That “other” NJ sports betting case might be winding down.
As we reported a few weeks ago, the litigation that culminated in states being able to legalize sports betting is still ongoing.
Fear not, however, legal New Jersey sports betting is not in jeopardy this time. Instead, gone is the state of New Jersey from the litigation, but remaining are the sports leagues and the New Jersey Thoroughbred Horsemen’s Association.
The two sides continue to fight over what happens to the bond that was posted in 2014 when the New Jersey District Court held its first hearings in the Christie II saga.
Where are we now?
The sports leagues petitioned the Supreme Court for review of the Third Circuit’s decision in March.
The sports leagues are making their third trip to the high court in this case, though it is the first time they have sought to initiate a review. Leagues argued that they should not be required to pay the bond to the Horsemen’s Association.
The leagues’ argument effectively rests on the fact that they were successful in obtaining the permanent injunction from the District Court, and they should not be punished because the Supreme Court found the statute was unconstitutional.
On March 30, the Horsemen’s Association filed a brief in opposition to the petition for certiorari filed by the sports leagues’ petitioners.
A kitchen-sink approach to rejecting the argument
The Horsemen’s Association broke down their reasons for the court to decline hearing the case in five arguments:
- The Third Circuit’s judgment is interlocutory.
- There is no circuit split on the questions raised by the sports leagues.
- The questions raised by the sports leagues are of little importance beyond this case.
- The interpretation of Rule 65(c) of the rules of civil procedure is not something that is litigated frequently enough to merit a Supreme Court review.
- The Third Circuit decision was correct.
Your interlocutory judgment
The Horsemen’s group argues that the Third Circuit decision that remanded the case back down to the District Court for further proceedings means that the matter is not final. For appellate courts to review the matters, there usually needs to be some finality.
In this case, the Horsemen’s Association are effectively arguing that we need to wait and see what the District Court does before it would be appropriate for the Supreme Court to touch this case (again.)
Are the circuits split?
In the sports leagues’ petition, they argued that one of the reasons that the Supreme Court should hear the case is that there is a split amongst the country’s appellate circuits. (This is historically one of the factors that increase the likelihood of the Supreme Court reviewing a case.)
But, the Horsemen’s brief throws cold water on that idea. The Horsemen’s Association continues their second argument by suggesting that leagues have wrongfully interpreted the phrase “wrongfully enjoined.”
Just the two of us
The third argument raised in the briefing suggests that this is such a unique set of facts that it effectively only impacts the parties to this particular case.
The impact on future litigation and repetition of similar factual scenarios is another factor that has been suggested in the Supreme Court’s consideration of whether to hear a case.
The Horsemen’s group’s brief holds no punches here, stating:
“The current dispute is merely ‘the last shoe to drop.’
It involves only the narrow question of how much money petitioners owe the Horsemen’s Association for invoking an unconstitutional statute supported by false sworn statements feigning irreparable injury in order to enjoin NJTHA from engaging in an activity that was lawful under New Jersey law (internal citations omitted.)”
The Horsemen’s Association’s fourth argument centers on the importance of determining what the words “wrongfully enjoined” mean.
Indeed, while the phrase is pertinent to this case and a foundation for the federal rule of civil procedure 65(c), there does not appear to be much history questioning what it means.
In fact, the Horsemen argue that the Third Circuit Court of Appeals had only interpreted it on one other occasion.
Third Circuit finally got it right
The Horsemen’s Association’s final argument is that the Third Circuit is correct, and there is no reason for the Supreme Court to hear the case because a just result has been reached.
The association argues that even with dissent, the majority of the appellate court’s panel held that the organization was wrongfully enjoined in the lawsuit. Thus, they are entitled to the bond and losses they suffered as a result of the protracted litigation.
What to make of this?
We are finally approaching the end of this saga. While this phrase has certainly been written many times over the years, this time it is for real.
In all likelihood, the next step will be a reply brief (though they do not have to file one) from the leagues. The sports leagues should normally file it within 14 days of the brief from the Horsemen’s filing, but an order was granted that will effectively give the leagues until April 28, 2020 to file.
At some point shortly after, the files will be distributed to the nine Supreme Court justices, where at least four will need to vote to hear the case or else. In all likelihood, that will be the actual end of the New Jersey sports betting case.
Still low chance of a hearing
The prospect of a second Supreme Court hearing related to this case remains low. Still, the case raises some interesting questions that would appear to be applicable beyond this context (though the Horsemen’s brief may disagree.)
If the Supreme Court chooses not to take the case, we will return to the District Court, which will likely put an end to it. We approach nine years since the state of New Jersey voted by a 2-1 margin for legalized sports betting.
Of course, timelines at the Supreme Court, like most of the country, are in flux as a result of COVID-19 and precautions being taken. Even though the end is approaching, it could be slightly prolonged.