02:08 PM EDT on Thursday, July 13, 2006

By JACK PERRY
projo.com staff writer

PROVIDENCE -- The Rhode Island Supreme Court has refused Governor Carcieri's request to provide an advisory opinion on the constitutionality of the casino proposal headed for the Nov. 7 ballot.

Passage of a constitutional amendment would help clear the way for the Narragansett Indian tribe to partner with Harrah's in building a West Warwick casino, a proposal that the governor opposes.

In a July 10 letter to the court, Carcieri asked, among other questions, whether the proposed constitutional amendment would "inappropriately give the town of West Warwick and the potential casino operators a Constitutional right -- the right to own and operate a casino -- that it denies to all other communities and citizens."

The court's order says, "We note at the outset that we take no position on either the merits or the wisdom of the question presented to the voting public by the General Assembly to amend the Rhode Island Constitution to allow for a privately owned and operated casino in West Warwick."

"However, because your request is laden with procedural infirmities, we must respectfully decline to entertain it," the court said.

The court said there was no pressing need for it to issue an opinion.

It noted that the state's constitution generally requires the court to issue advisory opinions on questions of law for the governor,” but that it advises the chief executive only in "those instances in which the questions propounded have a bearing upon a present constitutional duty awaiting performance by the Governor.”

The court wrote, "In this situation, Your Excellency is not called upon to perform a present constitutional duty.

The Supreme Court did respond to requests for advisory opinions from the governor in 2004 and the House in 2005, derailing two earlier West Warwick casino proposals.

In those cases, the high court took the position that the Constitution allows only state-operated lotteries.

The court decided that this request was different.

Carcieri's request did not meet certain threshold legal requirements, according to the court, since the earlier cases involved pending legislation or statutory enactment.

The court said Carcieri's constitutional duty to implement the provisions of the constitutional amendment "will not accrue unless and until" it is approved by the majority of voters.

"Therefore, neither the executive nor judicial branches of the government may interfere with the process of proposing a constitutional amendment," the court wrote.

Narragansett Chief Sachem Matthew Thomas cautiously hailed the court's decision.

"There's people who don't want to see this on the ballot. ... We're sure they're going to try other tactics," he said.

Governor Carcieri and Attorney General Patrick Lynch released a joint statement this afternoon, saying they were disappointed that the court had declined to offer an opinion. Lynch, a Democrat, joined the Republican governor at a press conference last week to announce Carcieri's request for an opinion.

The court's decision leaves "a constitutional cloud over the casino referendum."

"An advisory opinion from the Supreme Court would have conclusively laid to rest any question about the constitutionality of the casino proposal," they said in the joint statement. "It would have provided the clarity necessary for the voters to make a fully informed decision. And it would have prevented the chaos that the Supreme Court had earlier predicted would ensue if Rhode Islanders were asked to vote on an unconstitutional casino proposal."

Carcieri got word of the court decision earlier in the day as he was concluding a bill-signing ceremony for legislation to lower the allowable annual increase to local property taxes.

He hadn't yet seen the decision, but told reporters it "doesn't change the basics, that this is just, as far as I'm concerned, and I think a lot of people out there agree with me, a terrible way to put a casino in place in our state. To put in our constitution a no-bid deal for one operator, for Harrah's -- by the way, this is not the Narragansetts, this is Harrah's -- is just terrible. I can't think of anything more outrageous."

-- With reports from Journal staff writer Elizabeth Gudrais and the Associated Press.