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.)
Addendum
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."
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5 comments:
This decision is troubling. This case involves application of a statute (there are also a number of constitutional due process issues). The law is the actual words of the statute, as chosen by the legislature in Kentucky. If you are contemplating a certain action, and want to know whether the action is legal or illegal, logically you would look to the wording of the applicable statute and figure out whether the contemplated action comports with or violates that wording.
Can first cousins marry in Kentucky? I don't know, let's look up the law.
In this decision, look closely at the bottom of page 23 and then the continuing discussion on page 24 about whether the domain names are "mechanical devices" as defined under Kentucky law. The judge notes the "exhaustive" analysis from the defendants' counsel (or counsel for those allied with the defendants) of the "proper construction of the literal text [of the statute]."
Stated differently, what the defendants are doing is saying "this what a domain name is, this is how the statute defines mecahnical device, a domain name does not fall within that definition."
The judge, however, quickly dismisses the analysis of the "literal text" of the statute by noting that adherence "to the literal text" of the statute is insufficient if "adherence to the literal text..." "violates its [the statute's] spirit." WOW! WOW! WOW!
The speed limit is 55, you were driving 50, you are still guilty of speeding because although you "adhered to the literal text" of the law, you violated the law's "spirit."
Stated differently, domain names may not be a "mechanical device" based upon how the legislature decided to define "mechanical device." Instead, domain names are "mechanical devices" because domain names are encompassed by the "spirit" of the law.
Foolish defendants, they don't need lawyers, all lawyers are good for is explaining the law. The defendants needed to consult with the judge's "spiritual" advisers.
So, in Kentucky, complying with the law, as written and enacted by the legislature, is insufficient. You must comply with the "spirit" of the law. If a client asks me how is it suppose to know the "spirit" of the law ahead of time to make sure it complies with the law, my truthful answer would have to be that the "spirit" of the law is what the particular judge thinks is its "spirit."
Talk about a game of chance, it all comes down to judge assignment.
In Kentucky, your property can be seized if you violate a law's "spirit" as defined by the judge on an ad hoc basis.
The judge should have said that domain names don't fall within the definition of "mechanical device" and if Kentucky wants the power to seize domain names, it has to go back to the democratically elected legislature and convince that body to change the law.
Can first cousins marry in Kentucky? Don't look up the law, you need to guess about the law's "spirit" as determined by a Kentucky judge.
This decision is troubling, and not just for reasons related to this one case. One important issue in this case is whether a domain name falls within the definition of "gambling device" as that is defined by the statute.
Read carefully that portion of the judge's opinion beginning on the bottom of page 23. The judge points out that the defendants (and those advocating on the their behalf) prepared and presented an "exhaustive" analysis of the statute's "gambling device" definition and how a domain name does not fall within that definition of "gambling device."
That makes sense, because after all isn't the law the actual words of the statute? If you want to know ahead of time whether contemplated action comports with or violates the law, wouldn't you look up the statute and read what is written?
I guess not in Kentucky. The judge dismisses the defendants' "exhaustive" analysis of the "proper construction of the literal text [of the portion of the statute defining gambling device]." The judge concludes that adherence to the "literal text" of the statute is insufficent if the defendants violated the statute's "spirit." WOW! WOW! WOW! Yes defendants, you complied with the "literal text" of the law. But we're seizing your property anyway. Your spirit is no good in my courtroom.
The speed limit is 55. You were driving 50. You still violated the law against speeding because you violated the law's spirit.
How is someone suppose to know ahead of time whether they are obeying the law? Don't ask a lawyer, that's only good if you want to know how the law reads. You need to consult with a judge's "spiritual advisers."
The judge should have concluded that domain names do not fall within the definition of the statute. If Kentucky wants the power to seize domain names, the judge should have told Kentucky's attorneys that they had come to the wrong branch of governement. It needs to go to the democratically elected legislature and ask the legislature to change the law.
Cases should not be decided by a particular judge's views of the law's "spirit." Otherwise, outcomes of cases would hinge on the judge assignment. Talk about your games of chance!
Yes, the decision is troubling, as timpramas said, but what is even more troubling to me is that either (1) the PPA is so ineffective that they couldn't win a slam dunk like this one or (2) they are dumb enough to think the case wasn't important.
Either way, I've lost faith in them.
