PHILADELPHIA (CN) - Invoking Dr. Seuss, an attorney for New Jersey lawmakers urged the 3rd Circuit on Tuesday to revive sports gambling in the state's casinos and racetracks.
Michael Griffinger, representing the New Jersey Legislature, told a three-judge panel that lawmakers had followed the federal appeals court's guidance by repealing portions of a pre-existing ban on sports wagering, instead of passing an affirmative license to hold sports bettering.
"I said to my team, I want to channel Dr. Seuss," Griffinger said. "You said what you said, and you meant what you meant, and we followed your guidance 100 percent."
Since federal law prohibits an "authorization" of sports wagering, the perplexed appellate judges skewered Theodore Olson, representing the state, to explain why New Jersey believes that a partial repeal works where authorization does not.
"What does authorize mean?" Judge Marjorie Rendell asked. "Does it mean to permit, to allow, does it mean to sanction?"
Olson argued that by repealing the state's law, New Jersey effectively allowed casinos to self-regulate sports betting, falling fall short of active authorization.
New Jersey's opponents in the courtroom are the National Collegiate Athletic Association and all four major professional sports associations, all of which claimed in a 2014 complaint that the "repeal" of state prohibitions on sports gambling was partial in that it brought the practice only to casinos and racetracks.
Having already sued over and defeated a 2012 iteration of New Jersey's Sports Wagering Law, the leagues attacked the repeal "as a transparent attempt to circumvent this court's injunction."
U.S. District Judge Michael Shipp, the same jurist who blocked the 2012 law from taking effect, issued a temporary restraining order against the 2014 law and granted the leagues summary judgment that November.
At Tuesday's hearing before the 3rd Circuit, attorney Olson rejected implications from the appellate panel that New Jersey had authorizing gambling by intentionally corralling it into a handful of state-monitored facilities.
"This is an Orwellian concept that a repeal in certain locations is somehow an authorization, and that a statute that was enacted to prohibit the spread of sports betting is constitutional only if you allow it to take place everywhere else," Olson said.
Paul Clement, representing the NCAA, told the court that there is a "problem in selecting venues as exceptions in the repeal that already allow authorized gambling."
"If there's a partial repeal of prohibition and the only way you can do it is at the Kiwanis Club or some other club," then there is authorization, Clement said.
Judge Rendell posed a hypothetical to Peter Phipps, representing the United States, which filed an amicus brief.
"What if you said, funeral homes are the only venues licensed by the state?" Rendell asked. "Or if veterinary homes were the only ones licensed by the state?"
"It would be a prohibited license under the state," Phipps said. "If it was a funeral home, and you broadened that license so that the funeral home could engage in sports wagering, you've essentially revised the license, you've expanded it."
Judge Maryanne Trump Barry chimed in that casinos "are the venues the state has determined need help."
New Jersey's partial repeal of a ban on sports wagering comes at a time when Atlantic City has experienced four casino bankruptcies, and Gov. Chris Christie has had the city under emergency management since January.
"Funeral homes are doing quite well," Barry noted.
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