Opening Arguments: SJC Hears Arguments on Casino Ballot Referendum

May 7, 2014
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The state Supreme Judicial Court (SJC) heard arguments on Monday in Boston’s Adams Courthouse concerning a subplot to the casino licensing process that is becoming ever more important as the days go by – that subplot being whether or not a binding statewide ballot question on casinos can go to voters this November.

The long-awaited public arguments before the SJC featured a 90-minute lesson on the intricacies of the law involving the state’s contracting provisions, its power to police, the rules of land takings and simple procurement laws that might be affected by either side of the argument.

“If common sense prevails, then we’re on the ballot,” said Winthrop’s John Ribeiro of No Eastie Casino and Repeal the Casino Deal. “The argument that the rights of an applicant trump the rights of a license holder is ridiculous on its face.”

“We came into this process with the enthusiastic support of the Legislature and the governor,” said Michael Mathis, president of MGM Springfield – which is competing for the western Massachusetts license. “We spent a great deal of resources on this process. To not even get to the point of opening our facility because of an argument on public policy is troubling.”

In a word, the subject matter was complex.

But the justices were well prepared and got to the heart of the matters rather quickly, and all side commented that the court was well prepared and engaged.

Opponents of casino gaming have long railed against the process since the day after expanding gaming became law in 2011. This past year, advocates from around the state gathered signatures and were certified to get their question on the November ballot.

However, Attorney General Martha Coakley stepped in and blocked that question from appearing on the ballot, arguing – among other things – that it would result in an illegal taking of property. On Monday, those representing Coakley said they found valid arguments on both sides, but felt the wording of the question invalidated it.

Opponents disagreed, and so the matter landed on the laps of seven SJC justices – who will review the arguments and decide by at least July 9, the deadline for printing ballot question explanations.

Not every justice was actively involved in the discussion.

Only three speakers came before the court – Attorney Thomas Bean in support of the question, Attorney Carl Valvo against the question and State Solicitor Peter Sacks representing the AG’s Office.

Justices Margot Botsford, Ralph Gants, and Robert Cordy pretty much led the discussion and asked most of the questions. While Cordy seemed to be sympathetic to the argument of not getting the question on the ballot, Botsford and Gants seemed to be swayed by the argument of getting it on the ballot.

The other four justices mainly listened, taking it all in and asking one or two quick questions.

Gants seemed to be perplexed by the argument that the Legislature is not able to decide to rescind the expanded gaming law, as argued by Valvo and Sacks. Both said applicants had the right to a decision on their licenses.

“Applicants have paid many millions of dollars for a decision on their application and they are due a decision on their application,” said Sacks.

Bean argued that there was no contract as a result of the gaming process, and that decisions could be made on the winner of a license without awarding the license. He said the gaming applicants knew there were protests to the law and still decided to file, and thus, they are not entitled to any compensation.

“We do not believe they have a contract,” said Bean

That elicited questions from Cordy. After Bean told him they do not believe compensation is warranted, Cordy quipped, “Wow.”

Cordy also voiced his concern about the same subject when asking Valvo about the prospect of this being an illegal taking, noting the argument that changing the Legislation would amount to the taking of property.

“That’s what a taking does,” Valvo said. “When the government decides to build a road through my living room, it decides it’s in the best interest of the public. Fine, and they go ahead and take my living room and then they pay me for it.”

Casino applicants and City officials from Springfield pretty much captained the ship in arguing against the question – though casino applicants Mohegan Sun and Wynn Resorts, along with the Cities of Everett and Revere, paid careful attention.

“The Supreme Judicial Court asked tough, thorough questions, and I’m optimistic that the Court will reach the right conclusion,” said Revere Mayor Dan Rizzo. “The repeal effort would cost Massachusetts thousands of jobs and block billions of dollars in tax revenues and economic development.”

Springfield City Solicitor Ed Pikula said they disagree with the idea of a question going on the ballot, both legally and financially.

“The democracy we know from the state Constitutional Convention in 1917 said there will be initiative petitions, but that there will be exclusions and that includes takings and local matters, and both of those things we believe apply here,” he said.

MGM’s Mathis said they have spent as much as $40 million over the last two years on the effort, and Pikula said Springfield would be out $4 million in extra tax revenues immediately.

Mathis said they are reserving their right to legal remedies.

“That’s a difficult decision to make now, but we would reserve all our legal rights as we have to,” he said.

Meanwhile, former Attorney General Scott Harshbarger – now of Repeal the Casino Deal – said the arguments boil down to one thing, letting the people of the entire state vote on a very crucial matter.

“If we get a fair hearing here, the people will have a right to vote on this in November,” he said. “That’s what this is about…We can do better than this [industry] in Massachusetts. The applicants were fully aware from the day after this Legislation passed that there were many people who disagreed with the Legislature and that there was a protest filed to repeal this law. The applicants took a bet and now the question is will that bet pay off.”

Added Ribeiro, “This is about giving all people in the state a chance to vote. I live in Winthrop, next door to where a casino is proposed to go in Revere. I had no vote…We think everyone should vote on this.”

The stakes are high as to what the court decides, as some polls suggest that the appetite for expanded gaming and the expanded gaming industry has eroded statewide.

While polling several years ago indicated there was heavy statewide support, more recent polls indicate that support is  strong in pockets, but has eroded somewhat statewide.

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