COMMONWEALTH OF MASSACHUSETTS

Supreme Judicial Court

NO. SJC-11641 SUFFOLK COUNTY STEVEN P. ABDOW, ET AL., PLAINTIFFS-APPELLANTS, v. GEORGE DUCHARME, DANIEL RIZZO DOMINIC J. SARNO, ET AL. INTERVENERS-APPELLANTS, v. ATTORNEY GENERAL AND SECRETARY OF THE COMMONWEALTH, DEFENDANTS-APPELLEES.
AND

ON RESERVATION AND REPORT OF THE SINGLE JUSTICE

BRIEF OF INTERVENERS DOMINIC J. SARNO,

ET AL.

Frank E. Antonucci (BBO #020260) ANTONUCCI & ASSOCIATES 83 State Street, Suite 203 Springfield, Massachusetts 01103 (413) 737-4667 Antonucci51@verizon.net Edward M. Pikula (BBO #399770) City of Springfield Law Department 36 Court Street Springfield, MA 01103 (413) 787-6085 epikula@springfieldcityhall.com Dated: March 21, 2014

TABLE OF CONTENTS TABLE OF AUTHORITIES.................................ii ISSUES PRESENTED......................................1 STATEMENT OF THE CASE.................................1 1. 2. 3. Nature of the Case..........................1 Course of Proceedings.......................3 Statement of Facts..........................4

ARGUMENT..............................................7 I. THE PETITION VIOLATES THE EXCLUDED MATTERS PROVISION OF ARTICLE 48............7 A. The Localities Exclusion Includes Matters Affecting More Than One Locality...............................7 The Petition Addresses Excluded Matters Because Its Statewide Vote Predominantly Affects Just Four Municipalities Pursuant to the Express Provisions of the Gaming Act...................................10 The Nullification of Springfields Host Community Agreement Would Intrude on a Local Matter.............17

B.

C.

II.

THE PETITION FAILS TO SATISFY ARTICLE 48S RELATEDNESS REQUIREMENT BECAUSE IT CONTAINS PARTS NOT OPERATIONALLY RELATED TO EACH OTHER SO AS TO PRESENT A UNIFIED STATEMENT OF PUBLIC POLICY.................26

III. THE ATTORNEY GENERALS SUMMARY OF THE PETITION FOR THE BALLOT VIOLATES THE REQUIREMENT OF ARTICLE 48 THAT IT BE FAIR AND CONCISE................................26 CONCLUSION...........................................26 ADDENDUM CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES CASES: Ash v. Attorney General, 418 Mass. 344 (1994).........................13-14 Bowe v. Sec'y of Com., 320 Mass. 230 (1946).........................7, 17 Carney v. Attorney General, (Carney II), 451 Mass. 803 (2008)................14, 15, 17, 18 Christian v. Sec'y of the Commonwealth, 283 Mass. 98 (1933)....................7, 8, 9, 17 Mass. Teachers Assoc. v. Sec'y of Commonwealth, 384 Mass. 209 (1981)............................15 Mount Washington v. Cook, 288 Mass. 67 (1934).........................15, 16 Opinion of the Justices, 294 Mass. 607 (1936).............................9 Opinion of the Justices, 303 Mass. 615 (1939)............................10 Opinion of the Justices, 334 Mass. 721 (1956)............................10 Powell v. Cole-Hersee Co., 26 Mass. App. Ct. 532 (1988).................18-19 Yankee Atomic Electric Co. v. Sec'y of Com., 402 Mass. 750 (1988)............................12 Yont v. Sec'y of Com., 275 Mass. 365 (1931).............................8

ii

CONSTITUTIONAL PROVISIONS, STATUTES

AND

RULES:

Mass. Const. Amend. Art. 48, Part II, 2........passim Mass. Const. Amend. Art. 89..........................18 Massachusetts General Laws c. c. c. c. c. c. c. c. c. c. 23K...............................5, 11, 17, 19 23K, 1.....................................20 23K, 2.................................11, 13 23K, 15............................11, 13, 18 23K, 19....................................11 43B..........................................18 59.......................................23, 24 121A.........................................22 121A, 5................................22, 23 249, 5......................................3

c. 24 of the Acts of 1746............................25 St. 1971, c. 813, 13...............................25 c. 169, Acts of 2004.................................21 c. 468 of the Acts of 2008...........................21 Mass. R. App. P. 16(j)...............................26

