US Court of Appeals Judge in Wire Act Case Dies
People have been anxiously waiting for months for a result of the Wire Act case. The United States Court of Appeals for the First Circuit heard oral arguments in June 2020 in the case of New Hampshire Lottery Commission, NeoPollard Interactive, and Pollard Banknote v. US Attorney General William P. Barr, US Department of Justice, and the United States.
Earlier in 2020, the coronavirus pandemic prolonged the submission of briefs and scheduling of oral arguments. Now, the case may face an even bigger obstacle, as one of the three appellate judges died last week.
Judge Juan Torruella died on October 26, 2020.
The Puerto Rican native from San Juan attended high school and college in new Jersey and Pennsylvania, respectively, and obtained his Juris Doctor from Boston University School of Law in 1957. He then went on to earn a Master of Laws from University of Virginia School of Law nearly 30 years later, and two more degrees thereafter.
Torruella first practiced law in Puerto Rico, serving as a law clerk to a Puerto Rico Supreme Court Associate Justice before ultimately specializing in civil law via his own practice. In 1974, President Gerald Ford nominated Torruella to a seat on the US District Court for the District of Puerto Rico. He became the Chief Justice in 1982 before President Ronald Reagan nominated him for a seat to the US Court of Appeals for the First Circuit in 1984.
He was the first Puerto Rican judge to serve in the US Circuit Court. Torruella became the Chief Judge of the First Circuit in 1994, and he continued well beyond the age of retirement to hear cases.
At the time of his death, he was 87 years old.
Judge Juan Torruella, long-time Boston federal judge, dies https://t.co/DRBTuBupJ8
— The Boston Globe (@BostonGlobe) October 27, 2020
Wire Act: One of Many Outstanding Cases
The pending Court of Appeals ruling on the Wire Act case will determine if that federal law pertains only to sports betting or more broadly to extend to online gambling and lotteries.
In 2011, after Black Friday indictments that shut down poker sites using the Unlawful Internet Gambling Enforcement Act (UIGEA), numerous states wrote to the US Attorney General for an updated interpretation of the 1961 Wire Act. That law technically prohibited betting across state lines, but the Department of Justice’s Office of Legal Counsel issued a memo that the Wire Act pertained solely to sports betting, not lotteries or other online gambling operations.
The new US Attorney General under the Trump Administration, widely believed to have been influenced by online gambling opponent and billionaire Sheldon Adelson, reversed the 2011 memo.
Not long after that new DOJ Office of Legal Counsel published its new opinion last year, states took issue with it. The new interpretation was ambiguous about lotteries – and other forms of gaming, too, actually – and states wanted to know if their online lotteries were legal. When the DOJ refused to answer the question with any specificity, the New Hampshire Lottery Commission led the way to court. And NeoPollard joined the suit as the platform provider for that online lottery.
US District Court Judge Barbadoro ruled in favor of the plaintiffs and against the US, its DOJ, and its Attorney General. So, the losers filed an appeal.
As a refresher, this was the timeline of the events:
–September 13, 1961: Federal Wire Act (to stop organized crime trafficking) became effective
–September 20, 2011: US Asst. AG Virginia Seitz from DOJ Office of Legal Counsel (OLC) issued memo regarding Wire Act, determined it applied only to sports wagering, not online lotteries, poker, or casino games
–November 2, 2018: US Asst. Acting AG Steven Engel from DOJ OLC issued memo reversed 2011 opinion, declared Wire Act not limited to sports gambling
–January 14, 2019: New Wire Act opinion made public
–January 16, 2019: Deputy AG issued 90-day implementation delay
–February 15, 2019: New Hampshire Lottery Commission and NeoPollard (lottery platform provider) filed lawsuit against Barr and DOJ
–March 4, 2019: Deputy AG extends new Wire Act application to mid-June 2019
-April 8, 2019: Deputy AG issued memo to state lotteries claimed no position on state lottery applicability
–April 11, 2019: US District Court in New Hampshire heard oral arguments, Judge Paul Barbadoro predicted case will reach US Supreme Court
–June 3, 2019: Barbadoro ruled for plaintiffs, set aside Barr-DOJ Wire Act interpretation
–June 12, 2019: DOJ extended new Wire Act application through December 2019
–August 16, 2019: Barr and DOJ appealed case in First Circuit Court of Appeals
–December 20, 2019: DOJ and Barr filed initial brief, extended application through June 30, 2020
–February 26, 2020: New Hampshire Lottery and NeoPollard filed briefs
–May 26, 2020: DOJ and Barr filed reply brief
–June 11, 2020: Deputy AG extended Wire Act application to December 1, 2020
–June 18, 2020: US Court of Appeals heard oral arguments
Everyone now awaits the Appeals Court decision, which will either side with Barbadoro or reverse that decision.
Two Judges Remain
In cases before the Appeals Court, there are typically three judges, allowing for a decision without a tie. This particular court for the First Circuit now has only two judges.
Gaming law and sports betting attorney Daniel Wallach weighed in on Twitter. He noted that there is precedent under the US Supreme Court that cites the need for a quorum.
— Daniel Wallach (@WALLACHLEGAL) October 27, 2020
So, if the two judges decide to affirm Barbadoro’s Wire Act ruling, that will be the Appeals Court decision. However, if the two remaining judges split their opinions, the appeals process may begin again with briefs and oral arguments.
There may be a glitch in the process if, by some chance, Torruella already wrote an opinion. If all three opinions essentially agree, that will likely be the decision that stands. However, if there are differences with that opinion (if there is one) from Torruella, that may force the process to begin again as well.
Judge Juan Torruella – one of the three First Circuit judges considering the NH Lottery Wire Act case – passed away yesterday. He was a brilliant jurist, an Olympic athlete, and a fascinating man. His passing will almost assuredly slow resolution of the landmark gambling case.
— Mac VerStandig (@mac_verstandig) October 27, 2020