IN THE SUPREME COURT OF FLORIDA CASE NO. SC07-2154 FLORIDA HOUSE OF REPRESENTATIVES, and MARCO RUBIO, individually and in his capacity as Speaker of the Florida House of Representatives, v. Petitioners, CHARLIE CRIST, in his capacity as Governor of Florida, and THE SEMINOLE TRIBE OF FLORIDA, Respondents. THE SEMINOLE TRIBE OF FLORIDA S MOTION FOR REHEARING Pursuant to Rule 9.330(a), Fla. R. App. P., the Seminole Tribe of Florida moves for rehearing of the Court s decision dated July 3, 2008 [ Opinion ]. Rehearing is necessary because the Court misapprehended fact in assuming that Florida s public policy completely prohibits banked card games and misapprehended law by applying the wrong test to determine the legality of the Tribe s offering of Class III gaming on Tribal lands under the Compact. Resolution of these issues is essential for the Court to determine whether the Governor has intruded upon the authority of the Legislature. 1
1. The Court misapprehended the fact that Florida law restricts but does not completely prohibit banked card games. The Court concluded that the Governor violated the separation of powers provisions of the Florida constitution because he entered into a Compact that permits the Tribe to conduct certain Class III gaming that is prohibited under Florida law. Opinion at 24-25. Specifically, the Court held that the Governor had no authority to enter into a compact that authorized the play of banked card games because such games are illegal throughout Florida and thus illegal for the Tribe. Id. at 30. Rehearing is appropriate because the Supreme Court bases its ruling upon a mistake of fact. The Court mistakenly assumes that Florida law completely prohibits banked card games. Yet, as discussed below, the State, through the Florida Lottery, is authorized to conduct extensive forms of gambling -- including banked card games. 1 The Florida Lottery has operated banked card games in the past, and faces no restriction from conducting them again in the future. The Court s conclusion might be true if the terms of Florida s general gambling prohibition statute were the sole source of public policy at issue. That statute criminalizes the play of any game at cards at any place, by 1 See also The Seminole Tribe of Florida s Response in Opposition to Petition for Writ of Quo Warranto [ Tribe s Resp. Br. ] at 33-35. 2
any device whatever, for money or other thing of value. 849.08, Fla. Stat. Florida s public policy on banked games, however, has been obscured by the multiple exceptions to that general gambling prohibition, 2 thereby requiring examination of that policy beyond the prohibition of Section 849.08. The Court acknowledges exceptions to that general prohibition by noting that Florida offers various Class III games, slot machines, all forms of poker, dog and horse racing. Opinion at 27. Yet, by not elaborating further on its statement that Florida law distinguishes between non-banked (Class II) card games and banked (Class III) card games, id., the Court assumes and does not illuminate what actually constitutes public policy today. Instead, the Court relies solely upon the statutory provisions that prohibit banked card games in the limited context of cardroom gaming as authority for its conclusion that Florida completely prohibits banked card games. Opinion at 28 (citing 849.086(12)(a), (15)(a) (extending criminal penalties to cardroom operators that conduct banked games)). 2 See, e.g., Fla. Const. Art. X, 23 (authorizing slot machines); Fla. Const. Art. X, 15 (authorizing lottery); 24.105(9), Fla. Stat. (implementing authority for lottery); Ch. 550, Fla. Stat. (regulating pari-mutuel racing and jai alai); Ch. 551, Fla. Stat. (regulating slot machines); 849.0931, Fla. Stat. (authorizing bingo and charitable gaming); 849.231(3), Fla. Stat. (exempting cruises to nowhere docked in Florida ports from gambling laws even though they may offer all casino games including dice games, blackjack and roulette); 849.161, Fla. Stat. (coin-operated games of skill expressly authorized). 3
The Tribe does not dispute that Florida law prohibits banked card games in the state licensed pari-mutuel cardrooms. That prohibition, however, does not apply to the Florida Lottery. Not only does the Florida Lottery have the constitutional and statutory authority 3 to offer a broad range of Class III gaming activities, including banked card games, the Lottery has operated such games in the past and has the legal authority to do so in the future. Tribe s Resp. Br. at 33-35. These games were offered by the Lottery on its Florida Lottery s Million Dollar Flamingo Fortune television show. This show featured a banked card game, a roulette-type wheel, and a dice game as well as other games of chance in which contestants bet their winnings against the house (the Lottery). The Flamingo Fortune card game, Florida s Jackpot Game, used a casino card game theme. It involved the play of eight oversized playing cards dealt face down on a large board. The player began the game by selecting any one of those eight cards. The card would be turned over to reveal its face. The player then must select another card. Before the face of 3 In addition to express constitutional permission, the State Lottery operates through specific statutory authorization that, in its broad scope, clarifies the virtually unlimited range of games available for operation by the State. The Lottery consists of numerous games of chance (banked and non-banked), mechanical and otherwise, and the State Lottery Department has broad discretion to create an unlimited variety of games. Ch. 24, Fla. Stat. 4
