Justice, Washington State Gambling Commission Style

Nick Jenkins July 15th, 2007

If the Washington State Gambling Commission wanted to show more contempt for the court system or the constitutional rights of Washington citizens, I’m having a hard time imagining what that would look like.

Some background: on July 6, Betcha.com filed a declaratory relief action against the Commission — we’re asking a court to rule on the legal propriety of the Betcha product. The Commission knew this, but raided our office on July 9, anyway. During the raid, Rick Herrington, the Commission’s Chief Enforcement Officer, told my wife he didn’t know what they’d do with the confiscated items, but didn’t rule out selling them. He also told her that a court’s subsequent decision didn’t matter because he’d already determined that Betcha was breaking the law.

He wasn’t kidding.

On Saturday, I received notice (postmarked July 13) that the Commission was instituting forfeiture proceedings against the property they confiscated in the office raid — several computers, a multi-function printer/fax machine, blank compact discs, computer programming manuals and the like. The Commission is going to sell our stuff.

This is all quite troubling. First, unless you count Mr. Herrington’s “they’re committing a crime” assertion, neither I nor Betcha has been charged with one. No indictment, no judge, no jury, nothing other than Mr. Herrington’s “they’re guilty.” Second, the Commission knows there’s a civil action pending against them. Rather than wait for the court’s determination, however, they’re proceeding unwavered. (If that’s not contempt for the judicial process, I don’t know what is.) Finally, there’s no nexus here between the alleged illegal activity and the property in question. As to the computers, the Commission knows or should know that we purchased them months before we launched Betcha.com, so there’s no chance they were purchased with proceeds from our alleged illegal activity. Nor does the Commission seem to care whether the property was used in the commission of a crime. It’s very difficult to argue, for example, that blank compact discs were used in illegal activity. They are, after all, blank.

(If you’re wondering whether there’s anything we can do about this, the answer is “no.” Under Washington law, the Commission has immunity from liability for any actions they take in furtherance of enforcing the law. That’s not their fault: the Washington legislature created a system that all but invited a Gestapo. The current crew just took the invite.)

This isn’t particularly surprising given the way they’ve played fast and loose with the law. At a hearing on Tuesday, for example, Assistant Attorney General Jerry Ackerman argued in open court that the law entitled the Commission to a liberal interpretation of its laws vis-a-vis Betcha. (The AG’s office does the Commission’s prosecutorial bidding.) Not quite. Insofar as the Commission is entitled to the liberal construction of anything, it is memorialized in RCW 9.46.010, which states that “(a)ll factors incident to the activities authorized in this chapter shall be closely controlled, and the provisions of this chapter shall be liberally construed to achieve such end.” The Commission, however, has argued to the roof tops that Betcha is not authorized by law. How that liberal construction provision applies to Betcha, then, is beyond me.

The Commission’s contempt for the judicial process is rivaled only by its disregard for constitutional rights of Washington citizens. Last year, they busted a Bellingham man for running a web site that included articles about online poker — First Amendment be damned. The bust was based on a law that has been criticized on First Amendment grounds (1|2) and is now being challenged in court on other constitutional grounds. In an article written about that law, Commission Director Rick Day is alleged to have suggested that people who are unsure about putting gambling-related information on their Web site should write the Commission to ask permission.

Citizens asking the government for permission to speak: is that how it’s supposed to work?

None of this compares to the contempt in which they’ve held the rights of Betcha’s investors and employees. They’ve disregarded the well-established constitutional principle that citizens are entitled to read criminal statutes narrowly so that they can determine what conduct is and is not permissible in favor of a principle that amounts to “whatever we say goes.” They’ve shown up at the homes of Betcha employees. They’ve, to be kind, played fast and loose with both the facts and the law. And now they’re going to sell the property they seized from our offices — all purchased with our investors’ cash — without even charging us with a crime!

All of this should be of great concern to Washington residents as well as anyone who has even the slightest fondness for liberty. If the Commission is entitled to a “whatever we say goes” approach — and at least one Commission officer, a foot soldier named Lee Streitz, has told me they are — then we truly have a roving Gestapo on our hands. The Commission makes the law, they adjudicate it, and they mete out the punishment. Today Betcha’s in its crosshairs. Tomorrow it could be anyone in Washington who plays online poker.

All this has we wondering: why bother even having gambling laws in Washington? If the Commission is free to make up its own definitions of the law, and act as though the court system does not exist, then why not just scrap existing law in favor of a simply worded new one: “Whatever the Commission says goes.”

The world has seen such regimes before. The most notorious one ended in 1945.

NOTE: This entry was originally posted on the Nick Knacks blog on Betcha.com. The author can be contacted at nickj at betcha.com.