DOJ Seeks to Dismiss New Hampshire Wire Act Case

Last updated on March 23rd, 2019

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It was only a matter of time before the United States Department of Justice responded to the lawsuit filed against it and US Attorney General William Barr. A motion to dismiss the case is a standard response, though this one is a rather lengthy and detailed one, and it was filed on March 22.

The Department of Justice (DOJ), specifically its Office of Legal Counsel, wrote a new opinion to interpret the 1961 Wire Act in early November 2018, though it didn’t make the decision public until the middle of January 2019.

Without much clarity about the opinion’s impact on states, their lotteries and online gaming industries, state governments immediately demanded said clarity. What they received from the DOJ, specifically Deputy Attorney General Rod Rosenstein, was an initial 90-day moratorium on the implementation of the new precedent, which was followed by another 60-day delay that put a date of June 14 on it.

To seek the utmost clarity, New Hampshire filed a lawsuit against the DOJ and Barr, a civil suit in the US District Court for the District of New Hampshire, that sought declaratory judgment as to the Wire Act’s application to state-conducted lotteries. Further, the New Hampshire Lottery Commission requested that the judge set aside and vacate the Wire Act opinion.

In the weeks that followed, numerous other states filed amicus briefs to endorse the New Hampshire lawsuit, stand in solidarity with the plaintiffs, and ensure that the enormity of the issue was recognized by the court.

More than a month later, the DOJ has responded with a motion to dismiss.

JUST IN: U.S. Department of Justice seeks dismissal of @NHLottery’s lawsuit over Wire Act on the basis that it was filed too soon (no criminal prosecution sought yet) and also fails to state a cause of action because interpretation “follows from the plain language of the statute”
— Daniel Wallach (@WALLACHLEGAL) March 22, 2019

DOJ Returns Fire with Motions

A slew of court documents was filed on March 22. The first summed up the sentiment well, as the motion to dismiss read that the cases should be dismissed for a lack of standing. “Plaintiffs fail to state a claim upon which relief may be granted,” it read. And it was submitted by US Deputy Assistant Attorney General Brett Shumate and Federal Programs Branch Assistant Director John Tyler.

This was followed by an objection to the plaintiffs’ motion for summary judgment.

Then, the meat and potatoes of the DOJ’s argument came in the form of the “Defendants’ Memorandum in support of Motion to Dismiss and Objections to Plaintiffs’ Motions for Summary Judgment.” The 47-page document begins with an introduction to the DOJ’s interpretation of the Wire Act before and after the 2011 decision by the Office of Legal Counsel that stripped its reach to sports betting only.

DOJ: "Plaintiffs do not allege that there were any prosecutions of state lottery commissions or their vendors in the fifty years from the Wire Act’s enactment in 1961 to 2011, or that they were at imminent risk of prosecution at any point prior to 2011"
— Daniel Wallach (@WALLACHLEGAL) March 22, 2019

The basic premise of the DOJ’s position is that the court lacks jurisdiction to decide if the Wire Act prohibits the use of interstate communication for all gambling or only sports-related betting. The DOJ asserts that choices about prosecution under OLC direction is “subject to the government’s prosecutorial discretion,” not the court’s interpretation.

From there, the DOJ goes on to present arguments.

Listed first is the lack of standing. “Plaintiffs fail to allege any intention to engage in conduct ‘arguably affected with a constitutional interest’ and do not identify a ‘credible threat’ of prosecution.” Further, it argues, “plaintiffs have standing to challenge only the specific conclusions reached in the OLC memo.”

Second, the DOJ asserts, “Plaintiffs’ claims fail on the merits because only one of the Wire Act’s four prohibitions is limited to sports gambling,” noting that the Office of Legal Counsel opinion does not raise any constitutional concerns. In addition, it states that the court “need not consider ambiguous legislative history or statutory purpose,” and “constitutional concerns do not compel the plaintiffs’ interpretation of the statute.” Specifically, the DOJ claims the OLC’s interpretation of the Wire Act does not raise concerns about the First Amendment, Tenth Amendment, federalism, or vagueness of the statute.

DOJ: "The Court need not consider ambiguous legislative history or statutory purpose. Because the text of the Wire Act compels OLC’s conclusion, the Court need not attempt to find meaning from the 60 year-old legislative history or try to give life to the purpose of the Wire Act"
— Daniel Wallach (@WALLACHLEGAL) March 22, 2019

Third, the DOJ believes that if the court rules against it, declaratory relief should be the only remedy.

And finally, the document states that the court should reject all amicus briefs because the rule of lenity is not applicable, relief should be limited to the parties, reliance interests do not inform the correct construction of a statue, and the UIGEA (Unlawful Internet Gambling Enforcement Act) does not override of conflict with the Wire Act.

The bottom line is that the DOJ wants the court to grand the motion to dismiss, deny any motions from the plaintiffs for summary judgment, and terminate the cases.

Adelson Makes an Appearance

One of the documents filed on March 22 was an Amicus Curiae Appearance of Counsel, which asks the court to allow two groups to appear on behalf of the DOJ.

One of those groups is the lobbying organization formed and overseen by casino mogul Sheldon Adelson, the Coalition to Stop Internet Gambling (CSIG). It’s not a surprising move, considering Adelson is believed to be the force behind the recent DOJ decision about the Wire Act. His CSIG group is one of the many ways he tried to ban online gambling for nearly a decade.

The other group is the National Association of Convenience Stores (NACS), one of the coalition members of CSIG that has written letters in support of Adelson’s attempts to pass RAWA (Restoration of America’s Wire Act) and spoken out specifically against online lottery ticket sales. The group opposes lottery tickets being sold over state lines, though it should be noted that many of America’s lotteries are multi-state in nature and include many states.