Revised California Poker Bill to Modify “Bad Actor” Language

August 28th, 2014 | by Greg Shaun

California Assemblyman Reggie Jones-Sawyer says he will submit a new online poker bill as a matter of priority at the new legislative session. (Image: lasentinel.net)

Assemblyman Reggie Jones-Sawyer, whose California online poker draft bill was shelved this year due to a lack of time to prepare for a vote, has said that the submission of a new bill at the beginning of the 2015/16 legislative session will be one of his top priorities, and has hinted that this time, it may be kinder to PokerStars.

Jones-Sawyer withdrew AB2291 earlier this month, saying that “the Department of Justice and the California Gaming Commission did not have enough time to review the language and make relevant recommendations on the regulatory structure of the bill.” A separate bill, sponsored by Senator Lou Correa, was also withdrawn for similar reasons.

Avoiding Future Legal Challenges

Crucially, both bills had strongly worded “bad actor” clauses, something that Jones-Sawyer suggests may need to be tempered with any new attempts at legislation.

“We must make sure thatÂ any ‘Bad Actor Language’ is written so that it is applied fairly, and avoids any possible future legal challenges,” he says.

The term “bad actor” refers to operators who continued to accept bets from US players after the Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006, a list that includes PokerStars. In the previous bills the “bad actor” clauses were “non-severable,” meaning that they could not be passed into law without the clause intact.

It was a clause, however, that proved divisive among the gaming operators of California. On one side, an alliance of California tribal gaming interests, eager to keep PokerStars out of the market, united behind the legislation, while the Morongo Band of Mission Indians, along with land-based cardrooms, the Commerce, the Bike and Hawaiian Gardens, who had formed business relationships with PokerStars, vowed to fight it tooth and nail.

Softening of Stance?

Laurence H. Tribe, a renowned professor of constitutional law at Harvard, has said he felt that the “bad actor” clauses were “unconstitutional,” and doubted that they would pass scrutiny in a federal court. The clauses were, he said, among other things, bills of attainder; i.e., legislation that declares a person or group guilty of some crime and punishes them without privilege of a judicial trial.

“Trial by legislation,” as Tribe put it.

Perhaps, then, Jones-Sawyer has realized that his bill, as it existed in its previous incarnation, is too problematic to be passed into law, and a softening of attitudes to PokerStars, post-Amaya acquisition, may now be inevitable.

“It is … my hope that during the next few months we can continue the dialogue with all the interested principals so that there is a clear consensus and mutual agreement as to who will be able to participate in providing internet poker to our citizens,” he said.

“We have come a long way,” Jones-Sawyer added. “But we have to be patient, so we can get this right. Setting a standard in California that will be an example for the entire nation is my ultimate goal!”