I follow the legal happenings of the amusement industry as part of another blog I write. I find it useful to set up a Westclip as a way of monitoring recent opinions issued in the amusement industry area.  Based on the number of type of results I received over the past 9 years, I have tweaked my Westclip on several occasions to add new concepts to my search.

Recently, my Westclip informed me of the case of Pickaway County Skilled Gaming, L.L.C. v. Cordray 2010 WL 3972575 (Ohio 2010), in which the Ohio Supreme Court reviewed Ohio Statutes R.C. 2915.02(A)(2) and R.C. 2915.01 (AAA)(1) when an operator of a members-only amusement game arcade that handed out cash prizes to players challenged the $10 prize limit for each play on its machines, arguing that the limit was not rationally related to determining whether amusement machines are based on skill or on chance which violated the Equal Protection Clause of the United States and Ohio constitutions.  R.C. 2915.02(A)(2) states that no person shall “[e]stablish, promote, or operate or knowingly engage in conduct that facilitates * * * any scheme of chance.” R.C. 2915.01(C) defines “scheme of chance”; the subsection specifically states that a “scheme of chance” does not include a skill-based amusement machine. These types of machines range from games (e.g., Skee-ball and Whack-a-Mole) commonly found at fair and amusement-park midways and in family fun centers to more sophisticated skill-based games found in the members-only arcade that was involved in this case.

In response to a documented “increase in the number of illegal gambling machines around the State of Ohio,” Ohio Governor Ted Strickland issued Executive Order 2007-28S on August 22, 2007.  Through this Executive Order, Governor Strickland declared an emergency justifying suspension of the normal rulemaking process and authorized the attorney general to immediately adopt former Ohio Adm.Code 109:4-3-31. Executive Order 2007-28S at ¶ 9-10.  Shortly thereafter, the Ohio Attorney General closed Pickaway County Skilled Gaming (“Pickaway”) in violation of the new rule and Pickaway challenged the rule and requested an injunction.  While the challenge was pending, the Ohio House of Representatives passed Sub.H.B. No. 177, which, among other provisions, amended R.C. 2915.01(AAA). The bill incorporated into the statute much of the language defining “skill-based amusement machines” that had been set forth in Ohio Adm.Code 109:4-3-31, including the ten-dollar prize-value limit.  Now the Ohio Attorney General defends the statute saying that the limit is rationally related to two legitimate government interests: (1) establishing economic regulations governing the operation of skill-based amusement machines and (2) protecting against criminal acts and enterprises as a prophylactic measure against illegal gambling.

The Ohio Supreme Court agreed with the Attorney General.  According to the Court, “[t]he rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952.  The Court agreed that R.C. 2915.01 does help protect two valid government interests and “[u]nder the rational-basis standard, a state has no obligation to produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State Univ. Chapter, 87 Ohio St.3d at 58, 60, 717 N.E.2d 286. “[S]tatutes are presumed to be constitutional and * * * courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.” Eppley, 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12, citing Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323.

So how does one cope to have games within the statutory limits but offer big prizes?  As Pickaway stated in the case, because the dollar limit is based on each play, and R.C. 2915.01(AAA)(1) does not limit the number of times an individual can play a skill-based amusement machine, players can amass endless vouchers and redeem them for valuable prizes.

The 3rd Circuit on Tuesday September 7th handed down a much anticipated decision  dealing with the Governments attempts to get cellular network positioning information  without a warrant (2010 WL 3465170).

The dispute stems from the Governments attempts to obtain cell site location information (CSLI)  regarding a particular subscriber under the Stored Communications Act (18 U.S.C.A. §§ 2701 et seq.).

CSLI is information that cellular providers maintain regarding the location of their customers when they make a call.  Whenever a cellular customer makes a phone call, the cellular providers record what tower transmitted the call, as well as what “face” of the antenna was used to receive the call.

The police argue that this is valuable information for proving that individuals were at certain locations at particular times.  In this case, they requested the information under the Stored Communications Act provision that allows the Government to obtain the information by getting a court order merely upon a showing of the information’s relevance and materiality of the data to an ongoing criminal investigation.  This Act relieves the Government in certain situations of having to get a warrant and show probable cause.

