West Flagler Associates, Ltd. v. Ron D. DeSantis, etc.

Supreme Court of Florida
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No. SC2023-1333
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WEST FLAGLER ASSOCIATES, LTD., et al.,
Petitioners,

vs.

RON D. DESANTIS, etc., et al.,
Respondents.

March 21, 2024

SASSO, J.

Petitioners—two companies and one individual involved in

Florida’s gaming industry—have filed this petition for a writ of quo

warranto challenging a gaming compact between the State and the

Seminole Tribe. Petitioners argue that a sports betting provision

contained in the compact violates article X, section 30 of the Florida

Constitution, which limits the expansion of casino gambling in the

state to the citizens’ initiative process. Framed as it is, the petition

presents nothing other than a challenge to the substantive

constitutionality of the law ratifying the compact. But quo warranto
is not, and has never been, the proper vehicle to obtain a

declaration as to the substantive constitutionality of an enacted

law. For that reason, we deny the petition because the relief that

Petitioners seek is beyond what the writ of quo warranto provides.

I.

In 2021, Governor DeSantis entered into a gaming compact

with the Seminole Tribe pursuant to the federal Indian Gaming

Regulatory Act, 25 U.S.C. §§ 2701-2721 (2018), and as

contemplated by section 285.712(1), Florida Statutes (2023). The

Florida Legislature subsequently ratified the compact pursuant to

section 285.712(2), Florida Statutes. Among other forms of gaming,

the compact authorizes mobile sports betting by which participants

may place sports wagers with the Seminole Tribe through a mobile

device. Participants may be physically located anywhere in Florida

when they place a wager, not only on tribal lands. Then, regardless

of where the bets are placed, the wagers are “deemed” to occur on

tribal lands.

Petitioners, West Flagler Associates, Ltd., Bonita-Fort Myers

Corporation d/b/a Bonita Springs Poker Room, and Isadore

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Havenick, filed this petition for a writ of quo warranto challenging

the compact. Petitioners argue that the Governor and the

Legislature exceeded their constitutional authority by enacting the

compact because the mobile betting provisions violate article X,

section 30 of the Florida Constitution, which limits the

authorization of casino gambling to the citizens’ initiative process.

For relief, Petitioners request a declaration from this Court that the

implementing law is unconstitutional 1 and ask that we enjoin the

Seminole Tribe from continuing to operate mobile sports betting.

In response, Respondents set forth several reasons why the

compact is consistent with article X, section 30. But as a threshold

matter, Respondents argue there are reasons other than on the

merits for why this Court should deny the petition for quo warranto.

1. Petitioners request this Court to declare that: (1)
Respondents’ respective conduct in executing the compact and
enacting and signing the implementing law exceeded their authority
under the Florida Constitution to the extent that they permitted off-
reservation sports betting throughout the state; (2) a voter-approved
constitutional amendment initiated by a citizens’ petition is the
exclusive means by which off-reservation sports betting can be
authorized in Florida; and (3) such a voter-approved constitutional
amendment is necessary for those portions of the compact and
implementing law to be valid in this state.

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To that end, Respondents say we should (1) deny the petition on a

discretionary basis because Petitioners waited too long to seek

relief; (2) deny the petition because the Seminole Tribe, who

Respondents argue is an indispensable party, has not been joined

to this action; (3) recede from our precedent that is inconsistent

with the original conception of quo warranto, which functioned

primarily to oust individuals who had no title to state power from

the use of that power and limited who could bring an action to the

Attorney General; (4) at a minimum recede from those cases which

have determined that citizens and taxpayers have standing to bring

quo warranto actions; and (5) deny the petition because Petitioners

seek a declaration as to the substantive constitutionality of an

enacted law.

Respondents’ last argument is dispositive and renders the

others unnecessary. As we will explain, we agree with Respondents

that quo warranto is not a substitute for what Petitioners seek—

declaratory and injunctive relief as to the substance of the law

ratifying the gaming compact. It is that argument to which we now

turn.

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II.

Our authority to issue the extraordinary writ of quo warranto

is derived from section 3(b)(8) of article V of the Florida

Constitution, which authorizes this Court to issue writs of quo

warranto to state officers and state agencies. Meaning “by what

authority,” quo warranto is a common law remedy that was

historically used to “test the right of a person to hold an office of

franchise or exercise some right or privilege the peculiar powers of

which are derived from the state.” State v. Gerow, 85 So. 144, 145

(Fla. 1920).

Quo warranto’s earliest application was narrow in scope and

limited by its common law background. See, e.g., State ex rel.

Landis v. Prevatt, 148 So. 578, 579 (Fla. 1933) (“The action in the

nature of quo warranto is a common-law remedy, its office and

scope depending upon the use and limitations authorized by the

common law and statute laws of England, as they existed as of the

date that they were adopted, by the laws of this state, in the

absence of statutory modification.”). But over time, the use of the

writ has drifted from its common law moorings. Since those early

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days, this Court has shifted its focus in quo warranto cases to

question whether a state officer has “improperly exercised a power

or right derived from the State.” See, e.g., Fla. House of

Representatives v. Crist, 999 So. 2d 601, 607 (Fla. 2008). Through

this lens, this Court has used the writ to test separation of powers

issues, especially where one branch sues another, to settle claims

over entitlement to an office, and to resolve disputes over the

procedural mechanics of government.

Relying on this Court’s more expansive view of quo warranto,

Petitioners contend that the writ may be employed to provide the

relief they seek, arguing “the Governor and Legislature exceeded

their powers in authorizing off-reservation sports betting.” This

would be an appropriate use of the writ, Petitioners argue, because

this Court has used the writ to determine whether the Governor

and the Legislature “improperly exercised” their respective

authority.

