Casino Lawsuit Continues for Review of Alleged Open Meeting Law Violations

By Seth Daniel

The Supreme Judicial Court (SJC) dismissed of a large portion of the Mohegan Sun and City of Revere lawsuit brought against the Massachusetts Gaming Commission (MGC) in a ruling on Friday, March 10, but retained one piece of review of the Wynn licensing process for Mohegan Sun and allowed a court to look into alleged Open Meeting Law violations by the MGC.

The decision is not expected to affect the license of Wynn Boston Harbor or its ongoing construction project in Everett.

“The recent decision has no impact on our construction,” said Michael Weaver of Wynn Resorts. “We are on schedule and pleased with our construction progress. We look forward to opening June 2019.”

Mayor Carlo DeMaria said no one should think this case will hang up the casino project any longer.

“This project will continue on schedule due to the dramatic positive impact it is already having on our economy,” he said. “Everett was recently named one of the top 10 places to live. Our property values are increasing dramatically. Our bond rating is the highest it has ever been. It is also complementing additional investment, including the new Envision Hotel opening in April, new luxury apartments, new and expanded breweries, restaurants and function halls. Wynn is also returning our waterfront to the residents of Everett by creating acres of accessible open space along our rivers. I commend the Massachusetts Gaming Commission for their foresight and commitment to this great $2.4 billion investment.”

The case had been brought by Mohegan Sun, the City of Revere, the IBEW Union and individuals in five claims on direct review by the SJC. Arguments in the case before the SJC took place in December at the John Adams Courthouse in Boston, but a decision was not rendered on the matter until late on Friday.

“We affirm in part, reverse in part, the judge’s allowance of the defendant’s motion

to dismiss, and remand the case for further proceedings consistent with this opinion,” read the SJC decision.

A judge in 2015 dismissed all but one count in the case, and that was a “certiorari” review of the MGC decision with respect to Mohegan Sun. A certiorari review is simply a review of a lower court or commission’s decision by a higher court. That judge in 2015 also included a dismissal of Revere’s extensive claim – with huge amounts of evidence gained in discovery – of an Open Meeting Violation by the MGC.

However, in the Open Meeting Law claim, the SJC saw differently than the original judge – reversing that decision and calling for it to be reviewed by a court.

“In sum, we conclude that the individual plaintiffs have plausibly stated a claim for relief under the Open Meeting Law,” read the decision. “Accordingly, we reverse that portion of the judge’s decision.”

The SJC stated that Revere had shown several calendar entries whereby MGC members gathered for brainstorming sessions or planning meetings with a quorum of members. There were two occasions detailed in Revere’s evidence, and also in a letter from the Attorney General in 2015, where a violation did occur unintentionally.

The SJC said those violations and other evidence presented by Revere could reveal more violations that a court should look into.

“This chart depicts, albeit with somewhat less precision and detail than the full calendar entries, numerous additional potential violations of the open meeting law,” read the ruling.

Attorney Jim Cipoletta, who argued the case before the SJC in December and before the lower court in 2015, said Revere’s claim for certiorari review of the decision, similar to that of Mohegan Sun, was not reversed. That meant Revere did not have standing in court to show that it had suffered losses as a result of the decision to go with Wynn. The same was true of the IBEW union.

“They upheld the court’s decision that Revere did not have standing for a review,” he said. “However, it reversed the Superior Court judge’s decision to not allow the Open Meeting Law violation to go forward. It allowed the Superior Court judge to now litigate the Open Meeting Law violation against the Commission.

“We have many calendars, schedules and e-mails that would back up an Open Meeting Law violation by the Commission,” he continued. “A judge would determine if that means there was a violation and what the remedy to that would be.”

In denying Revere it’s standing to claim harm for a certiorari review, the SJC did throw that City a bone.

“By no means does this belittle the loss that the City suffered when the Commission ultimately awarded the region A license to Wynn and not Mohegan Sun,” read a footnote in the decision. “The potential economic benefits to the City, discussed at length in its brief, were substantial. But the City loses sight of the fact that these benefits were never more than potential, and always were contingent upon Mohegan Sun’s receipt of a license that the commission had ‘full discretion’ not to award.”

Meanwhile, the only other piece of the suit to survive the SJC’s direct review was that of Mohegan Sun to have certiorari review – which was allowed by the lower judge as well. In that, the SJC said any review would be of a limited scope, but that Mohegan Sun had satisfied three key hurdles in claiming standing for the review. The lower judge had concluded the same thing.

Mohegan Sun officials said that the ruling allowing them to move forward on the review showed that the process was flawed from the start.

“This decision affirms our belief that the licensing process was flawed, and the decisions of the Massachusetts Gaming Commission are not immune from further review,” said Kevin Brown, chairman of the Mohegan Tribal Gaming Authority.

The MGC said it was ready to defend itself in the Trial Court again, and said it remains convinced that the decision was rooted in the law.

“The Commission remains fully confident that this complex licensing process was executed in a manner that was comprehensive, fair and highly transparent,” read the statement. “As the Commission has repeatedly demonstrated and subsequently validated by every concluded legal action to date, each license award was based solely on a thoughtful, objective and exhaustive evaluation of each gaming proposal. We will continue to vigorously defend our process in trial court and will prove that the Commission’s decision-making is firmly guided by the law and strongly grounded in the best interests of the Commonwealth.”

The cases were sent back to Suffolk Superior Court, where they originated.

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