This is the second of a two-part entry on Betcha.com. (The first.) It was not easy to write.
Life’s a waste if you’re not learning lessons along the way. And with the Betcha.com matter, I learned many, none of which were good:
1. The promise of blind justice is an empty one — at least in Washington State.
At every level of the Betcha litigation, at least one judge went out of his/her way to rule against us, making up law, facts or both without even the State’s urging. Judge Gary Tabor ruled that the rule of strict construction did not apply to our case because it was, at the time, a civil proceeding. The State’s silence on this point wasn’t surprising: every court in the nation that had ever considered the argument had rejected it — including the United States Supreme Court. Judge Tabor came up with this argument on his own, with no legal authority whatsoever. He actually committed about seven errors of law in his verbal ruling — no easy feat, that.
Appellate Judge Elaine Houghton dissented in our win because, inter alia, we hosted our servers in Vancouver, BC. How the location of our servers has any bearing on the meaning of criminal statutes is beyond me. (More.)
The Washington State Supreme Court ruled that I was a “professional gambler” even though no one was actually gambling. In doing so, it literally rewrote the definition of “bookmaking” by changing “accepting bets … in which a fee is charged” to “charg(ing) fees for the opportunity to place bets”; made up facts that the State did not allege and that weren’t in the record; and ignored entire chunks of our briefing if not all our briefing altogether. (More here and here.)
It would be easy to chalk this up to bad judging, and while there was some of that going on, it was actually worse. Bad judges misapply fact to law and don’t consider the parties’ arguments. They don’t make up facts and law without the parties’ invitation and rewrite statutes to include words that aren’t there. That’s the sign of judging where the winner is picked first, regardless of the law. That’s not how blind justice is supposed to work.
An anomoly? Perhaps. The Betcha case was in the news and had the State lost, lots of folks in Olympia, including Governor Chris Gregoire, would have had some ‘splaining to do. Embarrassing or not, judges are supposed to apply fact to law and the judges involved in the Betcha case clearly did not.
2. All the constitutional rights in the world are basically worthless unless you’re willing to litigate.
No doubt we’re supposed to have constitutional rights. But they are basically worthless unless you’re willing to litigate. For example, the First Amendment clearly gives us the right to petition the government for redress of grievances. That right includes the right to stand up to the government and, if need be, take it to court. That didn’t stop the Washington State Gambling Commission from retaliating against me by calling in their buddies from Louisiana when I stood up to them. That cost me a bundle, and my only redress was to file a subsequent civil rights action years later which, in turn, invited even more retaliation. In other words, rights are well and good, but they aren’t worth a hill of beans when you actually need them.
3. Don’t stand up to the government. REPEAT: do not stand up to the government.
In the Betcha case the government treated our constitutional rights like toilet paper. The judges had their back. When we sued we were greeted with a body of law that says government officials cannot be held financially liable for their mistakes. What constitutes a “mistake” is, of course, open to debate, but that body of law alone gives government officials at least somewhat of a license to do whatever they want: judges are notoriously reluctant to make government pay, especially when that government already has multi-billion dollar budgetary shortfalls. In other words, if you want to stand up to the government, watch out. Which brings me to my next lesson:
4. Hell hath no fury like a bureaucrat scorned.
What the bureaucrats did in response to Betcha is well chronicled in this blog (most thoroughly here), and with the judges having their backs, who can blame them? But bureaucrats really have no shame — at one point in 2009, the Washington State Gambling Commission actually tried to change the law to cover Betcha.com via the state budget — while we were still litigating the very same law! I gave myself an “A” for my willingness to stand up and fight. Gotta give the bureaucrats the same mark.
All of these lessons are hard ones to learn for a guy who believed, above all, in standing up for what’s right, and who used to be the only one on his block who flew an American flag. But these are the lessons I learned. Above all, the Betcha matter taught me that the foundation of America — the rule of law — is a big fat lie, at least in Washington state. I always thought that the rule of law mattered, and that at the end of the day, no matter how long it would take to get to that day, I’d get a fair shake in a court of law.
It never got it. And if the judging in the Betcha case is even remotely indicative of judging in Washington generally, I doubt I’m the only one.