Article I, § 9 of the New York Constitution bans gambling, plain and simple. That includes, lotteries, pool selling, book making, and now, according to a New York trial judge, daily fantasy sports as well. As you may recall, in 2015, the New York Attorney General made it a point to enforce the constitutional ban on gambling against major DFS players FanDuel and DraftKings. After the Legislature passed the Interactive Fantasy Sports Law in 2016, based on substantial lobbying efforts from the DFS industry, the AG settled the case against FanDuel and DraftKings and found itself in the unenviable position of having to switch sides to defend the new enactment.
The IFS law (Chapter 237 of the Laws of 2016) attempted to exempt “interactive fantasy sports” from the New York Constitution’s ban on gambling. Specifically, it provides:
Using the AG’s own arguments against it, a group of private plaintiffs challenged the IFS Law as a violation of New York’s constitutional ban on gambling. They argued: “In enacting [the DFS law], the Legislature has done exactly the opposite of what Article I, § 9 of the Constitution commands. Instead of passing laws to prevent gambling, it has enabled it. It has also provided a tortured interpretation of the term ‘gambling’ that defies its ordinary meaning while violating the principle that exceptions to constitutional prohibitions should be strictly construed” (Plaintiffs’ Memorandum of Law, at 25).
NY Interactive Fantasy Sports Law is Unconstitutional, But Holds that the Legislature Can Exempt DFS from the Penal Law
Judge Gerald Connolly, in a seemingly split decision, which can be read in full here, agreed with the plaintiffs. In a comprehensive decision of the type I like to see in an important case like this one, Judge Connolly held that the scope of the term “gambling” in the New York Constitution must be construed broadly according to its plain meaning. The terms are broad and all-inclusive, he noted. Indeed, the “any other form of gambling” language in the constitutional ban requires an “expansive, not a limited” interpretation (Decision, at 20). Indeed, the Judge noted, it has been interpreted previously by the AG to forbid sports gambling, which includes DFS. Judge Connolly thus held that daily fantasy sports, which involves the selection of players over whom the DFS participants have no control after the lineups are set, is gambling and falls within NY’s constitutional ban.
It is not for the Legislature to define the scope of the constitutional ban, the Judge held. Accepting the State’s interpretation would allow the Legislature’s definition of gambling in a statute to render the constitutional provision meaningless, a construction that must be avoided under normal principles of constitutional interpretation. A statute cannot change the effect of a constitutional provision. To change the constitution, the amendment process must be followed. And the Legislature did not do that here for DFS.
The Court also rejected the State’s argument that because DFS involves a measure of skill, a fact which the Judge presumed to be true, it can’t be a game of chance prohibited by the Constitution. The drafters of the constitutional ban on gambling intended to prohibit “contests based on future contingent events,” which DFS clearly is, the Judge reasoned, regardless of the skill involved (Decision, at 19).
Although the Court largely sided with the plaintiffs’ argument that DFS is prohibited by the NY constitutional ban on gambling, the Judge did reject one portion of their argument. In a confusing distinction, the Court held that the Legislature’s exemption of DFS from the definition of “gambling” under the Penal Law, the criminal statutes in New York, was not unconstitutional. The Court held that it was not within the scope of judicial review to declare that the Legislature’s discretionary act to define DFS as outside of the statutory definition of gambling in the criminal statutes. That decision lies entirely with the Legislature.
So, if I have this right, DFS is prohibited by the NY Constitution, but DFS companies like FanDuel and DraftKings can’t be criminally prosecuted for operating unconstitutional DFS games in New York. Relief for the constitutional violation must lie elsewhere apparently.
The Appellate Process
The State will undoubtedly appeal Judge Connolly’s order declaring the IFS law unconstitutional. By virtue of that appeal, enforcement of the order will be automatically stayed under CPLR 5519(a). So, for now and while the appellate process continues, DFS will remain up and running in New York. And that’s not a short process. From the time the notice of appeal is filed, the State will have 6 months to perfect the appeal by filing a brief and the record. Plus, the time to perfect the appeal can be extended up to another 3 months, by stipulation of the parties, or a motion to the Court. With the benefit of the automatic stay, the State will be in no rush to file its brief, I’d imagine. They’ll want to get it right.
If both sides appeal (because they both lost something, the State more than the plaintiffs though), the time is measured from the latest notice of appeal and both appeals will have to be perfected simultaneously. If not, once the State files its brief, the plaintiffs will technically have 30 days to file their opposing brief, but that time is routinely extended, and under the new uniform rules of the Appellate Division, can last up to a total of 3 months.
Although Judge Connolly did not have the benefit of amici submissions on the legal issues (a surprising decision, I think, given the stakes involved), I would be surprised if numerous amici motions are not made at the Appellate Division. Interested parties will undoubtedly want to give the Court their views on the issues, and the Court will certainly welcome all the help it can get in deciding this case).
Once the case is fully perfected before the Appellate Division, it’s usually three or four months before the Court will schedule oral argument. It’s then 4 to 6 weeks until a decision in most cases, and I’d expect this one to be the same. So, totaling all that time up, you’re looking at about 15 to 18 months before the Appellate Division will decide the issues, and then the case can go to the New York Court of Appeals.
Because this case unquestionably involves a substantial constitutional question, whichever party loses at the Appellate Division should have an appeal as of right directly to the Court of Appeals, which would then issue a final opinion on the constitutionality of the IFS law, likely in 2021 at the earliest.
The State Can Appeal Directly to the Court of Appeals Right Now
Here’s an interesting wrinkle. What if the State decides it doesn’t want to wait that long? It could try to appeal directly to the Court of Appeals right now, and I think it should.
A little used provision of the Court’s jurisdiction allows the Court of Appeals to hear and decide cases on direct appeal from a trial court order, like this one, that finally determines a case “where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States” (CPLR 5601 [b] ). That seems to me to apply here.
First, Judge Connolly’s order finally disposes of the entire action. It granted relief to both sides, decided all of the causes of action, and there are no issues left to consider, so it’s a final determination. Second, the only issue in the case are whether the IFS law violates the New York Constitution’s ban on gambling. Judge Connolly said it did. CPLR 5602 thus appears to give the State, or the plaintiffs for that matter, the right to appeal directly to the Court of Appeals for a final decision on the constitutional question right now.
But why appeal directly to the Court of Appeals now, instead of letting the Appellate Division decide the issues first? Timing is everything for this case. The DFS industry wanted a quick fix to the issue before DFS was legal in New York, and it presumably wants a quick end to this litigation to provide certainty to the industry. Outside of a constitutional amendment to authorize DFS, which is a two year-plus process, the quickest way to a final resolution is a direct appeal to the state’s highest court. If the Court of Appeals is going to decide the issues anyway, why not get them to do it now?
What’s more, the Court of Appeals is often reticent to strike down a statute as unconstitutional, and the burden for the plaintiffs to carry is a heavy one. The Court of Appeals will review the constitutional issue on a clean slate, so it’s free to disagree with Judge Connolly’s determination. And every single Judge on the Court has been appointed by Governor Andrew Cuomo. Now, that doesn’t mean they’ll all agree with the State, but the State would only need 4 votes for constitutionality. While Judges Rivera and Wilson may not be in play (the State’s arguments are a little weak for getting their votes, I think), Chief Judge DiFiore and Judges Stein, Garcia, Fahey, and Feinman are.
Win or lose, the Legislature will have a chance to fix the issue and grant an exception from the NY constitutional ban on gambling for DFS (and sports gambling for that matter) for all time, a process it probably should have followed back in 2016.