MISCELLANEOUS: Ballot Initiative Petition 13:09.................passim

iii

ISSUES PRESENTED 1. Does the Petition violate the Excluded Matters provision of Amendment Article 48, Part II, Section 2 of the Massachusetts Constitution pertaining to local matters because it will predominantly and explicitly affect only four municipalities across the Commonwealth? Does the Petition satisfy Article 48s relatedness requirement where it contains parts not operationally related to each other so as to present a unified statement of public policy? Does the Attorney Generals summary of the Petition for the ballot violate the requirement of Article 48 that it be fair and concise? STATEMENT OF THE CASE 1. Nature of the Case

2.

3.

This case arises out of Ballot Initiative Petition 13:09 (the Petition), entitled An Act Relative to Illegal Gaming. (See Statement of Agreed Facts The Petition seeks to

(SAF), Ex. 6 - R.A. 150).

repeal portions of the 2011 Act authorizing casino and/or slot parlor gaming in up to four municipalities throughout Massachusetts (An Act Establishing Expanded Gaming In The Commonwealth) (the Gaming Act). SAF 1 - R.A. 38). (See

Among other things, the Petition

proposes to amend the statutory definition of illegal

gaming, to render casino and slot parlor gaming illegal, and prohibit the Massachusetts Gaming Commission (the Commission) from accepting or approving any application for licenses for casinos or slots parlors. The Attorney General has refused to certify that the Petition complies with Amendment Article 48, Part II, Section 2 of the Massachusetts Constitution (Article 48), on the ground that the Petition, if adopted, would result in an impermissible taking. (R.A. 165). The Attorney Generals opinion states that

the Petition violates the right to receive compensation for private property appropriated to public use found in Article 10, Part II of the Amendments, which is one of the matters excluded from the initiative process by Article 48. (R.A. 165). Here, the City of Springfield

(the City or Springfield) and ten registered voters in Springfield (together with the City, the Voters of Springfield), have a direct interest in sustaining the Attorney Generals determination on any available legal basis, including the bases described herein and any other basis not expressly relied upon by the Attorney General.

2.

Course of Proceedings

On August 7, 2013, a coalition of registered voters filed the Petition. (SAF 7-9 - R.A. 40; R.A. 151).

On September 4, 2013, the Attorney Generals Office issued a decision refusing to certify that the Petition complied with the requirements of Article 48. - R.A. 40; SAF, Exh. 7 - R.A. 154). Following this denial, on September 10, 2013, ten registered voters filed this action in the Supreme Judicial Court for Suffolk County, seeking relief in the nature of mandamus, pursuant to G.L. c. 249, 5. (SAF 11 - R.A. 40). These ten plaintiffs and the (SAF 10

Attorney General agreed to an order requiring the Attorney General to release a summary of Initiative Petition 13-09 to the Secretary of State, and the Secretary of State to prepare and release to the plaintiffs blank ballot forms . . . . (SAF, Ex. 8 R.A. 166; see SAF, Ex. 9 - R.A. 170). Plaintiffs filed

sufficient signatures to meet the requirements of Article 48 (SAF, Ex. 10 R.A. 173), and the Petition has been assigned bill number H. 3842 by the Clerk of the House of Representatives, but has not been enacted into law. (SAF 13 - R.A. 41; SAF, Ex. 11 R.A. 176).

On February 6, 2014, the Single Justice (Spina, J.) permitted another group of registered voters, George Ducharme, et al., as well as five applicants for gaming licenses from the Commission (collectively, the Ducharme Interveners), to intervene in this matter. (SAF 14 - R.A. 41). On February 10, 2014, the City of

Springfield, the City of Revere, and additional registered voters also moved to intervene in this matter as defendants, seeking to raise additional arguments in support of the Attorney Generals denial of certification. On February 24, 2014, on joint motion, the matter was reserved and reported without decision to the full Court for determination on the record before the Single Justice in SJ-2013-356. (R.A. 746). 3. Statement of Facts

On May 14, 2013, in connection with its application to operate a casino in Springfield, Blue Tarp reDevelopment LLC (MGM Springfield) entered into a host community agreement with the City of Springfield (the Host Community Agreement), in accordance with the

provisions of G.L. c. 23K.

