By Seth Daniel
In a 24-page decision that chided the City of Boston for using “inflammatory” language in its lawsuit against the Massachusetts Gaming Commission (MGC) over the Wynn Everett casino designation, Judge Janet Sanders dismissed the lawsuit in plain terms late last week.
“In reaching the conclusion [to dismiss], the Court has applied the Gaming Act and its regulations to the allegations set forth in Boston’s Amended Complaint,” read the decision. “It has not been an easy task. There is no judicial precedent for interpreting the Gaming Act, given its recent vintage. As to the complaint, it is peppered with adjectives and adverbs, characterizing the Commission’s proceedings as ‘corrupt’ and a ‘costly charade,’ its decisions the result of ‘machinations,’ ‘predetermined outcomes,’ and ‘mock’ hearings. These inflammatory descriptions tend only to obscure the factual allegations, which this Court must assume for purposes of this Motion…Boston has standing to make a legal challenge only to the extent that it has suffered an injury that falls within the ‘zone of interests’ protected by the Gaming Act…Accordingly, as to those counts for which it has standing, the City of Boston has failed to state a claim upon which relief may be granted.” Additionally, the judge dismissed lawsuits by Revere, the International Brotherhood of Electrical Workers #103 (IBEW), and Mohegan Sun.
“This Court concludes that Revere and IBEW-103 do not have standing to bring any of their claims since they do not allege an injury within the ‘zone of interest’ protected by the Gaming Act,” read the judge’s decision in those cases. “As to the separate claim alleging a violation of the Open Meeting Law, the…Complaint does not contain sufficient factual allegations ‘to raise a right of relief above the speculative level.’ Accordingly, the defendants’ Motion to Dismiss…is allowed.”
One small claim for judicial review requested by Mohegan Sun – a certiorari complaint – was allowed to continue.
It was the only complaint in any of the numerous lawsuits allowed to move forward.
The MGC said it was grateful for the decision.
“We are gratified by the judge’s decision and believe it is a validation of the hard work and detailed effort put forth by the Commission and its staff,” said the MGC in a statement. “We are hopeful that Wynn and the cities of Boston and Revere can now begin to reconcile their differences through open dialogue and negotiation as opposed to legal action.” The City of Boston said it was reviewing the ruling and considering an appeal.
“The City of Boston is currently reviewing the Judge’s order and weighing options to appeal,” read a statement from Boston Mayor Martin Walsh.
Revere attorneys said a similar thing, as they believe the ruling to dismiss their case is flawed.
“We are analyzing the Revere, Mohegan and Boston decisions,” said Attorney James Cipoletta. “We’ll make some determination with respect to an appeal by next week. I think the judge was not consistent in her decision to dismiss the case.”
Charlestown State Rep. Dan Ryan said now is the time to face this development, as well as others, all together.
“I applaud Mayor Walsh’s efforts in fighting to get Charlestown’s concerns on the table, like he said he would,” said Ryan. “We both assumed new roles as this discussion was heating up. The mayor used the avenues at his disposal to be a voice for Charlestown issues, as did I. The court’s recent decision is just one step toward adding clarity to a major development proposal that we must all face together.”
Everett Mayor Carlo DeMaria said the ruling will allow the project to move forward finally.
“The dismissal of the lawsuit means that this $1.7 billion resort-casino project in Everett will be able to move forward,” he said. “This project has always been about jobs- jobs for Everett residents and jobs for residents of the entire greater Boston region.”
Michael Weaver, senior vice president of marketing at Wynn, said they were also pleased with the decision.
“We are very pleased with Judge Sanders’ ruling, the result of which continues the positive momentum of our development,” he said. “We are well underway in successful site remediation and look forward to creating 4,000 union construction jobs and $1.7 billion in construction spending, 4,000 permanent jobs and bringing $22.3 million in taxes a month to the Commonwealth and local communities.”
As for the decision in the Boston case, which was the most comprehensive suit and contained some 10 counts and 150 pages, there were numerous subtleties addressed by Judge Sanders that have long been hanging in limbo.
One of them was whether Boston deserved a review by the courts regarding the decision to give Wynn the license, and the judge believed the City did not.
“The comprehensive nature of the Gaming Act with its broad delegation of authority to the Commission strongly suggests a legislative intent to have the types of decisions at issue here made not by a reviewing court but by the agency charged with administering it,” read the decision. “Under such circumstances, it is even more important that the courthouse doors be open only to those whom the Gaming Act was designed to protect. Beyond its status as a host or surrounding community, the City of Boston is no different than a member of the general public unhappy with, but no injured by, the Commission’s acts.”
Another key point was the fact that Boston felt it was a “host community” to the casino. Judge Sanders ruled that the MGC had decided two years ago that Boston was not a “host community,” and she felt the decision was lawful and correct.
She said Boston did have “surrounding community” status, but negated it by refusing to negotiate with Wynn or participate in an arbitration process. She said the MGC acted appropriately in de-establishing Boston as a “surrounding community” when it walked away from the process.
“The Commission did find that Boston was a ‘surrounding community,’” she wrote. “But as the Complaint itself acknowledges, Boston refused to engage in the arbitration procedure by [state law] in the event that the applicant and the surrounding community could not reach an agreement within a specified time period,” read the complaint. “The Gaming Act specifically granted the Commission the authority to establish ‘protocols and procedures’ in such situations. Boston nevertheless maintains that the Commission exceeded its authority under the statute and that [the regulation] is invalid. This Court disagrees.” Finally, one major complaint in Boston’s suit revolved around dismissing the Commissioners that participated in the Wynn decision and replacing them with new Commissioners.
“As to claims that the other four Commissioners must also be disqualified, this is even more spurious,” she wrote. “The Complaint does not contain any fact allegations that would reasonably call into question their impartiality or that would suggest that illicit factors influenced their votes.”
Any appeal by Boston, Revere, IBEW or Mohegan Sun would be made to the state Appeals Court.