The problem with Petitioners’ claim becomes apparent when

we differentiate their specific argument from their more general

statements. Petitioners argue that the “improper exercise” of power

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includes an officer transgressing constitutional limits on the

officer’s authority, so it follows that the Legislature’s enactment of a

substantively unconstitutional law, and the Governor’s agreement

to a substantively unconstitutional compact, is an improper

exercise of both powers. In other words, Petitioners argue the

Governor and Legislature “improperly exercised” their respective

authority because the substance of the compact, reflected in

sections 285.710(3)(b)-(14) and 849.142, Florida Statutes (2023),

the implementing laws, is inconsistent with article X, section 30.

This is problematic because however far afield from its original

function the current use of quo warranto has wandered, this Court

has never permitted use of the writ in the manner which Petitioners

seek—to address the substantive constitutionality of an enacted

law. See, e.g., Chiles v. Phelps, 714 So. 2d 453, 457 (Fla. 1998)

(“We have stated that under ordinary circumstances, the

constitutionality of a statute should be challenged by way of a

declaratory judgment action in circuit court.”). Furthermore, we

have made clear that the writ of quo warranto is not a substitute for

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declaratory and injunctive relief. See Detzner v. Anstead, 256 So.

3d 820, 823 (Fla. 2018).

Undiscouraged, Petitioners argue their challenge fits within

existing boundaries, pointing to Chiles. In that case, this Court

entertained a writ of quo warranto sought by the Governor and an

abortion clinic against legislative officers, including the House

Speaker and the Senate President, seeking to challenge the

Legislature’s override of two vetoed bills. 714 So. 2d at 456. We

allowed the quo warranto challenge to proceed, even though “under

ordinary circumstances, the constitutionality of a statute should be

challenged by way of a declaratory judgment action in circuit

court.” Id. at 457. But Chiles was a challenge to the authority of

the Speaker of the House and the Senate President to allow their

respective bodies to vote on vetoed bills at a regular session even

though a previous special session had been held after the Governor

had vetoed the bills. Id. It was not a challenge as to whether the

statutes at issue substantively conflicted with the constitution. So

that broad statement in Chiles cannot be read as an indication that

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this Court is willing, under certain circumstances, to examine the

substantive constitutionality of a law via quo warranto.

Similarly, Petitioners rely on Florida House of Representatives

v. Crist, 999 So. 2d 601, to support their position that the compact

may be challenged through quo warranto. But though that case

involved the applicability of the writ of quo warranto to a gaming

compact in Florida, it does not set forth a general rule that gaming

compacts may be challenged through quo warranto actions.

Instead, that case involved the specific question of whether the

Governor had authority to bind the state to a compact without

ratification by the Legislature. See id. at 609 (“The issue is whether

. . . the Governor . . . had constitutional authority to execute the

Compact without the Legislature’s prior authorization or, at least,

subsequent ratification.”). That factual background distinguishes

the case from Petitioners’ challenge here, as Petitioners challenge

the substance of the agreement reached by the Governor and

ratified by the Legislature rather than the bare ability to act.

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III.

Ultimately, the relief that Petitioners seek is beyond what quo

warranto provides. We have never used the writ to test the

substantive constitutionality of a statute, and we decline

Petitioners’ implicit invitation to expand the scope of the writ here.

To do so would serve as an affront to an essential feature of quo

warranto—that it is used to challenge the authority to exercise a

state power rather than the merits of the action. In addition,

considering Petitioners’ request here would undermine the

structure of article V of the Florida Constitution, which

circumscribes our ability to review the substantive constitutionality

of a statute and commits that review, in the first instance, to the

trial courts. And because we reach our decision today based on

existing limits to the scope of quo warranto, we similarly decline

Respondents’ invitation to reexamine precedent.

The petition is denied.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, and
FRANCIS, JJ., concur.
LABARGA, J., concurs in result.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Original Proceeding – Quo Warranto

Raquel A. Rodriguez of Buchanan Ingersoll & Rooney PC, Miami,
Florida, Sammy Epelbaum of Buchanan Ingersoll & Rooney PC,
Miami, Florida, Hala Sandridge of Buchanan Ingersoll & Rooney PC,
Tampa, Florida, and Chance Lyman of Buchanan Ingersoll &
Rooney PC, Tampa, Florida,

for Petitioners, West Flagler Associates, Ltd., a Florida Limited
Partnership, Bonita-Fort Myers Corporation, a Florida
Corporation d/b/a Springs Poker Room, and Isadore Havenick

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General,
Daniel William Bell, Chief Deputy Solicitor General, Christopher J.
Baum, Senior Deputy Solicitor General, and Myles S. Lynch,
Assistant Solicitor General, Office of the Attorney General,
Tallahassee, Florida,

for Respondents, Ron Desantis, in his capacity as Governor of
the State of Florida, Paul Renner, in his capacity as Speaker of
the Florida House of Representatives, and Kathleen
Passidomo, in her capacity as President of the Florida Senate

Todd K. Norman of Nelson Mullins, Orlando, Florida, Olivia R.
Share of Nelson Mullins, Orlando, Florida, and Beverly A. Pohl of
Nelson Mullins, Boca Raton, Florida,

for Amicus Curiae No Casinos, Inc.

Barry Richard of Barry Richard Law Firm, Tallahassee, Florida; and
Joseph H. Webster of Hobbs, Straus, Dean & Walker, LLP,
Washington, District of Columbia,

for Amici Curiae Seminole Tribe of Florida

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