(See SAF 36 - R.A. 54). 1

On July 15, 2013, by public referendum, a majority of voters in Springfield voted to permit the operation of a gaming establishment licensed by the Commission in the City. Id. On December 23, 2013, the Commission issued

a positive suitability determination, with conditions, to MGM Springfield. (SAF, Ex. 36 R.A. 481). MGM

Springfield filed a RFA-2 application seeking to be licensed to operate a casino in Springfield, which is presently under Commission review. (SAF 36 - R.A. 54). In the application, MGM stated in section 2-27 that: The attached $800 million budget itemizes hard construction costs, tenant fitout costs, design/legal/professional fees, operating supplies and equipment, FF&E including gaming equipment, pre-opening expenses, land, licensing fee, capitalized interest, upfront costs pursuant to the Host Community Agreement and other project costs. Total capital investment calculated in accordance with 205 CMR 122.0 is expected to exceed $500 million. (See SAF 36 - R.A. 54-55). MGM stated in section 2-19

that: Under the Average Case Scenario, MGM Springfield is projected to generate gaming revenue of $412.2

As noted in the Statement of Agreed Facts, the Host Community Agreement may be viewed in its entirety online. Host Community Agreement By and Between City of Springfield, Massachusetts and Blue Tarp ReDevelopment, LLC, available at http://massgaming.com/wpcontent/uploads/Springfield-Host-CommunityAgreement.pdf. 5

million, $485.0 million, $499.5 million, $512.0 million and $524.8 million, respectively, during the first five years of operations. (See SAF 36 - R.A. 55).

Springfield is the only city or town in Region B, one of the three regions for potential gaming established by the Legislature, with a fully approved Host Community Agreement. (SAF 36 R.A. 54-55).

Moreover, it is the only one of three communities that satisfies all of the criteria for eligibility for a gaming license set out in Section 15 of the Gaming Act, including being party to an approved Host Community Agreement. The Host Community Agreement was approved by

the voters after a lengthy competitive selection process, and will provide millions of dollars in fiscal benefits, as well as needed jobs and a stimulus to economic activity for the City. R.A. 54. (See SAF 36 -

ARGUMENT I. THE PETITION VIOLATES THE EXCLUDED MATTERS PROVISION OF ARTICLE 48. Article 48 expressly excludes from the ballot initiative process certain matters deemed naturally unsuitable for popular lawmaking. Com., 320 Mass. 230, 247 (1946). Bowe v. Secy of Among the excluded

matters is the so-called localities exclusion. Specifically, Section 2 of Article 48 provides that: No measure . . . the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; . . . shall be proposed by an initiative petition. Here, although the Petition purports to be a statewide ban, if enacted, the operation of the measure would be principally and explicitly restricted to only four cities and towns those in which casinos and/or slot parlors are ultimately permitted. A. The Localities Exclusion Includes Matters Affecting More Than One Locality.

As a preliminary matter, the effect of a petition need not be limited to only one municipality to fall under the localities exclusion. For example, in

Christian v. Secy of the Commonwealth, the Court held that a statute creating a division for smoke inspection

violated the localities exclusion because it was restricted to Boston and twenty-eight other cities and towns. 2 283 Mass. 98, 102-03, 105 (1933).

In its review of the matter, the Court deemed it permissible to examine the debates of the Constitutional Convention for the purpose of ascertaining the views presented to the Convention and the understanding of its members, although the plain meaning of the words used in the amendment cannot be thereby controlled. Id. at 103 (quoting Yont v. Secy The Court

of Com., 275 Mass. 365, 369 (1931)). therefore noted that:

the original resolution reported to the Constitutional Convention with respect to excluded matters under the referendum read as follows: No law . . . the operation of which is restricted to a town, city or other political division of the Commonwealth, shall be the subject of such referendum petition. Amendments were offered by Mr. Joseph Walker, of Brookline, to so much of the resolution quoted above, by inserting after the word division the words or to a particular district or locality, and by inserting before the word town the word particular.

