IN RE ADVISORY OPINION (CASINO II)

• Decision Date: 19 September 2005
• Docket Number: No. 2005-134-M.P.,2005-134-M.P.
• Citation: 885 A.2d 698
• Parties: In re ADVISORY OPINION TO the HOUSE OF REPRESENTATIVES (CASINO II).
• Court: Rhode Island Supreme Court

885 A.2d 698

In re ADVISORY OPINION TO the HOUSE OF REPRESENTATIVES (CASINO II).

No. 2005-134-M.P.

Supreme Court of Rhode Island.

September 19, 2005.

To the Honorable House of Representatives of the State of Rhode Island and Providence Plantations:

We have received from the Honorable House of Representatives a resolution requesting, in accordance with article 10, section 3, of the Rhode Island Constitution, our written opinion concerning the constitutionality of pending legislation. The proposed enactment at issue, entitled "Establishment and Extension of Gambling Activities and Other Facilities," would amend legislation that was passed by the Legislature in 2004 and codified at G.L. 1956 chapter 9.1 of title 41 (2004 Casino Act), but then vetoed by His Excellency Donald L. Carcieri, the Governor of Rhode Island. The Governor sent a request to the Rhode Island Supreme Court seeking an advisory opinion concerning the constitutionality of the 2004 Casino Act. Three-fifths of the Legislature voted to override the Governor's veto. An advisory opinion was issued on August 12, 2004, indicating that the 2004 Casino Act indeed was constitutionally infirm, largely because the state would not be operating the casino as required by article 6, section 15, of the Rhode Island Constitution. In re Advisory Opinion to the Governor (Casino), 856 A.2d 320 (R.I.2004) (hereinafter Casino I).

In 2005, legislation was introduced in the House of Representatives which seeks to revise chapter 9.1 of title 41 ("the proposed Casino Act"). Before voting on the newly proposed Casino Act—indeed, before consideration of the legislation by the House Finance Committee—the House of Representatives submitted the following questions to us in a request for an advisory opinion:

(1) "Would the proposed act, if duly enacted into law and approved by the electors of the state and town of West Warwick, comply with the requirement of Article VI, Section 15 of the Constitution of the State of Rhode Island and Providence Plantations that all lotteries permitted in Rhode Island be operated by the state?

(2) "Would the proposed act, if duly enacted into law and approved by the majority of the electors of the state and the majority of the electors of the town of West Warwick at the special election provided for by the proposed act, comply with the provisions of Article VI, Section 22 of the Constitution of the State of Rhode Island and Providence Plantations requiring a statewide and municipal referendum to become effective?

(3) "Would the proposed act, if duly enacted into law and approved by the electors of the state and the town of West Warwick, violate the equal protection clause of Article I, section 2 of the Constitution of the State of Rhode Island and Providence Plantations, in (a) granting to the Narragansett Indian Tribe and its chosen partner the right to enter into an exclusive contract as casino service provider; or (b) in providing that the state retain a share of net casino gaming income that is different from the share of net income that the state retains from other gambling facilities in the state?

(4) "Would the proposed act, if duly enacted into law and approved by the electors of the state and the town of West Warwick, be violative of the equal protection clause of Amendment XIV, Section 1 of the Constitution of the United States, in (a) granting to the Narragansett Indian Tribe and its chosen partner the right to enter into an exclusive contract as casino service provider; or (b) in providing that the state receive a share of net casino gaming income that is different from the share of net income that the state receives from other gambling facilities in the state[?]"

