WITH THE SUPREME COURT’S PENDING SPORTS GAMBLING DECISION STATES ARE ALREADY PREPPING FOR LEGALIZATION

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A screen shows a baseball game next to various betting lines at the Westgate Superbook in Las Vegas, Nevada. John Locher/AP Photo

Jennifer Roberts,
University of Nevada

The gambling world is waiting with bated breath for the United States Supreme Court decision that could result in an expansion of sports betting. The decision could be announced anytime between today and the end of June.

Since I teach sports betting regulation and gambling law, I’ve been closely watching the developments as well. Although Nevada has had a robust sports betting industry for decades, New Jersey has been at the forefront of the push to legalize sports betting.

In recent years, many other states have prepared for a ruling from the Supreme Court that would overturn the prohibition of sports betting. Even professional sports leagues – which have emerged as the leading opponents of efforts to legalize and regulate sports betting – are looking to cash in.

How we got here

According to the 10th Amendment of the United States Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

For this reason, states have traditionally overseen and regulated casino gambling. The Nevada Supreme Court specifically recognized, in a case involving the infamous Frank Rosenthal (portrayed as Ace Rothstein by Robert De Niro in the movie “Casino”), that gaming is “a matter reserved to the states within the meaning of the 10th Amendment to the United States Constitution.”

However, in 1992, responding to concerns about the spread of state-sponsored sports wagering, Congress enacted the Professional and Amateur Sports Protection Act, also known as the Bradley Act, named after its lead sponsor, then-U.S. Senator Bill Bradley.

The Bradley Act made it unlawful for any governmental entity, such as states, municipalities or Indian tribes, to “sponsor, operate, advertise, promote, license, or authorize by law or compact” any sports betting. In addition, the act prohibited any individual from operating any sort of sports betting enterprise.

However, the Bradley Act exempted four states from the prohibition: Nevada, Oregon, Delaware and Montana. Of these four states, Nevada was – and remains – the only one with full-scale sports wagering. New Jersey was given a one-year window to legalize sports wagering, but the state legislature failed to take action within the allotted time.

Fast forward to 2011. That year, New Jersey government officials decided they wanted to have regulated sports wagering, so the state introduced a referendum on a statewide ballot that would amend the state Constitution to permit wagering on college, amateur, and professional sports at Atlantic City casinos and racetracks across the state.

New Jersey voters supported the ballot referendum, and in 2012 the New Jersey legislature passed a law to legalize sports wagering.

However, the major professional and college sports leagues – NCAA, NFL, MLB, NBA and NHL – opposed the legislation and filed a lawsuit to stop New Jersey from regulating sports wagering.

In response, New Jersey claimed that the Bradley Act was unconstitutional because it violated the state’s 10th Amendment rights to regulate gambling in the form of sports wagering. In 2013, the Third Circuit Court of Appeals ruled in favor of the leagues, and the U.S. Supreme Court declined to consider the case. The Bradley Act remained intact.

New Jersey pressed on. Having lost on the argument that legalizing sports wagering is equivalent to “authorizing” it under the existing Bradley Act, New Jersey got creative and decided to simply repeal the state’s criminal laws and regulations that prohibited sports book operations in casinos and racetracks.

Once again, the sports leagues sued to stop New Jersey. In response, New Jersey argued that it would be a violation of the 10th Amendment if the state were prevented from repealing an existing law. Again, the lower courts and Third Circuit Court of Appeals ruled in favor of the leagues – but for the first time, the U.S. Supreme Court decided it would weigh in.

Prepping for the inevitable?

Now we await the decision.

It’s important to note that this case is about more than sports betting, which is simply the subject matter before the Supreme Court. It has more to do with states’ rights, and the decision has the potential to affect other areas of dispute, from marijuana legalization to the ability of cities to protect undocumented immigrants to gun control.

There are several possible outcomes. The U.S. Supreme Court could decide in favor of the leagues, which would mean New Jersey – and any other nonexempted state – would remain prohibited from allowing any sports wagering.

At the other end of the spectrum, the court could declare the Bradley Act unconstitutional, and states and Indian tribes would no longer be blocked from authorizing and regulating full-scale sports wagering.

Another possibility is that the court sides with New Jersey and allows the state to decriminalize sports wagering – on an either limited basis (in casinos and racetracks) or entirely – but not regulate it.

Finally, the Supreme Court could strike the prohibition that prevents states and tribes from permitting sports wagering, but keep the restriction so that individuals cannot conduct legal sports wagering. If this were to happen, sports betting could be permitted by states, but individuals would be prevented from operating their own sports betting business.

