City of Revere v. Massachusetts Gaming Commission , 476 Mass. 591 ( 2017 )

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SJC-12111
SJC-12177
CITY OF REVERE & others1 vs. MASSACHUSETTS GAMING COMMISSION.
Suffolk. December 5, 2016. - March 10, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Gaming. License. Administrative Law, Judicial review,
Intervention. Practice, Civil, Action in nature of
certiorari, Review of administrative action, Intervention,
Interlocutory appeal. Jurisdiction, Judicial review of
administrative action.
Civil action commenced in the Superior Court Department on
October 16, 2014.
A motion to dismiss the intervener's complaint and a motion
to dismiss the plaintiffs' second amended complaint were heard
by Janet L. Sanders, J.
The Supreme Judicial Court granted an application for
direct appellate review, and following the order by Sanders, J.,
for entry of final judgment, the Supreme Judicial Court granted
a second application for direct appellate review.
1
International Brotherhood of Electrical Workers Local 103,
Louis Ciarlone, Ronald Hills, Debra A. Santa Anna, and Elaine
Leto; Mohegan Sun Massachusetts, LLC, intervener.
2
Kenneth S. Leonetti & Christopher E. Hart (Michael Hoven
also present) for the intervener.
Patricia L. Davidson for city of Revere.
David S. Mackey (Mina S. Makarious & Melissa C. Allison
also present) for the defendant.
BOTSFORD, J. This case concerns the process by which the
Massachusetts Gaming Commission (commission) awarded a gaming
license in late 2014 to Wynn MA, LLC (Wynn). The plaintiffs --
an unsuccessful applicant for the license, the city that would
have hosted the unsuccessful applicant, a labor union, and
individual citizens -- filed two complaints in the Superior
Court that alleged numerous defects in the commission's process
for awarding the license to Wynn. The commission filed motions
to dismiss both complaints. A judge in the Superior Court
allowed the motions on all but one count of one of the
complaints, permitting only the unsuccessful applicant's claim
for certiorari review to survive. The parties now appeal
various aspects of the judge's decision. For the reasons
discussed below, we affirm in part, reverse in part, and remand
the case for further proceedings.
Background. 1. Gaming in Massachusetts. In November,
2011, the Legislature enacted St. 2011, c. 194, An Act
3
establishing expanded gaming in the Commonwealth (act).2 Section
16 of the act created the gaming commission and set forth
standards under which applicants could obtain a license from the
commission to operate a gaming establishment. See G. L. c. 23K,
inserted by St. 2011, c. 194, § 16. The act describes two types
of licenses. The one at issue here, a "category 1 license,"
permits the operation of "a gaming establishment with table
games and slot machines." See G. L. c. 23K, § 2. The act
authorizes the commission to issue up to one such license in
"region A," which encompasses the counties of Suffolk,
Middlesex, Essex, Norfolk, and Worcester. G. L. c. 23K, § 19
(a) (1).
The license application process relevant to this case
unfolded in two phases, as contemplated by the commission's
regulations. See 205 Code Mass. Regs. § 110.01 (2012).
Applicants were required first to demonstrate their suitability
and eligibility based on criteria described in G. L. c. 23K,
§§ 12 and 15. Only those applicants deemed suitable by the
commission proceeded to the second phase, in which the
commission considered the applicant's entire application. See
G. L. c. 23K, § 12 (c). In this phase, the commission evaluated
2
The court's opinion in Abdow v. Attorney Gen., 468 Mass.
478, 480-482 (2014), sets forth a more complete description of
St. 2011, c. 194 (act).
4
the applicants based on nineteen statutory criteria and issued a
corresponding statement of findings. See G. L. c. 23K, § 18.
The criteria required the commission to evaluate how well the
applicants would advance a broad array of objectives, ranging
from promoting local businesses and using sustainable
development principles to maximizing revenues received by the
Commonwealth and mitigating the potential impacts of gaming on
host and surrounding communities. See id.
Ultimately, the license application process challenged in
this case came down to a choice between two applicants -- Wynn,
which proposed a casino in Everett, and Mohegan Sun
Massachusetts, LLC (Mohegan Sun), which proposed a casino in
Revere. In September, 2014, the commission awarded the license
to Wynn. In November, 2014, the commission issued a thirty-six-
page written determination, with accompanying exhibits,
explaining its evaluation of the competing applications. This
determination formally awarded the license to Wynn and denied
the application of Mohegan Sun.
