Justice Sanders, In the Conservatory, With a Con Law Hornbook

Between football games this past weekend, I was mulling over the recent Washington supreme court decision in Rousso, which rejected the PPA's attack on Washington's total ban on internet gambling.  Reading the forums over at 2+2, the general consensus seemed to be that the decision was wrong, and the justices were either stupid or had ignored the law for political reasons.  This reaction was remarkably similar to the collective 2+2 response to the recent Pennsylvania appellate court decision in the Dent appeal, where the court rejected the PPA's patented "poker is a game of skil and is not gambling" argument (note: the Pennsylvania supreme court has not yet determined if they will review the decision).  Here is a sampling of comments from those two discussion threads:

So tilting that morons have the authority to make these decisions in are country.  A game that has skill, but predominantly chance.  Pff gtfo [link]

You can lead a horse's ass to knowledge but you can't make it listen.  [link]

It's so ironic, much like an experienced player who knows he holds the edge, but fears and treads carefully to the amateur's unpredictability (stupidity?), we fear the stupidity (unpredictability?) of ignorant judges and juries. [link]

It seems the majority in this case cherry picked decisions that supported what they wanted to decide.  [link]

As you know, I agree about the problem of judges ignoring fact and law when making decisions.  ... This is what happens when judges and politicians ignore the US Constitution for a long time.  The system of laws established by the founding fathers is replaced by an unpredictable system of politics.  [link]

I can't believe judges can't discern that poker is a game of skill.  It's just baffling and makes me wonder if it's more political.  [link]

Sorry to disagree but I've lived here for most of my life and the state and local governments in PA are as corrupt as they come.  Organized crime is very real and has a much bigger influence than you can probably imagine here. ...

Of course I can't prove anything but you shouldn't just dismiss the recent decision to allow table games in regards to this reversal.  If someone showed me undeniable evidence that "the fix was in" I would not be surprised in the slightest bit and as you can tell by the tone of my message, I would be more surprised to learn that there wasn't some sort of "favors" or "influence" used to get a couple of judges to play ball.

I could also be wrong and the judges have no sense of logic or reasoning at all and are influenced by their churches etc.. but PA is so damn crooked.  [link]

Basically I don't think it would matter how logical the argument was/is if you have judges that owe some 'favors'.  [link]

They reach different conclusions because the state court justices are ruling what they want the law to be; not what it is as decided by SCOTUS.  Too many judges rule like arbitrators; what they want to rule rather than what the law should require. [link]

I didn't bother to read the opinion.  Once I read that the Court decided that B&M gambling did not compete with online gambling or visa versa, then I knew it was a strictly, and typical, political decision. [link]

The ruling by the Supreme Court of Washington is irrational at best and ludicrous at worse. These kind of political decisions (evading all past legal precedent by irrational and ridiculous factual findings) are killing the US economy, its society and the American Dream.  [link]

The problem is that this totally bogus, political decision will haunt the whole online poker industry for another 1-2 years until SCOTUS reverses it. Also, it just makes the whole US legal system more of a lottery than a judicial system.  [link]

Now, as a lawyer, I think it is more than fair for people to critique judicial decisions, and even disagree with them strongly on their merits.  I can think of a half dozen cases off the top of my head where I briefed an appellate case, and felt the court reached the wrong decision (or in one case, correctly ruled for my client, but for the wrong reason).  But claiming that a court ruled against your position because the judges were stupid, ignorant, incompetent, "political", and/or corrupt is simply sour grapes whining which does nothing to advance the cause of poker legalization.  It's kind of like a sports team blaming a referee for a bad loss while ignoring the players' lack of talent and sloppy execution, and the coach's bad game plan and poor in-game decisions.

In any event, one or two judges might get an issue "wrong", but the recent poker legalization fight hasn't been argued in front of a couple of maverick or senile judges.  In Dent, two of three judges ruled against the "poker as a game of skill" argument (the third would have reversed for lack of evidence and not reached the merits of whether poker is gambling under Pennsylvania law), while in Rousso, a unanimous nine-justice court ruled that Washington could ban online gambling without violating the Constitution's Commerce Clause.  For that matter, we can throw in another panel of three appellate judges from North Carolina who unanimously ruled against the "poker as a game of skill" argument back in 2006 in the Joker Club case.  Do poker legalization advocates truly believe that 14 out of 15 appellate judges are collectively too stupid, ignorant, corrupt, or political to rule in favor of poker if the pro-poker side had the better of the legal arguments?