In this case, the lower court refused to grant the order, and in a rare occurrence the order denying the request was joined by the other judges in the district.  The lower court held that the Stored Communication Act did not apply and that the CSLI records could only be obtained upon a showing of probable cause.

The 3rd Circuit here decided that the Stored Communications Act does not necessarily require that Probable Cause be shown in order to obtain this data.  Having decided that the lower court’s decision would not stand, much of the later decision dealt with the Government’s contention that if it met the requisite showing under the Stored Communications Act then the Magistrate must grant the order.  The 3rd Circuit did not agree, in addressing the legislative history they concluded that the magistrate might have discretion to require probable cause and a warrant under some circumstances.  The 3rd Circuit then remanded to the lower court for further consideration.

For more on the Stored Communications Act, see Chapter 9 of Data Security and Privacy Law: Combating Cyberthreats; specifically,  DATASPL § 9:17 et. seq.

Government stunned over the stem cell ruling, according to Reuters.  Here are some commonly (and, not so commonly) requested documents from the stem cell case. 

Case:

• Sherley v. Sebelius, 686 F.Supp.2d 1 (D.D.C. Oct 27, 2009)
• Sherley v. Sebelius, 610 F.3d 69 (D.D.C.,2009)
• Injunction: 2010 WL 3296974

Executive Orders and Memorandum:

Expanding Approved Stem Cell Lines in Ethically Responsible Ways, Exec. Order No. 13,435, 2007 WL 1788973 (Pres.Exec.Order Jun 20, 2007)

Removing Barriers to Responsible Scientific Research Involving Human Stem Cells, Exec. Order No. 13,505, 2009 WL 604340, 74 FR 10667 (Pres.Exec.Order,Mar 09, 2009)

Guidelines for Human Stem Cell Research, 2009 WL 2380125 (Pres.Memorandum Jul 30, 2009)

Other Related Documents:

Draft National Institutes of Health Guidelines for Human Stem Cell Research Notice , April 23, 2009 – 2009 WL 1076061

National Institutes of Health Guidelines for Human Stem Cell Research, June 30, 2009 – 2009 WL 1916156

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Credit: Reuters/Jason Reed

President Obama signed the Education Jobs Fund bill (H.R. 1586) Tuesday. The bill provides for 26 billion in aid to the states for education aid. To see how your state fared in the election year money grab, click here.

Two interesting items worth noting. First, there is a bit of confusion over Title I. I have provided a snapshot of the official text. Under title one there is a mention of Education Jobs Fund and Education Jobs Funds.

Luckily with Westlaw you automatically search pluralities with the singular version of a word so you are covered no matter what database you are searching for information (news, legislative materials, etc.). Secondly, Congress slapped Governor Rick Perry of Texas around a bit by calling Texas out by name. Texas apparently created a “reserve” with previous stimulous money instead of spending it appropriately. The language in this bill mandates assurances that Texas actually appropriates the money correctly.

Bill: 2009 CONG US HR 1586

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A frequent task Summer Associates have been faced with is trying to determine what precisely has happened with federal statutes over time.  On Westlaw we have the United States Code Annotated back through 1990 (USCAXX, XX= 2 digit year), but it is important to note that we also have United States Public Laws (US-PL) , and The United States Statutes at Large (STATLRG)back to the creation of the United States.  Many of the Acts in the Public Laws and Statutes at Large are not codified, of course.

The Statutes at Large can be interesting from a historical perspective as well. A couple of interesting acts I have run across include:

• Mary Todd Lincoln was granted the Franking Privilege –  14 Stat. 3  (the Franking Privilege entitles you to free postage). 
•  Original pay rates of Congress – 1 Stat. 70  were $6 per day, but only days that they attended!
• The President’s pay rate –  1 Stat 72 ( 25,000 which would be $628,000 in 2009 dollars using the Consumer Price Index Method). 
• As well as the first secret society incorporated by an Act of Congress in 1893 28 Stat. 96, the Knights of Pythias.

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The Federal Register tweets.  While that is exciting for a variety of reasons, I found a recent tweet most helpful.  A few calls have come in about Public Law 111-209.  What is Public Law 111-209?  According to @Federal Register, PL 111-209 (HR 5502) amends “gift card provisions effective date.”

