PROVIDENCE -- The West Warwick casino proposed by Harrah's
Entertainment and the Narragansett Indian Tribe is off the November
ballot.
Superior Court Judge Daniel A. Procaccini yesterday ruled that voters
should not be asked to weigh in on a question that is virtually certain
to be declared unconstitutional, if approved.
Procaccini based his decision, in large part, on what he called a
"clear, thorough and well-supported" advisory opinion issued a day
earlier by the state Supreme Court. The high court said the ballot
question and casino legislation approved by the General Assembly
violated a constitutional provision that requires the state to operate
all "lotteries."
The high court's opinion and Procaccini's order constituted a one-two
punch that brought a sudden end to a debate that had roiled the past
legislative session and had seemed to be headed for a contentious vote
in November.
Harrah's, the gambling giant that has sought to build the casino in
partnership with the Narragansetts, raised no objection yesterday to
Procaccini's order.
"The handwriting is on the wall with respect to the present
legislation," Harrah's lawyer Lauren Jones told the judge.
Jones said later that the company remains interested in building a
casino in Rhode Island, but he was unwilling to speculate on its options.
"I don't believe Harrah's is going away," he said.
Yesterday morning, the Narragansetts, through lawyer John F. Killoy Jr.,
had sought to intervene in the court case. But by midday, conceding that
they were unlikely to change the outcome, they walked away from the
fight.
Killoy said the tribe would continue its years-long attempt to develop a
casino and would "go forward with the General Assembly." But a spokesman
for the tribe, Guy Dufault, said it appears the Narragansetts are out of
options for this election cycle.
Secretary of State Matt Brown had said Thursday that it is already too
late to submit a new item for the ballot because of a strict printing
schedule.
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Journal photo / Bob Thayer
Matthew Thomas, chief sachem of the Narragansett Indian Tribe, speaks with reporters during a break in yesterday's hearing in Superior Court, Providence, on the casino referendum question. Behind him is Randy Noka, first councilman of the tribe.
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Governor Carcieri said in a statement that he was "very pleased" with
the decision. "Rhode Island's judicial system has saved our state from
constitutional chaos," he said.
The court fight was over a ballot measure that would have asked 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?"
Dufault and Narragansett Chief Sachem Matthew Thomas said the tribe
would consider other options with the state, including seeking a
constitutional amendment to allow a privately run casino or changing the
current proposal to give the state more of an operational role.
"Obviously, based on the tortured logic of the court, that's an avenue
we have to look at now," said Dufault of the latter choice.
A state-operated casino, he said, could be considered in a special
election, he suggested.
Under current law, a constitutional amendment would have to wait for
another general election, two years from now. But Dufault said the tribe
might ask lawmakers to change the law defining a "general election" to
allow for a vote sooner.
Thomas said he also would pursue federal avenues, and would travel to
Washington as soon as possible to meet with Rhode Island's congressional
delegation and the leadership of the U.S. Senate and House of
Representatives.
Thomas said he will ask them to consider repealing a 1996 federal law
that effectively prevents the tribe from building a casino on its
settlement land in Charlestown without state voter approval. He said he
will argue that the tribe's hopes had been dashed, again and again, by
state officials.
"We believe we should have our rights restored immediately," Thomas said.
But the tribe could face another uphill battle, trying to convince
Congress to change the 1996 law.
Rhode Island's U.S. senators and representatives, polled yesterday, were
divided on the issue. Their support would be key to the tribe's campaign
in Washington, observers say.
Thomas also said he would review what the tribe can do now on its
property, including whether it can build "even a bingo parlor."
He said Harrah's and the tribe remain partners, although the company
knows the tribe is looking at all of its options.
The chief sachem sounded discouraged about the casino plan's chances at
the state level.
"I have to give it to the state," Thomas said. "They find new ways to
give the shaft to us. This was a good one."
Thomas said the tribe might also attempt to challenge the
constitutionality of the thousands of slot machines at Lincoln Park and
Newport Grand.
The state authorizes the machines and takes the lion's share of their
profits, bringing in more than $250 million in projected revenue this
year. Lincoln Park and Newport Grand executives strongly fought the
casino, arguing that the state would lose revenue.
"Two can play at this game," Thomas quipped.
Dufault said lawyers for the tribe and Harrah's had vetted the
referendum proposal and never flagged any constitutional issue. He said
he did not believe lawmakers knew when they passed the bill -- on June
24 in the Senate and June 25 in the House -- that it would never reach
the ballot.
"This was not about the merits," he said. "This was about the politics."
THE NARRAGANSETTS' FIGHT to enter the gambling business dates back to
1991, when they proposed a high-stakes bingo hall. The following year,
they upped the ante, starting their quest for permission to establish a
casino.
But their casino plans have only reached the ballot once, in 1994, when
their proposal for a West Greenwich site was defeated, along with four
competing plans. That same year, voters amended the state Constitution
to require both state and local approval of any casino project.
In 1998, the tribe was considering a casino site on the
Providence-Cranston waterfront, but the General Assembly passed
legislation making it more difficult to get the question on the ballot.
More recently, the tribe has focused its efforts in West Warwick. The
Assembly considered and rejected such proposals from the tribe in both
2000 and 2002, before eventually approving the Harrah's-run project late
in this year's session.
Yesterday's ruling capped a court fight that began July 9 when Governor
Carcieri asked the Supreme Court to weigh in on whether the
just-approved casino bill passed constitutional muster.
Carcieri had vetoed the bill on July 1, expecting his veto to be
overriden. Voting a week apart, on July 23 and 30, the Senate and then
the House did just that. Senate leaders briefly considered passing a
constitutional amendment to address the legal challenge brought by
Carcieri, but abandoned that effort for lack of support.
The Supreme Court heard arguments on the constitutional question Aug. 6,
and made good on its promise to issue a decision within days.
Immediately after Thursday's decision, Carcieri and Attorney General
Patrick Lynch filed a motion seeking to squelch the November vote.
Secretary of State Matt Brown joined in the request, saying he would
need a binding court opinion to take the question off the ballot.
Yesterday's court hearing took place in two parts, with the state and
others making their arguments in the morning, and the Narragansetts
briefly taking their turn -- and officially bowing out -- just after 2
p.m. Procaccini issued his ruling from the bench immediately thereafter.
Assistant Attorney General Rebecca Partington, arguing for Carcieri and
Lynch, told the judge, "I have never seen a clearer decision of the
Supreme Court."
Procaccini asked Partington about the public's right to vote on issues.
"The public doesn't have the right to vote on unconstitutional matters,"
she replied.
In his ruling, Procaccini said "As precious as the right to vote is, to
permit it to be exercised in a way that violates the Rhode Island
Constitution would render this important act of the citizenry
meaningless and futile."
Michael Trainor, a spokesman for Lincoln Park, said company executives
are "absolutely thrilled" with Procaccini's decision.
Michael Gerhardt, executive director of the KAY Coalition Against Casino
Gambling, said that, while the casino plan has been sidelined for the
year, opponents "ought to view it as a wake-up call."
"We're pleased that it's gone this year, but we're not so naive as to
think it's gone forever."
With reports from staff writer Michael Corkery
DIGITAL EXTRA: Share your reaction to the decision on the casino vote,
at:
http://projo.com/cgi-bin/bi/surveys/tSurvey.cgi?survey=1132
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