." But what's most troubling to me is that the judge didn't even bother to discuss the rest of the definition. Even if a domain name is a device that was designed and manufactured primarily for use in connection with gambling, there is no way that it fulfills the rest of the definitional requirements.
Specifically, when a domain name is "operated," all that happens is that a web browser connects to a specific server. That's it. "Operating" the domain name does not involve any application of any element of chance. Operating the domain name does not deliver any money or property, nor entitle the operator to receive any money or property. Those things might happen after one downloads software from the web site, establishes a money account, and plays a game. But those steps in the process are not operating the domain name in any meaningful sense.
It's rather as if the judge is treating the key to the door of a gambling den as if it were a roulette wheel. Sure, the key may give one access to the gambling devices inside, but that does not make the key itself a "gambling device" as defined by the statute. The state could seize the roulette wheels, but it would have no authority to seize the keys to the building.
On this ground alone, I would be flabbergasted if this ruling withstood an appeal. Of course, there's going to be a lot of disruption in the meantime--state appellate procedures tend to take many months to play out.
I know nothing of this judge, but my guess is that he is personally strongly opposed to gambling. To my eyes, the entire decision reads as if he detests gambling, thinks it a scourge on society, and was willing to find whatever facts necessary and twist the law in any which way in order to make the decision come out as it did. For the definitional question, he pounded a round peg into a square hole. He trimmed the edges of the jigsaw puzzle pieces with scissors in order to force them to fit the way he wanted.
What the affected property owners needed was Al Pacino yelling at the judge, "You're out of order! You're out of order! The whole trial is out of order!" (From "And Justice for All." See the amazing courtroom scene below.)
After a few hours' sleep, I'll add a bit here. Kentucky, like most states, employs the judicial doctrine of the rule of lenity, or strict construction of penal/criminal statutes. That means that the conduct prohibited must be unambiguously defined in the statute, and if there is any reasonable doubt about whether the conduct in question violates the statute, the benefit of the doubt must go to the defendant. The statute is construed strictly against the state. For example:
The use of "injure" following "to kill" evidences a limitation on the type of
injury to physical injury, not economic, etc., injury. See Thompson v. Bracken
County, 294 S.W.2d 943, 946 (Ky. 1956) ("Simple words when considered in a
statute are generally accorded their ordinary and accepted meaning."). The
limitation of "injure" to physical injury only is further evidenced when
"threat" is viewed in context of KRS 524.040, "by use of physical force or a
threat directed to a person . . ." (emphasis added). See Department of Motor
Transp. v. City Bus Co., 252 S.W.2d 46, 47 (1952) (whole statute may be
considered in interpreting meaning). This conclusion is consistent with another
principle of statutory construction, the "rule of lenity", which requires, in
construing an ambiguous penal statute, to give to the appellant the benefit of
the doubt. Roney v. Commonwealth, 695 S.W.2d 863, 864 (Ky. 1985). See also,
Woods v. Commonwealth, 793 S.W.2d 809, 814 (Ky. 1990); Commonwealth v.
Lundergan, 847 S.W.2d 729, 731 (Ky. 1993); Commonwealth v. Colonial Stores,
Inc., 350 S.W.2d 465, 467 (Ky. 1961). "Penal statutes are not to be extended by
construction, but must be limited to cases clearly within the language used."
Woods, 793 S.W.2d at 814.
Godby v. Commonwealth, 187 S.W. 3d 857 (Ky. App. 2005); 2005 Ky. App. LEXIS 289, at *11-12. (Emphasis added.)
The statutory definition of "gambling device" quoted above is part of a penal statute. It is used both to define the crime (unlawful possession of a gambling device, in Kentucky Revised Statutes 528.080) and to describe what the state may seize (in KRS 528.100). Therefore, courts are required not to go beyond the literal language of the statute. Judge Wingate's reference to the "spirit of the law" is simply not applicable in penal cases. If a domain name is not "clearly within the language" of the statute--and it is not--then it cannot be read as if it were there by interpretation of the judge.
Technically, what is being invoked here is a civil forfeiture rather than a criminal one, because there has been no conviction of a crime. However, it would be preposterous to apply one set of rules for reading the definition of "gambling device" where a conviction was in question and then a different set of rules for reading the same words when a forfeiture was in question. That is, since the owners of the domain names could not possibly convicted for possession of a gambling device, given the rule of strict construction of the statute, it would stand logic on its head to tell them that the "device" in question must still be forfeited. "We can't convict you because the domain name does not fall within the statutory definition of a gambling device, but we're going to seize the domain name because it falls within the statutory definition of a gambling device."