Those cities and towns covered a wide-ranging area of over 300 square miles, including Arlington, Belmont, Boston, Braintree, Brookline, Cambridge, Canton, Chelsea, Dedham, Everett, Lynn, Malden, Medford, Melrose, Milton, Needham, Newton, Quincy, Revere, Saugus, Somerville, Stoneham, Wakefield, Waltham, Watertown, Weymouth, Winchester, Winthrop, and Woburn. Id. at 101. 8

Id. at 104 (quoting Debates in the Constitutional Convention 1917-1918, vol. II, pages 677, 702-03). Walker stated that he added the words district or locality to make it clear that it was simply a little wider than a single city or town. group of cities or towns. It might apply to a Mr.

Id. at 105 (quoting Debates

in the Constitutional Convention 1917-1918, vol. II, page 693). As noted in Christian, before the adoption of these amendments, in answer to an inquiry, Mr. Walker said: It has been pointed out to me that by simply saying town or city I was permitting a State wide referendum or a State wide initiative petition on a matter affecting, for instance, the metropolitan district or a group of cities or any locality which could not be defined by the words a town or city. Therefore I am inserting these words so that a provision which relates to a particular district like the metropolitan district would not be the subject of a State wide initiative or referendum. Id. at 104. In the years since Christian, the Court has on several occasions invalidated proposed legislation affecting multiple municipalities. See, e.g., Opinion

of the Justices, 294 Mass. 607, 609 (1936) (initiative violated the localities exclusion because by its terms it required the creation of public taxicab stands in

cities, but not in towns); Opinion of the Justices, 303 Mass. 615, 626 (1939) (bill not applicable to Dukes County and Nantucket County violated the localities exclusion); Opinion of the Justices, 334 Mass. 721, 743 (1956) (holding that proposed legislation creating the Massachusetts Port Authority to take over, finance, and operate the Sumner Tunnel, airports in East Boston and Bedford, the Mystic River Bridge, and the piers and harbor facilities of the port of Boston was restricted in its operation to a particular town, city or other political division or to particular districts or localities of the Commonwealth, and was thus an excluded matter). B. The Petition Addresses Excluded Matters Because Its Statewide Vote Predominantly Affects Just Four Municipalities Pursuant to the Express Provisions of the Gaming Act.

Although it purports to be a statewide ban, the Petition, if enacted, would predominantly affect at most four cities or towns. Unlike any of the other cases

involving the localities exclusion, the Petition at issue would repeal a statute that has divided the state into three different geographic regions and limits the issuance of category 1 licenses to one municipality in each region.

10

Specifically, G.L. c. 23K permits the establishment of up to four casinos in the state, including up to three category 1 establishments with both table games and slot machines, and one category 2 establishment with only slot machines. G.L. c. 23K, 2, 19. Such

gaming licenses, which the Commission is in the process of awarding, are to be issued only to those applicants that meet the various eligibility criteria set out in G.L. c. 23K, 15. Among other criteria, Section 15

requires that an applicant pay a $400,000 application fee, enter into a signed agreement with the host community, and prevail in a certified and binding vote on a ballot question at an election in the host community in favor of the license. G.L. c. 23K, 15.

The facts relative to this Petition are unique in that the Gaming Act is so recent that the effort to repeal it is occurring while the Commission is finishing its determination of which applicants in each region will receive licenses. (See SAF 36 - R.A. 54).

However, Springfield has already met the eligibility criteria of G.L. c. 23K, including entering into the Host Community Agreement on May 14, 2013, which was approved by the Citys voters by referendum on July 15, 2013. (SAF 36 - R.A. 54).

11

Furthermore, Springfield is the only municipality in its region with an applicant found to be suitable by the Commission for a category 1 license and is thus poised to be the host community to one of the Commonwealths three category 1 casinos. Indeed, the

Gaming commission has announced its intention to award a Category 1 License by May 30, 2014. R.A. 62). In reviewing an initiative petition, the Attorney Generals determination of whether a petition contains an excluded matter, like the review by this Court, is not limited to the face of the petition. consider the factual impact of a petition. A review must Yankee (SAF 49 -