2. Alleged defects in the licensing process. In October,
2014, the city of Revere (city), the International Brotherhood
of Electrical Workers Local 103 (union), and four union members
(individual plaintiffs) brought suit in the Superior Court
against the commission. In early 2015, these plaintiffs filed a
second amended complaint. At around the same time, Mohegan Sun
5
filed a motion to intervene and a complaint in intervention.
The motion to intervene was allowed without opposition.
The second amended complaint and Mohegan Sun's complaint in
intervention contain four virtually identical counts. In the
first two counts, Mohegan Sun, the city, and the union seek
review and reversal of the commission's award of the gaming
license to Wynn under G. L. c. 30A, § 14 (count I), and under
G. L. c. 249, § 4 (count II). Concerning counts I and II, they
allege, for example, that the commission in its agreement to
award the license to Wynn failed to include several commitments
or conditions required by the act relating to environmental
requirements, neighboring community obligations and investor
suitability; failed to give proper weight to host and
surrounding community agreements, adopted an improper
arbitration regulation, failed to properly consider various
mitigation plans, and accepted incorrect employment estimates;
treated Wynn and Mohegan Sun differently, with inequitable
results for Mohegan Sun, in part by using differing grading
procedures, inconsistently applying the statutory requirement
that license applicants have no affiliates or close associates
who would not qualify for a license, and engaging in improper ex
parte communications with Wynn; and failed properly to take into
account the suitability (in particular, the criminal history) of
certain individuals allegedly involved in the transaction in
6
which Wynn purchased the land for its casino. They also allege
that Wynn failed properly to disclose its involvement in an
ongoing criminal investigation as required by the act.
In count III of the respective complaints, Mohegan Sun, the
city, and the union seek a declaratory judgment pursuant to
G. L. c. 231A, § 1, to the effect that the act is
unconstitutional as applied and that, to the extent the act
precludes judicial review, it violates the constitutional
guarantee of due process and also separation of powers
principles. In count IV, the plaintiffs allege that the
commission's regulations implementing the act are ultra vires
and unconstitutional.
Finally, in the second amended complaint only, the
individual plaintiffs seek relief under the open meeting law,
G. L. c. 30A, § 23 (count V). Essentially, count V alleges that
a quorum of the commission engaged in deliberations that should
have taken place in a public meeting, including during the
recess of a public meeting and on other occasions. Additional
allegations in the complaints are discussed where relevant
infra.
3. Procedural history. In July, 2015, the commission
moved to dismiss both complaints. In December, 2015, the motion
judge allowed the motion to dismiss the second amended
complaint. The judge ruled that counts I through IV of that
7
complaint must be dismissed under Mass. R. Civ. P. 12 (b) (1),
365 Mass. 754 (1974), for lack of standing because the city and
the union are not within the "zone of interests" that the act
arguably protects. She also ruled that the individual
plaintiffs' allegations regarding the open meeting law failed to
rise above the speculative level, and therefore could not
survive a motion to dismiss under Mass. R. Civ. P. 12 (b) (6)
for failure to state a claim.
With respect to Mohegan Sun's complaint in intervention,
the motion judge allowed the motion to dismiss count I, ruling
that § 17 (g) of the act expressly precludes judicial review
under G. L. c. 30A, § 14. However, she denied the motion with
respect to count II, concluding that Mohegan Sun satisfied the
prerequisites for certiorari review. Because this ruling
permitted a form of judicial review of the commission's region A
decision, the judge dismissed as moot counts III and IV of
Mohegan Sun's complaint seeking declaratory relief.
The commission filed a notice of appeal with respect to
Mohegan Sun's surviving count II, claiming that the doctrine of
present execution authorizes interlocutory review. After entry
of final judgment the plaintiffs filed their own notice of
appeal. This court allowed applications for direct appellate
review of both the commission's and the plaintiffs' appeals.