that card is revealed, the player must guess whether the value of the second card will be higher or lower than that of the previous card. The odds of play are the same as with a single deck of playing cards (four suits of cards with aces high and deuces low). In order to win the jackpot, the player must correctly guess whether each of the next seven cards is higher or lower than the previously revealed card. 4 The Broward County Circuit Court concluded that games conducted by the Florida State Lottery on the Flamingo Fortune show constitute games which, if conducted by any person, organization or entity, other than the [Florida Lottery], would constitute gambling in violation of Florida Statute Section 849.01. 5 Although the Florida Lottery does not currently conduct the particular games subject to that ruling, the Legislature never took action to prohibit the Lottery from offering them. The Lottery could once again operate such banked card games, clearly demonstrating that 4 The contestant is allowed one mistake or strike. The player s game ends upon two strikes, with the player keeping $2000 per revealed card. Photographs of these games are provided for illustrative purposes and as a convenience to the Court at Tab A. 5 Seminole Tribe of Florida v. Chiles, No. 97-014171 (Broward County Circuit Court, Dec. 18, 1998), at Tab B. 5
Florida s prohibition is not absolute nor without exceptions that the Court should have considered. 6 2. The Court misapprehended the law by failing to apply the correct legal test in determining the legality of Class III games operated on Tribal lands under the Compact. Rehearing is also warranted because the Court made an error of law in applying an improper test as to what gaming is permissible on the Tribe s Indian lands in Florida. The Court concluded that the Governor s authority does not allow him to agree to legalize in some parts of the state, or for some persons, conduct that is otherwise illegal throughout the state. Opinion at 25. However, the question of the legality of gaming activity on Indian lands under IGRA must be determined as a matter of federal -- not state -- law. 7 6 The Tribe notes that Florida s public policy also authorizes exceptions to the general prohibition of casino card games for penny-ante social games, cruises to nowhere and commercial cardrooms. The prohibition upon the play of such card games in a banked manner is applicable exclusively to the commercial cardrooms. For instance, among the applicable requirements for penny-ante games is that the game s host must participate in the game, and, as a result, the host must take on players, pay winners and collect from losers. 849.085(2)(b), (3)(a), Fla. Stat. Penny-ante games may be played as banked games and may be operated by anyone within the state. 7 As noted, [t]he determination of what types of Class III gaming can be conducted on Indian reservations in a given state is a matter for federal determination. Tribe s Resp. Br. at 26 (citing Stephan v. Finney, 1993 WL 192809, *4 (D. Kan. 1993) ( judicial interpretation of what class III gaming is permitted... is a question of federal law, not state law ). 6
To determine whether the Tribe s offering of banked card games and Class III slot machines constitutes such gaming that is permitted for any purpose by any person, 25 U.S.C. 2710(d)(1)(B), and, thus, lawful, the federal courts analyze state gambling law, policy and practice to determine whether the policy completely bars or merely regulates gaming a tribe seeks to conduct pursuant to a compact under IGRA. 8 The Court s statement that what is legal in Florida is legal on tribal lands, and what is illegal in Florida is illegal there, Opinion at 27, is overbroad when applied to gaming and inaccurate in the particular context of Class III slots and banked card games. Federal law, which is controlling, provides that the Tribe is entitled to any Class III gaming that Florida allows, including card games, for any purpose by any person. 25 U.S.C. 2710(d)(1)(B). While the Circuits are divided as to whether the phrase such gaming refers to the general class of games or specific types of games, they 8 See Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1029-32 (2d Cir. 1990) (discussing California v. Cabazon Band Of Mission Indians, 480 U.S. 202 (1987) ( Cabazon ), and analyzing Connecticut gambling law to assess whether it was civil/regulatory or criminal/prohibitory); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273 (8th Cir. 1993); Northern Arapaho v. Wyoming, 389 F.3d 1308, 1310 (10th Cir. 2004) (the determination of scope of gaming under IGRA is consistent with Supreme Court s seminal pre-igra decision: if the intent of a state law is generally to prohibit certain conduct, it falls within [the state s] criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory (citing Cabazon, 480 U.S. at 209)). 7
