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TOM KEANE

In casino case, SJC delivers a setback to all vested interests

istockphoto/globe staff illustration

Casino opponents and Martha Coakley’s gubernatorial rivals aren’t the only ones who should be pleased with last week’s big state Supreme Judicial Court opinion.

In allowing a question on repealing the state gambling law onto the ballot in November, the state’s highest court didn’t just give the attorney general an embarrassing election-year comeuppance. In a unanimous decision, the seven justices also dealt a blow to a worrisome legal theory — one that entrenched, government-entangled interests of all sort could try to apply in their efforts to thwart legal reforms and market competition.

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In attempting to block the referendum, Coakley had ruled that it violated the Massachusetts constitution. From the first, the attorney general’s claims had a strained, absurdist quality. In her brief to the justices, Coakley observed that gambling firms had put up money to get their proposals heard before the state’s gaming commission. Because of that, she said, there was an “implied contract” that the state might award casino licenses. Since the referendum question would make casino gambling illegal, it undermined that implied contract and so was constitutionally impermissible. In effect, the state would be taking away something of value.

In a nutshell, Coakley’s case amounted to this: Having made a decision to allow gambling, the Legislature is not allowed to change its mind. Nor, for that matter, are the people, through the referendum process, able to override the Legislature. So much for democracy. Long live the dead hand of the past.

The Supreme Judicial Court zeroed in on one big, gaping hole in the attorney general’s logic: Under the law, the gaming commission has no obligation to award any casino license whatsoever. So even if Coakley were right and there were an implied contract to be heard, what does it matter if there is no subsequent requirement to award a license? Her response was almost laughable. She claimed that, even so, a hearing might give an imprimatur to a gaming firm — kind of like a Good Housekeeping Seal of Approval — that it could then take to other states and, in effect say, “See, Massachusetts thinks we’re a decent company.”

As the SJC opinion drily noted, “the Legislature established the commission as a licensing authority, not a validation authority.” In other words, the law was not set up to be the gaming world’s equivalent of Angie’s List.

But suppose that Coakley’s view of the referendum as a “taking” had held sway, and that the justices had agreed that history rules: Once a law is in place, those with a vested interest in a rule can stop it from being changed. Let’s say, for example, a Legislature passes a law asserting marriage is only between a man and a woman and must remain that way forevermore. Ten years later, a more enlightened body tries to reverse the law. Would Coakley side with aggrieved straight couples and say it couldn’t?

If casino applicants had an ‘implied contract,’ that would mean the state can never change its mind. So much for democracy. Long live the dead hand of the past.

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A century ago, the entire country decided to ban the manufacture and sale of liquor. Could existing breweries and distilleries have successfully stopped Prohibition, arguing that since past laws had allowed booze, it was no longer possible to reverse course?

Or, take an issue now in the news: taxicabs. Having established medallion systems that limit the number of cabs within their borders, are cities and towns now obligated to keep those rules in place and, indeed, required to ban the operation of competitive services such as Uber?

The answer to all of these is, unequivocally, no. A “Legislature cannot curtail the power of its successors to make whatever laws they deem proper,” the SJC said. Sure, sometimes the state can enter into long-term agreements — multi-year bonds, for example — that require future legislatures to cough up funds. But that kind of contractual obligation is explicit and far different from what Coakley was urging.

Indeed, the rebuttal to Coakley’s arguments was so obvious one has to wonder what the attorney general was thinking. Was her opposition to the referendum just an exercise of power — use any means possible to keep the gaming law alive? Did she really believe that voters shouldn’t have a say on the matter? Or did she actually believe that change and reform can be stopped by decisions made years or even decades earlier? These are questions that Coakley — and her rivals — should address.

Tom Keane can be reached at tomkeane@tomkeane.com.
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