Atomic Electric Co. v. Secy of Com., 402 Mass. 750, 759 (1988). Although the Petition here purports to ban

casino gaming statewide, the claim of statewide application is, under the portions of the Gaming Act not addressed by the Petition, grossly overstated. Given that the Petition addresses only limited portions of the Gaming Act, the prohibition it proposes will predominantly impact, at most, only one municipality in each of the three regions created by the Legislature in the Gaming Act for a category 1 license

12

and one community for a category 2 license; at best, a total of four municipalities statewide. The Petition does not invalidate any of the regions established in the Gaming Act; Region A, (Eastern), Region B (Western), or Region C (Southeastern). However, it would nullify the valid Host Community Agreement entered into by Springfield and the three other communities that may be eligible to host a casino or slots parlor under the Gaming Act. No other cities or

towns are authorized by law to enter into such Host Community Agreements. See G.L. c. 23K, 2, 15. As

discussed in detail below, this is a critical distinction. The factual impact of the Petition is to

allow the other 347 municipalities across the state to invalidate the local government action of, at most, four communities. Because the Petitions ban is restricted

to the one municipality in each Region in which a casino will be allowed, it constitutes an excluded matter under Section 2. Mass. Const. Amend. Art. 48, Part II, 2.

Other cases in which this Court has found a statewide application to proposed laws practically affecting a limited number of municipalities are distinguishable. In Ash v. Attorney General, the certification of an initiative petition seeking to ban

13

rent control was upheld by this Court where only seven municipalities then had rent control. 347, 349 (1994). 418 Mass. 344,

The Court reasoned that although

application may not be uniform, the ban still applied statewide because any city or town could have sought to implement rent control. Id. at 347-48. Here, however,

unlike rent control, under the Gaming Act, once the Commission awards four licenses, no other municipalities will be permitted to host a gaming establishment. In Carney v. Attorney General (Carney II), 451 Mass. 803 (2008), this Court, relying on Ash, held that the proposed ban of live greyhound racing applied statewide even though, as a practical matter, it affected only the two cities with greyhound tracks. at 810-13. The Carney II plaintiffs argued that the Id.

proposed ban on greyhound racing should be excluded because it takes dead aim at the only two localities where dog racing currently exists or is likely to exist in the foreseeable future. Id. at 810. However,

although there were only two licensed dog tracks under the statute at issue in Carney, that statute also allowed dog racing at major state or county fairs, which could be held anywhere. Id. at 811-12. This Court

noted that the statute as it will exist at the time the

14

proposed law would take effect permits (duly licensed) dog races to be conducted at any of a great many localities in the Commonwealth. Id. at 812. The

plaintiffs in Carney II argued that economic realities prevented that from occurring. Id. The Court rejected

that argument, reasoning [t]hat the present economic realities of the industry might make this prospect unlikely to materialize is irrelevant . . . . Id.

Here, it is not a matter of mere economic reality, but the statutory framework enacted by the Legislature that expressly limits the number and location of casinos to one in each of the three geographic regions. Similarly, the continued existence of the regional and other limitations under the Gaming Act that are left unchanged by the Petition distinguishes this case from cases such as Mount Washington v. Cook, 288 Mass. 67, 74 (1934) and Mass. Teachers Assoc. v. Secy of Commonwealth, 384 Mass. 209, 224 (1981), where the Court noted that restriction to a particular town, city or other political subdivision or to particular districts or localities must be specified in the law itself in terms which expressly or by fair implication are geographically descriptive of territorial divisions of the Commonwealth, in order that the law be an excluded

15

matter.

Mount Washington, 288 Mass. at 74.

Here, the

territorial divisions and other limitations are expressly set forth in the Gaming Act, portions of which the Petition seeks to repeal. The fair implication of

the Petition, when viewed in light of the provisions of the Gaming Act, which establishes that just four municipalities may potentially host gaming establishments. The Commission is in the process of

determining which applicants will receive licenses to operate in which municipalities, and has in fact issued a license for the Town of Plainville, where construction on the states only slots parlor has started, but the fact remains only four municipalities in total may ultimately serve as hosts. 3 In light of the record of the Debates in the Constitutional Convention, and because the provisions of the Petition that claim to operate statewide are largely illusory, the Court should hold that the Petition is restricted in operation to particular districts or

The Petitions provision barring the Commission from accepting applications for illegal gaming is irrelevant to the analysis with respect to Springfield. MGM Springfield has already been found to be a suitable candidate by the Commission and its application has been fully submitted and is, at the time of this briefing, under consideration by the Commission. (SAF 36 R.A. 54-55). 16

localities, as this phrase is used in Article 48, and consequently falls within matters which are excluded from an initiative petition as local matters. Christian, 283 Mass. at 105 (quoting Debates in Massachusetts Constitutional Convention 1917-18, Vol. II, page 693). C. (SAF, Ex. 6 - R.A. 150). See

The Nullification of Springfields Host Community Agreement Would Intrude on a Local Matter.

