Harrop v. The Rhode Island Division of Lotteries

• Decision Date: 01 June 2020
• Docket Number: C. A. PC-2019-5273
• Parties: DANIEL S. HARROP, Plaintiff, v. THE RHODE ISLAND DIVISION OF LOTTERIES; by and through Gerry S. Aubin, in his official capacity as Director; THE RHODE ISLAND DEPARTMENT OF REVENUE, by and through Marc A. Furcolo, in his official capacity as Acting Director; UTGR, INC. d/b/a TWIN RIVER; TWIN RIVER-TIVERTON, LLC d/b/a TIVERTON CASINO HOTEL; IGT NV, PLC; THE TOWN OF LINCOLN, and THE TOWN OF TIVERTON Defendants.
• Court: Rhode Island Superior Court

DANIEL S. HARROP, Plaintiff, v. THE RHODE ISLAND DIVISION OF LOTTERIES; by and through Gerry S. Aubin, in his official capacity as Director; THE RHODE ISLAND DEPARTMENT OF REVENUE, by and through Marc A. Furcolo, in his official capacity as Acting Director; UTGR, INC. d/b/a TWIN RIVER; TWIN RIVER-TIVERTON, LLC d/b/a TIVERTON CASINO HOTEL; IGT NV, PLC; THE TOWN OF LINCOLN, and THE TOWN OF TIVERTON Defendants.

C. A. No. PC-2019-5273

Superior Court of Rhode Island, Providence

June 1, 2020

For Plaintiff: Joseph S. Larisa, Jr., Esq.; Brandon S. Bell, Esq.

For Defendant: Robert Corrente, Esq.; Michael W. Field, Esq. John Tarantino, Esq.; Nicole J. Benjamin, Esq.; Anthony Desisto, Esq.; Michael J. Marcello, Esq.; Gerald J. Petros Esq.; Mitchell Edwards, Esq.

DECISION

STERN J.

Daniel S. Harrop (Plaintiff) has moved for summary judgment on Count III of his Fourth Amended Complaint, which seeks a declaratory judgment that the implementation of sports betting and online sports betting violates article 6, section 22 of the Rhode Island Constitution, as well as injunctive relief and restitution. The Rhode Island Department of Revenue (DOR), the State Lottery Division of the State of Rhode Island Department of Revenue (State Lottery Division) (collectively, State Defendants), UTGR, Inc. d/b/a Twin River (Twin River-Lincoln), and Twin River-Tiverton, LLC d/b/a Tiverton Casino Hotel (Twin River-Tiverton) (collectively Defendants), joined by IGT NV, PLC, have objected. Jurisdiction is pursuant to G.L. 1956 § 9-30-1.

I

Facts and Travel

A Constitutional Provisions

On November 8, 1994, Rhode Island voters approved a constitutional provision entitled "Restriction of gambling," which provided that:

"No act expanding the types of gambling which are permitted within the state or within any city or town therein or expanding the municipalities in which a particular form of gambling is authorized shall take effect until it has been approved by the majority of those electors voting in a statewide referendum and by the majority of those electors voting in a referendum in the municipality in which the proposed gambling would be allowed.

"The secretary of state shall certify the results of the statewide referendum and the local board of canvassers of the city or town where the gambling is to be allowed shall certify the results of the local referendum to the secretary of state." R.I. Const. art. VI, § 22 (amended 2014).

Thereafter on November 4, 2014, Rhode Island voters approved an amendment to article 6, section 22 of the Rhode Island Constitution, which provided that "[n]o act expanding the types or locations of gambling" shall take effect without voter approval in statewide and local referenda,

"and, having been so approved in said referendum in any city or town on or after November 4, 2014, the location where the gambling is permitted in any city or town shall not be changed within said city or town without approval of the majority of those electors voting on said proposed change in a referendum in said city or town." R.I. Const. art. VI, § 22 (amended 2014) (emphasis added).

B

Expansion of Gambling

2011-2012

In 2011, the General Assembly passed legislation (the 2011 Twin River-Lincoln Legislation) to authorize "[s]tate-operated casino gaming" at Twin River-Lincoln. See State Defs.' Obj. Summ. J (State Defs.' Obj.) Ex. 1, G.L. 1956 §§ 42-61.2-1 et seq. The 2011 Twin River-Lincoln Legislation authorized Twin River-Lincoln to operate

"any and all table and casino-style games played with cards, dice or equipment, for money, credit, or any representative of value; including, but not limited to roulette, blackjack, big six, craps, poker, baccarat, pai gow, any banking or percentage game, or any other game o[r]^[1] device included within the definition of Class III gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which is approved by the state through the division of state lottery." Id. § 42-61.2-1(8).

