Verbose Appeal from Kentucky on Domain Issue (Update)
February 13, 2009 (InfoPowa News) — Kentucky governor Steve Beshear's contingency-contracted lawyers appear to have some voluminous arguments in the latest twist to the online gambling domains saga. According to the Interactive Media Entertainment and Gaming Association (iMEGA) website, the Kentucky legal representatives have asked for leave to exceed the 50-page limit on their appeal presentation.
iMEGA reports that lawyers for the Commonwealth of Kentucky have asked the State Supreme Court for permission to submit a much longer appeal brief in the iMEGA v. Kentucky appeal than is allowed by rule. Their motion asks that an additional 30 pages — added to the standard 50 pages — be permitted. But the main thrust of the appeal appears to have shifted from the arguments about jurisdiction and gambling devices that have been conclusively defeated, to the largely technical argument of whether iMEGA and the IGC (which contested the attempted seizure and confiscation of domains) had legal standing.
The argument was presented in the original action and successfully set aside, allowing iMEGA and the IGC to defend their members’ domain names from seizure by a lower Kentucky court.
If the Supreme Court refuses to give Beshear's legal team permission to include the extra 30 pages, the motion requests that they be granted an additional ten days beyond the filing deadline to submit their brief, giving an impression that there may some playing for time involved.
Joe Brennan Jr., iMEGA's chairman, says: “They're certainly within their rights to make their request, but they don’t really seem to be bringing anything new to the table. The motion is a repetition of the same arguments that failed in the Court of Appeals — that iMEGA is an "illegal gambling association"; that we have no right to represent our members in court; and that domain names are 'gambling devices' under Kentucky law.
"Those arguments didn’t work before, but maybe they feel the added volume of pages will overcome the flaws found by the Court of Appeals in their attack on our members.”
“The Commonwealth's attorneys might save some space if they drop this continued assault on our standing,” Brennan points out. “Perhaps they might review Hunt v. Washington State Apple Advertising Commission, where the the US Supreme Court establish the right of associations to stand in court on the behalf of their members. Since that’s been a settled issue since 1977, I think it’s time for the Commonwealth’s attorneys to move on.”
Commenting on the governor's appeal against a ruling by his own state appeals court, Brennan said earlier this year: “We’re not surprised that Gov. Beshear and Secretary (J. Michael) Brown filed their appeal. They both invested a lot of political capital in this suit. They likely feel they can’t back down. Their attorneys took this on a contingency fee-basis, and have reportedly sunk over a million dollars of their own money in this suit, and other suits like this that they reportedly prepared for other states.
"Without a win in Kentucky, it will be hard to get those other suits off the ground, and they’ll have taken huge losses on their own gamble.”
Meanwhile, there was some more Kentucky sleight-of-hand politicking going on in the bluegrass state — read more about that here.