The Petition impermissibly intrudes on local matters, particularly the Host Community Agreement already executed between the City and MGM Springfield and approved by Springfield voters. See Bowe, 320 Mass.

at 247 (Unless the courts had power to enforce those exclusions, they would be futile, and the people could be harassed by measures of a kind that they had solemnly declared they would not consider.). The Petition, in

effect, would nullify the Host Community Agreement and its local approval vote, which are matters of uniquely local concern. Unlike Carney II, local approval under G.L. c. 23K is not simply a matter of zoning provisions or ministerial issuance of local licensing. Rather, here,

Springfield has entered into a binding Host Community

17

Agreement approved by the entire governmental body as well as the voters of only that community. See G.L.

c. 23K, 15 (requiring applicants to provide a signed agreement between the host community and the applicant and receive a certified and binding vote on a ballot question at an election in the host community in favor of such license). The negotiation and approval by the

local government and voters of a Host Community Agreement distinguishes the current case from Carney II because the Host Community Agreement in this case involves the exercise of local self-government protected by Home Rule authority under Article 89 as well as the Home Rule Procedures Act. See G.L. c. 43B. The

greyhound racing license at issue in Carney II did not involve any similar exercise of Home Rule powers protected by Article 48s exclusion of local matters from statewide initiatives. In Powell v. Cole-Hersee Co., the Appeals Court held that a law may not be subject to a referendum if any significant part of the law relates to an excluded matter: We do not confine our examination . . . , but look, instead, to the entire law. The referendum provisions of the Constitution do not permit a law to be dismembered and subjected to referendum in parts. A referendum

18

petition applies to a law enacted by the general court (art. 48, the Referendum, III, 1), not to parts or sections of laws. Rep. A.G., Pub. Doc. No. 12 at 331, 333-336 (1927). Rep. A.G., Pub. Doc. No. 12 at 312, 313 (1966). Compare Paisner v. Attorney General, 390 Mass. 593, 598 (1983) (the popular initiative is confined to laws and constitutional amendments); Opinion of the Justices, 397 Mass. 1201, 1209 (1986). It follows that a law is not subject to referendum if any significant part relates to an excluded matter. See Yont v. Secretary of the Commonwealth, 275 Mass. 365, 368-370 (1931); Ward v. Coletti, 383 Mass. 99, 106-108 (1981). See also McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 780 n.3 (1975). 26 Mass. App. Ct. 532, 535 (1988). Even if part of the

impact of the Petition is to outlaw casino gaming, the full impact includes the nullification of the Host Community Agreement, which is a valid exercise of local self-government, protected by the Home Rule Amendment. As such, the Petition is not a proper measure for certification. The uniquely local impact on Springfield cannot be overstated. Springfield has spent considerable time and

effort in reliance on the availability and long-term viability of the gaming licenses to be issued by the Commission pursuant to G.L. c. 23K. In the event that

MGM Springfield is granted a gaming license, MGM Springfield intends to develop an approximately $800,000,000 mixed-use leisure, entertainment, retail

19

residential and office development in the heart of downtown Springfields South End (the Project). SAF 36 R.A. 54). The Project is designed to (See

catalyze significant regeneration in the area of Springfield that was directly affected by the 2011 tornado. As noted in the design features incorporated

into the Host Community Agreement, some of the Project areas existing buildings and faades, including the faade and turrets of the South End Community Center, will be incorporated into the Project. This type of

revitalization is one of the reasons why the Legislature passed the Gaming Act. See G.L. c. 23K, 1. Indeed,

the Act includes a number of findings made by the Legislature that the legalization of casino gaming would provide much needed economic stimulus to address blight and poverty, including: new employment opportunities . . . particularly opportunities for the unemployed, . . . promoting local small businesses and the tourism industry, including the development of new and existing small business and tourism amenities such as lodging, dining, retail and cultural and social facilities, and recognizing the importance of the Commonwealths unique cultural and social resources and integrating them into new development opportunities. Id.