The 2011 Twin River-Lincoln Legislation gave the State Lottery Division and the Rhode Island Department of Business Regulation (DBR) "full operational control" and "the authority to make all decisions about all aspects of the functioning of the" state-operated casino gaming. Id. §§ 42-61.2-2.1(b)(2); -(c). Among other powers, the State Lottery Division and DBR were given the authority to "[d]etermine the number, type, placement and arrangement of casino gaming games, tables and sites within [Twin River-Lincoln]." Id. § 42.61.2-2.1(c)(1).^[2]

Pursuant to article 6, section 22 of the Rhode Island Constitution, the 2011 Twin River-Lincoln Legislation required voter approval via a statewide referendum and a local referendum in Lincoln. In preparation for the referenda, the Secretary of State published a Rhode Island Voter Information Handbook 2012 (the 2012 Voter Handbook), which "include[d] background on the ballot questions . . . ." Id. at Ex. 5 at 3. The 2012 Voter Handbook printed the referendum question for the 2011 Twin River-Lincoln Legislation as it would appear on the ballot: "Shall an act be approved which would authorize the facility known as 'Twin River' in the town of Lincoln to add state-operated casino gaming, such as table games, to the types of gambling it offers?" (2012 Question 1). Id. at 7. The 2012 Voter Handbook explained that approval of 2012 Question 1 would result in Twin River-Lincoln

"being authorized to engage in state-operated casino gaming . . . in accordance with the legislation adopted by the General Assembly . . . [which] provides that the State of Rhode Island is authorized to operate, conduct and control casino gaming at Twin River[-Lincoln] . . . [and] shall have full operational control to operate the Twin River[-Lincoln] facility and the authority to make all decisions about all aspects of the functioning of the business enterprise . . . ." Id. at 7-8.

The 2012 Voter Handbook instructed a voter that "[a] vote to 'approve' [2012 Question 1] means you wish to approve the act authorizing Twin River[-Lincoln] to engage in state-operated casino gaming at its facility in the Town of Lincoln in accordance with the provisions of such act." Id. at 9.

In addition to this informational section, the 2012 Voter Handbook included a definitional section. Id. at 5. "Casino gaming" was defined in the 2012 Voter Handbook as

"any and all table and casino-style games played with cards, dice or equipment, for money, credit, or any representative of value; including, but not limited to roulette, blackjack, big six, craps, poker, baccarat, pai gow, any banking or percentage game, or any other game or device included within the definition of Class III gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which is approved by the State of Rhode Island through the Lottery Division." Id. at 5.

"Table game or table gaming" was further defined as "that type of casino gaming in which games are played for cash or chips representing cash, using cards, dice or equipment and conducted by one or more live persons." Id. at 6.

On November 6, 2012, approximately 70% of the electors voting in the statewide referendum approved 2012 Question 1. See id. at Ex. 6 at 19. Moreover, a majority of the electors voting in the local referendum in Lincoln approved the authorization of state-operated casino gaming. See id. at Ex. 7. Accordingly, the 2011 Twin River-Lincoln Legislation went into effect, and Twin River-Lincoln began engaging in state-operated casino gaming.

2016

Nearly four years later, in 2016, the General Assembly passed legislation (the 2016 Twin River-Tiverton Legislation) to authorize Twin River-Tiverton "to be licensed as a pari-mutuel facility and offer state-operated video lottery games and state-operated casino gaming, such as table games . . ." Id. at Ex. 8, G.L. 1956 § 41-7-3(d). The 2016 Twin River-Tiverton Legislation gave the State Lottery Division and DBR "full operational control" and "the authority to make all decisions about all aspects of the functioning of the business enterprise." Id. § 42-61.2-2.3(d). Among other powers, the State Lottery Division and DBR were given the authority to "[d]etermine the number, type, placement, and arrangement of casino gaming games, tables and sites within [Twin River-Tiverton]." Id. § 42.61.2-2.3(d)(1).

Pursuant to article 6, section 22 of the Rhode Island Constitution, the 2016 Twin River-Tiverton Legislation required voter approval via a statewide referendum and a local referendum in Tiverton. In preparation for the referenda, the Secretary of State published a 2016 Rhode Island Voter Information Handbook (the 2016 Voter Handbook), which "included short explanations of each of" the ballot questions. Id. at Ex. 10 at 3. The 2016 Voter Handbook printed the referendum question for the 2016 Twin River-Tiverton Legislation as it would appear on the ballot:

"Shall an act be approved which would authorize a facility owned by Twin River-Tiverton, LLC, located in the Town of Tiverton at the intersection of William S. Canning Boulevard and Stafford Road, to be licensed as a pari-mutuel facility and offer state-operated video-lottery games and state-operated casino gaming, such as table games?" (2016 Question 1). Id. at 9.

The 2016 Voter Handbook explained that 2016 Question 1 was "asking voters to allow a new state-operated casino to be built in Tiverton . . . [which] would be owned by Twin River-Tiverton and would be licensed and regulated by the State." Id. at 10. The 2016 Voter Handbook instructed a voter that a "vote to 'Approve' [2016 Question 1] means you want to allow a new state-operated casino, including video-lottery games and table games, to be built in Tiverton . . . ." Id.

In...