I read the recent ruling with great interest. I must respectfully disagree with your conclusion that the judge was “stupid and/or prejudiced” because he ruled in favor of the state forfeiture. From my reading, the judge was faced with an all too common legal problem—applying a long-standing statute or common law principle to new and unanticipated technology. As the judge noted: “The Internet, with all its benefits and advantages to modern day commerce and life, is still not above the law, whether on an international or municipal level. The challenge here is to reign in illegal activity and abuse of the Internet within the framework of our nation’s and Commonwealth’s existing common law norms and principles, until expressed guidelines from state and federal legislative bodies say otherwise.” (p. 37).
The court’s analysis focused on the fact that many of the sites actively enabled gambling activity in Kentucky by allowing a person to download software onto a computer in Kentucky; the person could not gamble online without that software. The domain site name was an integral cog in the virtual gambling machine created by the combination of the user’s computer, the Internet, and the domain site’s servers (presumably maintained outside of Kentucky and likely overseas).
As the court noted: “[T]he Defendant 141 Domain Names transport the virtual premises of an Internet gambling casino inside the houses of Kentucky residents, and are not providing information or advertising only. The Defendant 141 Domain Names perform a critical role in creating and maintaining connection by way of the various interfaces to transact a game or play.” (p. 22). Further, “The domain name is indispensable to maintaining the player’s continuing access to the virtual casinos which serve as the Internet gambling operators [sic] premises for conducting illegal gambling activity.” (p. 23).
In essence, then, the domain site names were just as essential a component of the Internet gaming activity as any virtual dice, cards, and chips; in this broad view adopted by the court, the gaming “machine” includes the company’s servers as well as the software on the user’s computer, and the domain sites were simply the link between the two. A broad reading of the applicable statute might encompass the domain site names as parts of such a virtual “machine”, while a strict or narrow interpretation might find the domain sites fall outside the statute. However, the court’s ruling is certainly a legally reasonable interpretation of the statute; the fact you prefer an alternative interpretation is not sufficient to support a conclusion that the judge is “stupid and/or prejudiced”.
The court’s analysis of the complex standing and jurisdictional issues alone strongly suggest the judge is anything but stupid. As for prejudice, a charge that strong needs some citation to specific comments in the ruling or the underlying record; I did not perceive any overt prejudice in the ruling. Certainly the judge repeatedly notes that Kentucky law prohibits gambling as a vice, and interprets the law in a manner intended to permit broad anti-gambling measures by the state. However, interpreting a statute in light of a legislatively expressed public policy against gambling (which the judge may support on a personal level) is not the equivalent of prejudice. In fact, the judge is quite careful to limit the scope of his ruling to permit the domain site operators a 30-day window in which to take steps to prevent use of the domain site by Kentucky residents. Domain sites which take such steps will not be subject to the court’s order, and any further seizure proceedings will not apply to sites upon cessation of illegal activity in Kentucky. (Ruling, pp. 39-40). Thus, the judge seems most interested in preventing what he views as a new incarnation of an old—and illegal—vice. Whether the antiquated Kentucky gambling statute applies to modern Internet-based gambling can be a matter of fair legal debate without either side being “stupid and/or prejudiced”.
This situation does cause me to question the intelligence of Internet gaming site operators. How does cavalierly ignoring state gaming laws advance their business interests? Openly flouting the law only reinforces the perception of Internet gaming is an unregulated vice that preys on the vulnerable public. Maybe a smarter approach would be to stop trying to argue that states have no jurisdiction over Internet gaming and that poker is not a game of chance (under the Kentucky statute—like most state gaming laws—poker clearly is a game of chance despite the significant element of skill). Instead, lobby for a federal online gaming statute to preempt state laws, or work with individual states to set up a legal framework to permit online gaming. In the meantime, although I support legalization of Internet poker, I’m not particularly sympathetic to the legal woes of Internet gaming sites which continue to operate as if they are beyond all laws.
I forgot to add to my prior comment that I think there are legitimate counter-arguments on the merits of the application of the Kentucky gambling statute to Internet gaming sites. Also, I think there are interesting issues as to whether Kentucky can properly impose its state law on interstate (and likely international) commercial activity without violating the Commerce Clause. In any event, my prior comment was only meant to attempt to redirect debate to the merits of the legal debate and avoid the false argument as to the motives of those involved in the litigation (CAVEAT: if this action is a publicity stunt to influence public opinion in favor of the prosecutor or governor, then motive is certainly fair game for comment).
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