Court says slots parlor question properly certified for 2016 Ballot

(KOIN)

BOSTON (STATE HOUSE) – A ballot question authorizing a slots parlor with up to 1,250 machines at the former Suffolk Downs horse racing track was properly certified for this November’s ballot, according to the Supreme Judicial Court, which on Tuesday rejected the claims of plaintiffs who sought to have the question disqualified.

Ruling in Bogertman v. Attorney General, the high court rejected the assertions of 10 Suffolk County residents, including gambling opponents, that the initiative petition should be ruled ineligible for the ballot under the constitution’s “local matters exclusion.”

The court concluded that the slots parlor license proposed in the ballot question “could potentially be awarded to a site in many localities, even if it were most likely that it would be awarded to a site near Suffolk Downs,” which is on the East Boston-Revere border.

The local matter exclusion is designed to ensure that only matters of statewide concern are put before voters statewide. The court noted that the petition’s subject matter – gaming – is regulated by the state and “is plainly an issue of Statewide concern,” with the facility’s patrons and workers expected to come from outside the area, taxes flowing to the state, and its adverse consequences expected to spill over across municipal borders.

“These factors support submission of the petition to the entire Massachusetts electorate,” the court concluded in an opinion written by Chief Justice Ralph Gants.

If approved, the question could lead to a second slots parlor.

After securing a slots license, Plainridge Park Casino in Plainville was the first expanded gambling facility to open under a 2011 law that authorized a single slot parlor and three resort casinos. The Massachusetts Gaming Commission has issued licenses for casinos to be located in Everett and Springfield. The Mashpee Wampanoag Tribe is forging ahead with plans to build a tribal casino in Taunton.

The court also rejected the claim that the question should not have been certified because it is “substantially the same” as a matter that appeared on the ballot in either of the two preceding biennial state elections. The plaintiffs argued Question 3 in 2014, which called for a ban on casinos and slot parlors, was substantially the same as the proposed 2016 ballot question. Voters rejected the 2014 question.

Contrasting the casino ban question and this year’s ballot question, Gants wrote that the pending proposal “merely seeks to make one incremental change in the licensing scheme for slots parlors by authorizing the commission to award a second license.”

Attorney Matthew Cameron represented the plaintiffs and Jeffrey King and Hayley Trahan-Liptak submitted a brief on behalf of Eugene McCain, a Revere resident who is pushing the ballot question.

McCain is the chairman of the Horse Racing Jobs and Education Committee, a ballot committee that lists its mailing address as K&L Gates, a global law firm with a Boston office at State Street Financial Center, One Lincoln Street in Boston.

In a May 1 campaign finance report, the committee listed $284,000 in receipts and an equal amount in expenditures. The receipts all came from Capital Productions LLC based in Wilmington, Delaware. All of the expenditures were for signature gathering and the payments were made to J.E.F. Associates of West Springfield.

McCain filed the carefully worded initiative petition authorizing, but not requiring, the gaming commission to award one additional category 2 slots parlor license for a location that “shall be at least 4 acres large, and shall be adjacent to, and within 1500 feet of, a race track, including the track, grounds, paddocks, barns, auditorium, amphitheatre and/or bleachers, if any, where a horse racing meeting may physically be held, which race track shall have hosted a horse racing meeting, provided that said location is not separated from said race track by a highway railway.”

The court wrote that the requirements “do not refer to any particular geographical location, and the plaintiffs have not demonstrated why a developer could not create a new entertainment complex that meets these specifications at any one of many possible locations across the Commonwealth where horse races have been held or could be conducted, and then proceed to apply for the new slots parlor license.”

In their opinion, the court notes that counsel for the question’s proponents had asserted in a memo that the siting criteria in the question would apply to at least 10 municipalities in Massachusetts that have already hosted horse racing meetings.

While the plaintiffs alleged that McCain has a “property interest” in the land near Suffolk Downs where the slots facility could be built, the court ruled those assertions “are not appropriate for judicial notice, and, even if they were, they would not suffice to show that the proposed law is limited to local matters.”

King, who represents McCain, was unable to say Tuesday whether the ballot campaign had gathered sufficient signatures needed to clear an early July hurdle to secure ballot access in November. The committee by next Wednesday must submit at least 10,792 locally certified voter signatures to stay on track for the ballot. A spokesman for Secretary of State William Galvin told the News Service Tuesday that the campaign had so far turned in “some” of its signatures.

Saying it is focused on laws, not motives, the court acknowledged the interests that drive proponents and opponents of ballot questions “may often involve self-interest rather than the public interest,” adding that “it may well be true that this petition was motivated by one person’s desire to profit from the Commonwealth’s developing gaming industry, based on his ownership interest in a particular property.”

In court briefs, McCain’s attorneys wrote that he “understands that an additional successful slot parlor and commercial development could help invigorate a neighboring race track and the local economy, providing jobs at race tracks and horse breeding farms across the state, providing tax resources for education and other community services, while generally bringing in additional economic revenue to the Commonwealth.” His attorneys said McCain has “investigated and pursued the acquisition of properties throughout Massachusetts, including Revere” with the hope of meeting the conditions necessary to qualify for the slots license authorized by the ballot question.

In addition to Suffolk Downs, Plainridge Racecourse and the Brockton Fairgrounds, horse racing meetings have been held over the years in Massachusetts at Berkshire Downs in Hancock, Foxboro Raceway, the Franklin Fair, the Great Barrington Fair, the Marshfield Fair, the Northampton Fair, the Weymouth Fair, and the Middleborough Agricultural Fair, according to a court brief filed by McCain’s attorneys. The site of the Franklin Fair is now a shopping plaza and there’s a housing development at the location of the Weymouth Fair.

Copyright 2016 State House News Service

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