Let's focus for a moment on the Rousso decision.  When I watched the oral arguments, I felt that at least three of the justices—Justices James Johnson, Richard Sanders, and Gerry Alexander—were open to Rousso's constitutional arguments, and were skeptical of the state's justifications for treating internet gambling differently than brick and mortar gambling.  Yet all three of these justices signed onto the majority opinion, without a dissent or even a concurrence among them, despite the fact that Washington's Supreme Court has a high rate of dissenting and concurring opinions filed for a state appellate court (for the year October 2000-October 2001, 38% of decisions had a dissent, while the nine decisions entered during the past two weeks—the period including Rousso—had four dissents and two concurrences).  Even more significant is that Justice Sanders wrote the opinion for the court! 

What's so noteworthy about Justice Sanders?  Well, Justice Sanders considers himself a libertarian who has a personal responsibility to defend the rights of the individual against the oppression of big government.  Perusing some of Justice Sanders' speeches and writings since becoming a judge paints a picture of a judge who is skeptical of state claims of expansive government powers, sees the role of the judiciary as curbing state actions taken without constitutional authority, and feels he has a duty as a judge to dissent and speak his mind rather than sign on to a flawed opinion for the mere sake of judicial collegiality.   Not surprisingly, many of Justice Sanders' speeches have been to libertarian and conservative organizations such as the Cato Institute, the Federalist Society, the Goldwater Institute, and the Washington State Libertarian Convention. 

A review of the opinions, concurrences, and dissents authored by Justice Sanders demonstrates he is unafraid to advocate ruling against the state or to find constitutional violations by the state on a wide range of issues, including property takings, criminal forfeitures, civil commitment proceedings, free speech rights, and criminal due process rights.  Of some interest to today's younger internet poker players, Justice Sanders wrote a dissent in a medical marijuana legalization case (Seeley v. State), asserting a state constitutional right for use of marijuana on personal liberty grounds.  Of more immediate interest to the Rousso decision, Justice Sanders wrote a dissent in a Dormant Commerce Clause case (Franks & Son v. State) in which he stated that a road use flat-fee tax for trucks was unconstitutional as it placed a disparate economic burden on out-of-state truckers.  It is indisputable that Justice Sanders not only feels he has a duty to dissent when he doesn't agree with the court's majority opinion, but he relishes the opportunity to dissent, and issues dissents freely and often.

Turning back to the Rousso decision, poker advocates should take seriously the fact that the court was not only unanimous, but the decision was written by Justice Sanders.  Yes, the great libertarian champion who fearlessly defends the little guy against an overzealous state government, that's the guy who wrote these passages [.pdf]:

The State wields police power to protect its citizens' health, welfare, safety, and morals. On account of ties to organized crime, money laundering, gambling addiction, underage gambling, and other societal ills, "[t]he regulation of gambling enterprises lies at the heart of the state's police power." [cites].

Internet gambling introduces new ways to exacerbate these same threats to health, welfare, safety, and morals. Gambling addicts and underage gamblers have greater accessibility to on-line gambling -- able to gamble from their homes immediately and on demand, at any time, on any day, unhindered by in-person regulatory measures. Concerns over ties to organized crime and money laundering are exacerbated where on-line gambling operations are not physically present in-state to be inspected for regulatory compliance. Washington has a legitimate and substantial state interest in addressing the effects of Internet gambling.  [pp. 12-13].

This is not to imply the dormant commerce clause can be satisfied any time the State invokes the magic words: "public policy determination." But here there is a legitimate public interest. The ban on Internet gambling is a public policy balance that effectively promotes that interest. A reasonable person may argue the legislature can balance concerns for personal freedom and choice, state finance, and the protection of Washington citizens in a "better" way -- but he or she must do so to the legislature. [p. 21]

Justice Sanders is obviously a smart man who understands the issues in this case.  He favors a libertarian, individual rights, limited government jurisprudence.  He is also unafraid to publicly take unpopular positions, ruffle some feathers, and slap down the state government, whether in majority opinions, dissents, or speeches.  If ever a judge existed who would willingly champion the poker legalization cause, even if only in a blistering dissenting opinion, Justice Sanders is that judge.  Yet Justice Sanders not only didn't vote in favor of the poker legalization position, he actually wrote the opinion rejecting the pro-poker position!  If Justice Sanders isn't buying what the Poker Players Alliance (PPA) is selling, I doubt there's much of a market for their argument among most mainstream appellate judges.

Sometimes in law, you just have to recognize when you have a dog of a case.  The PPA's poker legalization lawsuits seem to have fleas.