Gov. Ron DeSantis (R) and his legal team came in under the buzzer and filed their response to West Flagler s petition for a writ of quo warranto with the Florida Supreme Court to strip the online sports betting language out of the state s 2021 gaming compact.
Ashley Moody, Florida Attorney General, and DeSantis submitted their response at 11:22 p.m. Friday, Dec. 1, the deadline to file the response.
West Flagler s choice to wait two-and-a-half years to file suit in Florida is unjustifiable, DeSantis notes, and fails on its own merits as does not fall under casino gambling as defined in the Florida Constitution.
Online Sports Betting is Not Casino Gambling
Online sports betting is not casino gambling, DeSantis noted in the response, under the definition provided in the Florida Constitution, as it is not a game typically found in casinos. Amendment 3, which requires Florida voters have the final say in the expansion of casino gaming, does not apply here, he says.
But either way, the compact and its implementing legislation are squarely within Section 30’s IGRA exception. The D.C. Circuit has now rejected Petitioners’ argument that the compact is unlawful under IGRA because it allows the Tribe to offer online sports betting, and the implementing legislation simply executes that lawful compact. Petitioners are incorrect that the IGRA compact exception in Section 30 is limited to compacts narrower than what IGRA itself contemplates and permits—compacts addressing only gaming exclusively occurring on tribal lands, DeSantis and counsel wrote in the response.
The Florida legislature correctly deemed online sports betting transactions to take place on tribal lands, he wrote.
Nothing in Section 30(c) clearly prohibits the legislature from selecting, as a legal matter, the location of a gaming transaction that physically takes place both on and off tribal lands. That is not a legal fiction, but a common thing done to clarify where a transaction occurs, as a matter of law, when it occurs in two or more physical locations.
The approved 2021 gaming compact granted the Seminole Tribe exclusive rights to online sports betting through a “hub-and-spoke” system, which allowed sports bets to be placed anywhere in the state as long as they were processed by computer servers located on Tribal Land.
Unjustifiable To Wait Two Years to File
West Flagler s choice to wait two-and-a-half years to file a suit in Florida is unjustifiable, according to DeSantis. Rather than waiting to file suit in Florida after the compact was approved, West Flagler chose first to sue in federal district court and a D.C. Circuit Court.
Petitioners offer no good excuse for the delay. Petitioners first contend that once the Secretary of the Interior allowed the Compact to take effect, the only remedy available to Petitioners to challenge that approval was through a federal lawsuit. But Petitioners also could have sought—and in fact did seek in their Florida federal suit, a remedy for their injuries through directly challenging the implementing legislation, and that is exactly the remedy they are seeking here.
DeSantis noted in his response that quo warranto actions are typically reserved for truly extraordinary circumstances where immediate review is necessary, rather than as a last resort.
Seminole Tribe is Indispensable Party
According to DeSantis, the Florida Supreme Court should also decline the petition due to the Seminole Tribe not being included in lawsuit. The Seminole Tribe is an indispensable party in this matter and actions cannot be taken without all indispensable parties being included in the suit.
However, due to its sovereign immunity, the tribe cannot be joined to the lawsuit without its consent.
Proceeding with this action without the Tribe would thus “leav[e] the controversy in such a condition that its final termination [would] be wholly inconsistent with equity and good conscience.”
So What Happens Now?
Now that DeSantis and his counsel have submitted their response, the Florida Supreme Court will deliberate whether a writ of quo warranto is necessary. It may require additional responses from either parties before it makes its final decision.
West Flagler s recent request for an extension to file a lawsuit with the Supreme Court of the United States was granted yesterday, giving the petitioners until Feb. 8, 2024, to file a suit with SCOTUS. West Flagler argued that it could not file a complete petition with SCOTUS without first knowing the outcome of its lawsuit with the Florida Supreme Court.
The Seminole Tribe will likely continue to offer online sports betting throughout the state while the lawsuits are being determined. It is also scheduled to in-person sports betting at its Florida casinos this week on Thursday, Dec. 7.