About 20 states are already preparing for the event that the Bradley Act gets overturned and are gearing up to pass laws (or have already done so) that will give them the ability to offer regulated sports wagering.

However, there are many unknowns and issues that will need to be addressed: Will state-sponsored sports wagering be run by state lotteries or private enterprise such as casinos or racetracks? Will amendments be needed to permit Indian tribes to offer sports wagering? And will information on sporting events for wagering purposes – such as scores, outcomes or game statistics – be restricted to data generated from the leagues?

There are already disagreements over something called an “integrity fee.” In states where sports betting will likely become legal, leagues have been pressing to receive 1 percent of all amounts wagered on a sporting event.

In Nevada – where legal, regulated sports wagering has taken place since 1949 – such a fee has never been in place. Instead, casinos simply pay the state up to 6.75 percent in a tax on revenues (which is the same tax paid by casinos on other forms of gambling), in addition to a federal tax of 0.25 percent on amounts wagered. States looking to legalize sports betting are proposing varied rates of taxation.

So how might an integrity fee affect sports books?

If we look at the most recent Super Bowl, over US$158 million was wagered in Nevada on the game. If there was a mandated integrity fee, this means that the NFL would have received $1.58 million from Nevada sports books.

But in the case of the Super Bowl, Nevada sports books only made $1.17 million, or 0.7 percent of the total amount wagered. So that means that if Nevada sports books had to pay an integrity fee on the Super Bowl, it would have lost money even before having to pay state and federal taxes, rent, employee salaries and the other costs of operating a sports book. From the industry’s perspective, sports wagering isn’t always as lucrative as it’s often portrayed to be.

The ConversationFor this reason, states must be educated and informed when considering whether to legalize sports betting. If they think they’ll get a tax windfall for schools and roads, they could be sorely mistaken – especially if the leagues end up getting a cut.

This article was originally published on The Conversation.

 

 

Those Who Administer The Law

A column by Gov. Dennis Daugaard
November 3, 2017

This week, it was my honor to participate in the investiture of Steven R. Jensen as the newest member of the South Dakota Supreme Court. Justice Jensen is a native of Wakonda and has been a circuit judge in Elk Point for the last 14 years. Rather than come to Pierre, he held his swearing-in ceremony at the USD Law School in Vermillion, so that he could be near to his family, friends and peers in the legal community.

It doesn’t get much attention, but one of the governor’s most important responsibilities is to appoint Supreme Court justices and circuit court judges. Supreme Court justices are always appointed by the governor. Periodic statewide “retention elections” ask voters to choose “yes” or “no” on retaining each justice. Circuit judges are elected to eight-year terms, but very often they retire mid-term, in which case the governor appoints a successor.

For appointments, a screening committee called the Judicial Qualifications Commission screens applicants to ensure that they are qualified. A governor may appoint only from the list of candidates submitted by the Commission. I typically interview between three and five listed candidates for each open position.

Appointing judges has kept me pretty busy over the years. In South Dakota, judges must retire when they turn 70, and they sometimes retire earlier. As in many other professions, the “baby boomers” are reaching retirement age, and many judges have stepped down in recent years. As of today, 28 of South Dakota’s 43 circuit court judges are new since I took office in 2011, and still three more circuit judge positions are soon to be filled.

I have also made three appointments to the South Dakota Supreme Court. My first appointee, Judge Lori Wilbur, was the second woman to serve on the Court when I appointed her in 2011. My second appointee was Janine Kern, who had been a longtime circuit judge in Rapid City.  Justice Wilbur retired earlier this year, and Justice Jensen replaced her. Justice Jensen is the 50th justice to serve on our five-member court.

In addition to justices Wilbur and Kern, a new generation of younger judges has also brought more women to the circuit court bench. Since 2011, the 28 new circuit judges have included 11 women. Women today make up more than one-quarter of the circuit judge positions in the state, and their number continues to increase.

South Dakota’s judges don’t often get much attention, and they don’t seek it. But they play an important role in our society. Whether it is a high-profile murder trial, a child custody case, a million-dollar contract dispute, or a small claim, we look to our judges to administer the law in a fair and speedy manner. South Dakota is fortunate to have so many attorneys who are willing to serve the public in this important role.

Supreme Court Justices In The Pews and On The Bench – Where Neil Gorsuch Fits In

 

Supreme Court nominee, Neil Gorsuch. Joshua Roberts

 

Steven K. Green,
Willamette University

On Jan. 31, President Donald Trump nominated Judge Neil M. Gorsuch of the Tenth Circuit Court of Appeals to fill the vacancy on the Supreme Court occasioned by the death of Justice Antonin Scalia. The Senate hearing on Judge Gorsuch’s nomination to the Supreme Court started on Monday, March 20.