8
Standard of review. This court reviews orders on motions
to dismiss de novo. Shapiro v. Worcester, 464 Mass. 261, 266
(2013). For purposes of that review, we accept as true the
facts alleged in the plaintiffs' complaints and any exhibits
attached thereto, drawing all reasonable inferences in the
plaintiffs' favor. Burbank Apartments Tenant Ass'n v. Kargman,
474 Mass. 107, 116 (2016).
Discussion. The parties' appeals raise several issues,
which we address in the following order. First, we consider the
claims raised by Mohegan Sun and the commission concerning the
motion judge's dismissal of Mohegan Sun's claim under G. L.
c. 30A, § 14, and the judge's determination that certiorari
review of the commission's decision is available. We also
review, briefly, the judge's dismissal of Mohegan Sun's claims
for declaratory relief in counts III and IV of the complaint.
We next address the claims of the city and the union that the
judge erred in ruling that they lacked standing to challenge the
commission's decision. Finally, we consider the open meeting
law claim of the individual plaintiffs.
1. Claims of Mohegan Sun and the commission. a. Judicial
review under G. L. c. 30A, § 14. General Laws c. 30A, § 14,
provides for judicial review of an agency decision in an
adjudicatory proceeding, "[e]xcept so far as any provision of
law expressly precludes" it. G. L. c. 30A, § 14, first par.
9
Section 17 (g) of the act, in turn, provides that "[t]he
commission shall have full discretion as to whether to issue a
license. Applicants shall have no legal right or privilege to a
gaming license and shall not be entitled to any further review
if denied by the commission" (emphasis added). G. L. c. 23K,
§ 17 (g).
The motion judge concluded that Mohegan Sun's claim for
relief under G. L. c. 30A, § 14, fails because G. L. c. 23K,
§ 17 (g) expressly precludes such review. Mohegan Sun argues
that § 17 (g) is narrow in scope, barring review under G. L.
c. 30A, § 14, of the commission's denial of Mohegan Sun's
license application, but not of the commission's grant of a
license to Wynn. We agree with the motion judge's reading of
§ 17 (g). Even if we assume, for purposes of argument, that the
commission's licensing proceeding qualified as an "adjudicatory
proceeding" within the meaning of G. L. c. 30A,3 the language in
3
The act is opaque on this point, stating that "[t]he
commission shall conduct a public hearing on [a gaming license]
application pursuant to [§] 11 1/2 of [c.] 30A." G. L. c. 23K,
§ 17 (c). There is no "§ 11 1/2" within G. L. c. 30A. It is
possible (and we think likely) that the Legislature intended to
reference G. L. c. 30A, § 11A 1/2, in which case it would have
been pointing to a version of the open meeting law that was
repealed by a 2009 enactment, effective in 2010 (one year prior
to the passage of the act). See St. 2009, c. 28, §§ 17-18
(repealing G. L. c. 30A, §§ 11A and 11A 1/2, and adding G. L.
c. 30A, §§ 18-25). On the other hand, if the Legislature
intended to refer to G. L. c. 30A, § 11, then it would be
referring to the section that describes adjudicatory
10
§ 17 (g) evinces a clear legislative intent to "expressly
preclude[]" judicial review of commission licensing decisions
within the meaning of G. L. c. 30A, § 14, first par. This
preclusion includes, but is not limited to, entities whose
applications have been denied by the commission.
Mohegan Sun's main argument to the contrary hinges on the
phrase in § 17 (g) "if denied by the commission." According to
Mohegan Sun, this phrase shows that the Legislature intended
§ 17 (g) to bar review of the denial of a gaming license, but
not the grant of one. This reading distorts the syntax of § 17
(g). The language at issue provides: "Applicants . . . shall
not be entitled to any further review if denied by the
commission." G. L. c. 23K, § 17 (g). The subject of this
sentence is "applicants," which is later modified by the phrase
"if denied by the commission." Thus, the statute withholds "any
further review" from entities whose applications have been
denied by the commission. This structure requires that a
"denial" occur before the bar to review operates. But the bar,
once triggered, attaches to the failed applicant, not to the
"denial" of that entity's application.
proceedings. Although the commission adverted to this problem
its motion to dismiss, the parties do not discuss it in their
briefs to this court.
11
More importantly, we consider the language of § 17 (g) to
reflect a broader legislative intention to curtail judicial
review, barring anyone, not just failed applicants, from
obtaining review of commission licensing decisions through the
ordinary channels of judicial review that the Legislature has
otherwise provided, including review under G. L. c. 30A, § 14.
