https://blog.northjersey.com/meadowlandsmatters/12100/new-jersey-odds-in-sports-betting-battle-just-improved-after-third-circuit-request/#more-12100
New Jersey odds in sports betting battle just improved after Third Circuit request Posted on Tuesday, September 15, 2015 5:12 pmby John Brennan UPDATED 6 pm
A rule of thumb, I’m learning, is that when you file an “en banc” appeal to a circuit court that seeks a rehearing before an entire panel of judges, you should expect to lose without the winning side even being asked to reply.
But if the judges DO ask the winners to reply, that bodes pretty well for the en banc requesters – and that’s what has happened in the multi-year New Jersey sports betting case.
A dozen judges in the Third Circuit Court of Appeals on Monday gave the NFL, NBA, NHL, MLB, and NCAA notice that they have until Sept. 29 to reply to the request by state elected officials and thoroughbred horsemen to get another bite at the judicial apple.
Fort Lauderdale sports law attorney Daniel Wallach said that the Third Circuit granted a request for an “en banc” rehearing before the full bench of judges only once in 2014 and twice so far this year.
““New Jersey’s chances for rehearing en banc just received a “Yoenis Cespedes-style” boost today,” Wallach said. “Responses to petitions for rehearing are not allowed under the federal rules unless the panel seeks them — and the panel generally doesn’t order a response unless it is seriously considering rehearing the case. “Before today, I believed that New Jersey’s rehearing chances were excellent because it had all of the right elements, such as a dissenting opinion, an intra-circuit split, and an exceptionally important issue.”
As a result’s today’s order, I firmly believe this case is about to be heard.”
In 2013 after the leagues prevailed, 2-1, before a Third Circuit panel that upheld the primacy of a 1992 federal law banning sports betting in 46 states, the state struck out on an en banc bid without any response sought by the leagues. Last month, another three-judge panel ruled against a revised version of the state’s sports betting law.
The “split” to which Wallach refers is about Judge Julio Fuentes, who wrote the majority opinion in the 2013 ruling but who was the dissenter on the second panel. Fuentes, the only judge who served on both panels, in his dissent said that his colleagues contradicted his own previous ruling. In the first case, the state lost because its sports betting law called for governmental regulation and oversight of the gambling — while the Professional and Amateur Sports Protection Act of 1992 explictly prohibits state sponsorship of sports betting in most states.
Fuentes also suggested, in that ruling, that the state was free to remove its sports betting prohibitions either entirely or in part. Last year, state lawmakers passed a modified bill that repealed state oversight of sports betting — while leaving the state’s racetracks and Atlantic City casinos with the option of running their own private sports betting operations.
But Judges Maryanne Trump Barry (sister of The Donald) and Marjorie Rendell (wife of the ex-Governor of Pa.) ruled last month that the new language, “while artfully couched,” essentially authorizes the gambling.
State Sen. Ray Lesniak, D-Union, who sponsored both bills, said that the news was “a positive, but not surprising” given the two splits in previous rulings. From attorney Christopher Soriano: “It is significant, but is not a guarantee that the full court will hear the case.
However, it means that at least some of the judges have found enough merit in the State’s petition to take the next step and call for a response. Rehearing en banc is still something that is rarely granted; however, since most petitions are simply denied without response, the fact that a response has been called for means that this petition has a better shot than usual at being granted.”
And attorney Daniel Etna: “The Third Circuit (like other Circuit Courts) is rather reluctant to grant en banc rehearing petitions. That said, today’s action is a trend toward the rehearing petition being approved. Third Circuit may be interested in this case given that the one judge [Fuentes] is a “judicial switch hitter” – he initially ruled against New Jersey, but in most recent District Court opinion, he dissented. This fact, coupled with the defeat of New Jersey’s position on Constitutional grounds (i.e., Supremacy clause of Constitution causes federal law to trump conflicting state law) may result in New Jersey getting one last at-bat.
Said differently, a significant portion of the cases before the U.S. Supreme Court involve Constitutional issues. The Third Circuit may want to make sure it got the issue right in case U.S. Supreme Court were to take up the issue.” Monmouth Park operator Dennis Drazin, also an attorney, said at least four judges either want to take the case or at least hear the leagues explain why they shouldn’t. “It’s a step in the right direction,” Drazin said. “It’s interesting, too, and it keeps hope alive.” -
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