As important as is a Supreme Court confirmation, Congress and the media have focused chiefly on the numerous controversies that have embroiled the new Trump administration. One media outlet even called Gorsuch’s confirmation process the “stealth Supreme Court nomination.”

Judge Gorsuch has a reputation as a judicial conservative in the mold of Scalia. He has not ruled on several controversial issues such as gun rights, but the conventional wisdom among court watchers is that if confirmed, the “young” (49-year-old) Gorsuch will swing the high court back to the right on many social issues and will impact Supreme Court jurisprudence for decades to come. As a result, progressive interest groups are scrambling to marshal their forces to oppose Gorsuch’s confirmation.

Judge Gorsuch has a notably strong record on one controversial subject, that being on church-state matters. His rulings have generally supported a more “accommodationist” approach to resolving church-state controversies, a position advocated by religious conservatives. In addition, during the White House announcement ceremony for his nomination, Judge Gorsuch remarked that he was “thankful for my family, my friends, and my faith.”

His statement raises the question of whether a judge is influenced to rule a particular way on church-state controversies by his or her religious faith.

I am a constitutional law professor who specializes in church and state matters. I have also participated in more than 25 church-state cases before the Supreme Court as counsel and through friend-of-the-court briefs.

In my view, the religious faith of a justice, standing alone, tells us little about how he will vote in church-state cases or on other controversial social issues. It is a conservative religious worldview that is more likely to reinforce and validate an existing conservative judicial ideology.

Gorsuch’s judicial decisions

Following Trump’s announcement, conservative religious groups such as Focus on the Family and the Family Research Council praised Gorsuch’s nomination. The evangelical magazine Christianity Today declared that Gorsuch will be a justice “that evangelicals will love.” In contrast, progressive religious groups have voiced opposition to Gorsuch’s nomination based on his church-state holdings.

Little is known about Gorsuch’s personal faith other than that he is religiously observant. Gorsuch was raised Catholic, attending a private Jesuit school in his youth. He became an Episcopalian while a graduate student at Oxford, the religion of his wife whom he met while in England. Currently the judge attends a mainline Episcopal church in Boulder, Colorado, that takes progressive stances on social issues.

The liberal orientation of Gorsuch’s church stands in contrast to his own record of judicial decision-making. During his 10-year tenure on the Tenth Circuit Court of Appeals, Gorsuch has taken a firm stance on behalf of protecting religious liberty claims against government regulations, a position that has made him a favorite of religious conservatives. Several of those cases have been highly controversial.

Protesters rally outside the Supreme Court against President Donald Trump’s Supreme Court nominee Neil Gorsuch in Washington, D.C. on Jan. 31. Yuri Gripas

The infamous Hobby Lobby case is one example. In that case, the Supreme Court held that for-profit corporations may assert a religious liberty defense against having to comply with the contraceptive care insurance mandate under the Affordable Care Act. Judge Gorsuch wrote a concurring opinion in the Tenth Circuit’s decision that went even further, urging that courts should defer to a person’s subjective claim that a law burdens his religious beliefs, regardless of how tangential that burden appears objectively.

Little Sisters of the Poor is another example of a case that involved the question of a religious exemption from complying with the ACA. In that case, the Catholic order that operates nursing homes claimed that even applying for an exemption under the ACA from the government violated their religious beliefs. Gorsuch dissented when the Tenth Circuit declined to reconsider its decision rejecting the Little Sisters’ religious liberty claims. That dissent argued that the court had given insufficient deference to the Little Sisters’ own articulation of the burden on their religious beliefs.

He has also written or joined on opinions siding with the ability of governments to display religious symbols on public property, such as a Ten Commandments monument on courthouse lawns. According to one bipartisan analysis of Gorsuch’s record:

“The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government [nondiscrimination] programs.”

Religious affiliations in Supreme Court

The question many people are asking is, will Gorsuch’s religious affiliation matter? First, let’s look at the religious makeup of the Supreme Court.

Currently, the Supreme Court comprises five Catholics and three Jews (Justice Scalia was also Catholic). This has led some commentators to speculate on what this means for issues such as abortion regulations and church-state matters.

