The Interactive Media Entertainment & Gaming Association has now confirmed that it has petitioned the Kentucky Court of Appeals for a writ of mandamus as reported earlier. This type of order is normally used to enlist the aid of a superior court in instructing a lower court to perform mandatory or purely ministerial duties correctly.
iMEGA's 239 page petition urges the Appeals Court to intervene in rulings by Judge Thomas Wingate of the Franklin Circuit Court, who last week ruled in favour of an attempt by the state of Kentucky to seize 141 international domain names domiciled outside the state. The controversial ruling has ignited considerable controversy, with questions of law, constitutionality and Net neutrality being asked.
The owners of the domains have until December 3 to convince Kentucky officials that they have effectively blocked entry to their online gambling websites for Kentucky residents, failing which the domains will be awarded to the state. Originally scheduled for November 17, the hearing was rescheduled to December 3 by Judge Wingate after a Motion to Stay was filed by the Interactive Gaming Council last week.
The iMEGA petition to the Kentucky Court of Appeals argues that the judge's findings are in conflict with jurisdictional practice and commerce clauses in the US Constitution, and violate due process requirements through the covert seizure procedure which was permitted. It also challenges the legal standing of the Kentucky Justice Cabinet, and it claims that the law as applied by Judge Wingate in arriving at his findings did not match the issues at hand.
"Since the lower court elected to ignore Kentucky law, and instead reached back to a law the current one supplanted, to find a rationale justifying these seizures, we have no choice but to go to the Court of Appeals," said iMEGA's chief exec and chairman, Joe Brennan Jr.
"This errant ruling affects far more than Kentucky and the domain names currently at risk. If this is allowed to stand, you’ll see other actions like this, targeting other segments of Internet media, at the state and local level, both here and abroad," he added.
The iMEGA statement stressed that the attempted Kentucky seizure violates the U.S. Constitution including:
* The right of Americans to free speech in a case where the state is attempting to seize words [domains], and preventing the domain registrants or private citizens from using them;
* Violates the commerce clause in that Kentucky allows betting on horseracing via the Internet but seeks to penalise online gambling in its efforts to protect the commercial interests of state-resident land and Internet gambling operations.
* Does not comply with due process requirements – the initial hearing was done in a covert manner in which the court records were sealed from the public and evidence was led without defendants having the opportunity to refute. Additionally, the defendants were not given notice of the action, even when Judge Wingate made an initial ruling and communicated to registrars that he was seizing the domains.
One of iMEGA's principal contentions is that there is no basis for civil forfeiture in the Kentucky statutes and that Justice and Public Safety Secretary J. Michael Brown lacked and continues to lack authority to act as plaintiff for the state.
Public statements by Governor Steve Beshear of Kentucky and his officials in the past have indicated that the action is intended to force domain owners to negotiate with the state regarding the blocking of Kentucky residents and the possible payment to state coffers of unspecified "damages". The Governor has been open about his intention to protect approved and mainly land gambling interests in his state.
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