Whether Massachusetts citizens have the right to vote on casinos should be a strictly legal question. But other issues could be a distraction, as they often are when gambling is on the line.
Justice Margot Botsford put her finger on the underlying challenge for the Supreme Judicial Court during Monday morning’s oral arguments.
“What puts us under a black cloud,” noted Botsford, is how a vote to repeal the state’s three-year-old gambling law might look to the outside world — like “Taxachusetts, in another iteration,” as she put it. However, as Botsford mused, “That is a political question.”
The SJC should focus on the law, as opposed to the optics, as justices weigh the arguments about whether a measure to repeal the state’s gambling law should be on the ballot. But the cost to the industry and potentially the state, not to mention the message this would send about Massachusetts, was clearly on the minds of some justices.
“So, a five-year contract that has already been awarded after a thorough process outlined by the Legislature, at great cost to the applicant, can simply be taken away with a big ‘never mind’?” Justice Robert Cordy asked Thomas O. Bean, the lawyer representing the plaintiffs, who are trying to get the question on the ballot.
“Yes,” replied Bean, who was repeatedly interrupted by Cordy, as the lawyer tried to make the case that no “implied contract” exists between the Commonwealth of Massachusetts and the casino interests bidding for a license.
If no contract exists, Bean argued, the state has no obligation to compensate license applicants.
However, Cordy’s concerns were also echoed by outgoing chief Justice Roderick Ireland, who noted the extent of the investments being made by casino operators as they bid for the right to get a license. “They’re paying an awful lot of money for that,” said Ireland, who was appointed chief justice by Governor Deval Patrick, a major force behind the casino law.
State solicitor Peter Sacks, who represented Attorney General Martha Coakley during this morning’s arguments, probably did more to help the plaintiffs than their own lawyer was allowed to do.
In September, Coakley ruled that the question didn’t belong on the ballot because repealing the state’s gambling law would illegally take away property rights from casino applicants.
As Sacks explained, the attorney general’s position differentiates a licensee: The state can take away an actual license to operate a casino, but it can’t take away the right to bid for a license. The license process set up by the Legislature represents an implied contract between the applicant and the state, according to Coakley’s office.
“I’m still confused,” said Botsford, as she and other justices pressed Sacks to explain the legal reasoning behind the argument.
His premise is indeed confusing: According to the attorney general’s argument, there’s a property right in the license application process — not in the actual license. By this logic, if voters chose to repeal the gambling law, there would be no need to compensate Penn National, which in February was granted a license by the state Gaming Commission to operate a slots parlor. But, remarkably, the mere applicants for licenses to operate three casinos — one in Springfield, one in the Greater Boston area and one in southeastern Massachusetts — could have claims against the state.
Politics may explain the tortured nature of the AG’s stance.
When Coakley, a Democratic candidate for governor, ruled against the ballot question, she found herself on the side of the casino operators. That’s not necessarily the best place for a gubernatorial candidate to be, especially with Democratic primary voters. So, the attorney general found a legal argument that puts her partly with the plaintiffs and partly with the casino operators.
Carving out safe political middle ground is one thing for a political candidate. It should not be the guiding principle for the state’s highest court.
Update: An earlier version of this piece incorrectly suggested that, in drawing a legal distinction between applicants and licensees, the Attorney Gerneral’s Office had changed its position.