Abdow v. Attorney Gen.

• Decision Date: 24 June 2014
• Docket Number: SJC–11641.
• Citation: 468 Mass. 478,11 N.E.3d 574
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Stephen P. ABDOW & others v. ATTORNEY GENERAL & others.

468 Mass. 478

11 N.E.3d 574

Stephen P. ABDOW & others¹

v.ATTORNEY GENERAL & others.²

SJC–11641.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted May 5, 2014.

Decided June 24, 2014.

Thomas O. Bean (H. Reed Witherby with him), Boston, for the plaintiffs.

Carl Valvo, Boston, for George Ducharme & others.

Peter Sacks, State Solicitor, for the defendants.

Mary Katherine Geraghty, Timothy J. Fazio, Boston, & Jennifer L. Morse, for Daniel Rizzo & others, were present but did not argue.

Edward M. Pikula, City Solicitor, & Frank E. Antonucci, Springfield, for Dominic J. Sarno & others, were present but did not argue.

The following submitted briefs for amici curiae:

Daniel O'Connell, Springfield, for Massachusetts Competitive Partnership.

Brian D. Tobin, Wellesley, for Massachusetts Council of Churches & others.

Ellen Weiss Freyman, Springfield, & William J. Smith, Boston, for Affiliated Chambers of Commerce of Greater Springfield & another.

Thomas R. Landry for New England Regional Council of Carpenters.

Jonathan M. Silverstein & Janelle M. Austin, Boston, for town of Plainville.

Donald J. Siegel & Jasper Groner, Boston, for Massachusetts Building Trades Council.

Melinda M. Phelps & Jennifer K. Cannon, Springfield, for Greater Springfield Convention and Visitors Bureau, Inc.

Edward L. Sweda, Jr., Boston, for Public Health Advocacy Institute.

Nicole Micheroni for Coalition of Citizens and Community Leaders.

Brian T. Corrigan for Stop Predatory Gambling.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

The issue presented on appeal is whether an initiative petition meant to prohibit casino and slots gambling and abolish parimutuel wagering on simulcast greyhound races meets the requirements set forth in art. 48 of the Amendments to the Massachusetts Constitution and, therefore, may be considered by voters at the November Statewide election. The Attorney General concluded that it did not and, accordingly, declined to certify it for inclusion on the ballot. The plaintiffs, ten Massachusetts voters who submitted the proposed initiative for certification, filed a complaint challenging the Attorney General's decision and sought an order requiring the Attorney General to certify the petition. 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.³

Background. 1. The Expanded Gaming Act of 2011. In November, 2011, the Legislature enacted the Expanded Gaming Act, St. 2011, c. 194 (act), that created the Gaming Commission (commission), and for the first time permitted casino and slots gambling in Massachusetts by those awarded gaming licenses by the commission. The act authorized the commission to award three licenses to qualified applicants to operate gambling casinos with table games and slot machines (category 1 or casino license), and another license to operate a gaming establishment with only slot machines (category 2 or slots parlor license).⁴G.L. c. 23K, §§ 2, 19, 20. The act also transferred the authority to license and regulate the racing industry from the State Racing Commission to the commission. See St. 2011, c. 194, §§ 38, 40.

Pursuant to the act, the application process for casino and slots parlor licenses is in two phases. First, the commission determines whether the applicant is suitable for a license, based on various detailed criteria. See G.L. c. 23K, §§ 12, 15; 205 Code Mass. Regs. §§ 111.00, 114.00–117.00 (2013). Only those applicants found suitable in the first phase reach the second phase, where the commission considers the specific characteristics of the site proposed, based on other detailed criteria. See G.L. c. 23K, §§ 12 ( c ), 18; 205 Code Mass. Regs. §§ 118.00–119.00 (2014). Although the commission has the authority to issue three casino licenses and one slots parlor license, it is not obligated to issue any license. See G.L. c. 23K, § 19 ( a ) (commission may decide not to award any casino license where it is “not convinced” any applicant “has both met the eligibility criteria and provided convincing evidence that [it] will provide value to the region ... and to the commonwealth”); G.L. c. 23K, § 20 ( a ) (same with respect to slots parlor license). An applicant who is denied a license by the commission has no entitlement to further review of the decision. G.L. c. 23K, § 17 ( g ) (“[C]ommission shall have full discretion as to whether to issue a license. Applicants shall have no legal right or privilege to a gaming license and shall not be entitled to any further review if denied by the commission”).

