Judge orders its removal; tribe, Harrah's to pursue other strategies

01:56 AM EDT on Saturday, August 14, 2004

BY LIZ ANDERSON
Journal State House Bureau

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.

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.

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

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