The vast majority of justices have been Protestants, which is not surprising considering the Protestant dominance of the culture until recently. President Andrew Jackson appointed the first Catholic to the Supreme Court (Chief Justice Roger Taney) in 1836, a fact that did not go unnoticed. The next Catholic justice, Edward D. White, was appointed in 1894, some 58 years later. (White was more controversial for being a former Confederate officer than for being Catholic)

The first Jewish justice was appointed in 1916 (Louis Brandeis), to be followed by Benjamin Cardozo in 1932, which established the unofficial “Jewish seat” on the court. From 1940 forward, there has always been at least one Catholic and one Jewish justice on the high court (absent a hiatus from 1969 to 1993 of a Jewish justice).

Those demographics have changed significantly over the past two decades. With the resignation of Justice John Paul Stevens in 2010, the court was left without a Protestant member for the first time in its history.

Here’s what history tells us

In most instances, research shows, a justice’s religious faith has been a poor predictor of his or her judicial philosophy (and that would assume that one can draw accurate conclusions about what any religion requires of its adherents).

For example, is it safe to assume that a Catholic justice will vote against abortion and gay marriage because of the teachings of the Catholic Church?

Catholic Justice Frank Murphy (1940-1949) was a staunch New Deal liberal, whereas Catholic Justice William Brennan (1956-1990) was likely the Supreme Court’s fiercest supporter of church-state separation and reproductive choice during his long tenure.

Currently, Catholic Justice Sonia Sotomayor is considered to be part of the court’s liberal wing. Another notable liberal was Justice Hugo Black (1937-1971), who was a Southern Baptist, while two conservative justices were William Howard Taft (1921-1930) (Unitarian) and William Rehnquist (1972-2005) (Lutheran).

And though Catholic Justice Anthony Kennedy usually sides with the conservatives, he has voted to uphold abortion rights and gay marriage. Likely the closest religious indicator of judicial philosophy has been among the court’s Jewish justices, who have overwhelmingly been liberal.

To be sure, there have been some exceptions. Justice William Strong (1870-1880) was an evangelical Presbyterian who served briefly as president of a religious organization that sought to amend the Constitution to declare the United States a “Christian nation.”

Similarly, Justice David J. Brewer (1889-1910) was an evangelical Congregationalist who declared in a court opinion that America was a Christian nation, a matter he wrote about at length off the bench. And Justice Felix Frankfurter (1938-1962), a secular Jew, frequently referenced his religious/ethnic heritage in his strong support for church-state separation.

But those instances have generally represented the exceptions.

The safest conclusion to draw from history is that religious affiliation is probably a poor indicator of judicial philosophy. It generally does not preordain any judicial holdings. However, a conservative religious outlook may reinforce an existing conservative judicial ideology, and vice versa, particularly on social issues.

Steven K. Green, Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette University

This article was originally published on The Conversation.

The Best Legal Arguments Against Trump’s Immigration Ban

Steven Mulroy,
University of Memphis

January 31, 2017

Is President Trump’s recent executive order on immigrants and refugees legal?

It’s a surprisingly tricky question.

The order arguably violates both a federal statute and one or more sections of the Constitution – depending on whether the immigrant is already in the U.S. In the end, opponents’ best hope for undoing the order might rest on the separation of church and state.

Trump’s order bars the entry of any refugee for 120 days, and Syrian refugees indefinitely. It also bans citizens of Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen from entering the U.S. for 90 days. This order potentially affects more than 20,000 refugees, along with thousands of students nationwide. Depending on how it is enforced, it could also impact as many as hundreds of thousands of green card holders, or immigrants with permanent residency.

Many opponents have challenged the order in court.

A U.S. District Court judge in Brooklyn, New York, issued a ruling that halted the enforcement of Trump’s executive order the day after he signed it. Judges in at least four other states followed suit.

Trump’s supporters defend the order’s legality based on a federal immigration statute passed in 1952 that allows the president to suspend the U.S. entry of “any class of aliens.” But, as a former U.S. Justice Department lawyer and a law professor, I believe there are at least four possible arguments challenging the legality of the order.

Anti-discrimination statute

There is, critically, another federal statute that outlaws discriminating against a person regarding issuing visas based on the person’s “nationality, place of birth, or place of residence,” which Trump’s order clearly does. This second statute was passed in 1965 and is more specific than the 1952 statute. What’s more, courts have enforced this anti-discrimination ban strictly. This is the strongest legal argument against President Trump’s order.

But Congress can amend or repeal the 1965 statute, as it can any law. A Republican-controlled Congress might do that, although concerns raised by some GOP lawmakers may make that unlikely.

Due process and equal protection

The recent court orders halting enforcement of the Trump order relied on a legal argument that it violated due process or equal protection under the Constitution. Due process means that people get procedural safeguards–like advance notice, a hearing before a neutral decision-maker and a chance to tell their side of the story–before the government takes away their liberty. Equal protection means the government must treat people equally, and can’t discriminate on the basis of race, alien status, nationality, and other irrelevant factors.

