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Friday, August 13, 2021

It's not the law, it's the enforcement

From the Eleventh Circuit in Support Working Animals v. Governor. Florida voters amended the Constitution to outlaw gambling on greyhound racing. At the time of the lawsuit by a racing business against the Attorney General, that was all there was. The court held that there was no standing, because the AG's lack of enforcement authority means the plaintiff's injury is not traceable to the AG and an injunction against the AG would not remedy the injury. (By resolving on standing, the court does not reach the "wrong-defendant" argument that Ex Parte Young does not overcome sovereign immunity). The court summarizes well the problem:

[T]heir  “immediate gripe” isn’t with the Florida Attorney General, who neither has the authority to enforce § 32 nor has done anything else to cause the plaintiffs’ harm. The plaintiffs’ real problem, as we understand their complaint, is with § 32 itself—its existence—and the economic consequences that its passage has visited or will  visit on their businesses. None of that, though, appears to be due to any past, present, or likely future conduct of the Attorney General.

Subsequent to the filing of the lawsuit, the Florida legislature created a gaming commission charged with regulating gambling beginning in 2022; gave the Department of Business and Professional Regulation civil-enforcement authority over the ban; and made it a crime to partake in gambling on greyhound racing effective in October. The court noted that the claims were dismissed without prejudice, so the plaintiff could refile "against the proper parties at the appropriate time." That last piece suggests the court will not allow a case to go forward pre-effective date because effectiveness is inevitable--the plaintiff must wait until October, when criminal penalties take effect, to proceed against the AG and until next year to proceed against the regulatory department.

That seems excessive, making the plaintiff wait longer than necessary when the shape of the controversy is now clear. But it well illustrates the point that the existence of a law, no matter its chilling effect, is not sufficient for pre-enforcement litigation. Enforcement of the law must be legally possible. Smart plaintiffs and attorneys must avoid wasting time.

Posted by Howard Wasserman on August 13, 2021 at 07:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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