Recently, the DOJ declined to completely rule out future prosecution of state lotteries under the 1961 Wire Act. “The potential Wire Act liability of state agencies, employees, and vendors involve the evaluation of numerous complicated and important issues. Thus, the department intends to give these issues the deliberate consideration that they deserve.” DOJ attorneys said in a 12-page supplemental brief submitted to Judge Paul J. Barbadoro in Concord, New Hampshire.
The brief echoes DOJ’s vow not to prosecute state lotteries. This also includes lottery employees while the department’s review of the Wire Act continues. For this reason, the DOJ’s brief argues, the New Hampshire and lottery vendor, NeoPollard Interactive lawsuit, should be dismissed. “The court lacks jurisdiction to resolve at this time not only whether the Wire Act reaches beyond sports gambling generally. But also, whether the Wire Act could ever be applied to state lotteries and their vendors or employees, as there is no present credible threat of prosecution,” the DOJ brief said.
Most of the DOJ’s brief doubles down on the argument that lottery employees and vendors can be prosecuted. Yes, that’s even if they are carrying out their official duties. The DOJ brief said absolute immunity only applies to a very limited class of officials. That’s for the President, legislators carrying out legislative functions and judges carrying out judicial functions.
A response of a response
The DOJ was responding to another 12-page brief submitted on April 18 by the New Hampshire Lottery Commission. In this one, they argued that state employees and vendors are immune from prosecution. “So long as the [New Hampshire Lottery Commission’s] officials and employees are acting in their official capacities pursuant to valid state law, and are not acting unconstitutionally, they enjoy the state’s sovereign status, act as the state, and are not subject to [the Wire Act’s] prohibitions,” attorneys for the New Hampshire Lottery Commission argued in their brief.
However, in response to the DOJ’s refusal to decide whether the Wire Act applies to state lotteries and their vendors. These reply briefs were submitted by the New Hampshire Lottery Commission and NeoPollard Interactive. The internet lottery vendor (NeoPollard Interactive) stated in its brief that the refusal by the DOJ will force those businesses to continue operations under a 2011 DOJ opinion instead of a new opinion drafted last November.
On the other hand, the New Hampshire Lottery Commission’s brief disputes the DOJ’s claim. They doubt that lotteries, as well as their vendors and employees, can be prosecuted under the Wire Act. The brief said, to prohibit states and their agencies “from using the wires to operate state lotteries [would be] a result Congress did not intend and that is not consistent with the text, structure, purpose, and legislative history [of the Wire Act].”
Judge Barbadoro has yet to issue a ruling. Hopefully by the end of this month. He has already acknowledged that the case is destined for the U.S. Supreme Court.
