SJC Allows Casino Question on State Ballot

June 25, 2014
By

Revere voters will go to the polls to vote on casinos for a third time this November – and this time they will be joined by the rest of the state – after the Supreme Judicial Court issued an early and surprising ruling Tuesday morning to allow the casino repeal question on the ballot this fall.

The decision was expected in early July and it essentially puts the entire casino process on hold, as most appear to want to wait for the results of the statewide vote. The ruling, written by new Chief Justice Ralph Gants, came just before public hearings in Revere and Everett this week on proposals by both Greater Boston casino applicants – Wynn and Mohegan Sun. The question would have the potential to require the Legislature to repeal the Expanded Gaming Act of 2011 – making casinos, slot parlors and greyhound simulcasting illegal once again.

“We conclude that the Attorney General erred in declining to certify, and grant the requested relief so that the initiative may be decided by the voters at the November election,” read the 47-page decision. “In sum, the abolition of casino and slots parlor gambling, and of pari-mutuel wagering on simulcast greyhound racing, whether by the voters or the Legislature, would not constitute a taking of private property without compensation from those licensed to engage in such gambling operations, and therefore an initiative calling for their abolition is not inconsistent with the right to receive compensation for private property appropriated to public use. Instead, the possibility of abolition is one of the many foreseeable risks that casinos, slots parlors, and their investors take when they choose to apply for a license and invest in a casino or slots parlor. We acknowledge the arguments made by the interveners…that an initiative petition would put at risk the substantial investment that has been made by the applicants in applying for the casino licenses and by the slots parlor licensee in obtaining its license, including the license fee of $25 million. But…substantial economic loss arising from a change in law under the core police power does not constitute a taking of private property that triggers an entitlement to fair compensation.”

Responses, initially, were measured on both sides – with pro-casino folks feeling disappointed and anti-casino folks feeling vindicated.

“While this ruling marks a huge hurdle now cleared, it’s also the firing of the starting gun in this incredibly important campaign,” Casino Repeal Chairman John Ribeiro, of Winthrop, said. “We know Massachusetts can do better than this casino mess. We’re elated at the opportunity to continue sharing the truth about casinos and the harm they would bring to our communities. Now’s the time to dig our heels in and spread our message.”

Said Revere Mayor Dan Rizzo, “We are disappointed by the ruling today by the Supreme Judicial Court which will put the question of resort style casinos on the ballot in November. Revere has voted twice on this issue and we have followed the process defined by the Gaming Act. This ruling will be another hurdle in the way of bringing jobs, revenue, and much needed investment to Revere, the region, and the Commonwealth. We will continue our efforts to discuss this topic over the coming months and we are confident that the voters of Massachusetts will say ‘Yes’ to jobs, revenue, and investment.”

Everett Mayor Carlo DeMaria said he respected the decision and looked forward to convincing the state that gaming is positive.

“I respect today’s decision of the Supreme Judicial Court to place the initiative petition on the ballot in November,” he said. “I look forward to showing the entire Commonwealth how Wynn Resorts can create thousands of jobs, recapture millions in lost revenue from Connecticut, and realize countless opportunities for Massachusetts. I am fully supportive of the Expanded Gaming Act and it’s goals and confident that at the end of the day, Massachusetts, like Everett, will overwhelmingly support the law and move our state forward.”

The repeal ballot question has been hanging over the heads of gaming applicants for several years, and Repeal the Casino Deal – a loosely organized group of several local grass-roots anti-gaming groups (including clergy from Revere and the No Eastie Casino group) – made a push this year for a place on the ballot. After they gathered and certified the required number of signatures earlier this year, Attorney General Martha Coakley put up a road block – saying the question, if approved, would result in the illegal taking of property without compensation and that there was an implied contract between applicants and the state. That triggered a bevy of lawyers to come out of the woodwork on both sides, citing complex legal cases that seemed to back up either viewpoint.

Eventually, the issue came to a head at the SJC in early May.

The major issues debated during a hearing on May 5 before the SJC by those for the repeal and those against the repeal were the ideas of whether there was an implied contract between the state and applicants; and whether or not the state had the “police powers” to revoke such an act once the wheels had been turned in motion.

Already, a slots parlor has been awarded and paid for by Penn National Gaming at the Plainridge Race Course in Plainville. A resort casino license was issued to MGM Springfield only a few weeks ago, but contingent upon the SJC ruling and any possible November vote.

