Delaware's Next Step
I have only a few minutes this morning, but with the phone ringing and emails chirping I want to try to offer a few comments on the dark day in Delaware.
1. The decision of the appellate court to convert the preliminary injunction appeal into a decision on the merits is problematic. But it's not unprecedented. Federal courts may do this, as the Supreme Court allowed in the 1986 Thornburgh decision involving a statute limiting abortion. The court can rule on the merits "when the facts are established or of no controlling relevance." It's a controversial decision and should be used only in "unusual cases," as the Court admonished in the Thornburgh opinion.
2. It appears from reports in the popular media that Delaware's counsel conceded that the facts were established, thus obviating the need for a trial. This concession, if true, befuddles me. (Granted, I get confused easily.) Why would Delaware's counsel essentially tee the ball up for the appellate court to rule on the merits? Especially when it appeared, from the (reported) tenor of the hearing, that this particular panel of judges was strongly inclined to rule in favor of the sports leagues? Really, without a trial record (there's never been a trial), how could the appellate court know that the "facts are established" unless the appellate counsel conceded as much?
3. What facts could be developed at a full trial that are relevant to Delaware's statutory exemption from the federal PASPA statute? First, what bet exactly will Delaware offer? I understand that Delaware's plans on this point are incomplete at this time. If they are incomplete, then it is possible that Delaware could devise a game that fit within the PASPA exception. Second, what game exactly did Delaware offer back in the mid-1970's? Delaware offered several games, and changed one in mid-season. All of these games involved NFL bets. Which 1975 bet defines the lottery game that Delaware may now offer? One game involved parley bets requiring picking winners of at least four contests and also picking the point spread for the game. Is that game all that Delaware may offer today? Third, a trial court would take evidence, in the form of expert opinion, as to whether a single-game bet was different in some meaningful, qualitative or quantitative way from a parlay bet. Does the game involve different outcomes, or put the counterparties to the bet in a significantly different position than they were in 1975?
4. The most significant problem with the appellate court's apparent decision on the merits is that the briefing on which it ruled was incomplete. The only element of a preliminary injunction that has anything to do with the legal merits of the case is that the court is to determine if the plaintiff is "likely to prevail" at trial. Lawyers briefing this issue will of course discuss the law as it relates to this element. But they will also spend much of their brief and much of their oral argument discussing the other issues relevant to a preliminary injunction, most notably the possibility of irreparable harm to the plaintiff and the chance of undue hardship on the defendant. In other words, the key legal issue, here the issue about the scope of Delaware's exception under the federal statute, gets only partial consideration in a preliminary, emergency action. The briefing and argument on this legal point are nowhere as substantial as they would be on an appeal devoted to that issue exclusively.
5. The federal statute at issue is a complicated one, and the legislative history that surrounds it is fairly voluminous. Many statements can be found in that history that support Delaware's position; many also can be found that favor the position of the leagues. To resolve this complex legal issue on the basis of incomplete briefs and no factual development, and to rule that Delaware is permanently stopped from enjoying its exception under PASPA in the way that Delaware interprets that exception, strikes me as unnecessary judicial lawmaking. This isn't an abortion case: no salient legal rights or human lives might be affected by the court's ruling. There was no need for the court to take this hasty action, based on a spontaneous and probably ill-advised concession by Delaware's counsel during oral arguments.
I hope Delaware has the wherewithal to fight this decision, either by direct appeal or by a collateral attack on the federal statute.
1. The decision of the appellate court to convert the preliminary injunction appeal into a decision on the merits is problematic. But it's not unprecedented. Federal courts may do this, as the Supreme Court allowed in the 1986 Thornburgh decision involving a statute limiting abortion. The court can rule on the merits "when the facts are established or of no controlling relevance." It's a controversial decision and should be used only in "unusual cases," as the Court admonished in the Thornburgh opinion.
2. It appears from reports in the popular media that Delaware's counsel conceded that the facts were established, thus obviating the need for a trial. This concession, if true, befuddles me. (Granted, I get confused easily.) Why would Delaware's counsel essentially tee the ball up for the appellate court to rule on the merits? Especially when it appeared, from the (reported) tenor of the hearing, that this particular panel of judges was strongly inclined to rule in favor of the sports leagues? Really, without a trial record (there's never been a trial), how could the appellate court know that the "facts are established" unless the appellate counsel conceded as much?
3. What facts could be developed at a full trial that are relevant to Delaware's statutory exemption from the federal PASPA statute? First, what bet exactly will Delaware offer? I understand that Delaware's plans on this point are incomplete at this time. If they are incomplete, then it is possible that Delaware could devise a game that fit within the PASPA exception. Second, what game exactly did Delaware offer back in the mid-1970's? Delaware offered several games, and changed one in mid-season. All of these games involved NFL bets. Which 1975 bet defines the lottery game that Delaware may now offer? One game involved parley bets requiring picking winners of at least four contests and also picking the point spread for the game. Is that game all that Delaware may offer today? Third, a trial court would take evidence, in the form of expert opinion, as to whether a single-game bet was different in some meaningful, qualitative or quantitative way from a parlay bet. Does the game involve different outcomes, or put the counterparties to the bet in a significantly different position than they were in 1975?
4. The most significant problem with the appellate court's apparent decision on the merits is that the briefing on which it ruled was incomplete. The only element of a preliminary injunction that has anything to do with the legal merits of the case is that the court is to determine if the plaintiff is "likely to prevail" at trial. Lawyers briefing this issue will of course discuss the law as it relates to this element. But they will also spend much of their brief and much of their oral argument discussing the other issues relevant to a preliminary injunction, most notably the possibility of irreparable harm to the plaintiff and the chance of undue hardship on the defendant. In other words, the key legal issue, here the issue about the scope of Delaware's exception under the federal statute, gets only partial consideration in a preliminary, emergency action. The briefing and argument on this legal point are nowhere as substantial as they would be on an appeal devoted to that issue exclusively.
5. The federal statute at issue is a complicated one, and the legislative history that surrounds it is fairly voluminous. Many statements can be found in that history that support Delaware's position; many also can be found that favor the position of the leagues. To resolve this complex legal issue on the basis of incomplete briefs and no factual development, and to rule that Delaware is permanently stopped from enjoying its exception under PASPA in the way that Delaware interprets that exception, strikes me as unnecessary judicial lawmaking. This isn't an abortion case: no salient legal rights or human lives might be affected by the court's ruling. There was no need for the court to take this hasty action, based on a spontaneous and probably ill-advised concession by Delaware's counsel during oral arguments.
I hope Delaware has the wherewithal to fight this decision, either by direct appeal or by a collateral attack on the federal statute.
posted by TSLP at 8/25/2009
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