As the Supreme Court has said, even immigrants who are not citizens or green card holders have due process and equal protection rights, if – and only if – they are physically here in the U.S. That’s why the recent court orders on due process and equal protection help only individuals who were in the States at the time the court ruled.

Given the rushed, chaotic manner in which the recent order was drafted and enforced, with no set chance for affected individuals to plead their case, maybe there are some valid due process arguments against the ban. But presumably, those can be fixed by slowing down and letting people have their say. Once that’s done, the remaining issue is whether the executive order violates equal protection by intentionally discriminating against Muslims.

Trump denies the order is a “Muslim ban,” even though he called for exactly that during the campaign, and each of the seven countries subject to the ban is majority Muslim. In explaining why those seven countries were chosen, the order itself cites the Obama-era law stating that persons who in recent years have visited one of these seven terrorism-prone nations would not be eligible under a “visa waiver” program. Similarly, says Trump, the defining characteristic here is terrorist danger, not religion. That’s why only seven of more than 40 majority Muslim countries are affected. (Note that the Obama-era rule isn’t based on nationality, but rather on whether someone of any nationality visited the danger zone since 2011 – a criterion not outlawed by the 1965 statute.)

One problem with Trump’s argument is that the order also seems to prioritize admitting Christian refugees. It does this by saying that once the 120-day ban on all refugees expires, priority goes to those of “a minority religion in the individual’s country.”

Supporters can rightly argue this “minority religion” language is neutral. It never mentions Muslims or Christians. But, as that neutral language interacts with the country-specific ban targeting seven Muslim countries, the two can’t help but disproportionately help Christians. Indeed, just days before signing the order, Trump told the Christian Broadcasting Network he intended to prioritize Christian refugees.

Separation of church and state

That brings us to the final legal argument against the president’s order. By picking favorites among religions, it violates the separation of church and state under the Constitution’s Establishment Clause of the First Amendment. Though Establishment Clause law is often murky, one clear point is that the government can’t favor one religious denomination over another.

This may be the most important of the constitutional theories involved in this case because it may have the broadest scope.

The due process and equal protection arguments only help persons who are already in the United States. Theoretically, a court ruling on those arguments might invalidate the order only as it applies to such persons. But if the order violates the Establishment Clause by making a statement favoring Christianity, a court could strike it down entirely.

The Conversation

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis

This article was originally published on The Conversation. Read the original article.

Federal District Court Denies Rhines’ Motion for Relief in Capital Case

Federal District Court Denies Rhines’ Motion for Relief in Capital Case

PIERRE, S.D. – Attorney General Marty Jackley announces the United States District Court for the District of South Dakota has denied Charles Russell Rhines’ motion for habeas corpus relief and to amend the judgment.  Rhines filed a federal petition for writ of habeas corpus seeking to overturn his conviction and death sentence for the murder of 22-year-old Donnivan Schaeffer in Rapid City on March 8, 1992.

“The Federal Court’s ruling affirms that Charles Russell Rhines’ murder conviction and capital sentence for the horrific murder of Donnivan Shaeffer are constitutional. My thoughts and prayers are with the Schaeffer family, who have waited 24 years for justice in this case,” said Jackley.

A Pennington County jury convicted Rhines of first degree murder in 1993 and returned a sentence of death.  Rhines’ conviction and death sentence were affirmed on direct appeal by the South Dakota Supreme Court in 1996.  Rhines’ conviction and sentence were also affirmed on state habeas proceedings by the state trial court and South Dakota Supreme Court.

With the conclusion of his federal trial court habeas corpus proceedings, Rhines can file a notice of appeal within 30 days to the United States Court of Appeals for the 8th Circuit and, ultimately, to the United States Supreme Court. Rhines must obtain permission from the federal court to pursue an appeal.

 

From the latter part of 1991 through February 1992, Charles Russell Rhines worked at the Dig ‘Em Donut Shop on West Main Street in Rapid City, South Dakota. In February 1992 Rhines was terminated from this job.

On March 8, 1992, the body of Donnivan Schaeffer, an employee of Dig ‘Em Donuts, was found in the storeroom of the donut shop on West Main Street. Schaeffer’s hands were bound, and he had been repeatedly stabbed. Approximately $3,300 in cash, coins, and checks was missing from the store.The State charged Rhines with third-degree burglary of the store and first-degree murder of Schaeffer. A jury convicted him of these crimes. The jury recommended a sentence of death for the first-degree murder conviction. The trial court entered a judgment and warrant of execution.