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Kentucky Asks for More Time in Online Gambling Case

Written by:
C Costigan
Published on:
Jun/19/2009
Steve Beshear

The Commonwealth of Kentucky has asked an Appeals Court for more time to respond in a highly publicized case concerning its failed attempt to seize 141 online gambling domains.

A Motion for Enlargement of Time is being requested in order to file a Reply Brief.

The Commonwealth claims in the Motion that it "Mistakenly believed that the last Appellee Brief was filed on June 3 and thus calculated a due date for the filing of a Reply Brief on Thursday, June 18, 2009, only to be informed by the Clerk of this Court that such a Reply Brief was due on June 17, 2009."

On January 20, The Kentucky Court of Appeals issued a ruling prohibiting the seizure of the Internet domains.

In a 2-to-1 majority opinion, the court ruled for the Interactive Media Entertainment and Gaming Association (iMEGA) in its suit against Judge Thomas D. Wingate (No. 2008-CA-002000-OA), by blocking the seizure orders issued by the Franklin (KY) circuit court judge for the domain names, all related to Internet gambling (Commonwealth of Kentucky, Franklin Circuit Court, Division II, 08-CI-1409).

Judge Michelle M. Keller, in her majority opinion, found that Internet domain names for online gambling Web sites were not illegal "gambling devices" by Kentucky law, as had been claimed by attorneys representing the Commonwealth, in their attempt to seize control of the names from their owners. Judge Keller stated that while the Kentucky legislature could have chosen to include Internet domain names in its gambling devices law, it had not, therefore the Commonwealth could not rightfully proceed with its forfeiture action.

"[I]t stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a "machine or any mechanical or other device...designed and manufactured primarily for use in connection with gambling," Judge Keller wrote. "We are thus convinced that the trial court clearly erred in concluding that the domain names can be construed to be gambling devices."

Judge Jeff S. Taylor, also writing for the majority, added that the Commonwealth could not seek a civil forfeiture based on a criminal statute when there had been no criminal proceeding. Since there had been no criminal proceeding or conviction against any of the Internet domain name owners, the Commonwealth could not take control of their property.

Judge Micheal Caperton, in his dissenting opinion, wrote that the Internet domain names were one part of a larger mechanism for gambling, which included computers and Internet service, and thus, in his opinion, met the definition of a "gambling device" under Kentucky law.

"This decision confirms why we went the way we did with suit ," said Jon L. Fleischaker, attorney for iMEGA and managing partner at Dinsmore & Shohl in Louisville, KY. "We knew when we brought this to the Court of Appeals, that we would get justice for iMEGA and the domain names in Kentucky."

The Commonwealth of Kentucky is now challenging this decision.

Just this week, Gov. Steve Beshear called the legislature into a special session to consider a plan to boost the state's horse industry by allowing race tracks to operate video slot machines. Lawmakers are also considering other measures including a plan to offset an estimate $1 billion budget shortfall.  Beshear's actions against the online gambling industry have widely been viewed as "protectionism" with a dab of "special interests". 

Christopher Costigan, Gambling911.com Publisher 

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