Column: “The Supreme Court’s Betcha.com Decision: Judging At Its Worst”

Last week, the Washington State Supreme Court ruled that Betcha.com, a Seattle-based person-to-person betting platform I founded, violated the very state Gambling Act I designed it to comply with. The Court’s opinion didn’t pass the giggle test.

Betcha was a social networking site where people offered and accepted bet propositions. (Think Ebay meets Facebook in Las Vegas.) We charged people to offer and accept those propositions. The Site was honor-based: bettors could opt out of their losses (read: no gambling), but if they did they risked receiving negative feedback. The Washington State Gambling Commission shut us down in 2007 — we’ve been in court since. In 2009, a Washington Court of Appeals held that there was “no logical basis” to conclude Betcha bettors were “gambling” under state law. It also held we were not bookmaking as the State had alleged.

The Supreme Court didn’t reach “gambling.” Instead it held that Betcha, which lets individuals bypass bookmakers by connecting them personally, was itself a bookmaking operation and thus engaged in “professional gambling.” How it got there was jaw dropping.

“A person is engaged in ‘professional gambling’ … when (t)he person engages in bookmaking.” RCW 9.46.0269(1)(d). “(B)ookmaking” means “accepting bets, upon the outcome of future contingent events, as a business or in which the bettor is charged a fee or ‘vigorish’ for the opportunity to place a bet.” RCW 9.46.0213. The Court read the first “or” as separating two independent clauses – everything from “accepting” to “business” on one side, “in which” to “bet” on the other. Since Betcha charged fees, the Court reasoned, it violated the second clause.

The problem: statutory definitions are meant to be read in context. “(B)ookmaking” appears in the definition of “professional gambling,” and when you plug the Court’s second definition of bookmaking into that provision, its error is obvious:

“A person is engaged in professional gambling … when (t)he person engages in (in which the bettor is charged a fee or vigorish’ for the opportunity to place a bet).”

Two consecutive “ins”? Even Microsoft Word’s grammar check knows that’s wrong. The correct read – ours – was that, fees charged or not, one must “accept” bets to be a bookie. By adding an active verb – “charging” — to the statute, thereby making two independent clauses where two dependent ones are written, Justice Tom Chambers (or his law clerk) literally rewrote the law by which I tried to abide. Reasonable people can quibble about what it means to “accept” a bet – although I wonder what it is the bettor who accepts the bet did if Betcha “accepted” it. (“Super-accept” it?) They cannot quibble about grammar or the order and tense of words in a statute.

There’s more. We argued that implied in the term “bets” was that they be gambling bets: to read “bets” as including non-gambling ones would make the statute both unconstitutional and nonsensical. We should have been safe: “bet” appeared on both sides of the “or,” and the State didn’t address our points. No matter. The Court brushed them aside, too, concluding that we were asking them to read words into the statute. So the Gambling Act covers even betting that isn’t gambling. Wow. Having decided that Betcha was bookmaking, the Court didn’t consider whether Betcha bettors were “gambling” – thus, “professional gambling” without actual gambling. All in a criminal statute, where doubts about coverage are supposed to be resolved against the State. Not a single justice doubted such an odd result. Hmm.

I knew we were in trouble at oral argument, when the justices raised objection after objection we’d knocked down in our supplemental brief. (I wonder if a single justice even skimmed it.) I really knew we were toast when Justice Jim Johnson asked whether Betcha would compete against tribal casinos. But I didn’t think a state supreme court – or traffic court — would airmail in an opinion that so evidenced a pick-the-winner-first approach. If it didn’t mean I’ll almost certainly go to prison, the Court’s earth moving would be comical. So blatant were the Court’s errors that I wonder whether it was the law or the identity of the litigants that mattered at the Temple of Justice. I would have preferred a one-line opinion that said “look, dude, you can’t beat the State.”

At least there’d have been no pretense of objectivity.

Nicholas G. Jenkins is a 1991 graduate of the University of Washington, a 1994 graduate of the Georgetown University Law Center, and the founder of Betcha.com. He blogs at JenkinsFamilyBlog.Wordpress.com.

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