After those questions were sent to the Supreme Court in the form of Resolution 2005-H-6396, the Court issued In re Request for Advisory Opinion from the House of Representatives (casino bill), 875 A.2d 445 (R.I.2005) (mem.), setting forth an expedited briefing and oral argument schedule as requested by the House of Representatives. On June 27, 2005, the House of Representatives, the Governor, and the Attorney General all submitted briefs explaining their positions. In addition, amicus curiae briefs were filed by Lincoln Park, Inc. (Lincoln Park), Newport Grand Jai Alai, LLC (Newport Grand), the Town of West Warwick and, jointly, Harrah's Entertainment, Inc. (Harrah's), and the Narragansett Indian Tribe (Tribe). After the Court granted a one-week extension, parties submitted reply briefs on August 3, 2005.¹ Each of the interested parties was given the opportunity to present oral argument on August 15, 2005.

I

Introduction

When issuing advisory opinions,

"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.' * * * 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. * * * Because this opinion is not an exercise of judicial power, it is not binding and `it carries no mandate.'" Casino I, 856 A.2d at 323.

While we are constitutionally obligated to issue advisory opinions in certain situations, we are conversely prohibited from issuing advisory opinions when other circumstances exist.

"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.'" Casino I, 856 A.2d at 324 (quoting In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318-19 (R.I.1986)).

Since the proposed legislation is still in the House Finance Committee, there is no doubt that it is pending in the traditional sense. And, while we do have an obligation to render an advisory opinion on pending legislation when requested to do so by the Legislature, id., we are nonetheless hesitant to do so in this situation. The legislation at issue not only is pending; it is in a largely underdeveloped and inchoate state.

Separate and apart from our substantive concerns, the proposed Casino Act requires technical revision. For example, after the proposed Casino Act was drafted, the Lottery Commission, the entity designated in the proposed statute to operate the proposed casino, proposed G.L.1956 § 41-9.2-2(1), was abolished by P.L. 2005, ch. 234, and replaced by the State Lottery Division of the Department of Administration. Although this substitution of a key governmental agency in the proposed Casino Act does not alter our analysis here,² we respectfully suggest that it would seem proper for the honorable members of the House to revise the legislation to reflect this change.

Another inherent complication of the proposed Casino Act is the fact that proposed § 41-9.2-5(a) calls for a specific special election "to take place on November 8, 2005." Proposed § 41-9.2-5(e) states that: "In the event that the affirmative vote of both the Town of West Warwick and the electors of the state does not occur * * * then this chapter shall cease to have effect, and shall become null and void." Read together, these provisions constitute a sunset clause, nullifying the entire statute, effective November 8, 2005, absent majority statewide and local approval at a November 8, 2005 special election. With the November 8, 2005 deadline looming, it appears unlikely that the General Assembly can amend, consider, and pass the legislation; that the Governor can consider, and then sign or veto that legislation; that the General Assembly can consider an override of a veto, if any; and that the Secretary of State can place the question on the ballot for a special election, all by that date. We duly note that we received this request late in our own 2004-05 term and that we then set the schedule for briefing and oral argument at the earliest possible time.

Also complicating our analysis is the fact that the proposed Casino Act will not be the final statement of the rights and responsibilities of the parties; the proposed legislation directs the Division to enter into a master casino service contract with the casino service provider. Proposed § 41-9.2-9(a). The uncertainty that flows from the lack of a written and executed contract has significantly complicated our attempt to render advice on the constitutionality of the proposed Casino Act.

Nonetheless, we will adhere to our constitutional obligation to answer proper requests for advisory opinions when it is possible for us to do so. We proceed to answer the questions propounded as best we can, reviewing the proposed Casino Act on its face and avoiding any speculation resulting from its inchoate state.

II

Standard of Review

The applicable standard of review is as follows:

"In answering [questions of constitutional interpretation], we are guided by the principle that legislative enactments enjoy a presumption of validity and constitutionality. * * * `The act must stand as valid, unless we are convinced beyond a reasonable doubt, that it is contrary to a provision which is either expressly set forth in the State constitution or must, beyond a reasonable doubt, be necessarily implied from language expressly set forth therein.'" Casino I,856 A.2d at 327 (quoting In re Advisory Opinion to the House of Representatives, 485 A.2d 550, 552 (R.I.1984)).

III

Question I:

State...