GSG Prevails Again in the Florida Supreme Court

Law360, Minneapolis (April 20, 2017, 8:24 PM EDT) — An anti-gambling group’s proposed amendment to Florida’s constitution that would give voters control of authorizing casino gambling expansion took a step closer to going before voters as the Florida Supreme Court ruled Thursday that the text satisfies requirements to appear on the ballot.

The Voter Control of Gambling Amendment, which has drawn opposition from two groups of gambling interests, split the state’s highest court, 4-2, in its review of whether the initiative embraces a single subject and if the proposed ballot question’s title and summary are clear and unambiguous. Justice Alan Lawson, who joined the court after the Nov. 2 oral arguments, did not participate in the decision, according to the court.

“Reading together the ballot title and summary of the initiative, it is reasonably clear that the chief purpose of the initiative is to make the citizens’ initiative process addressed in article XI, section 3, of the Florida Constitution the only means for authorizing casino gambling in Florida,” the majority opinion said.

Introduced by the anti-gambling political action committee Voters in Charge, the proposal could appear on the state’s ballot in 2018 at the earliest. The group has until Feb. 1 of that year to collect the 766,200 signatures the Florida Division of Elections says are required.

“We are very pleased that the Florida Supreme Court agreed with our legal arguments allowing the amendment to appear on the ballot next November,” Voters in Charge’s counsel, Adam M. Schachter of Gelber Schachter & Greenberg PA, told Law360. “This decision guarantees that Florida voters can have a say on whether there will be casino gambling in their backyards.”

The amendment would take the power to approve casino gambling away from state lawmakers and place it in the hands of Florida voters. But the measure says it leaves intact the state Legislature’s authority to restrict, tax or regulate gambling, along with the ability of the state and Native American tribes to negotiate gambling compacts for tribal lands.

Any further expansion of casino gambling, as defined in the amendment, would have to be approved by Florida voters in a statewide referendum.

In the dissent, Justice Ricky Polston, who was joined by Justice R. Fred Lewis, said he found the ballot summary did not make clear to voters that the proposed amendment might substantially affect slot machines approved either by county referenda under article X, section 23 of the Florida Constitution or by validly enacted state laws.

“Although the ballot summary references article X of the Florida Constitution, there is no explanation whatsoever of how the proposal affects the slot machines constitutional provision found there,” he wrote.

Justice Polston also said that the proposal places voters in a position of having to decide between wanting to control the expansion of full-fledged casino gambling and the state’s current legal gambling landscape, noting that the court has struck down an initiative for forcing an “all or nothing” choice on the voters.

“And it is doing so without clearly informing the voters that this is the choice they are making,” the dissent said.

Formal opposition to the proposed amendment has come from two groups of gambling interests: the organization Floridians for Clarity in Gaming Control — which consists of Native American tribe members, arcade operators, casino and lottery vendors, and pari-mutuel permit holders — and another group made up of pari-mutuel permit holders, including Jacksonville Kennel Club Inc., Dania Entertainment LLC, Investment Corp. of Palm Beach, West Flagler Associates Ltd., Bonita-Fort Myers Corp. and Melbourne Greyhound Park LLC.

During oral arguments, Floridians for Clarity counsel Marc Dunbar of Jones Walker LLP, appearing for both groups, contended that the definition of “casino gambling” contained in the summary uses “broad catchall” language but also does not make clear that Florida would be giving up control of the definition by setting it in line with federal definitions.

And while Schachter said the amendment would not be applied retroactively, Dunbar argued that there are clear ambiguities that unfairly leave a variety of parties in limbo, including 7.2 million state residents who have voted in county referendums on whether to have slot machines, 10,000 workers employed by the gambling industry, and Indian tribes such as the Miccosukee that do not operate their gambling through compacts like the one the Seminoles have with the state.

Dunbar repeated concerns Thursday about retroactive application.

“I believe Justice Polston’s dissent captures the concerns of the arcade and gambling industry,” he told Law360. ”Whether this amendment could be retroactive in application is an important point that the voters should be aware of before they cast a vote. I hope the proponents will be more transparent with the voters than they were with the court.”

At oral arguments, Schachter acknowledged that there are likely to be questions of whether the amendment’s definition of casino gambling goes too far or not far enough, but he said that is an issue that belongs in the political debate.

The majority of the court agreed with the sponsor, saying arguments about retroactive application are related to the “ambiguous legal effect of the amendment’s text rather than the clarity of the ballot title and summary.”

Floridians for Clarity in Gaming Control is represented by Marc W. Dunbar, Daniel R. Russell and Daniel J. McGinn of Jones Walker LLP.

The pari-mutuel opponents are represented by John M. Lockwood, Thomas J. Morton and Kala Kelly Shankle of The Lockwood Law Firm.

Voters in Charge is represented by Dan Gelber, Adam M. Schachter and Freddy Funes of Gelber Schachter & Greenberg PA.

The case is Advisory Opinion to the Attorney General Re: Voter Control of Gambling in Florida, case numbers SC16-778 and SC16-871, in the Supreme Court of Florida.

–Editing by Bruce Goldman.