What could be the final nail in the coffin for expanded sports betting in Delaware was hammered in Tuesday when the U.S. Court of Appeals for the Third District denied the state’s petition for a re-hearing on the issue.
The Markell administration said afterward it probably won’t contest the federal appeals court ruling; the final recourse would be an appeal to the U.S. Supreme Court.
Signed by Judge Thomas M. Hardiman – a member of the three-judge panel that unanimously ruled against Delaware five weeks ago -- the ruling simply said "a majority’’ did not vote for a full "en banc’’ hearing before the 12 judges. Eleven of 12 judges voted on the state’s petition, and all voted "no," a court official said.
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The state has 90 days to ask the U.S. Supreme Court to review the case.
"While we have not ruled out that legal option, it is unlikely we will pursue it,’’ said Joe Rogalsky, spokesman for Gov. Jack Markell, who did not comment himself on the ruling against a major initiative of his first year in office.
Markell’s legal counsel, Michael A. Barlow, said the governor was disappointed.
"We realize it is rare that the Third Circuit will hear cases with all 12 active judges, but this was an important issue for the state of Delaware," he said. "We thought the state should have a chance to make its case at trial."
Legal experts said Delaware faces long odds in getting a review by the high court, which accepts less than 1 percent of the thousands of cases submitted annually.
Widener University School of Law professor Larry Hamermesh said the prospect of the Supreme Court taking the case is low.
"But you never know," he said. "Lightning does strike."
Barring a reversal, Delaware sports gambling will be limited to parlay bets on the outcome of at least three National Football League games. The state’s three racetrack casinos have been offering such wagers at their betting parlors since Sept. 10, opening day of the NFL season. About $946,000 has been bet so far.
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