In re Advisory Opinion to Governor

• Decision Date: 12 August 2004
• Docket Number: No. 2004-210-M.P.,2004-210-M.P.
• Parties: In re ADVISORY OPINION TO the GOVERNOR (Casino).
• Court: Rhode Island Supreme Court

856 A.2d 320

In re ADVISORY OPINION TO the GOVERNOR (Casino).

No. 2004-210-M.P.

Supreme Court of Rhode Island.

August 12, 2004.

To His Excellency Donald L. Carcieri, Governor of the State of Rhode Island and Providence Plantations:

We have received from Your Excellency a letter dated July 9, 2004, in which you have requested our written advisory opinion pursuant to article 10, section 3, of the Rhode Island Constitution. In your request, you raise concerns over a recent legislative enactment dealing with a proposed casino in the Town of West Warwick. The enactment at issue, G.L.1956 chapter 9.1 of title 41, entitled "The Rhode Island Gaming Control and Revenue Act," (Casino Act),¹ provides comprehensive guidelines for a casino operation. The Casino Act also calls for a statewide ballot question asking the voters of this state: "Shall there be a casino in the Town of West Warwick operated by an Affiliate of Harrah's Entertainment in association with the Narragansett Indian Tribe?" (referendum question). Section 41-9.1-9. Your Excellency's request asks us: "Do the question and the legislation's establishment of a privately-operated casino violate the [Rhode Island] constitutional prohibition" on lotteries in this state except those lotteries operated by the state or those previously permitted by the General Assembly. See R.I. Const. art. 6, sec. 15. As we said in Almond v. Rhode Island Lottery Commission, 756 A.2d 186, 191 (R.I.2000), we say yet again: the General Assembly has plenary power to legislate on all matters pertaining to gambling in this state. Nevertheless, we are of the opinion that both the referendum question and the Casino Act as a whole are constitutionally defective.

Introduction

Before delving into our discussion of the issues raised in Your Excellency's request, we reiterate our role in delivering an advisory opinion. When issuing an advisory opinion, the justices of this Court "do not speak ex cathedra, from the chair of judgment, but only as consultors somewhat like the jurisconsults under the Roman law." Opinion to the Governor, 93 R.I. 262, 264, 174 A.2d 553, 554 (1961). Speaking in our individual capacities as legal experts rather than Supreme Court justices, we are unable to exercise the fact-finding power of the Court. In re Request for Advisory Opinion Regarding House Bill 83-H-5640, 472 A.2d 301, 302 (R.I. 1984). Because this opinion is not an exercise of judicial power, it is not binding and "it carries no mandate." Opinion to the Governor, 93 R.I. at 264, 174 A.2d at 554.

As expected, the Casino Act has proven to be politically charged. Since receiving initial approval from both houses of the General Assembly, the Casino Act met a brief death on the Governor's desk. After the Governor vetoed the legislation on July 1, 2004, the Casino Act was returned to the General Assembly for further action. Expecting his veto to be overridden and betting that the Casino Act is unconstitutional, the Governor submitted the instant request for an advisory opinion. On July 12, 2004, this Court entered an order requesting that the General Assembly notify us of any action taken with respect to the Governor's veto, setting dates for oral argument and issuing a briefing schedule. The Senate and the House overrode the veto on July 23, 2004, and July 30, 2004, respectively, and the Casino Act became law. See R.I. Const. art. 9, sec. 14 (providing that the General Assembly may override a Governor's veto with the approval of three-fifths of the present and voting members of each house).

The Governor filed a brief in opposition to the Casino Act. The Attorney General, on behalf of the State of Rhode Island, filed a brief indicating that the questions were premature, but, on the merits, the Casino Act was unconstitutional. The Speaker of the House of Representatives and the Senate President filed briefs defending the legislation. The Greater Providence Chamber of Commerce (Greater Providence), Lincoln Park, Inc. (Lincoln Park), Newport Grand Jai Alai, LLC, (Newport Grand), and, jointly, Harrah's and the Narragansett Indian Tribe, filed amicus curiae briefs. With the exception of Greater Providence, all parties and amici filed reply briefs.

