PROVIDENCE -- The state Supreme Court yesterday, in an advisory
opinion, declared unconstitutional both a planned November vote on a
West Warwick casino and the legislation establishing the casino.
The court sided with Attorney General Patrick C. Lynch and Governor
Carcieri, who sought the nonbinding opinion, arguing that the proposal
violates a constitutional provision that puts the state in charge of
operating all "lotteries."
Lynch and Carcieri promptly filed motions in Superior Court seeking to
take the casino question off the ballot. Secretary of State Matt Brown
said he would support the move.
The ballot question would ask voters, "Shall there be a casino in the
Town of West Warwick operated by an affiliate of Harrah's Entertainment
in association with the Narragansett Indian Tribe?"
Superior Court Judge Daniel A. Procaccini is scheduled to hear the
request to block the question from the ballot at 9 a.m. today. It is
unclear whether Harrah's Entertainment will try to oppose it, or what
standing they would have to do so.
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Journal photo / Frieda Squires
Governor Carcieri hails the Supreme Court opinion yesterday as a victory that "upholds the principle [that] the Constitution cannot, and should not, be perverted in order to help a huge out-of-state casino giant."
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Harrah's spokesman Gary Thompson said yesterday the company had no
comment on the strongly worded Supreme Court decision, or what the
company's next step would be.
Yesterday's opinion was the latest twist in the Narragansetts'
years-long fight to develop a casino in Rhode Island. The arguments for
and against a casino have played out loudly in this year's Assembly
session and in advertising campaigns that are expected to grow more
fierce if the question stays on the ballot.
Matthew Thomas, chief sachem of the Narragansetts, said yesterday he was
speaking to lawmakers about whether there is any way to save the casino
proposal for this year, including asking voters to change the
Constitution.
"The people really want to vote on this issue, and to deny the people
the right to vote on this issue that has been in the forefront for 14
years would be the crime of the millennium," Thomas said. "It would just
be unfathomable."
But the secretary of state said it was too late to add to the November
ballot. Due to strict printing schedules, Brown said, the deadline for
putting new items before voters passed last week; next Thursday is the
deadline for removing existing questions.
Guy Dufault, a spokesman for the tribe, said later the Narragansetts are
reviewing their legal options.
Carcieri hailed the decision as "a victory for the Constitution and for
the people of Rhode Island." He said it "upholds the principle the
Constitution cannot, and should not, be perverted in order to help a
huge out-of-state casino giant."
And Lynch, the attorney general, praised what he called a "resounding"
opinion declaring "that this question, without question, is
unconstitutional and our community should not waste its time, energy and
money" considering it.
"Clearly this matter was flawed from the outset," he added.
The unanimous decision was signed by all three judges who heard the
case: Supreme Court Chief Justice Frank J. Williams, Justice Paul A.
Suttell, and retired Chief Justice Joseph R. Weisberger, who filled in
because of conflicts-of-interest among the three other active justices.
THE LEGISLATURE passed the Casino Act on June 25. Carcieri vetoed it on
July 1, and on July 9 he made his request for an advisory opinion from
the Supreme Court. The Senate overrode the veto on July 23, and the
House followed suit on July 30. The justices heard arguments on the
governor's request last Friday.
The governor said an advisory opinion was the fastest way to take the
pulse of the court; his lawyers will now ask the Superior Court to adopt
the high court's reasoning as the first step in the bid to have the
measure stricken from the ballot.
Supporters of the referendum had suggested Carcieri had no standing to
bring the challenge, because the administration would play no role in
the casino process unless a ballot question were approved by voters. The
three judges said the point had merit, but that they wanted to issue a
ruling because the issues involved "are of great public and
constitutional importance."
"If, as we believe, the question and legislation are void as
unconstitutional, then members of the public will waste much money,
time, effort and energy to familiarize themselves with the controversial
issues that the proposed casino has raised," they wrote. The confusion,
they said, would be "intensified" by the opposition of the governor and
attorney general.
Because of that, "to delay the issuance of our opinion would only
postpone the inevitable," they wrote. "If we were to sit idly by while
an unconstitutional question was submitted to the voters, only to later
issue a binding decision declaring the Casino Act and the referendum
question void, chaos might well ensue."
Carcieri and Lynch said the specifically worded question allowing an
affiliate of Harrah's to operate the casino violated a 1973
constitutional provision that reads: "All lotteries shall be prohibited
in the state except lotteries operated by the state and except those
previously permitted by the General Assembly . . . "
The court agreed, saying the prohibition "is expansive and should be
broadly interpreted." The opinion considers in detail the definition of
a lottery, requiring three essential elements: consideration, chance and
prize.
