Cases & Deals

Ohio judge successfully defends against prosecutor's case involving Internet Sweepstakes Cafes

Clients Russo, Nancy M., Judge

On September 5, 2012, the Supreme Court of Ohio, in a 7-0 decision, summarily granted a motion to dismiss filed on behalf of Jones Day client The Honorable Nancy Margaret Russo in an original action filed by County Prosecutor William Mason seeking a writ of prohibition against Judge Russo. The case related to actions pending before Judge Russo regarding Internet Sweepstakes Cafe operations. In May of this year, Mr. Mason sent a letter to numerous business establishments that were operating such Cafes in Cuyahoga County directing them to cease "any Internet Sweepstakes Café operations that are currently on-going and permanently close this aspect of your business." The letter also stated that "[a]ny individual who continues to operate an Internet Sweepstakes Café will have their facts presented to a Grand Jury for criminal prosecution and forfeiture." Some of those operators filed a Complaint for Declaratory Judgment seeking preliminary and permanent injunctive relief, together with a Motion for a Temporary Restraining Order against Mason in his capacity as Cuyahoga County Prosecutor.

Shortly after the action was instituted, the Ohio legislature enacted H.B. No. 386. The Legislature recognized that '[j]udges across the state have issued conflicting rulings regarding the legality of these sweepstakes establishments." It placed a moratorium on new retail sweepstakes establishments while further legislation is being considered. It also established a procedure by which owners of such establishments could certify that they were in existence before the effective date of the law. The legal question pending before Judge Russo was whether the activity at issue was gambling or a sweepstakes under Ohio law. After a hearing, Judge Russo issued a Temporary Restraining Order. Other similar actions followed in which she also issued TROs. Shortly after service of discovery in the case, Mason filed a Writ of Prohibition and Application for an Immediate Alternative Writ in which he alleged that Judge Russo was patently and unambiguously without jurisdiction to proceed and that to permit her to do so would interfere with his prosecutorial discretion. He also challenged a discovery order on the ground that it implicated privileged or otherwise statutorily protected information.

The Supreme Court of Ohio found Mr. Mason's arguments without merit on the ground that Judge Russo did not patently and unambiguously lack jurisdiction. Accordingly, the Court unanimously granted the motion to dismiss.

Judge Russo was represented by Jones Day Cleveland partner Robert Ducatman and counsel Sandra Gammie.

State ex rel. Mason v. Russo, Case No. 2012-1128 (Ohio Sup. Ct.)