A U.S. Third Circuit Court of Appeals panel on Tuesday once again affirmed a federal ban against New Jersey's law that sought to enable the state's racetracks and Atlantic City casinos the option of offering sports betting.

But just as a previous Third Circuit panel did in 2013, the ruling included one dissent among the three judges. Further complicating matters, Judge Julio Fuentes – who wrote the majority opinion two years ago upholding the ban – this time was the dissenter.

The other two judges, Marjorie Rendell (wife of the former Pennsylvania Governor Ed Rendell) and Maryanne Trump Barry (sister of Presidential candidate Donald Trump), were not on the original panel. Both affirmed the previous ruling, however.

In writing the current opinion, Rendell wrote: "The issue presented in this appeal is whether [the 2014 New Jersey law] to partially repeal certain prohibitions on sports gambling, violates federal law. The District Court held that the 2014 Law violates the [1992] Professional and Amateur Sports Protection Act ("PASPA"). We will affirm. PASPA, by its terms, prohibits states from authorizing by law sports gambling, and the 2014 Law does exactly that."

The state is expected to appeal the ruling "en banc" to the entire Third Circuit judiciary, but it failed in such an attempt previously even with the earlier 2-1 split verdict.

Monmouth Park officials had been poised to offer NFL sports betting this season if the Third Circuit struck down the ban and if the leagues were unsuccessful in obtaining an injunction to delay such gambling.

JUDGMENT

This case came to be heard on the record from the United States District Court for the District of New Jersey and was argued on March 17, 2015.

On consideration whereof, it is now here ORDERED and ADJUDGED by this Court that the order of the District Court dated November 21, 2014 is hereby affirmed.

I wrote just yesterday about the key being the word "authorize."

Interesting aside in Rendell's opinion:

"PASPA is not without its critics, even aside from its economic impact. It has been criticized for prohibiting an activity, i.e., sports gambling, that its critics view as neither immoral nor dangerous. It has als been criticized for encouraging the spread of illegal sports gambling and for making it easier to fix games, since it precludes the transparency that accompanies legal activities.

[from the first sports betting case]
"Simply put, "[w]e are cognizant that certain questions related to this case — whether gambling on sporting events is harmful to the games' integrity and whether states should be permitted to license and profit from the activity — engender strong views."

[Rendell continues]

"While PASPA's provisions and its reach are controversial and, some might say, unwise, "we are not asked to judge the wisdom of PASPA" and "[i]t is not our place to usurp Congress' role simply because PASPA may have become an unpopular law.

"We echo Christie I in noting that "New Jersey and any other state that may wish to legalize gambling on sports... are not left without redress. Just as PASPA once gave New Jersey preferential treatment in the context of gambling on sports, Congress may again choose to do so or... may choose to undo PASPA altogether." Unless or until that happens, however, we are duty-bound to interpret the text of the law as Congress wrote it."

..........

Then, as I suggested in yesterday's post, the court moved on to discern what the definition of "authorize" is.

"We now turn to the primary question before us: whether the 2014 Law violates PASPA. We hold that it does. Under PASPA, it shall be unlawful for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports gambling."

"We conclude that the 2014 Law violates PASPA because it authorizes by law sports gambling. First, the 2014 Law authorizes casinos and racetracks to operate sports gambling while other laws prohibit sports gambling by all other entities. Without the 2014 Law, the sports gambling prohibitions would apply to casinos and racetracks.

"Appellants urge that the 2014 Law does not provide authority for sports gambling because we previously held that "[t]he right to do that which is not prohibited derives not from the authority of the state but from the inherent rights of the people" and that "[w]e do not see how having no law in place governing sports wagering is the same as authorizing it by law."

"But this is not a situation where there are no laws governing sports gambling in New Jersey. Absent the 2014 Law, New Jersey's myriad laws prohibiting sports gambling would apply to the casinos and racetracks. Thus, the 2014 Law provides the authorization for conduct that is otherwise clearly and completely legally prohibited.

