The fact that casino companies have spent millions on state application fees does not mean they have a right to open a gambling business in Massachusetts, casino opponents argued in a court brief filed Friday, part of a closely watched case that could put a repeal of the state casino law on the November ballot.
The Repeal the Casino Deal campaign is seeking a ruling from the state’s highest court to allow Massachusetts voters to decide whether to roll back the state casino law, despite an opinion from state Attorney General Martha Coakley that the repeal question is unconstitutional.
The repeal effort has raised concerns within the casino industry. Several developers pursuing gambling projects in Massachusetts are collaborating on a legal effort to keep the repeal off the ballot.
The Supreme Judicial Court is expected to hear the case in early May and issue a decision by late June or early July. Secretary of State William F. Galvin needs to know the results of the case by July 9 in order to have enough time to prepare the ballot, according to the repeal brief.
“The hurdle is rightly high to deny the people a right to vote,” said former attorney general Scott Harshbarger, a gambling opponent who is an adviser to the repeal campaign. “In this case, the proposed question is reasonable, it is well drafted, timely filed, and constitutional. Beyond that, we have secured enough signatures and, now, the public is clearly starting to lean against the industry. It’s time to right the balance and let democracy win out.”
Coakley’s office will file a response brief on April 16, said spokesman Christopher Loh. “As we do with all petition decisions, we work cooperatively with parties who wish to challenge our rulings,” Loh said. “While our office determined that the question does not meet constitutional requirements, the most important thing is to get the right result.”
Governor Deval Patrick signed legislation in November 2011 approved by the state House and Senate to legalize Las Vegas-style casino gambling and to establish a five-member commission to license as many as three resort casinos and one slot machine parlor.
Opponents organized a signature drive to put a repeal of the casino law on the November ballot, but Coakley’s office concluded that the repeal would “impair the implied contracts between the [state gambling] commission and gaming license applicants” and illegally “take” those contract rights without compensation, according to the decision issued last fall.
Casino opponents appealed Coakley’s decision to the SJC, winning the right to collect signatures while the appeal is pending. They collected more than the minimum 68,911 valid signatures necessary to qualify for the ballot.
In their court brief, opponents argue there are no valid implied contracts between the operators and the commission.
“The Legislature cannot contract away the state’s policing and regulatory powers,” Thomas O. Bean, a lawyer representing the repeal effort, said in a conference call with reporters. He said casino companies spent millions of dollars “on spec” to apply for a Massachusetts casino license, with full knowledge that repeal was a possibility.
“Having voluntarily entered into a heavily regulated industry subject to pervasive government control, applicants lack a private property interest that requires compensation when the government chooses to modify the program that created the benefit in the first place,” the brief states.
As the repeal case moves toward a decision, the gambling commission is pushing ahead with its license awards. Last month, the commission chose a Penn National Gaming project in Plainville as the winner of the state’s slot parlor license.
The commission expects to issue a license in May for a resort casino in Western Massachusetts, where a resort proposal by MGM in downtown Springfield is the only valid applicant.
Two companies are competing for the Greater Boston resort license: Mohegan Sun in Revere and Wynn Resorts in Everett.
The resort casino license created for Southeastern Massachusetts is on a later timetable.Mark Arsenault can be reached at firstname.lastname@example.org. Follow him on Twitter @bostonglobemark.