A contentious hearing in the court-ordered forfeiture to the state of Kentucky of 141 Internet domains connected with online gambling will see another seven days elapse before the judge in the case issues a decision. Kentucky Governor Steve Beshear's attempt to seize the online sites ran into stiff opposition in Tuesday's forfeiture hearing before Franklin County Circuit Judge Thomas Wingate, as a phalanx of lawyers representing the affected sites descended upon the court to argue Kentucky's jurisdiction and many other matters of law.
Kentucky's strong-armed play, brought forward by a couple of teams of non-government lawyers working on a contingency basis, began with an unannounced hearing and court decree ordering the transfer of the domains to State of Kentucky control. That legal maneuver was met swiftly by counteractions from the affected sites and several interested third-party observers such as the Poker Players Alliance and the Intercative Media Entertainment & Gaming Association.
In Tuesday's hearing, both sides offered heated arguments on several matters related to the case. Among the points raised by attorneys representing the domains, including several major US-facing sites, were the following:
● Whether "Internet domains" qualify as gambling devices, as mentioned in the Kentucky law used as the basis for bringing the case;
● Whether Kentucky law actually forbids online gambling;
● Whether Kentucky – or any individual state – has the power to seize an Internet domain name connected to international commerce; such trade issues are normally federal matters;
● Whether the efforts of Gov. Beshear, who admitted that this was a protectionist measure designed to promote the interests of Kentucky's horseracing (and potential land-based casino) interests, violate the US Commerce Clause and unduly unfringe upon the rights of other jurisdictions;
● Whether poker's elements of skill preclude it from being consider as a gambling game, unlike many of the casino and bingo sites also mentioned in Kentucky's action;
● Whether the attempted blocking and/or seizure of the domains is in itself a free-speech violation under the First Amendment of the US Constitution, unduly depriving US citizens (along with citizens of other countries) of the right to view information over the Internet by personal choice.
While any one of the above issues would result in a victory for poker's interests if ruled upon favorably by Judge Wingate, he announced a seven-day delay in releasing his decision until October 15th, citing the complexities of the case.
Unknown at this time is the response of Internet registrar companies if the decision issued by Judge Wingate next week remains in favor of Gov. Beshear. Some of the 141 domains were registered with US-based registrars, and would receive the highest pressure to comply with a court order, even as that court order would be likely to be appealed to a higher court. International registrars maintaining other domains in the case have to date expressed a uniform plan to ignore any such order.
The Kahnawake Gaming Commission, which operates a large number of the gambling sites affected by the Kentucky order, issued a statement late on Tuesday connected to the case. The KGC is housed on the Kahnawake Reservation near Montreal in Canada and has long asserted its sovereign rights in offering Internet-based services. While the KGC did not send representation to Kentucky on Tuesday, the Commission did send a communique to Gov. Beshear advising him the KGC had little intention of complying with Kentucky in the matter. According to the KGC release:
The Mohawk Council of Kahnawà:ke announced today that Grand Chief Michael Ahríhrhon Delisle, Jr. has issued a strongly worded letter to the Governor of the Commonwealth (State) of Kentucky, expressing concern about a recent Order of Seizure issued by a Kentucky District Court.
The Order of Seizure, issued on September 18, 2008, directs that 141 internet domain names of various online gaming operators, including a number of prominent licensees of the Kahnawà:ke Gaming Commission, be seized and forfeited to the Commonwealth of Kentucky.
"This is a perfect example of someone who knows nothing about the effects of their actions," said Grand Chief Michael Ahríhrhon Delisle, Jr. "It's not the first time that a government has tried to prevent us from conducting business and it won't be the last. But, rest assured, we will always protect our jurisdiction and the integrity of the Kahnawà:ke Gaming Commission."
In his letter to Governor Steve Beshear, Grand Chief Delisle wrote," We are compelled to draw to your attention that your actions will also adversely affect the members of our community – and that is not acceptable."
A hearing of the District Court in Kentucky, at which the Seizure Order is to be re-considered, is to be held today. The outcome of this hearing will determine whether it will be necessary for the Mohawk Council of Kahnawà:ke to take further action to protect Kahnawà:ke's interests.