"Second, the 2014 Law authorizes sports gambling by selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling. Under the 2014 Law, New Jersey's sports gambling prohibitions are specifically removed from casinos, gambling houses, and horse racetracks as long as the bettors are people age 21 or over, and as long as there are no bets on either New Jersey college teams or collegiate competitions occurring in New Jersey. The word "authorize" means, inter alia, "[t]o empower; to give a right or authority to act," or "[t]o permit a thing to be done in the future."

"The 2014 Law allows casinos and racetracks and their patrons to engage, under enumerated circumstances, in conduct that other businesses and their patrons cannot do. That selectiveness constitutes specific permission and empowerment..... While artfully couched in terms of a repealer, the 2014 Law essentially provides that, notwithstanding any other prohibition by law, casinos and racetracks shall hereafter be permitted to have sports gambling. This is not a repeal; it is an authorization."

NEXT: The Dissent from Judge Fuentes:

"As I see it, the issue is whether a partial repeal amounts to authorization.

"The majority.... maintains that the 2014 Law "authorizes" casinos and racetracks to operate sports gambling while other laws prohibit sports gambling by all other entities. According to the majority, "this is not a situation where there are no laws governing sports gambling in New Jersey" and "[a]bsent the 2014 Law, New Jersey's myriad laws prohibiting sports gambling would apply to the casinos and racetracks."

"Yet, the majority is mistaken as to the impact of a partial repeal. Repeal is defined as to "rescind" or "an abrogation of an existing law by legislative act." When a statute is repealed, "the repealed statute, in regard to its operative effect, is considered as if it had never existed." A repealed statute is treated as if it never existed; a partially repealed statute is treated as if only the remaining part exists.

"The 2014 Law, then, renders the previous prohibitions on sports gambling nonexistent. After the repeal, it is as if New Jersey never prohibited sports gambling in casinos, gambling houses, and horse racetracks. Therefore, with respect to those areas, there are no laws governing sports wagering and the right to engage in such conduct does not come from the state. Rather, the right to do that which is not prohibited stems from the inherent rights of the people.

"The majority, however, states that "[a]bsent the 2014 Law, New Jersey's myriad laws prohibiting sports gambling would apply to the casinos and racetracks," and that, as such, "the 2014 Law provides the authorization for conduct that is otherwise clearly and completely legally prohibited."

"We have refuted this position before. In Christie I, we held that "the lack of an affirmative prohibition of an activity does not mean it is affirmatively authorized by law." Such an argument, we said, "rests on a false equivalence between repeal and authorization and reads the term 'by law' out of the statute."

"We identified several problems in making this false equivalence – the most troublesome being that it "reads the term 'by law' out of the statute." The majority's position does just that. In holding that a partial repeal of prohibitions is state authorization, the majority must infer authorization..... to reach the conclusion that the 2014 Law, a partial repeal of prohibitions, authorizes sports wagering, the majority necessarily relies on this false equivalence. It concedes as much when stating "the 2014 Law" (the repeal) provides "the authorization" for sports wagering. Of course, this is the exact
false equivalence we identified, and dismissed as a logical fallacy, in Christie I..... the majority is simply left calling a tail a leg — which, as the adage goes, does not make it so. Because I do not see how a partial repeal of prohibitions is tantamount to "authorizing by law" a sports-wagering scheme in violation of PASPA, I respectfully dissent."

American Gaming Association (AGA) President and CEO Geoff Freeman released the following statement after the Third Circuit Court of Appeals' decision on sports betting:

"Today's decision by the Third Circuit on sports betting and how gaming is regulated encourages deeper examination about the best path forward on this issue. With Americans betting at least $140 billion on sports illegally each year, it's clear that current law is not achieving its intended result. As the AGA leads an industry-wide task force to study sports betting, we will assess the implications of the court's decision as the gaming industry continues to develop innovative ways to provide products and experiences that meet consumers' demands."

This is a reprint from blog.northjersey.com. to view the original, click here.