20

The legislative findings in the Gaming Act likely have more bearing on Springfield than any other city or town. Springfield was on the verge of bankruptcy in

2003, which led to a state takeover of its government through a Finance Control Board. See Ch. 169, Acts of

2004, and findings therein. Under the provisions of Chapter 468 of the Acts of 2008, Springfield emerged from government by the Control Board in July 2009 only to face a worldwide financial crisis and has faced budget cuts in each year since. It is also still

recovering from the devastation caused by a tornado in June 2011, and the blue tarps are still evident on rooftops throughout the path of the tornado. That

natural disaster caused over $100 million dollars of damage to municipal infrastructure, including two schools and a community center located in one of the poorest neighborhoods in Springfield. 4 The Springfield

Host Community Agreement would go a long way in helping to transform the land use in the Citys most blighted and impoverished areas.

See Commonwealth of Massachusetts Department of Housing and Community Development Disaster Recovery Action Plan FY2013, available at http://www.mass.gov/hed /community/funding/cdbg-dr-actionplanapproved.pdf. 21

The Project will also facilitate the development of non-gaming related businesses and will have a significant economic impact on the City. Approximately

2,000 construction jobs and approximately 3,000 permanent jobs will be created by the Project, providing employment opportunities to residents of Springfield and the surrounding communities. (See SAF 36 R.A. 54).

In furtherance of these legitimate public purposes, the voters of Springfield approved the contract between their local government and MGM Springfield, an applicant that has been found suitable under the Gaming Act and appears to be on the verge of obtaining a license. (SAF 49 - R.A. 62). MGM Springfield executed a Host

Community Agreement with Springfield, in accordance with the provisions of the Gaming Act, in which MGM Springfield has agreed to provide significant compensation to the City for Direct and Indirect Community Impact. (SAF 36 - R.A. 54). The unique

circumstances are further highlighted by the terms of the Host Community Agreement utilizing urban renewal authority under G.L. c. 121A granted by the state legislature to Springfield and only one other municipality. See G.L. c. 121A, 5.

22

Under the provisions of G.L. c. 121A, 5, Springfield and Boston are the only two municipalities in the state authorized to undertake urban renewal projects under this statutory framework without approval by the state agency responsible for approving similar projects in all other municipalities. As such, allowing

the Petition to go forward would invalidate this local authority reserved to Springfield. From a fiscal

standpoint, the provisions of the Host Community Agreement in Section 3.5 establishing the Chapter 121A Agreement, creates financial obligations of MGM Springfield which represent or approximate the best estimate, at this date, of the average annual tax which would otherwise be due the City for local taxes assessed pursuant to G.L. c. 59. The value and tax amounts paid

under the 121A Agreement assure that the City will receive the full measure of revenue which can reasonably be garnered from this development, and guarantees payments to the City, as can be calculated by the terms found in Section 3.5 of the Host Community Agreement, over the 40 year term total $960,226,751.99. In

addition, the City will receive a percentage of gross gaming revenues, projected to add approximately $1,290,000 per year using a base case projection of

23

$479,000,000 of annual gross gaming revenues. 36 R.A. 54).

(See SAF

These additional payments calculate

out to a total $51,600,000 over the 40 year agreement, are only available under a Chapter 121A agreement and would not be available under taxes assessed under Chapter 59. By utilizing the Chapter 121A model, the City can better plan its finances and achieve full access to the payments made. Specifically, the guaranteed payments of $960,226,752.99 will be available for purposes of budgeting and limit the risk of protracted and burdensome tax appeals, as well as the need to escrow funds in an overlay account during the several year period while an appeal is pending. In addition, under

the Host Community Agreement, payments in lieu of taxes will be made several years before they would normally be due under Chapter 59. Specifically, while tax payments under Chapter 59 would normally be assessed and paid based on a full and fair value beginning on the opening date of the Project (anticipated in Fiscal Year 2017), the Host Community Agreement provides for a total of $10,000,000 in payments due under the 121A agreement in advance. (SAF 36 - R.A. 54). If MGM Springfield is

granted a gaming license pursuant to the Gaming Act,

24

advance payments in lieu of taxes would begin in Fiscal Year 2014. The long history of Massachusetts utilizing gambling to generate revenue for public purposes is well established. As far back as 1746, the General Court

authorized raising funds for public road improvements when it enacted An Act for Raising a Sum of Money By Lottery or Lotteries for Paving and Repairing the Neck Leading Out of the Town of Boston. the Acts of 1746. See Chapter 24 of