To be eligible to receive a casino or slots parlor license, the applicant must pay an initial nonrefundable application fee of $400,000, and an additional amount “if the costs of the investigation exceed the initial application fee.” ⁵G.L. c. 23K, § 15(11). If an applicant reaches phase two of the application process, the applicant may be required to pay further surcharges to cover the commission's additional cost of investigation.⁶205 Code Mass. Regs. § 118.08 (2014).

An applicant who is awarded a license is required to pay a license fee of $85 million for a casino license and $25 million for a slots parlor license. See G.L. c. 23K, §§ 10 ( d ), 11 ( b ); 205 Code Mass. Regs. § 121.01 (2014). In addition, successful applicants are required to commit to a minimum capital investment of at least $500 million for a casino license and $125 million for a slots parlor license. See G.L. c. 23K, §§ 10 ( a ), 11 ( a ); 205 Code Mass. Regs. § 122.02 (2013). A casino license is valid for fifteen years, and a slots parlor license is valid for five years. See G.L. c. 23K, §§ 19 ( b ), 20 ( e )-( f ). But all licenses are subject to suspension or revocation on various grounds, as set forth in G.L. c. 23K, §§ 1(9), 4(15), 23 ( a )-( b ).

No category 1 license to operate a casino has been awarded by the commission. There are two applicants currently in phase two of the application process in region A. With respect to region B, the commission recently voted to award the license to MGM Springfield subject to “a finding by the Supreme Judicial Court invalidating the ballot initiative at issue in [this case] or ... the rejection of the repeal petition in the November 6, 2014 general election.” In region C, the Governor entered into, and the Legislature approved, a compact with the Mashpee Wampanoag Tribe (tribe) to operate a gaming establishment in Taunton that the tribe had the option, subject to several conditions, to acquire under an Intergovernmental Agreement. The application process of one applicant in region C is still in phase one, but those found suitable in phase one for regions A and B are not required to submit a new phase one application for region C.⁷ In contrast, the commission decided in February, 2014, to award the category 2 license to an applicant to operate a slots parlor at the Plainridge harness racing track in Plainville, and the applicant presumably paid the required $25 million licensing fee.⁸

2. Initiative petition. The act, apart from enacting G.L. c. 23K, which creates the commission and describes the application process to obtain casino and slots parlor licenses, also amended the definition of “[i]llegal gaming” in G.L. c. 4, § 7, Tenth. Before the act, “illegal gaming” was defined to “include every act punishable under any law relative to lotteries, policy lotteries or policy, the buying and selling of pools or registering of bets.” G.L. c. 4, § 7, Tenth. The act redefined “illegal gaming” to mean:

“a banking or percentage game played with cards, dice, tiles or dominoes, or an electronic, electrical or mechanical device or machine for money, property, checks, credit or any representative of value, but excluding: (i) a lottery game conducted by the state lottery commission, under sections 24, 24A and 27 of chapter 10; (ii) a game conducted under chapter 23K; (iii) pari-mutuel wagering on horse races under chapters 128A and 128C and greyhound races under said chapter 128C; (iv) a game of bingo conducted under chapter 271; and (v) charitable gaming under said chapter 271.”

G.L. c. 4, § 7, Tenth, as amended by St. 2011, c. 194, § 3. Among the consequences of the revised definition of “illegal gaming” was that “a game conducted under [c.] 23K,” that is, gaming at casinos and slots parlors licensed by the commission, was excluded from the definition, as was parimutuel wagering on simulcast greyhound races under G.L. c. 128C.

The initiative petition seeks to ban casino and slots gambling that had been made legal under the act and to abolish parimutuel wagering on simulcast greyhound races. It attempts to accomplish this in two steps. First, it would amend yet again the definition of “illegal gaming” in G.L. c. 4, § 7, Tenth, by eliminating from the list of exclusions “a game conducted under [c.] 23K,” and “pari-mutuel wagering on ... greyhound races under [c.] 128C.” ⁹Second, it seeks to add a provision to c. 23K that would effectively nullify all the other provisions of c. 23K by prohibiting any “illegal gaming,” as redefined in G.L. c. 4, § 7, Tenth, and by prohibiting the commission from accepting or approving any application to conduct “illegal gaming.” ¹⁰

Under art. 48, The Initiative, II, § 3, as amended by art. 74, § 1, of the Amendments to the Massachusetts Constitution, after ten qualified voters sign and submit an initiative petition, the petition is filed with the Secretary of the Commonwealth only if the Attorney General certifies that the petition is in proper form for submission to the voters, that it is not substantially the same as a petition submitted to the voters in either of the two preceding biennial state elections, and that “it contains only subjects not excluded from the popular initiative and which are related or which are mutually dependent.” One of the subjects excluded from the popular initiative is...