The SJC rejected both of Coakley’s major legal arguments, holding particularly close to its similar ruling on the Greyhound Racing Repeal vote from 2008. That ballot question closed down live greyhound racing in Massachusetts, including Revere’s Wonderland Dog Track.

“We see no reason to depart from our precedent in [the greyhound racing decision],” wrote Gants. “Consequently, we conclude that, under the core police power, the Legislature and, through the initiative, the voters of Massachusetts may choose to abolish casino and slots parlor gambling and pari-mutuel wagering on simulcast greyhound races, and doing so would not constitute a taking of property without compensation. In the circumstances of this case, this conclusion would not change even were we to apply the broader meaning of the police

power. In matters beyond the core police power, we have not

precluded the Legislature, where necessary to assure those who

will be making investments beneficial to the public welfare, from

binding itself and the electorate not to revoke legislation

relied on by those making such investments for a reasonable

number of years, or from agreeing to provide fair compensation if

it were to revoke the legislation.”

The decision was also somewhat critical of Coakley, saying her arguments were “flawed,” that she “erred,” and that some points made in her argument were a “departure from common sense.”

Coakley said immediately after the ruling that she respected the decision and would be glad to allow the people to decide the issue.

“I am pleased that the SJC has ruled on this matter, and it is now an issue that will be decided by the voters in the fall,” she wrote in a statement. “My office had conducted a legal review of this ballot question, but knew it would ultimately be decided by the Court. My office worked cooperatively with both parties to put this issue before the Court. Now, with today’s decision, voters will have the final say.”

Former Attorney General Scott Harshbarger, a lead advisor now in the Repeal the Casino Deal organization, said the people won in getting the question on the ballot.

“This has been a true people’s campaign and it will win because of that,” said Harshbarger. “We are seeing clear evidence of a wind at our back as people learn more-and-more about the failed promises of casinos in Massachusetts. I’m so grateful to the courageous people standing up to be counted on this issue so critical to our values as a Commonwealth.”

The Massachusetts Gaming Commission (MGC), which would become extinct if voters approve the repeal question, said it respected the decision and would continue on with its business in the interim.

“The MGC respects the decision of the SJC to allow the citizens of the Commonwealth to vote on the repeal of expanded gaming in November,” read the statement. “As the Commission has demonstrated in the past, we have the flexibility to achieve progress in the licensing and regulatory process even in an atmosphere of uncertainty and we will continue to do so. Although the Commission has not taken a position on the repeal; we are committed to implementing the law as it currently exists in a manner that is participatory, transparent and fair.”

Casino applicants were not as vocal on the matter as so many others were on Tuesday morning.

Wynn Resorts, which is proposing a casino in Everett, declined to make a comment. Wynn has made it a policy not to be involved in the statewide ballot question debate from its beginning.

Mohegan Sun’s Mitchell Etess said, “We believe we have the best plan to bring thousands of jobs, world class entertainment, local economic development, and increased tourism to the region and that is our focus right now. We will also join the chorus of others making the case to voters on why this law is good for workers, good for the economy, and good for the Commonwealth.”

Meanwhile, the national pro-gaming association – the American Gaming Association (AGA) – said that it would be entering into Massachusetts to correct old stereotypes that have been passed around routinely by the local anti-gaming groups here.

“While it’s up to Massachusetts to decide whether or not to welcome the thousands of jobs and millions of dollars in revenues gaming will bring to the Commonwealth, the AGA will ensure that voters have the facts about our industry instead of tired stereotypes,” said AGA President Geoff Freeman. “Gaming positively affects communities by creating thousands of jobs paying well above the minimum wage, helping small businesses grow and contributing millions of dollars in vital revenues for public services, such as education and safety. Massachusetts could soon discover what communities across the nation already know: that gaming serves as valued community partners and as one component of a strategic, multifaceted economic development plan.”

With the question of whether there will be a question being answered, now will come the heated discussions, the media campaigns for and against and the endless handicappers.

Statewide approval of expanded gaming was very lopsided towards the pro-casino side for several years after the law was passed.

However, in the many hiccups during the roll out and licensure process, public opinion statewide seemed to shift – especially recently.

A poll done earlier this month by Suffolk University/Boston Herald revealed that 47 percent of voters on the question disapprove of expanded gaming, while 37 percent approve. That was a departure from earlier polls where more than 50 percent approved of expanded gaming.

There are likely to be swings and shifts, and numerous polls, in the coming months as statewide voters prepare to decide the fate of casino gaming in Revere, Everett and the rest of the state.

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