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Bets or Ballots?

With support for casinos in question, opponents take their case to court.

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Wednesday, April 30, 2014
Thomas Northcut | Photodisc
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Are Massachusetts residents turning against the prospect of casino gambling in the commonwealth?

That depends on whom you ask. Polling numbers present a complicated picture: In a February Suffolk University poll of likely voters, respondents said they approved of casinos in Massachusetts by the slimmest of majorities: 51 percent. Another 37 percent said they disapproved, while 12 percent were undecided. In March, a WBUR/MassInc poll showed more respondents approved of casinos than not, but by a closer margin: 46 to 43 percent, a spread that fell within the poll’s margin of error. The numbers shifted again in figures released in mid-April by Western New England University’s Polling Institute, which showed healthier support for casinos, with 59 percent in favor and only 34 percent opposed.

Ask casino opponents, though, and they’ll tell you that the tide is definitely turning. They point to the overall polling trend showing that casino support is shrinking, as well as the rejection of casino proposals in several communities, including Palmer and West Springfield. They also note the small but growing group of political figures who oppose casinos: Democratic Attorney General candidate Maura Healey recently called for the casino law to be overturned, a position she shares with gubernatorial candidates Don Berwick, a Democrat, and Jeff McCormick, an Independent. Casino opponents were further heartened earlier this month when former Boston Mayor Tom Menino, during an interview on that city’s CBS affiliate, called the casino-selection process a “political quagmire” and a “mess” and predicted that if the question goes before voters, it will lose.

Ultimately, of course, that’s the surest way to tell if Massachusetts residents want casinos: to put the question before them on the ballot. Next week, the highest court in the commonwealth will hear arguments in a case that will determine whether voters will have the opportunity.

 

Last August, a group of anti-casino activists submitted an initiative petition to the Attorney General’s Office seeking a question on the November 2014 ballot asking voters to overturn the 2011 law that legalized casinos in the state. The following month, Attorney General (and 2014 gubernatorial candidate) Martha Coakley ruled that the proposed initiative was unconstitutional and therefore could not go on the ballot.

In her ruling, Coakley wrote that the proposed question would amount to an illegal “taking” of private property and would “impair the implied contracts” between the Mass. Gaming Commission, the body in charge of awarding casino licenses, and the companies applying for those licenses.

“Contract rights are considered property and may not be ‘taken’ by an initiative petition,” Coakley ruled. The proposed question, she wrote, would do just that, “without any provision for paying compensation.”

Casino opponents, organized under the name Repeal the Casino Deal, appealed Coakley’s decision, and an agreement was reached that allowed the group to continue with the next phase of the initiative process—collecting the signatures of 68,911 registered voters by Dec. 4, a task they accomplished—while waiting for the matter to be decided by the courts. On May 5, the Mass. Supreme Judicial Court will hear oral arguments on Repeal the Casino Deal’s case to allow the question on the November ballot.

 

The casino opponents are represented by two Boston attorneys, H. Reed Witherby and Thomas O. Bean. In a brief filed with the SJC in March, the lawyers disputed Coakley’s assertion that an “implied contract” exists between the MGC and casino applicants, instead arguing that the casino law passed by the Legislature expressed no “explicit intent to create a contract between the MGC and Applicants.”

In addition, the attorneys said, any implied contract would be invalid because it would unlawfully prevent the state’s ability to regulate the casino industry. “For more than a century, this Court and the U.S. Supreme Court have held that state legislatures lack the authority to contract away the State’s right to exercise its police and regulatory powers. As the power of the people to enact laws through the initiative process is co-extensive with that of the Legislature, and the regulation of gambling is at the core of the State’s police and regulatory powers, any implied contract that purported to prevent the people from exercising such powers is, as this Court put it in an Opinion of the Justices, ‘invalid,’” the brief reads.

Witherby and Bean also disputed the AG’s contention that the ballot initiative could result in a “taking” of private property. “[The] gaming license applicants have no compensable private property interest,” they wrote in the brief. “Their alleged property interest in the MGC’s reviewing and acting on their applications lacks the traditional hallmarks of private property, such as transferability and excludability. Having voluntarily entered into a heavily regulated industry subject to pervasive government control, applicants lack a private property interest that requires compensation when the government chooses to modify the program that created the benefit in the first place.”

The Attorney General’s Office has submitted its own brief in the case, filed by Coakley and State Solicitor Peter Sacks, which reiterates the legal arguments made in Coakley’s initial decision to reject the ballot initiative last September.

“Basic fairness to those who accepted the Commission’s invitation to apply for licenses, and who invested millions of dollars in the process, requires recognition of such an implied contract to complete that process,” the brief says. The AG’s Office also contends that casino opponents’ claim that such a contract would “bargain away the police power to regulate or prohibit gaming” is meritless.

 

It goes without saying that the SJC case is of intense interest to both casino opponents and proponents—not to mention, casino developers.

Citing the uncertainty created by the pending court case, officials at MGM, whose proposed Springfield casino is the sole remaining applicant for a western Mass. license, recently asked the MGC to hold off on granting a final license. Instead, the company is seeking a provisional license that would allow it to begin work on the project without triggering the $85 million in fees it would owe the state if awarded a final license, as well as other related fees that could cost the company a total of $200 million.

In March, a group of 10 Springfield residents, led by Mayor Domenic Sarno, an ardent casino backer, submitted a brief with the SJC as interveners. (A similar brief has been submitted by residents of Revere, led by that city’s mayor, Daniel Rizzo.) The Springfield brief, filed by City Solicitor Ed Pikula and Frank Antonucci, a private-practice attorney in the city, argued that a repeal of the casino law would nullify the results of the July 2013 ballot question in which 58 percent of Springfield voters approved a host community agreement between the city and MGM. It also argued that state law forbids statewide ballot questions on local matters, such as the city’s casino vote.

“Springfield’s Host Community Agreement outlines the largest development project Western Massachusetts has seen in a generation and will facilitate a renaissance in the core of Downtown Springfield as well as in an area heavily damaged by the June 1, 2011 tornado,” Sarno said in a prepared statement. “Springfield is asking the SJC to consider our economic prospects and goals, and to protect the rights of local government under the State Constitution.”

In addition, anti-casino groups have filed amicus briefs in the case supporting Repeal the Casino Deal’s efforts. In its brief, the national group Stop Predatory Gambling, wrote: “Casinos have become a public policy issue in Massachusetts not because of a movement by concerned citizens demanding casinos in the state, but because one of the most powerful special interests in the world has spent tens of millions of dollars on an unprecedented amount of lobbying, paid and earned media, highly-sophisticated public affairs campaigns and political contributions to make it one. These powerful interests have had their ‘debate.’ Citizens, on the other hand, have been denied the opportunity to debate and decide this public policy…”

But the question, the brief said, is “of such critical importance to the citizenry of this Commonwealth that it deserves inclusion on the statewide ballot.”

The Boston-based Public Health Advocacy Institute also filed an amicus brief, arguing that casinos have “devastating effects on the public’s health” and that “Massachusetts voters should not be denied the opportunity to be heard directly on the question of whether to invite a predatory and toxic industry to do business in the Commonwealth.”

The SJC is expected to rule on the case by July.•

 

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