The PPA Throws In the Towel on Rousso v. State of Washington

Judge Chamberlain Haller: Uh, Mr. Gambini?  All I ask from you is a very simple answer to a very simple question.  There are only two ways to answer it: guilty or not guilty.

Vinny Gambini: But your honor, my clients didn't do anything.

Judge Chamberlain Haller: Once again, the communication process has broken down between us.  It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal.  Well, I'm not about to revamp the entire judicial process just because you find yourself in the unique position of defending clients who say they didn't do it.

—My Cousin Vinny

Yesterday, the Poker Players Alliance (PPA) issued a statement indicating that the PPA and Lee Rousso have decided against pursuing a United States Supreme Court appeal of the Washington supreme court decision in Rousso v. State of Washington.  As poker players will recall, Rousso is the case which affirmed the validity of a Washington statute barring all online gaming, including poker, leading to the recent withdrawal of Full Tilt and PokerStars from the Washington market.  The PPA's press release stated:

Lee Rousso and the Poker Players Alliance, after long and careful consideration, have decided to not seek review of Rousso v. Washington in the United States Supreme Court.  Given the procedural posture of the case and the state Supreme Court's decision having been made without benefit of a full factual record, asking the U.S. Supreme Court to review this decision does not provide the kind of opportunity that this issue truly deserves.  Both Mr. Rousso and the PPA are instead working on alternative strategies for continuing to press the issues raised by the case.  The PPA remains committed to overturning the state law and we look forward to working with our members in 2011 to push legislative initiatives that will no longer criminalize online poker in Washington.

Although many online poker players were likely disappointed in the decision to forgo pursuing an appeal to the U.S. Supreme Court, frankly, pursuing an appeal would have been an exercise in futility.  The U.S. Supreme Court has great discretion in selecting cases where certiorari is granted and a lower court decision is reviewed.  Typically, the court takes only cases raising important federal questions, and/or where lower courts are in conflict as to a significant issue of federal or constitutional law.  The Rousso case, while interesting to poker players, really has little to offer the high court in terms of sexy appellate issues.  The decision was unanimous, written by a conservative judge, and based on a straightforward application of established Dormant Commerce Clause case law.  More to the point, with a conservative majority dedicated to enforcing "states' rights"—including two Justices who have criticized the very concept of the Dormant Commerce Clause doctrine—even if the Court could have been persuaded to take the case, prospects of prevailing on the merits were slim at best.  In the obligatory poker analogy, getting the Rousso decision accepted and reversed by the U.S. Supreme Court would have required hitting a perfect-perfect draw.

Of course, the PPA doesn't admit to this reality in its statement.  Instead, the PPA claims that the "procedural posture of the case" and the lack of a "full factual record" were the real hurdles to obtaining justice for poker players.  The PPA is essentially asserting that, because the case was resolved on summary judgment (i.e., on motion prior to a full evidentiary trial or hearing), the PPA was unable to present the district court with evidence related to the nature of online poker, Washington's brick-and-mortar poker card rooms, and Washington's horse-racing industry (which accepts phone wagers).  These claims are disingenuous.

I'm a civil trial and appellate attorney.   Over the past 15+ years, I've filed dozens of motions for summary judgment, and handled dozens of appeals.  Trust me, if the factual record of a case decided on summary judgment is somehow inadequate, it is purely the fault of the attorneys for the losing side.  Summary judgment is not some kind of magical trial by surprise.  A summary judgment motion has to be based on "undisputed facts" which are identified by the moving party (here, the State), and supported by affidavits, exhibits, and deposition transcripts.  The opposing parties (here, Rousso and the PPA—and let's not forget that Rousso is the Washington state PPA director), then have an opportunity to submit their own statement of relevant facts (whether disputed or undisputed), also supported by evidence.  In a case like this, where Rousso and the PPA were seeking to have a law ruled unconstitutional, motions for summary judgment are the most common vehicle for obtaining a favorable court ruling; typically, these kinds of cases are driven mostly by the law, with largely undisputed facts.  Any litigant filing this kind of constitutional challenge has to know that a summary judgment motion will be filed by one or both sides of the case,  and thus should be prepared in advance of filing the lawsuit to respond to such a motion with a mountain of favorable evidence.  In the unlikely event a party is taken by surprise by a motion for summary judgment, courts are generous with permitting reasonable periods of time to generate responsive evidence.  If the factual record is truly incomplete and missing critical evidence, the situation is solely the fault of Rousso and the PPA.

Having read the parties' appellate briefs, along with the various court rulings on the merits of the constitutionality issue, I cannot discern any argument which seems to have failed because of the evidentiary record available to the court, nor do I sense that the various courts were basing their decisions on any factual dispute at all, instead focusing on the legal and constitutional issues.  The lengthy oral argument before the Washington supreme court likewise was focused on legal, not factual, issues.  I know it's fashionable among poker players to blame adverse legal rulings on "stupid judges" or other problems in the legal system, but sometimes, losing litigants and their attorneys simply need to admit their argument lost on the merits.

Apparently, the PPA is more concerned with saving face than acknowledging the failure of its legalization-by-litigation strategy.  Poker players deserve better from their purported advocates.