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SJC: Coakley opinion defies ‘common sense’

High court rules repeal of the state casino law can be put before voters, including banning betting on simulcast greyhound racing from outside the state

BY: Jack Sullivan

The state’s highest court on Tuesday ruled that a ballot question to repeal the Massachusetts casino law should be put before voters in the fall, calling Attorney General Martha Coakley’s argument against the referendum a “departure from common sense.”

Coakley in September ruled that the referendum question should not appear on the ballot because it would unlawfully take property belonging to casino applicants without compensating them. The property, in this case, was the hundreds of thousands of dollars casino operators would spend during the application process. What was unusual about Coakley’s argument was her theory that a casino applicant acquires a property right that cannot be taken away without compensation during the application process for a casino license but loses that property right if they are actually awarded a license.

In a unanimous opinion written by incoming-Chief Justice Ralph Gants, the Supreme Judicial Court rejected Coakley’s “peculiar” argument. “We reject this distinction and this departure from common sense,” the court held. The court noted that the western Massachusetts casino license and the slots parlor license have already been awarded and, though it wasn’t referenced in the decision, the Boston-area casino license is scheduled to be awarded in August before the November election.

Coakley said it was never her office’s intention to block the question based on any opposition to the repeal effort itself. Rather, she said, it was her “threshold” duty to review the referendum language based on a steel-eyed interpretation of the law and decide whether or not it meets the requirements for an initiative petition.

“We made the decision based on the facts before us,” Coakley told reporters shortly after the opinion was released. “It is a thoughtful decision. We accept the decision.”

Coakley, whose opposition to the ballot question is sure to become an issue in the race for governor both in the primary and, if she survives, the general election, said the sometimes harsh language of the decision did not bother her.

“Sometimes the law is not commonsensical,” she said. “I don’t take it personally. What this has always been about is getting the right decision.”

The decision came in a suit brought by a group calling itself Repeal the Casino Deal. The 10 named plaintiffs included public and private opponents to casino gambling. The SJC also had before it more than 20 amicus briefs and briefs from other affected parties including the city of Springfield and the town of Plainville.

Kathleen Conley Norbut of Monson, one of the plaintiffs, said she was “thrilled” with the decision and said she saw it as a rebuke to Coakley.

“It’s very strong against the attorney general’s position and very strong against the interveners,” Norbut said. “When we originally began our opposition to the law, the AG was there to block us at that time. I would not say she has been an ally to us having that on the ballot. We had to work very hard to get this to the voters, to the ballot. The attorney general’s position was the obstacle.”

The referendum is certain to have an impact on campaigns this fall, especially in the Democratic primary even though the question will not be before voters until November. Coakley said today she still is of the opinion “at this time” that she will vote against the ballot question and one of her opponents, State Treasurer Steven Grossman, has stated he opposes it as well, though he said it should be on the ballot. The third Democratic candidate, Don Berwick, supports repeal of the law.

Presumptive GOP nominee Charlie Baker said he was glad the question would go on the November ballot but he said he opposes repeal of the gaming law because it would disrupt communities that have already voted in favor of casinos or slots. Evan Falchuk and Jeff McCormick, who are running for governor as independents, are split on repeal of the gaming law with McCormick in favor and Falchuk opposed. Both support letting voters decide.

In the race for the Democratic nomination for attorney general, Maura Healey, a former assistant attorney general, wants to repeal the gaming law while Warren Tolman, who has the backing of many labor unions that would benefit from casino construction jobs, opposes repeal, though he signed the petition last fall to put the question on the ballot.

The referendum’s opponents are likely to muster full-throated opposition to the measure, with casino applicants Mohegan Sun, MGM, and Penn National all chipping in to fund the effort to defeat it. But one of the biggest players, Las Vegas casino mogul Steve Wynn, who wants to build a resort casino in Everett, says he will stay on the sidelines.

The SJC decision addressed not only Coakley’s argument about the taking of private property but also contentions by interveners that the question would violate the state constitution by having all voters decide a matter that affected individual communities. That argument, rejected by the court, was that local municipalities make the determination about whether or not they want a casino or slots parlor and that right cannot be overridden by a statewide referendum.

“Although the economic impact of the statewide ban proposed in the initiative would be greatest on the host communities (or prospective host communities), the impact would be statewide,” Gants wrote, ticking off jobs, tax revenues, casino operations, and potential social ills as areas that would have an effect outside a community’s borders. “The adverse consequences of casino and slots parlor gambling claimed by some of the amici, including an increase in those suffering the psychological, social, and economic effects of ‘gambling disorder,’ an increase in the rate of bankruptcies, especially among restaurants, and higher crime rates, if they were to occur, would also not be limited to residents of the host communities and would be felt statewide.”

The decision also approved the wording that would ban simulcast greyhound wagering as well despite some briefs that argued that was exempted by the Legislature. When the suit was filed last fall, both sides agreed to proceed as if the referendum would make it to the ballot, including collecting signatures and the attorney general’s office writing a summary, in conjunction with the plaintiffs, to appear on the signature petitions and the Secretary of State’s mailing to voters. But Coakley’s brief said the the petition’s definition of “illegal gaming” would include banning greyhound wagering. The SJC sided with Coakley on that issue, but the justices also said they fully expect the challenge to be back before them to decide if the referendum succeeds.

“Because the summary will accurately inform the voters of precisely what they are being asked to do with respect to wagering on simulcast greyhound racing--that is, abolish it--a reasonable voter cannot possibly misunderstand the measure's intended effect,” the ruling says.

Gants’s opinion also acknowledged arguments about what kind of message a repeal would send to businesses. But, he wrote, that could not be a factor in the court’s decision.

“We acknowledge, too, the argument that abolition through the initiative might even affect nongambling companies' estimation of Massachusetts as a reliable place to do business,” Gants wrote. “These arguments may properly be considered by the voters in deciding how to vote on the initiative, but they have no relevance to the determination whether the petition meets the legal requirements of an initiative and should be included on the November ballot.”
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