"Ticket scalping cases tossed: Judge cites selective police enforcement, M's Internet sales," by Peter Lewis, Seattle Times, (January 31, 2004).

(Article available on Lexis-Nexis.)

A Seattle judge has accepted the arguments of two men who claimed they were victims of selective enforcement under the city's scalping ordinance because, they say, the Seattle Mariners are getting away with essentially the same conduct online.

The judge overturned the conviction of one man, and dismissed charges against another, holding that limiting enforcement to street scalping "is not rationally related to a legitimate government purpose."

Yesterday's long-awaited decision by Seattle Municipal Court Judge Jean Rietschel throws enforcement of Seattle's scalping ordinance into question at least as it applies to Mariners tickets.

Rietschel's ruling is significant not only because it is rare for selective-enforcement defenses to succeed, but also because it spotlights how archaic the city's scalping law appears in light of the growth of Web-based ticket sales for sporting events at whatever prices the market will bear.

Meantime, the City Attorney's Office, which defended the prosecutions, may ask the judge to reconsider and, failing that, appeal to Superior Court.

"The judge was flat out wrong," said Kathryn Harper, an aide to city attorney Tom Carr.

A spokeswoman for the Mariners had no comment, saying the team had not seen the ruling.

Rietschel found that the Mariners not the Seattle Police Department were calling the shots when it came to busting street scalpers outside Safeco Field.

It is illegal in Seattle to sell or scalp tickets to sporting and entertainment events for more than face value. It is a gross misdemeanor under city ordinance, punishable by up to a year in jail and a $5,000 fine.

The judge stressed that her ruling was not meant as a slam on the police.

"There is a third group (apart from the city and scalpers) significantly complicating the analysis of this case," Rietschel wrote, and that is the Mariners.

The judge found that if the M's didn't pay undercover city cops to enforce the law, including instructing them exactly where to patrol, such busts would not occur. She further found that ticket scalping "does not prevent a safe and secure environment outside Safeco."

At the same time the team controls police actions on the street, it benefits from online scalping, the judge found. That is, since 2001 the team has been splitting 25 percent of online ticket sales with Major League Baseball and LiquidSeats, a California-based ticketing-service provider.

The sales occur on a section of the M's Web site, www.seattlemariners.com, called Ticket Marketplace, which the team promotes by sending letters and e-mails to season ticket holders, for whom the feature was developed. In 2002 alone, the M's received about $100,000 to $120,000 as its share of the profits, the judge found.

The Web site contains a warning that it is illegal to sell tickets for more than face value in Seattle. But the judge noted that the site also allows sellers who live in the city to enter an address outside the city to get around the restriction. The site allows delivery of tickets and payment within the city, the judge found.

Additionally, the Mariners have marketed thousands of tickets on the club's Web site as many as 111 per game available at up to $125 each for never-before-sold "charter seats."

That means they have no established price and represent primary sales, the team says.

Defense attorneys Allen Ressler and Kim Gordon credited an August 2001 Seattle Times article that drew attention to the M's online ticket sales as "getting the ball rolling" in coming up with their selective-enforcement arguments. Gordon's client, Richard Kosterman, had been convicted in February 2003, and Ressler's, Mark Charlesworth, was awaiting trial related to three scalping charges.

Assistant City Attorney Moses Garcia contended that from a law-enforcement perspective there is little in common between street scalpers and online sales. In street-level crime, scalpers "are physically in Seattle, in public view and are easily identified and investigated," Garcia wrote.

By contrast, the "issues involving in investigating and prosecuting even one Internet sale are confoundingly complex ... to prove. Simply detecting an 'illegal' sale would likely involve half a dozen subpoenas," Garcia maintained.

But in her ruling, the judge noted that Leo Poort, SPD's legal adviser, had stated he found no reason that the department could not find out where such ticket sales originated. The department's vice division and intelligence units run sophisticated computer investigations "with the skill and training to determine what forensics are needed to investigate scalping over the Internet," the judge found.

"This type of investigation has existed for the last five to six years. In similar cases, such as child communication cases, Seattle Police Department has demonstrated their ability to network with other forensic investigators throughout the country to search not just a city, (but) the entire United States to find a perpetrator," the judge wrote.

The judge noted that the M's occasionally review sales on their Web site, but they do not look for scalpers, only for people selling non-season tickets. If they do find such sellers, the team does not involve the police, but cancels the sales and warns the sellers, the judge found.

The city attorney has prosecuted no cases based on ticket scalping from the Web site, the judge found.

Yesterday, statistics provided to The Times by the city attorney's office show that since 2001, the city has filed 210 scalping cases. It's not clear, however, how many of those cases were tied to Mariners tickets.

Charlesworth, the defendant who was facing scalping charges, said he was initially "overjoyed" at learning they were dismissed. "Now that it's sunk in, it just seems like the reasonable decision," he said.

Defender Gordon said that in light of Rietschel's ruling, the Mariners "should have another conversation with their legal counsel and they should question the advice that they've been getting" about the legality of selling online.

"Until the law is enforced fairly against everyone who is violating that law, the city is not going to be able to successfully prosecute," she said.

She and Ressler also questioned whether advancing technology has left the city's scalping law in the dust. "When Internet commerce is expanding at such a rate, it's really difficult to have these (scalping) laws, and perhaps that's what we need to re-examine," Gordon said.