The internet sweepstakes soap opera took a dramatic turn this week. An employee of a Davidson County sweepstakes business was charged with violating the recently-upheld sweepstakes law, G.S. 14-306.4. The charges were promptly dismissed by the District Attorney, but a sweepstakes vendor called International Internet Technologies nonetheless sued, seeking an injunction prohibiting enforcement of the law against vendors using its updated system, which it contends complies with the statute. A Superior Court Judge granted a temporary restraining order. A hearing on the possibility of a preliminary injunction is scheduled for Monday, and the Attorney General’s office has stepped into the fray. In the meantime, the question on everyone’s mind seems to be whether the TRO binds law enforcement statewide, even though the named defendants were Governor McCrory, Secretary of DPS Shanahan, and the Davidson County Sheriff. I’m no civil procedure expert, but generally a TRO “is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them.” N.C. R. Civ. P. 65(d). So I think the key question is whether law enforcement across the state is “in active concert or participation” with the Governor or the DPS. I doubt that, for example, the Sheriff in Avery County views himself as being in active concert with the folks in Raleigh, but a contrary argument is at least possible. Cf. ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) (injunction prohibiting governor and attorney general from enforcing a [...]
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