See Olmstead v. Department of Telecomm. & Cable, 466 Mass. 582,
588 (2013) (court gives effect to statute's plain and ordinary
meaning where statute's words are clear). There was no error.
b. Availability of certiorari review. Given our
interpretation of § 17 (g), the obvious threshold question
regarding certiorari review is whether such review of a
commission licensing decision may be available notwithstanding
§ 17 (g). The answer to the question is yes. Although § 17 (g)
precludes ordinary modes of judicial review and thereby
qualifies, for purposes of G. L. c. 30A, § 14, as a provision
rendering review under that statute unavailable, it does not
have the same effect with respect to certiorari review, which
"is of extraordinary nature" and "is one of the ancient
prerogative writs, whose history stretches far back toward the
beginnings of the common law." Swan v. Justices of Superior
Court, 222 Mass. 542, 544 (1916). That history provides an
independent basis for certiorari review outside the scope of
§ 17 (g) and G. L. c. 30A, § 14. As the court stated in Swan,
12
supra, only "words unmistakable in import" will "express a
legislative purpose to deprive parties . . . from the shelter of
this writ," and we do not read the language of § 17 (g) as going
so far. See Swan at 543-544 (statutory language, "there shall
be no appeal" from decision of Superior Court judge "falls far
short" of precluding certiorari review). See also Indeck v.
Clients' Sec. Bd., 450 Mass. 379, 384 (2008) (certiorari review
"not necessarily precluded" even where decision declared "final
or unreviewable"). Our conclusion is reinforced when we
consider the language of § 17 (g) against the backdrop of the
Legislature's declaration that a "paramount policy objective" of
the act is to "ensur[e] public confidence in the integrity of
the gaming licensing process." G. L. c. 23K, § 1 (1). It would
be difficult to give meaning to that declaration were we to read
§ 17 (g) as the commission suggests we should -- that is, as
precluding even the extraordinary remedy of certiorari review.
Again, there was no error.
Here, there are four issues related to certiorari review:
(1) whether Mohegan Sun's complaint in intervention was timely;
(2) whether the doctrine of present execution allowed the
commission to bring an immediate, interlocutory appeal from the
motion judge's decision that certiorari review is available to
Mohegan Sun; (3) whether Mohegan Sun satisfies the necessary
conditions to entitle it to certiorari review; and (4) if so,
13
what is the nature and scope of certiorari review of a licensing
decision by the commission.
(1) Timeliness. The commission argues that Mohegan Sun's
certiorari claim is jurisdictionally time barred because the
complaint was not filed within the sixty-day limitations period
in G. L. c. 249, § 4. Mohegan Sun responds that its motion to
intervene and accompanying complaint relate back to the time of
the original plaintiffs' complaint in much the same way as Mass.
R. Civ. P. 15 (c), 365 Mass. 761 (1974), permits for amended
complaints.
"Whether a party should be allowed to intervene is a matter
that is largely left to the discretion of the judge below."
Corcoran v. Wigglesworth Mach. Co., 389 Mass. 1002, 1003 (1983),
citing Mass. R. Civ. P. 24 (b), 365 Mass. 769 (1974). Although
a statute of limitations and its accompanying rationale of
repose certainly are important factors in resolving the issue,
they are not necessarily dispositive; rather, timeliness in the
intervention context is a more flexible concept that also may
take into account (1) the stage at which the party intervened,
(2) any prejudice that arises from a delayed intervention, and
(3) an applicant's particular need to intervene. See J.W. Smith
& H.B. Zobel, Rules Practice, § 24.4, at 374-376 (2d ed. 2006).
Here, at the time of Mohegan Sun's motion to intervene, the
original plaintiffs had just filed an assented to motion to file
14
their second amended complaint. Mohegan Sun's motion to
intervene then was allowed without opposition from the
commission. As discussed supra, the claims and allegations in
the second amended complaint and the intervenor's complaint are
very similar. The commission did not challenge the timeliness
of the intervention, in its motion to dismiss, until several
months after the intervention was allowed. Given those
circumstances, the commission cannot show that it was prejudiced
by Mohegan Sun's intervention. See Corcoran, 389 Mass. at 1003.
See also Sargeant v. Commissioner of Pub. Welfare, 383 Mass.
808, 819 (1981).
