More on the SJC’s decision to allow the casino repeal on the ballot

First, let me thank everyone for their kind words about my work on the effort to get the casino repeal question on the ballot.  I was pleased to be part of a superb legal team, and of course I’m very pleased that the Supreme Judicial Court accepted every one of the arguments we put forth.

Second, as you’d expect, there’s already been quite a bit of opinionifying on yesterday’s decision and what it means going forward (Scot Lehigh, Adrian Walker, the Globe and Herald editorial pages, Joe Battenfeld, John Nucci, and Bob McGovern have already weighed in, and there will be more to come).  So, naturally, here’s a little more.

• Casinos are, indeed, the big issue from now ’til November.  I said weeks ago that, if the casino question made the ballot, casinos would come close to defining the fall elections.  I still think that’s the case.  It remains the easiest way to draw distinctions between Democrats that are, in many respects, tough to distinguish on the issues.  In addition, it will now be the subject of a hard-fought campaign whose spending could easily equal or surpass that of the candidates for Governor.
• Strange bedfellows.  The casino issue doesn’t divide left/right or Democratic/Republican in traditional ways.  Many unions are expected to be pro-casino, so they’ll be on the same side as gigantic corporate interests with whom they might disagree about many other issues; and religious conservatives tend to be anti-casino (Kris Mineau is one of the original signers of the repeal petition, and self-proclaimed tea partying GOP candidate for Governor Mark Fisher is strongly opposed), so the anti-casino coalition will include them as well as Don Berwick and many progressives.  That’ll make for some interesting advertising on both sides.
• Things didn’t have to be this messy.  It is somewhat awkward to have a repeal on the ballot when the licensing process is three years down the road, non-trivial amounts of money have been spent, and in one case construction has already begun.  But the blame for that lies squarely with the legislature and the Governor.  Within days of the casino bill being signed into law, the same folks who are behind the current initiative petition filed for a referendum, which would have prevented the law from going into effect at all until the people had a chance to vote on it.  But, because of a couple of relatively minor appropriations ($5.5 million total) contained in section 2A of the massive bill, the referendum was not permitted to go forward (laws that appropriate money are excluded from the referendum process).  The bill could easily have been enacted without the appropriations, which would have allowed the referendum to go forward so that the people could weigh in on casinos before anyone had spent any money on it.  But it was not to be, so we have to do it this way instead.  There’s no way of knowing whether the legislature stuck the appropriations into the bill in order to fend off a referendum, or because they thought the appropriations were a necessary part of the bill, or what, but the result is the same: the appropriations prevented a referendum from going to the ballot two years ago.  So when the Herald’s painfully ignorant editorial claims that it’s the SJC that has created the “mess” we now find ourselves in, or when Commonwealth Magazine’s Bruce Mohl worries about whether repealing the law now would be “fair” to casino operators, don’t let them get to you.  It was the legislature and the Governor that teed it up to happen this way.  (See the brief we filed with the SJC, pp. 4-5, for more detail on the failed referendum.)
• Notice who wrote the decision, and who joined it.  Chief Justice Ireland, as the senior member of the SJC, would have decided who was to write the opinion.  Assigning it to Justice Gants was, IMHO, no accident: Gants, of course, had been nominated shortly before this case was argued to take Ireland’s place as Chief once Ireland retires this summer, so Ireland’s assigning it to Gants meant that the opinion is authored by the incoming Chief Justice.  I think that sends a message, as the Chief Justice often writes what he or she considers to be the most significant opinions of a given sitting.  Of course, Ireland himself, even though he’s a “lame duck” at this point, could have decided to write the opinion himself; the fact that he didn’t, instead assigning it to his successor, was a nice gesture on his part.Also, recall that, after oral argument, Justice Cordy was widely perceived as being very hostile to the pro-repeal position due to his aggressive questioning.  Yet Cordy (like all the other Justices) joined Gants’s opinion without any further comment.  Another reminder that it is very dangerous to make assumptions about where a judge will end up based on the questions he or she asks at oral argument.
• The “black eye” for Martha Coakley will heal quickly.  Some commentators (including our own SomervilleTom) are of the view that the SJC’s decision, especially some of its rather pointed language about Coakley’s position, is a devastating blow to her campaign for Governor.  I tend not to think so.  The vast majority of voters don’t really care about the verbiage used by the SJC in its opinion overturning Coakley’s action on a rather technical aspect of Article 48 of the Massachusetts Constitution.  Nor, to be honest, do I think they really care what Coakley’s initial ruling was – again, the technical aspects of what is and is not permissible under Article 48 are mysterious to most lawyers, to say nothing of the general public.  I think the casino issue will be a big deal this fall, but only on the big picture question of whether casinos are or are not good for Massachusetts.  Coakley’s position on that question (she’s repeatedly said she would vote against repealing the law) may or may not hurt her, but I don’t think the now-resolved legal part of this issue will have much in the way of political impact.
• Momentum is with the pro-repeal forces.  There’s little doubt that the pro-casino, anti-repeal forces will vastly outspend those favoring repeal.  But that was the case in Palmer, Milford, and East Boston, yet we know what happened there.  Plus, between Mass. Gaming Commission Chair Steve Crosby taking himself out of the Commission’s most important decisions after one too many bonehead moves, Everett Mayor Carlo DeMaria and his merry band of felons, Boston Mayor Marty Walsh finding every way he can to make the Commission’s life miserable, no end of controversy and legal complications in sight for the possibility of a tribal casino in the southeastern part of the state, and all the rest of it, it’s hard not to think that the pro-repeal forces have the wind at their backs.  On this general point, I agree with much of what the Herald’s John Nucci has to say:
  

  Casino developers who have already spent a lot of money will bemoan the fact that they have put so much at risk and now face the prospect of losing it all on Nov. 4. Of course that is exactly what they count on their patrons doing every day! Casino developers saying that they shouldn’t have to take gambles — it’s difficult to think of anything more precious than that.

  The Massachusetts Gaming Commission also finds itself on the hot seat. The only sensible thing for them to do now is to take a summer vacation in order to do no harm. The people of Massachusetts will tell them in November whether they want them to come back and award more casino licenses to more developers….

  The commission yesterday boldly said that they plan to move forward despite the upcoming November vote. They might want to reconsider that reaction. To do so is an insult to the voters.

• Finally, as I said, I’m grateful for the kind words of those pleased with the SJC’s decision.  I’m happy to have played a part in getting the question to the ballot – but my role was relatively small.  The lion’s share of the credit goes to the people who have been with Repeal The Casino Deal from the beginning.  They have (and will yet) put in untold numbers of volunteer hours; they collected tens of thousands of signatures; and they never gave up in the face of seemingly insurmountable odds.  The fact that the odds now seem to have swung somewhat in their favor is a testament to their unflagging determination to allow the people to have their say on this issue.  I have endless respect and admiration for them.

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