By Seth Daniel
A judge in Suffolk Superior Court heard several arguments Tuesday afternoon on multiple lawsuits against the Massachusetts Gaming Commission (MGC) regarding the Wynn casino license – the most prominent suit being that of the City of Boston.
Despite all of the discussion, especially about the Boston case, Judge Janet Sanders did not make a decision on the spot as many thought she might.
“I have heard all the arguments and will make a decision as quickly as possible,” she said.
More than two hours of arguments were made as to why the suits shouldn’t be dismissed and why they should be dismissed, with most of the discussion centering around complex legal arguments that would be lost on most people outside of the legal world and the judiciary. The suits heard came from Boston, Revere, Mohegan Sun, IBEW Union and four registered voters claiming violations of the open meeting law.
The biggest case, however, came between Boston and the MGC and centered mostly on timeliness – whether or not Boston filed too late.
The MGC said the clock started on Sept. 17, 2014 and Boston didn’t file until Jan. 5, 2015.
“Even with the (expanded gaming) repeal vote, Boston had two weeks to prepare its brief following the results of that vote, and it did not,” said Dave Mackey for the MGC.
Boston said it had until November when the clock started, as the license was really given out on Nov. 7, after the repeal vote.
“In September, the MGC entered into an agreement to take an action in the future,” said Tom Frongillo for Boston.
He added, “The law states that payment for the license must be made 30 days after the issuance of a license and if that was the case, then the $85 million fee should have been paid in mid-October and it wasn’t. It was paid on Nov. 7, when the license was officially granted. We would even argue that the last administrative action was well into December.”
Another argument at the center of it all was whether Boston could be a host community, which Judge Sanders seemed to feel was at the heart of the entire disagreement.
“Isn’t this what the case is all about, Boston becoming a host community?” she asked. “Is it a pre-determined outcome if this is a matter of geography and all I have to do is look at a map? You can argue corruption and injustice, but if the act defines it as geography and all I have to do is look at a map, I’m not sure what we’re here for.”
Boston countered by leaning on the issue of Horizon Way as being the only access point at the time of the license award for the Wynn project – a road that is alleged to belong to both Boston and Everett with a city line dissecting the street.
“You have to get in and you have to get out,” said Frongillo. “It’s like a house without a door. If you can’t get into it, it doesn’t function.”
The MGC, however, leaned on the Gaming Law’s definition of a Surrounding Community.
“Boston is a community from which transportation infrastructure provides ready access; that’s a surrounding community,” said Mackey. “Boston has no answer to the definition of a surrounding community in its brief.”
The judge quizzed all parties on their arguments, and though seemingly growing frustrated with the length and complexity of the discussion, didn’t lean any observable way in the key Boston matter.
For Revere, which was the first to file a suit against the MGC, the heaviest argument was that it expected a fair process, and it alleges that the process was unjust.
“The City of Revere suffered an injustice,” said Jim Cipoletta for Revere. “They negotiated a host community agreement, and changed zoning laws and did all the things to prepare to welcome a casino to Suffolk Downs. They had the expectation it would be a fair hearing…That just did not happen.”
The MGC argued that Revere and the IBEW fell in the same category as Mohegan Sun. That company is on uncertain ground with its suit as the Gaming Law prevents an applicant from suing after a denial.
“Mohegan has no rights, so whatever Revere and IBEW have is derivative of an entity that has nothing,” said Dave Mackey for the MGC.
Cipoletta clarified that Revere’s case could stand without Mohegan Sun.
“Revere has not applied and is not an applicant and the statute only precludes applicants,” he said.
That, however, came after a biting comment from Judge Sanders on Revere’s position.
“All of the injuries you cite flow from the award of the license not going to Mohegan Sun,” she said. “I can see the Commission’s position that you’re very closely tied to Mohegan Sun. If they’re out, you’re out. You are very closely tied together. In fact, (the position) doesn’t really make a whole lot of common sense.”
Judge Sanders will hand down her decisions in the near future, likely in written form rather than at another hearing.