One key question is whether the "dominant factor" in the games is chance
-- clearly the case for roulette, craps and slots, and arguably so even
in games that mix in skill, such as poker.
"At the poker table, for example, an experienced gambler may 'know when
to hold 'em, know when to fold 'em, know when to walk away, and know
when to run,' " the judges wrote, quoting a hit song from country
crooner Kenny Rogers. "A seasoned blackjack player may know the
appropriate situation to hit or stand based on the cards dealt around
the table. But even in these games, the outcome depends heavily on the
luck of the draw."
THE JUSTICES said further that the ballot question is clear that
Harrah's would be the casino operator, and that the accompanying
legislation "clearly and unambiguously" relegates the Lottery
Commission's role to a regulatory one. That situation, they said, is "an
unconstitutional divestiture of operational control over a lottery to an
agency other than a state organization such as the Lottery Commission."
The justices also said that while the Constitution requires that voters
approve any expansion of gambling, such a vote does not override the
requirement for the state to operate all lotteries.
Overall, the justices declared the constitutional problems "fatal" to
the casino proposal, saying to remove the objectionable portions would
"leave the legislation in tatters."
In an aside, they also chastised lawmakers for including in the
legislation a provision to bar the high court from keeping the question
off the ballot. The court said the Assembly has no such authority.
Justices said it "impermissibly usurps the judicial power entrusted to
this Court and the trial courts" by the Rhode Island Constitution.
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Journal photo / C.J. Gunther
Attorney General Patrick C. Lynch talks with reporters in his office after a news conference yesterday. He and the governor today are expected to seek a court order that would block the casino question from the November ballot.
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CARCIERI AND LYNCH today are seeking a temporary restraining order and,
ultimately, they hope to get a permanent injunction to keep the question
off the ballot.
Asked whether yesterday's decision meant the casino proposal was dead
for the year, Carcieri said, "You never know. . . . Hopefully it is."
The governor said it would be up to Judge Procaccini to decide whether
Harrah's or the Narragansetts have any right to participate in today's
and subsequent court proceedings. The governor's in-house laywer, Andrew
Hodgkin, said that decision would be "a close call."
Michael Trainor, a spokesman for Lincoln Park, said the judges' opinion
moves the Harrah's proposal "from a bad deal to a nightmare deal."
Trainor said Harrah's should accept the court's opinion and let the
referendum die.
Lincoln Park, which operates the dog track and about 2,500 video-slot
machines licensed and regulated by the state Lottery Commission, has
been a vocal opponent of the casino.
"We certainly agree with the governor and the Supreme Court that it
would be senseless to put the voters through a difficult, expensive and
ultimately meaningless campaign," he said.
Newport Grand, the state's other slot-machine venue, and the Greater
Providence Chamber of Commerce also sided with the governor's bid to
block the vote.
Stephen D. Alves, D-West Warwick, Senate Finance Committee chairman who
sponsored the casino legislation, said he was disappointed for his
hometown and the Narragansett Indians.
"Every time they reach the threshold," he said of the Narragansetts,
"they encounter a new roadblock."
"But I suppose, given the makeup of the three-member panel, none of us
were surprised," Alves said. "They are three Republican appointees, and
the Republican governor is opposing it."
Alves said it was "ridiculous" for the panel to say that "chaos might
well ensue" if the judges did not offer their opinion now. "They don't
give the people of the state enough credit," he said.
If the question were placed on the ballot and later declared
unconstitutional, it could simply become a nonbinding referendum, Alves
said.
But is the measure dead for this year? "Nothing is ever dead around
here," Alves said. "You can lose a battle and still win a war."
House Speaker William J. Murphy, D-West Warwick, in a statement, said
he, too, was disappointed in the court's opinion. Murphy said it was the
legislature's intent to give voters a voice on the matter, but it
appeared the court would block the vote.
Thomas, the Narragansett chief sachem, said he was taking yesterday's
developments in stride.
"You know, it's just another day for us," he said. "It's just how it
works for us in this state. You get kind of used to it."
Like Alves, he also suggested politics played a role.
Carcieri decried such comments.
"I think because you don't get the decision you want, to attack or
impugn the integrity of the justices is a very sad thing to do," he said.
With reports from staff writer Edward Fitzpatrick.
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