What Is Behind The New Equal Protection Claims In West Flagler Associates’ Lawsuits?

Written By John Holden on August 25, 2021 - Last Updated on August 26, 2021
What's Behind West Flagler Associates Lawsuits

When West Flagler Associates filed an amended complaint in the Northern District of Florida, the group added a claim that was not present in the company’s initial filing.

The amended complaint alleges that the 2021 compact violates the Fourteenth Amendment, in addition to the previous allegations of the compact violating the Indian Gaming Regulatory Act (IGRA), the Wire Act and the Unlawful Internet Gambling Enforcement Act (UIGEA). As a result, the agreement was ultra vires to (beyond the powers of) Gov. Ron DeSantis.

This additional count also appeared in the complaint filed in federal court in the District of Columbia, only alleging that the violation occurred under the Fifth — as opposed to the Fourteenth — Amendment.

What does the amended complaint say about the Fourteenth Amendment?

The amended complaint argues that the compact and its implementing law violated the Fourteenth Amendment because they allow for a race-based preference in the granting of a monopoly over mobile sports betting.

The argument being advanced is that the preference for the Seminole Tribe violates the Equal Protection Clause.

West Flagler attempts to thread the needle so a court wouldn’t need to determine IGRA itself violates the Fourteenth Amendment. Instead, the company only targets the mobile aspect that purports to extend mobile gaming across the state violates the Equal Protection Clause.

Moreover, this expansion to a state-wide monopoly violates the Equal Protection Clause of the Fourteenth Amendment by according disparate treatment of gaming operations on the basis of race, tribal affiliation, and national origin.

City of Cleburne v. Cleburne Living Ctr.

The South Florida gaming operators cited the 1985 Supreme Court case City of Cleburne v. Cleburne Living Center for support of their argument.

The plaintiffs allege that “discrimination based on race, tribal affiliation, and national origin is presumptively unconstitutional and subject to strict scrutiny.”

Strict scrutiny is the highest standard that the government must meet in order to justify a law. In order to satisfy the strict scrutiny burden, a government must have had a compelling government interest in passing law. In addition, the law must be narrowly tailored to achieve that interest.

Strict scrutiny is the most demanding level of review that legislation must satisfy.

If the Northern District Court (or the District Court for the District of Columbia) agrees that the mobile wagering provision of the compact is subject to strict scrutiny, the governor (and/or Secretary of the Interior) will need to show that there is a compelling government interest in awarding the Seminole Tribe a monopoly over mobile wagering and that the compact is a narrowly tailored means of achieving that goal.

What is the Equal Protection Clause?

The intent of the Equal Protection Clause of the Fourteenth Amendment was to prevent states from treating people differently under the law. A state must treat similarly situated individuals the same as others regardless of race, religion or other protected class.

The Equal Protection Clause is one of the foundational principles of the Reconstruction Amendments promising equal treatment under the law.

What is a compelling state interest?

The Equal Protection Clause is not a total ban on treating people differently based on a protected class. Instead, it requires the government’s action to be justified.

Historically, one such justification has been to remedy past discrimination against a particular group.

Has this type of argument been tried in tribal gaming cases before?

Challenging a gaming compact or gaming authorization on Equal Protection Clause grounds has occurred before.

In 2012, KG Urban Enterprises challenged the authorization of Massachusetts Gov. Deval Patrick to expand tribal gaming in the state.

The First Circuit Court of Appeals agreed with the Massachusetts District Court, which dismissed the plaintiff’s Equal Protection claims. The court determined they satisfied the rational basis test (the easiest for the government to satisfy). The strict scrutiny standard, though, was not appropriate.

Another case out of California, Artichoke Joe’s v. Norton, found similarly that compacts do not violate the Equal Protection Clause of the Fifth or Fourteenth Amendment.

The California District Court also applied the rational basis test said.

Because the compacts, including the monopoly on class III gaming, promote tribal economic development, they are rationally related to Congress’ trust obligations and do not violate equal protection.

What to make of this new argument?

Even though West Flagler Associates appear to be targeting only the mobile aspects of the compact with their Equal Protection Clause claims, the ripple effects of success on such a claim would seem to undermine the very purpose of IGRA.

Success on the Equal Protection Clause claim appears to have unfavorable odds. Precedent indicates that a court would be unlikely to choose to examine the provision under the strict scrutiny lens. More likely, a court would use the rational basis standard.

Case law does not favor the argument added by West Flagler Associates. However, it is worth noting that challenging the mobile provisions may present a new angle for examination of what might seem like long-settled issues.

Despite the new angle, West Flagler may not have advanced the strongest of counts with the Equal Protection Clause argument.

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