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The federal Wire Act case has been thrown a curve ball by the death of one of the three judges involved. Judge Juan R. Torruella passed away on Monday in San Juan, Puerto Rico, the same city in which he was born. He was 87.
Judge Torruella, along with his fellow judges Sandra Lynch and William Kyatta heard New Hampshire Lottery Commission v. Barr in June for the First Circuit Court of Appeals. At the time, the prediction was that they would issue their verdict in about six months. That would have put it sometime next month, after the federal election.
Exactly what impact Judge Torruella’s death has on the case depends on how close the three judges were to finalizing their decision. It could have no impact at all, or force a rehearing. The outcome of the election itself is also important, as Joe Biden has indicated that he is less interested in seeing the case pursued than the current administration.
However and whenever the case is finally decided, it will shape the future of online gambling in the US. Specifically, it will determine whether there’s any hope for states to collaborate on gambling. This includes the ability for states to share poker traffic, as New Jersey, Nevada and Delaware do already.
Judge Torruella was the First Circuit’s first Hispanic member. He received his Juris Doctor from Boston University in 1957 and entered private practice in San Juan two years later.
Following 15 years of practice, he was nominated in 1974 to the United States District Court for the District of Puerto Rico by President Gerald Ford. He became the chief judge of that court in 1982. From there, he was promoted to the First Circuit during the presidency of Ronald Reagan.
In his various capacities, Judge Torruella heard a great many cases. His most important work, however, was on the subject of Puerto Rican rights. He was generally progressive on other subjects as well, having for instance authored the First Circuit opinion in Planned Parenthood of Northern New England v Heed, which ruled New Hampshire’s “parental notification” abortion law unconstitutional.
In the First Circuit’s statement on Torruella’s death, Judge Bruce M. Selya described him as “a jurist of immense stature and a fierce fighter for the rights of Puerto Ricans and for their place in American society. He never hesitated to advocate for a position in which he believed, and his advocacy was always staunch.”
The Interstate Wire Act passed in 1961. At the time, it was intended as a way of combating illegal sports betting and organized crime at the federal level. In a nutshell, it makes it a crime to use the “wire system” – essentially synonymous with telephones at the time – to place or facilitate sports bets between states or internationally.
A bill called the Restoration of America’s Wire Act (RAWA), appeared in 2014. It was supported by Sheldon Adelson’s Coalition to Stop Internet Gambling (CSIG). RAWA would have rewritten the Wire Act to explicitly include any sort of use of the internet, and to cover most forms of gambling rather than only sports betting.
That effort failed, but a second attempt emerged from the Department of Justice (DOJ) to accomplish the same thing via a different channel. The DOJ issued an opinion in 2019 stating that it had reinterpreted the language of the Wire Act.
The act explicitly mentions “sporting events or contests”. However, the new opinion held that these words only applied to the transmission of facilitating information. Under the DOJ’s new interpretation, “bets or wagers” was meant more generally.
Among other things, this opinion would have made interstate lottery jackpots illegal. That caused the New Hampshire Lottery Commission to file a lawsuit challenging the opinion. The District Court opinion was in favor of the lottery, but the case is now in appeals.
This certainly isn’t the first time a judge has passed away pending the outcome of a case. The legal system has provisions for handling this contingency.
Exactly what will happen in this case is unclear, because we don’t know how far along Judge Torruella and the others were in drafting their opinions. There are a few ways things could play out from here.
Firstly, it’s possible that all three judges had finalized their opinions. In this case, they were likely waiting until after the election to issue the verdict. If that’s so, then Torruella’s death may not impact the outcome at all. There is precedent, in the Ninth Circuit at least, for a judge’s vote being counted posthumously. However, the Supreme Court took exception to that decision.
Even if Torruella’s verdict wasn’t complete or is ruled invalid, that doesn’t necessarily mean delays for the case. An appeals court case can continue shorthanded. However, with only three judges and one deceased, the only possibilities are a unanimous 2-0 verdict, or a 1-1 tie.
Therefore, if Judges Lynch and Kyatta agree in their decisions, there is no problem. The case can then be decided without Judge Torruella. Even if he disagreed, his opinion would have been a dissent at worst, and wouldn’t have changed the outcome.
However, if Torruella’s vote doesn’t count and Lynch and Kyatta are at odds, then it would force a rehearing.
Having to start over would be especially disappointing to Michigan online poker players. The state is awaiting the launch of online gambling, including poker, and a bill is currently in the legislature to allow the possibility of interstate poker compacts. Actually implementing that, however, is likely contingent on a favorable outcome in this case, so any delay in the verdict would also push that timeline back.