I just can’t get Thursday’s debacle before the Washington State Supreme Court out of my head. The thought of losing what should have been a slam dunk is really starting to sink in — not to mention the reality of a long stint in jail, no doubt insisted on by a prosecutor in exchange for not going after everyone ever associated with Betcha.com. It doesn’t help that it’s been raining straight for about three days.
My crystal ball does not show good things.
My prediction: we lose 7-2 or worse. George Telquist, who argued the case, thinks we’ll win 6-3. Joel Aro, a buddy of mine who said he would never use Betcha.com precisely because he understood that he may not be paid if he won — and whose position was on the record at page 49 of the clerk’s papers — predicted a 9-0 loss after watching the hearing on tvw.
Hopefully it won’t be that bad, but right now I’m not feeling good. At least a few of the justices seemed persuaded by the idea that bets made on Betcha.com were no different than ones made in illegal gambling venues, at least in terms of their enforceability. The logic:
Illegal gambling debts are unenforceable.
Bets made on Betcha are unenforceable.
Therefore, bets made on Betcha are illegal gambling.
If 1 then 2
Therefore 2 is 1.
Giraffes are tall.
Therefore, I’m a giraffe.
Or even better:
Illegal gamblers who don’t get paid are S.O.L.
Bettors on Betcha who don’t get paid are S.O.L.
Therefore, bettors on Betcha are illegal gamblers.
The giraffe logic (or illogic) still applies.
That isn’t the only problem with that reasoning. First, illegal gambling debts are nothing more than unpaid obligations — that is why they are called “debts.” It just so happens that the legislature has decided to make the court house unavailable to unpaid gamblers. Unpaid wagers on Betcha.com are not debts — that’s the point! Betcha bettors have no obligation to pay, just as patrons of these new pay-what-you-want-of-nothing-at-all coffee shops have no obligation to pay. So if the legislature changed the law tomorrow to make illegal gambling debts enforceable, it would benefit unpaid gamblers, but it still would not benefit bettors on Betcha.com: legislation does not alter business models. All of these points we made in our briefs — the first points at pages 15-16 and pages 19-20 footnote 50 of our supplemental brief, the second at page 30 of our appellate brief. I’m just not sure anyone actually read them.
The other problem is that said reasoning begs the question. It may be that illegal gambling debts are unenforceable. But the very question presented in this case is whether a loss on Betcha is an illegal gambling debt. If it isn’t, then losses on Betcha.com are enforceable as we insisted in our lower court briefs — it’s just that because there was no promise to pay there is nothing to enforce. (The good ol’ illusory promise.) If you just assume the answer to the question then of course it is. Never in a million years would I have thought judges would just assume the answer to the question.
I don’t feel much better about the bookmaking issue. There were no shortage of justices who seemed to think that the charging of nonrefundable fees was a “gotcha” point. Of course, as we explained ad naseum in our briefs, that’s wrong. As for the argument that it would be absurd to conclude that I could be a bookmaker even though no one was gambling — well, no one seemed to buy it. I know Washington state courts follow the absurdity doctrine — Judge Elaine Houghton invoked it in her dissent in Division Two. Maybe it doesn’t apply when it would make the State the loser.
I have to give Assistant Attorney General Jerry Ackerman a lot of credit for his performance. I do not like Mr. Ackerman and he does not like me. I’ve learned in the last year that he personally consulted with the Gambling Commission in connection with the Louisiana draw-and-quarter job on me — and told them how to properly bet so the trumped up charges would stick. All, by the way, while he was litigating the underlying dec action! Be that as it may, he did a nice job confusing the issue and basically ignoring just about every one of our arguments and rebuttals.
And much to what will undoubtedly be the Jenkins family’s eternal chagrin, no one called him on it.
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