Pulling up PL 111-209 (also cited as 2010 HR 5502 or 124 Stat 2254) indicates that it amends the “gift card provisions effective date” of the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CCARD for short).

While I love short public laws (and this is a short public law), I couldn’t figure out the significance of this change in effective date.   (After all, this tiny little public law garnered its own tweet.)

A little more research indicates that PL 111-209 is also popularly known as the ECO-Gift Card Act.  Prior to the passage of PL 111-209, the implementation of the gift card rules of CCARD was scheduled for August 22, 2010.  In a function of the law of unintended consequences, this August 22nd deadline would have led to the destruction of millions of plastic gift cards that would have no longer complied with the disclosure requirements CCARD.  According to one of its sponsors, the ECO-Gift Card Act will prevent 100 million of those plastic gift cards from ending up in the landfill (or ocean) prematurely.  That is the equivalent of eight football fields filled 12 feet deep with plastic cards.

PL 111-209 gives retailers until Jan. 31, 2011 (well after the Christmas shopping season) to get those *old* gift cards off of their shelves and get the new, compliant gift cards and gift certificates into place.

It’s worth noting that the ECO-Gift Card Act passed both the House and Senate unanimously.  Our legislators may not agree on a lot, but they apparently don’t care for wasted plastic.

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ABC News recently posted an article dealing with audio recordings and the police.  This is a trend that has garnered much attention lately, essentially the states wiretap laws break down along a couple of lines, those that require both parties consent before recording a conversation, and those that require only one parties consent (like the federal law). 

In some states police have been using statutes that require both parties consent to record a conversation to arrest and charge individuals who have audio recorded encounters with the police.

When looking for statutes such as these, it can very often be hard to find the correct sections.  We may know the topic of the statute, but not any terms that are necessarily going to occur within the section.  For this type of inquiry the statute index is the best. 

On Westlaw, if you go to the search window, or table of contents for a statutes database, you can click “Statutes Index” on the upper right.  This is different from the table of contents because it is a topical organization of the statutes, if you look under “Eavesdropping” or “Wiretapping” for instance you should be able to find these statutes that are cited as preventing audio recording. 

If you are interested in a 50 state survey that breaks down every states wiretapping laws, you can find a comprehensive breakdown here in the 50 state surveys database.

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There has been a flurry of  Congressional news this week with the enactment of the Financial Reform Bill, and the Senate passing the extension of jobless benefits.  When researching active or recently passed legislation it is important to understand which version you are interested in, either the engrossed, enrolled or introduced version, and how to access other versions.

In Westlaw, a find by citation for the Wall Street reform Bill 2009 CONG US HR 4173, will pull up all the versions as separate results.  When you are in any of these bills you can click on the Graphical Bills link on the left side of the screen.  To open up a map that not only shows all of the versions, but also links to legislative history organized by category.

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A new regulation went in to effect last week which could benefit you, your friends or your siblings!   In the past, students lost health insurance coverage once they graduated from college, no matter what their employment status.   Pursuant to the Patient Protection and Affordable Care Act (P.L. 111-148)  passed in to law March 23, 2010, health insurance coverage under  a parent’s insurance plan is extended to children up to 26 years of age.  Key language includes:

“a plan or issuer may not deny or restrict coverage for a child who has not attained age 26 based on the presence or absence of the child’s financial dependency (upon the participant or any other person), residency with the participant or with any other person, student status, employment, or any combination of those factors.”

To view the new regulations, in the Find Document by Citation box, type in:   26 C.F.R. § 54.9815-2714T and click GO.

*Editors note available in the comments //

The United States recently filed an action against the State of Arizona, seeking a declaratory judgment stating that Sections 1-6 of Arizona’s S.B. 1070 are “invalid, null and void”, as well as an order enjoining the State or its officers, agents or employees from enforcing Sections 1-6 of S.B. 1070.

Senate Bill 1070 is, of course, Arizona’s controversial immigration  bill.  As anticipated, the primary claim is the bill’s alleged violation of the Supremacy Clause, based on the argument that the the federal government has preeminent authority to regulate immigration.

The complaint is available on Westlaw, and can be located by doing a find to 2010 WL 2653363.

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