Furthermore, we agree with the motion judge that, at least
in this case, there is little functional difference between
Mohegan Sun filing a complaint in intervention and Mohegan Sun
being added as a new plaintiff to the original plaintiffs'
second amended complaint under Mass. R. Civ. P. 15; if the
latter course of action had been followed, the generous
relation-back principles applicable to amendments to complaints
would permit the amendment. Cf. Rafferty v. Sancta Maria Hosp.,
5 Mass. App. Ct. 624, 628 (1977) ("[T]he distinction in this
case between a motion to intervene and a motion to amend by
adding plaintiffs is purely formal . . . . Whether we treat the
new plaintiffs as parties added by an amendment which relates
back to the original complaint or as interveners makes no
15
difference in the circumstances of this case"). Accordingly, we
decline to disturb the motion judge's ruling that Mohegan Sun's
certiorari claim is not barred as untimely.
(2) Doctrine of present execution. The denial of the
commission's motion to dismiss Mohegan Sun's certiorari review
claim is an interlocutory ruling. The doctrine of present
execution provides a narrow exception to the general rule
prohibiting interlocutory appeals, provided two conditions are
met: (1) the matter is collateral to the merits of the
controversy, and (2) the interlocutory ruling will interfere
with rights in a way that cannot be remedied on appeal from the
final judgment. See Marcus v. Newton, 462 Mass. 148, 151-152
(2012). Generally, orders denying motions to dismiss based on
immunity from suit satisfy both criteria. Shapiro, 464 Mass. at
264–265, and cases cited.
Given these requirements, the commission's attempt to
invoke the doctrine hinges on its position that § 17 (g)
precludes any and all forms of judicial review of its licensing
decisions, and therefore immunizes the commission from suit.
We have decided in this case that certiorari review of
licensing decisions sometimes may be available. Therefore, the
commission is not entirely immune from suit, and it may not
invoke the doctrine of present execution to obtain review of the
judge's interlocutory order. Nevertheless, we discuss the other
16
two issues concerning certiorari review that we have identified
because they have been briefed fully by the parties, they raise
significant issues of statutory interpretation concerning the
commission (a relatively new and important public agency), and
addressing them is in the public interest. See Marcus, 462
Mass. at 153, and cases cited.
(3) Prerequisites for certiorari review. In general, a
plaintiff is only entitled to certiorari review of an
administrative decision if it can demonstrate the presence of
three elements: "(1) a judicial or quasi judicial proceeding,
(2) from which there is no other reasonably adequate remedy, and
(3) a substantial injury or injustice arising from the
proceeding under review." Indeck, 450 Mass. at 385. The
commission argues that Mohegan Sun, as an applicant for a gaming
license, does not have a justiciable right to vindicate through
certiorari review and that, even if it does, the proceedings
appealed from are not judicial or quasi judicial. We agree
with the motion judge that Mohegan Sun meets the prerequisites
for certiorari review in this case.
When distinguishing a quasi judicial agency proceeding from
a legislative or purely administrative one, we have looked
generally to the form of the proceeding and examined the extent
to which it resembles judicial action. See Hoffer v. Board of
Registration in Med., 461 Mass. 451, 457 (2012). However, the
17
line beyond which an agency proceeding becomes quasi judicial is
rarely a bright one. Instead, courts have looked to a number of
factors in deciding the question: (1) whether the proceeding is
preceded by specific charges, see School Comm. of Hudson v.
Board of Educ., 448 Mass. 565, 576 (2007); (2) whether the
proceeding involves sworn testimony by witnesses subject to
cross-examination, see id., or a party attesting to certain
facts, see Frawley v. Police Comm'r of Cambridge, 473 Mass. 716,
727 (2016), as opposed to unsworn statements by interested
persons advocating for or against a proposed new policy, see
School Comm. of Hudson, 448 Mass. at 576; (3) whether the agency
conducts an investigation into the veracity of attested-to
facts, see Frawley, supra; (4) whether the proceeding culminates
in an individualized determination of a party's entitlement to
some benefit, see id., or an individualized course of
discipline, see Hoffer, supra, as opposed to culminating in the
adoption of a rule of general applicability, see Pronghorn, Inc.
v. Licensing Bd. of Peabody, 13 Mass. App. Ct. 70, 72 (1982);
and (5) whether the proceeding is followed by the adoption of
formal findings of fact, see School Comm. of Hudson, supra.
