You have to admire the grit on behalf of the Florida parimutuels. Knocked down time and again by the powerful Seminole tribe of Florida, they find a way to get back up, dust themselves off and start again in an effort to let others participate in sports betting.
West Flagler and Associates (WFA)—a combination of two parimutuels—filed a response to the Florida Supreme Court December 26, keeping alive their campaign to prevent the Seminoles from dominating sports betting throughout the state.
WFA claims that Amendment 3—the 2018 referendum that requires voters to approve any new gambling initiative—includes sports wagering within the framework of casino gambling. The Seminoles say it doesn’t.
What are the options facing both parties? The Supreme Court of the state of Florida could take up the case as presented by WFA, say no and good luck, or refer it to a lower court in Leon County. The court has no timeline to sort this all out. But just in case, WFA will file another objection to the Seminole compact before the U.S. Supreme Court. Hedge their bet so to speak.
At stake before the courts are several questions: Does Amendment 3 require voter approval for gambling away from tribal real estate or is this an exception to Amendment 3? Did the WFA file its objections in a timely manner? Are the Seminoles an “indispensable” party to the case at hand?
The tribe is outside the jurisdiction of Florida law so can stand on the sidelines unless it decides otherwise, which is not likely to happen.
Writing in the new filing, WFA attorney Raquel A. Rodriguez told Sports Handle the “plain language” of Amendment 3 “expressly limits the power of the elected branches to expand gambling off tribal lands and grants that power exclusively to the people.”
Further, Rodriguez said efforts to do otherwise apply only to gaming on tribal lands. WFA’s attorney said Amendment 3 does not exclude sports betting from the definition of casino gaming. Amendment 3 provides an exception to voter approval for gambling within tribal land, but the compact said as long as servers are on tribal lands, that constitutes an exception, too.
At stake, West Flagler argues, are the rights of Florida’s voters, over 70 percent of whom approved the amendment in 2018, which gives voters the sole power to “authorize casino gambling” in the state.
WFA lawyers go on to say that the state’s arguments “subvert” the intent of the Indian Gaming Regulatory Act and that the state is trying to “smuggle” sports betting into the federal law. West Flagler seeks to preserve voters’ power, arguing that Governor Ron DeSantis and the state violated that power through a gaming compact that legalizes online sports betting statewide, as long as the servers are on Seminole Tribe lands.
The Florida Supreme Court could rule on sports betting any day now, experts say, though it’s also possible the case will stretch on for years.
“The only necessary parties before the court are the legislature, which enacted the implementing law, the governor, who signed the compact and implementing law, and the people (through petitioners), whose constitutional power was usurped,” attorneys wrote in the reply brief.
“Certainly [the decision] could have precedential force as to people’s right of initiative,” Daniel Wallach, a sports betting attorney based in Hallandale Beach, told the Sun Sentinel.
Ruling against DeSantis’ office “could fortify potential challengers to legislative or executive actions that are arguably in derogation of the state constitution,” he said. “It’s an important case not just for gambling but could have a lasting impact for other kinds of constitutional challenges.”
Yet democracy isn’t the main issue, some say, because the amendment doesn’t give voters much agency in the first place.
“I don’t think Amendment 3 largely does anything with respect to voter power,” said Quinn Yeargain, an assistant law professor at Widener University Commonwealth Law School focusing on state constitutional law. “I don’t think that under any circumstances, the procedure for voter approval under Amendment 3 will ever be able to be successfully utilized.”
Judicial procedure is perhaps as important as the case itself in determining the Florida Supreme Court’s next steps. If the court does take up the case, it will ignore its own precedent of allowing lower courts to weigh in, according to Bob Jarvis, a law professor at Nova Southeastern University who teaches a class on gambling law.
“I think it’s important for readers to understand that there is this important procedural question which is, ‘should this case be allowed to cut the line and go directly to the Florida Supreme Court?’” Jarvis told the Herald-Palladium. “And it is my opinion, and it has always been my opinion, that the Florida Supreme Court, which has made it very, very clear that it hates line-cutting, is going to send this case down to Leon County Circuit Court.”
The court’s decision may rely on how the court views the urgency of the issues and requires an answer yesterday, so to speak.
“I’m just not struck that it’s super urgent,” said Yeargain, adding that West Flagler would need to demonstrate some kind of harm from the continuation of sports betting. “The courts are always eager to avoid answering questions if they can do it.”
Let’s not gloss over the fact the Florida Supreme Court contains five DeSantis appointees out of the seven justices.
“If this weren’t the Florida Supreme Court, if it was any other supreme court, where the majority of judges aren’t appointed by the governor, I think this would have a better than 50-50 chance of prevailing,” Wallach told the Sun Sentinel.
Both sides have spent significant time responding to whether sports betting is casino gambling. If it’s not, the amendment has no bearing.
In response, West Flagler argued before the Florida Supreme Court in 2018, when both sides of the issue Amendment 3 said sports betting was an example of casino gaming. And so did voters.
“Unearthing those concessions” might “help carry the day,” Wallach said, “at least on the primary issue of whether Amendment 3 encompasses sports wagering.”
“A voter reading the ballot summary, title or text of Amendment 3 never would have imagined that the Legislature could approve statewide mobile gambling outside tribal lands under the guise of an IGRA compact,” West Flagler wrote.
The same issue sits before the U.S. Supreme Court. While federal cases in other states have supported the idea that betting takes place where the bettor is located, Wallach said, Florida state court has the right to interpret it differently.
Seriously, how much does voter intent come into play to the Supreme Court anyway?
In ambiguous cases such as this one, Yeargain said, it’s best to avoid attributing too much to voter intent, though it does seem that “voters wanted to assert greater control over gambling,” so reading the definition of casino gambling “narrowly” and the exception for tribal lands “broadly” by allowing online sports betting doesn’t make sense in this context.
Yeargain thinks the legal interpretation appears to support the state more clearly, even if it’s not what voters thought they were voting for, while the real injustice was allowing the amendment onto the ballot in the first place.
The amendment “persuaded voters it was doing something it didn’t do,” Yeargain said, “something that should’ve been struck from the ballot because it was misleading.”
West Flagler isn’t really concerned with the interests of voters. They’re just miffed that they couldn’t offer sports betting because the Seminoles monopolize the issue.
“Their argument really comes down to, ‘we don’t think that’s fair,’” Jarvis told the Herald-Palladium.
What’s next?
If the court does take up the case, Floridians can expect to wait a bit because it will likely want to hear oral arguments due to the significance of the issue at hand, Wallach said.
“Because this is an issue that goes right to the core of the people’s right to initiative, this is an issue of constitutional dimensions impacting gambling on a statewide basis, I would suspect the Florida court would want to have oral arguments,” he told the Sun Sentinel.
Without oral arguments, the court could rule in the first quarter of 2024. Even with such arguments, Wallach anticipates the case wrapping up in 2024.
If the court decides not to take up the case, it could be years before a decision is reached as the lawsuit makes its way back through the appeal system, Jarvis said.
