Lawyers for Gov. Ron DeSantis and the Florida legislature have filed counterarguments to West Flagler Associates’ petition for quo warranto in the state Supreme Court. West Flagler, a retail gambling operator in the state, is challenging whether the governor and lawmakers exceeded their authority and violated the state Constitution when they authorized the Seminole Tribe to conduct online sports betting in Florida.
The respondents’ legal team defended the compact and the “Implementing Law” that defines online bets as taking place wherever the receiving servers are located. However, it also asked the Court to reject the petition because it isn’t procedurally appropriate.
West Flagler could have filed a more typical constitutional challenge. However, that would have meant starting from the bottom of the judicial system.
For more immediate impact, it took the less common path of going straight to the Supreme Court for a writ of quo warranto. This is an exceptional remedy. It means a demand by the Supreme Court to the defending parties to explain why they had the authority to do what they did.
The lawyers for the governor and legislators presented four counterarguments.
West Flagler Waited Too Long
Florida signed its new gaming compact and passed the Implementing Law over two years ago. However, West Flagler’s first attempt to defeat sports betting played out in federal court.
That battle is now pending its final appeal to the Supreme Court of the United States. But a comment by Justice Brett Kavanaugh in denying a stay hints that things won’t go West Flagler’s way. At the same, Kavanaugh suggested that the gambling operator might have better chances in state court. That echoed the sentiments of the D.C. Circuit Court, which ruled against West Flagler in June.
Quo warranto is an exceptional remedy, typically only invoked for matters of utmost urgency. West Flagler has argued that the relaunch of Florida sports betting subsequent to the D.C. Circuit ruling creates an emergency.
Nonetheless, the council for the respondents insists that waiting two and a half years to raise the matter in state court undermines any claim of urgency.
The ‘Tribal Sovereignty Catch-22’
The state’s second argument is one that will be familiar to anyone following the Maverick Gaming sports betting challenge in Washington state.
Native American tribes enjoy sovereign status. Among other things, this means that they can’t be named in a lawsuit unless they choose to participate.
However, the policies around litigation in the US require that a case involve at least one party representing any interests directly impacted by its outcome.
These two facts create what could be termed “The Tribal Sovereignty Catch-22.”
If a suit would impact a tribe’s interests, it can’t proceed without them. However, it also can’t proceed with them because of sovereignty.
The only ways around that are if the tribe consents to participate or if the Court deems that another party can adequately represent the tribe’s interests. The Seminoles are unlikely to agree to join this case. So, the question facing the Court will be whether their interests are sufficiently aligned with those of the governor and legislature for the petition to proceed.
Quo Warranto: Not For Ordinary Constitutional Challenges
The third argument is that quo warranto isn’t typically used to challenge a specific statute. Instead, the usual purpose is to attempt to remove an official from office for abusing their authority.
The response states:
By their own admission, Petitioners’ nominal request for the Court to determine “by what authority” the statute was enacted is, at bottom, a demand that the Court “negate” the statute.
There are exceptions to this. West Flagler pointed out Chiles v. Phelps, a 1998 case in which pro-choice parties challenged the legislature’s right to overrule a gubernatorial veto of an anti-abortion bill.
However, the respondents point out that these exceptions occur in emergencies when “the functions of government would be adversely affected absent an immediate determination.” From here, they circle back to their first argument, that West Flagler’s decision to wait two-and-a-half years implies that there is no emergency.
Sports Betting Isn’t a Casino Game
After giving the preceding reasons for the Court not to consider the request in the first place, the council for the respondents provides a direct response to West Flagler’s claims.
The response states that the compact falls under the Indian Gaming Regulatory Act because the Implementing Law defines the bets as taking place on tribal land. Meanwhile, the Implementing Law can’t be unconstitutional because the anti-gambling section of the Florida Constitution refers only to “casino gaming.”
According to the state’s lawyers, sports betting isn’t “a type of game typically found at casinos.”
That was, at least, true in Florida and 48 other states until 2018. Before then, the Professional and Amateur Sports Protection Act had banned sports betting everywhere except Nevada.
However, Florida courts haven’t yet clarified the definition of “casino gaming” in that regard. The worst-case scenario for West Flagler would be for the Supreme Court to endorse that argument.
Doing so would eliminate the option for West Flagler to start over with a conventional constitutional challenge. If sports betting is not casino gaming in the eyes of Florida law, then the constitutional issue is moot. There would be no need to argue about where a bet takes place. The state could simply take a legislative approach to authorizing online sports betting and awarding it to the Seminoles.
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