Under the terms of the Casino Act, the Rhode Island Lottery Commission (Lottery Commission), the Narragansett Indian Tribe (Narragansett tribe), and Harrah's Entertainment, Inc., or an affiliate thereof (Harrah's), would enter into a "Master Contract" to create a casino in this state. See § 41-9.1-5(e). According to its website, Harrah's "is the world's largest casino operator." Patrons of the proposed casino would be able to try their luck at a wide variety of "[g]ambling game[s]," including

"any game played with cards, dice, equipment or a machine, * * * including, but not limited to faro, monte, roulette, keno, bingo fan tan, twenty-one, blackjack, seven and a half, klondike, craps, poker, chuck a luck, Chinese chuck a luck (dai shu), wheel of fortune, chemin de fer, baccarat, pai gow, beat the banker, panguingui, slot machine, any banking or percentage game, or any other game or device approved by the Commission * * *." Section 41-9.1-3(17).

The beginning of the casino operation would depend on voter approval. To that end, § 41-9.1-9 of the Casino Act calls for placing the referendum question on the November 2, 2004 ballot; asking: "Shall there be a casino in the Town of West Warwick operated by an Affiliate of Harrah's Entertainment in association with the Narragansett Indian Tribe?"

I

The Propriety of the Request

We begin our discussion by considering whether it is appropriate to issue an advisory opinion at this time. Our general obligation to issue advisory opinions comes from article 10, section 3, of the Rhode Island Constitution, which provides: "[t]he judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly." There are, however, certain procedural hurdles that must be cleared before our duty to issue an advisory opinion arises. "We are constitutionally obligated to give advisory opinions to either House of the General Assembly only when the questions propounded concern the constitutionality of pending legislation, and to the Governor only when the questions propounded concern the constitutionality of existing statutes which require implementation by the Chief Executive." In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318-19 (R.I.1986).

Because the General Assembly has properly overridden the Governor's veto, the Casino Act is an existing statute. Nevertheless, it is clear that executive implementation of the substantive provisions of the Casino Act hinges on voter approval of the casino question through both the local and statewide referendum processes. Unless and until such approval is obtained, the Governor has no present obligation to implement the Casino Act and we are not constitutionally required to issue an advisory opinion. See In re Advisory Opinion (Chief Justice), 507 A.2d at 1318-19

.

Despite certain procedural infirmities, justices of this Court have been willing to issue advisory opinions if the propounded question raises important constitutional or social questions. See In re Advisory Opinion (Chief Justice), 507 A.2d at 1319-20

. There is no clearly defined test for determining whether an improperly presented request for our opinion will be granted. That decision has been made on a case-by-case basis in the exercise of the justices' discretion. For example, in In re Advisory Opinion (Chief Justice), the justices of this Court were presented with a procedurally flawed request for an advisory opinion about the removal of a Supreme Court Chief Justice. Id. Although the request was improperly presented, the justices "exercise[d] [their] discretion and waive[d] the defects" so they could address the important issues raised in the request. Id. at 1319. Also, in In re Advisory Opinion to the House of Representatives (Impoundment of State Aid to Cities and Towns), 576 A.2d 1371, 1372 (R.I.1990), despite a procedural flaw in a request for an advisory opinion, justices of this Court issued an advisory opinion about the propriety of a former Governor's refusal to distribute more than $10 million in appropriated money. Because many municipalities adopted operating budgets and entered contracts while relying on the appropriated money, the propounded question raised questions of sufficient public importance to require an immediate answer. Id.

The issues raised in the Governor's request are of great public and constitutional importance. The Casino Act calls for placing the referendum question on the statewide ballot. The Governor's question asks whether the Casino Act and its requirement that the ballot question be submitted to the voters pass constitutional muster. If, as we believe, the question and legislation are void as unconstitutional, then members of the public will waste much money, time, effort, and energy to familiarize themselves with the controversial issues that the proposed casino has raised. This confusion certainly will be intensified by the fact that the Governor and the Attorney General, two general officers of this state, expressly have taken the position that the Casino Act is constitutionally infirm. The issues surrounding a statewide vote on a casino are especially important because, as the Casino Act acknowledges, "[t]here are socio-economic costs that expanded gaming may impose on communities and the state." Section 41-9.1-2(7).

Because we believe the question and legislation to be unconstitutional, to delay the issuance of our opinion would only postpone the inevitable. If we were to sit idly by while an unconstitutional question was submitted to the voters, only to later issue a binding decision declaring the Casino Act and the referendum question void,² chaos might well ensue. By delivering our...