consistently apply the type of detailed analysis used by the U.S. Supreme Court in Cabazon to determine whether a state statute is civil/regulatory or criminal/prohibitory. See Cabazon, 480 U.S. at 210 ( the prohibitory/ regulatory distinction is not a bright-line rule ); Dalton v Pataki, 5 N.Y.3d 243, 272 (N.Y. 2005) (rather than determining the degree to which a state s laws would apply to Indian lands, the courts will consider the distinction between a State s civil and criminal laws to determine whether a body of law is applicable, as a matter of Federal law, to either allow or prohibit certain activities (quoting S.Rep. No. 100-446, 100th Cong, 2d Sess., at 6, reprinted in 1988 U.S.C.C.A.N., at 3076)). Thus, under federal law, once Florida allowed banked card games by the state lottery and Class III slot machines in Broward County, the State evidenced a civil/regulatory posture, rather than a criminal/prohibitory one, with respect to such games and was foreclosed from imposing a policy that prohibited banked card games or Class III slots on any tribal lands in the state. See Northern Arapaho, 389 F.3d at 1312 (quoting United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 365 (8th Cir. 1990) ( the legislative history [of IGRA] reveals that Congress intended to permit a particular gaming activity, even if conducted in a manner inconsistent with state law, if the state law merely regulated, as opposed to completely barred, 8
that particular gaming activity ) (emphasis added); Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1258 (9th Cir. 1994) ( a state need only allow Indian tribes to operate games that others can operate, but need not give tribes what others cannot have ). The Tribe asserts that any of the tests applied by federal courts and the Secretary of the Interior would uphold including banked card games in the Compact. See Tribe s Resp. Br. at 28-35. Only by applying an improper test and by overlooking Florida s exceptions to the prohibition on banked card games can the Court conclude that the operation of banked card games on Tribal lands is unlawful and, as a result, deem the Governor without authority to enter into the Compact. CONCLUSION Rehearing is appropriate for the Court to correct its mistake of fact in concluding that Florida s public policy completely prohibits banked card games and to correct its error of law in applying the wrong test to determine the legality of Class III gaming operated on Tribal lands under the Compact. Resolution of these issues is essential for the Court to determine whether the Governor has intruded upon the authority of the Legislature. 9 9 The Tribe joins in and adopts the points raised in the Governor s Motion for Rehearing. 9
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served via U.S. Mail this 17 th day of July 2008 to the following: Counsel for Petitioners: Jeremiah M. Hawkes General Counsel Florida House of Representatives 422 The Capitol Tallahassee, FL 32399-1300 Counsel for Respondent: Christopher M. Kise James A. McKee Foley & Lardner LLP 106 East College Avenue Tallahassee, FL 32301 Gerald B. Curington Erik Figlio Executive Office of the Governor The Capitol PL-02, Room 209 Tallahassee, FL 32399 Counsel for Amicus Gulfstream Cynthia Tunnicliff Marc W. Dunbar Brandice Dickson Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street 2 nd Floor Tallahassee, FL 32301 Jon Mills Timothy McLendon Post Office Box 2099 Gainesville, FL 32602 Counsel for City of Hallandale Beach David Jove Andre McKenney City Attorney s Office 400 S. Federal Highway Hallandale Beach, FL 33009 Counsel for Amicus Florida Senate Jason Vail Special Counsel Florida Senate R. 304 Senate Office Building 404 South Monroe Street Tallahassee, FL 32399-1100 10
CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this pleading was written in a proportionally spaced Times New Roman 14-point font in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. BARRY RICHARD FLA. BAR NO. 105599 GLENN T. BURHANS, JR. FLA. BAR NO. 605867 GREENBERG TRAURIG, P.A. 101 EAST COLLEGE AVENUE POST OFFICE DRAWER 1838 TALLAHASSEE, FLORIDA 32302 (850) 222-6891 (TEL.) (850) 681-0207 (FAX) OF COUNSEL: JERRY C. STRAUS F. MICHAEL WILLIS JOSEPH H. WEBSTER HOBBS, STRAUS, DEAN & WALKER, LLP 2120 L STREET, NW, SUITE 700 WASHINGTON, DC 20037 Counsel for Seminole Tribe of Florida TAL 451,478,150v1 7-17-08 11