By T. D. Thornton
A panel of government attorneys from the United States Solicitor General's (SG) office has recommended in a May 24 brief that the Supreme Court of the United States (SCOTUS) not hear an appeal brought by the State of New Jersey that could help decide the fate of a years-long attempt to legalize sports betting in the state.
The Washington Post called the SG recommendation “perhaps the death blow” to the prospect of legal sports betting at New Jersey's racetracks and casinos (view the entire brief here).
But the online site legalsportsreport.com, which first broke the story, wrote that SCOTUS still has to announce within the next six weeks or so whether it will actually allow the case to move forward based on that recommendation, noting that “the case already has defied the odds in the past, getting an en banc review by the Third Circuit Court of Appeals that NJ eventually lost.”
Dennis Drazin, an advisor to the New Jersey Thoroughbred Horsemen's Association (NJTHA), which leases Monmouth Park, did not return a TDN phone message prior to deadline for this story. However, Drazin was quoted by the Post as saying, “Obviously, we're disappointed” with the SG's recommendation.
Drazin further told the Post that the SG's brief left open one last legal avenue that New Jersey lawmakers might pursue: a full repeal of all state laws against sports betting instead of just the partial repeal, a so-called “Wild West” scenario.
That scenario, the Post explained, differs from the state's prior attempts to get around the federal law. Instead of limiting sports gambling to casinos and racetracks, “a full repeal would remove all the state's laws against sports betting, effectively allowing neighborhood sports bookies to take bets without fear of local or state law enforcement. This would be a legal strategy similar to how Colorado allowed recreational marijuana by repealing its state laws against the drug, leaving it up to federal law enforcement agencies to decide if they wanted to intervene.”
According to the Post, in January, SCOTUS asked the SG for a brief on the merits of the two cases–Chris Christie, et al. v. NCAA, et al.; and NJTHA v. NCAA, et al.–which deal with New Jersey's challenges to the federal government's near-total ban on legal sports betting.
That request by SCOTUS had been viewed as a positive sign that SCOTUS might hear the case, because, according to Legal Sports Report, “when SCOTUS asks the SG to get involved and the SG agrees that an appeal should move forward, SCOTUS grants appeals in a majority of such cases.”
But in the Wednesday brief, the SG attorneys wrote that the case did not merit the attention of SCOTUS because the New Jersey entities had not raised valid constitutional problems with the Professional and Amateur Sports Protection Act of 1992 (PASPA), the federal law that prohibits legalized sports gambling in all but four grandfathered states (Nevada, Oregon, Montana and Delaware).
“Although PASPA has been on the books for a quarter century, it has apparently given rise to only a handful of suits, all in the Third Circuit,” the SG attorneys wrote. “Apart from New Jersey's recent efforts to foster sports betting at the State's casinos and racetracks, only one other State has enacted legislation challenged under Section 3702(1): Delaware, which unsuccessfully argued that various forms of sports lotteries fell within PASPA's grandfathering clause… No other State has enacted legislation claimed to conflict with PASPA [and] the absence of a conflict on the question presented and the paucity of PASPA litigation of any kind counsel against this Court's review. The limited practical consequences of the question presented confirm that this Court's review is unwarranted.”
According to Legal Sports Report, New Jersey had passed a law in 2014 that partially repealed its own sports betting ban, allowing wagering to take place in the state. But major professional and amateur sports leagues–including the NFL, NBA, NHL, MLB, and the NCAA–banded together to present legal challenges and obtain restraining orders to keep the measure from taking effect. @thorntontd
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