CONCORD — The U.S. Department of Justice moved to dismiss the New Hampshire state lottery’s lawsuit that maintains a federal memo written last November threatens to render illegal all lottery business conducted online including games such as Powerball and Mega Millions.
U.S. District Court Judge Paul Barbadoro has scheduled a hearing for Thursday, to hear oral arguments about pending motions regarding the suit first brought last February.
U.S. Deputy Attorney General Rod Rosenstein wrote in a memo dated Monday to all federal prosecutors and the Federal Bureau of Investigation that he had put on hold the enforcement of the controversial DOJ memorandum that expands application of the federal Wire Act beyond just interstate sports betting.
This extended the window against any enforcement taking place until this June 14, Rosenstein wrote.
Meanwhile, Rosenstein maintained the memorandum did not in any way extend the federal Wire Act to the activities of state lotteries or their vendors.
“If the department determines that the Wire Act does apply to state lotteries or their vendors, then Department of Justice attorneys should extend the forbearance period for 90 days after the department publicly announces this position,” Rosenstein wrote.
“This would allow state lotteries and their vendors a reasonable time to confirm their operations to federal law.”
State lottery commission officials did not respond to a request for comment in advance of Thursday’s hearing.
In a 32-page legal brief, U.S. Attorney Steven Myers urged the judge to get rid of this lawsuit because the NH lottery and its legal allies have no standing.
“Because Plaintiffs do not have a current credible fear of prosecution, Plaintiffs lack standing to challenge [DOJ’s] interpretation of the Wire Act,” the brief stated. “Any challenge is premature.”
State lottery officials were initially most concerned with this memo because of its impact on lottery online ticket purchases that had been taking place by citizens online.
The state estimates it will receive up to $6 million this year and up to $8 million next year as more and more lottery wagerers buy their tickets through the agency’s online channel.
Last September, New Hampshire became the sixth state to roll out online lottery products.
But Commission Executive Director Charles McIntyre said the memo was written so broadly that legal experts said it could put in jeopardy all lottery games carried out by out-of-state vendors.
“The effect of the 2018 Opinion is to extend criminal liability ... far beyond betting or wagering on sporting events or contests to include virtually any conceivable form of gambling, which would encompass state-conducted lotteries,” Attorney General Gordon J. MacDonald wrote in the lawsuit.
“The 2018 Opinion’s interpretation of the Wire Act also intrudes upon the sovereign interests of the state of New Hampshire without unmistakably clear language demonstrating that Congress intended such a result.”
In that Nov. 2 opinion, Assistant U.S. Attorney General Steven Engel fully conceded this decision overturns a 2011 guidance from the same office, which concluded that only interstate sports betting was in violation.
The New Hampshire case has drawn dozens of “amicus” — or “friends of the court” — briefs from states and private vendors who wanted a quick legal resolution to clarify that lotteries, whether in-state or national versions such as Powerball or Mega Millions, were not jeopardized by this DOJ memo.
Some legal experts wonder if the Trump administration’s chief target with this memo initially was to try to block online casino gambling that could potentially explode with the U.S. Supreme Court ruling that allows states to legalize sports betting.
Gov. Chris Sununu is counting on sports betting to generate $10 million in the next two-year state budget he’s proposed.
The New Hampshire House of Representatives has endorsed the sports betting bill that’s pending in the State Senate.