Over the last 40 years, Massachusetts

has had one of the most successful lotteries in the nation, generating $90.7 billion in sales, awarding $62.1 billion in prizes, returning $19.7 billion in net profit to the Commonwealth for unrestricted local aid available to cities and towns and paying $5.1 billion in commissions and bonuses to its statewide network of retailers. St. 1971, c. 813, 13; see About The

Lottery, available at http://www.masslottery.com/about. Although the proponents of the Petition focus on the negative impacts of gaming, the destruction of local economic opportunities created and approved in accordance with state law and through purely local action is excluded from the initiative process.

25

II.

THE PETITION FAILS TO SATISFY ARTICLE 48S RELATEDNESS REQUIREMENT BECAUSE IT CONTAINS PARTS NOT OPERATIONALLY RELATED TO EACH OTHER SO AS TO PRESENT A UNIFIED STATEMENT OF PUBLIC POLICY.

Pursuant to Mass. R. App. P. 16(j), the Voters of Springfield incorporate by reference the arguments of the Ducharme Interveners. III. THE ATTORNEY GENERALS SUMMARY OF THE PETITION FOR THE BALLOT VIOLATES THE REQUIREMENT OF ARTICLE 48 THAT IT BE FAIR AND CONCISE. Pursuant to Mass. R. App. P. 16(j), the Voters of Springfield incorporate by reference the arguments of the Ducharme Interveners. CONCLUSION For the above stated reasons, the Voters of Springfield respectfully submit that the Petition violates the localities exclusion, and the Court should affirm the Attorney Generals refusal to certify the Petition on that ground, as well as those grounds set forth in the brief of the Ducharme Interveners.

26

Respectfully submitted, DOMENIC J. SARNO, DON SILVERMAN, ROBERT TADDIA, CAROL KERR, DAWN ROGERS, MICHELLE BARNABY, DEBORAH Y. LITTLE, MARIO FIORE, RAY CORPORALE, NICOLE GRIFFIN, in their capacity as voters of Springfield, By their attorneys, /s/

Frank E. Antonucci

Frank E. Antonucci (BBO #020260) ANTONUCCI & ASSOCIATES 83 State Street, Suite 203 Springfield, Massachusetts 01103 (413) 737-4667 Antonucci51@verizon.net /s/

Edward M. Pikula

Edward M. Pikula (BBO #399770) City of Springfield Law Department 36 Court Street Springfield, Massachusetts 01103 (413) 787-6085 epikula@springfieldcityhall.com Dated: March 21, 2014

27

ADDENDUM

ADDENDUM TABLE OF CONTENTS Full text of Initiative Petition 13-09 (R.A. 152).....1 c. 23K, 1...........................................2 c. 23K, 2...........................................4 c. 23K, 15.........................................11 c. 23K, 19.........................................15 c. 121A, 5.........................................17 c. 249, 5..........................................18

Add. 1

Add. 2

Add. 3

Add. 4

Add. 5

Add. 6

Add. 7

Add. 8

Add. 9

Add. 10

Add. 11

Add. 12

Add. 13

Add. 14

Add. 15

Add. 16

Add. 17

Add. 18

CERTIFICATE OF COMPLIANCE This brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass. R. A. P. 16(a)(6) (pertinent findings or memorandum of decision); Mass. R. A. P. 16(e) (references to the record); Mass. R. A. P. 16(f) (reproduction of statutes, rules, regulations); Mass. R. A. P. 16(h) (length of briefs); Mass. R. A. P. 18 (appendix to the briefs); and Mass. R. A. P. 20 (form of briefs, appendices, and other papers). /s/

Frank E. Antonucci

Frank E. Antonucci (BBO No. 020260)