Nearly twenty months after the Washington State Gambling Commission ordered me to shut Betcha.com down or else, we finally received the word we’ve been waiting for. The Washington State Court of Appeals ruled that bettors on Betcha are not gambling:
The salient point here is that as a prerequisite to registration and use of Betcha.com’s website, users must acknowledge and agree that all bets made on the website are non-binding. Accordingly, bettors cannot have an understanding that they will receive something of value if they win.
Exactly what I’ve been saying for years.
We don't drink, but if we did we'd be breaking out the bubbly.
The court vindicated us, and while I wouldn’t say the judges were laudatory, they did throw in a few kind words. in particular, the court said we “forcefully argued” that the trial court erred in concluding the rule of lenity did not apply to this case because it was, for now, a civil matter. That wasn’t a difficult argument to make: there are no reported cases in any jurisdiction to support the trial court’s position. The trial court made that rule up without even the State’s suggestion. By contrast, the court was none too impressed with the state’s argument: it said there “is no logical basis for concluding” that bettors on Betcha are gambling under either state or common law.
Perhaps more importantly, the court rejected the State’s claim that the liberal construction provision the state Gambling Act applied here — emphatically so:
But that statute states in relevant part: “[a]ll factors incident to the activities authorized in this chapter shall be closely controlled, and the provisions of this chapter shall be liberally construed to achieve such end.” RCW 9.46.010. The plain language of this provision clearly provides that liberal construction is to be applied to chapter provisions regarding the regulation of enumerated “activities authorized.” To read the “liberally construed” language as broadly as the State advocates would require us to add language to the statute, which we cannot do. See Vita Food Prods., Inc. v. State, 91 Wn.2d 132, 134, 587 P.2d 535 (1978 ) (a court will not add words to a statute even if it believes the legislature intended something else but failed to express it adequately).
(Emphasis added.) Again, exactly as I’ve been saying for the last two years. In other words, Betcha has been out of business for almost two years based on a legal position that is rebutted by the plain language of the Revised Code of Washington. Incredible.
I might add: if the Gambling Act had actually read as the State needed it to, it would have been unconstitutional. In State v. Shipp, 93 Wn.2d 510 (1980), the Washington State Supreme Court held that the rule of strict construction of criminal statutes is a matter of procedural due process not subject to abrogation by statute. 93 Wn. 2d at __. That distinction is key: liberal construction is code for “the State always wins.” With strict construction, at least the individual has a chance.
News of the decision got out almost before I heard about it. Ian Ith of The Seattle Times called Betcha’s lawyer for comment literally before I’d read the opinion. (Mr. Ith’s report appeared on SeattleTimes.com late last night.) Venkat Balasubramani, a lawyer from West Seattle, reported on the decision on CircleID.com, albeit with a regrettable title. Randazza is the first blogger I’ve seen to pick it up: he covered it on his blog late this evening.
In the interest of full disclosure, one of the judges dissented. It was a three-paragraph job that made virtually no effort to tie fact to law. I’ll pick that one apart tomorrow for fun — there are literally no fewer than five errors therein. For now, it’s 2 am and I’m getting a bit tired.
It’s been a big day.
UPDATE: The case now has a cite: 201 P.3D 1045 (Wn. App. 2009).
Posted by greenlakenick 
Posted by greenlakenick 
Posted by greenlakenick 