Applying those factors here, we observe, on the one hand,
that the licensing hearing was not preceded by specific charges,
was not adversarial in the typical judicial sense, and provided
no opportunity for cross-examination. See 205 Code Mass. Regs.
18
§ 118.07 (1)-(2) (2014).4 Further, it invited unsworn statements
by persons advocating support or opposition to a license
application. See G. L. c. 23K, § 17 (d).
On the other hand, applicants were required to present
information to the commission "truthfully, fully and under
oath." 205 Code Mass. Regs. § 118.07 (2). Applicants also were
provided an opportunity to respond to the commission as part of
the licensing hearing, both to correct perceived factual errors
in the commission's presentations and to respond to conditions
that the commission proposed to place on the granting of a
license. Further, the commission was required to conduct
thorough investigations into the applicants, first into their
suitability, see G. L. c. 23K, § 12, and later, for those deemed
suitable, into the materials the applicants submitted as part of
their applications, see G. L. c. 23K, §§ 15 (11), 17, 18. Once
those steps were completed, the commission made a highly
4
The commission points out that its regulations describe
the proceedings in the second phase of the licensing process as
"administrative and legislative in nature, not adjudicatory."
205 Code Mass. Regs. § 118.07 (1) (2014). However, as discussed
in note 3, supra, the statutory authority for that declaration
is less than clear. More to the point, the term "adjudicatory
proceeding" has a specific statutory definition, see G. L.
c. 30A, § 1 (1), with specific consequences regarding, for
instance, how the hearing is conducted, see G. L. c. 30A, §§ 10,
11. As discussed in more detail in the text, the term "quasi
judicial proceeding" has a substantially broader and more
flexible meaning than the term "adjudicatory proceeding" as
defined in G. L. c. 30A. Consequently, our analysis is not
dependent on the designation "adjudicatory proceeding."
19
individualized determination to issue a gaming license to Wynn
and to deny the same to Mohegan Sun. This determination did not
concern a new rule of general applicability, but rather
conferred a particular benefit upon a particular entity and
denied that benefit to another entity. The determination was
accompanied by more than twenty pages of findings and evaluation
analyzing the manner in which each applicant proposed to advance
the statutory objectives of the act.
We conclude that, on balance, the category of quasi
judicial proceedings is flexible enough to include the
commission's licensing hearing at issue here. Accordingly,
Mohegan Sun has satisfied the first element for certiorari
review.
Mohegan Sun also satisfies the second element of certiorari
review, demonstrating that it has available to it no other
adequate remedy. See Indeck, 450 Mass. at 385. The commission
does not contest this point. To the contrary, it argues that
its licensing decisions generally are not subject to any
judicial review whatsoever; it further contends that such
preclusion of review is both commonplace and constitutional.
However, the point at which ordinary avenues of review vanish
(e.g., G. L. c. 30A, § 14) is precisely where the extraordinary
remedy of certiorari may come into play. See Indeck, 450 Mass.
at 384 ("certiorari review is not necessarily precluded even if
20
a decision is declared [by rule or statute] to be final or
unreviewable"); MacKenzie v. School Comm. of Ipswich, 342 Mass.
612, 614 (1961) ("Apart from review under [G. L. c. 30A], if
available, certiorari is the only way of reviewing decisions
declared final by statute"); Natick v. Massachusetts Dep't of
Pub. Welfare, 341 Mass. 618, 620 (1961) ("It is well established
that certiorari lies notwithstanding provisions barring appeal
by any party"); Swan, 222 Mass. at 544. (certiorari review
available "when no other means of relief are open"). Thus, our
conclusion that § 17 (g) generally precludes judicial review of
commission licensing decisions under G. L. c. 30A, § 14,
supports Mohegan Sun's argument that it meets the second element
for certiorari review.
At oral argument, the commission pointed out other areas of
the law that might allow judicial review of certain commission
decisions. For instance, it mentioned §§ 35, 36, and 45 of the
act itself. However, these provisions do not pertain to a
decision by the commission regarding the issuance of a license.
Even if they did, these sections explicitly provide for an
adjudicatory hearing under G. L. c. 30A. See G. L. c. 23K,
§§ 35 (g), 36 (d), 45 (e). The act makes no such provision for
gaming license applicants (like Mohegan Sun) whose applications
have been denied, and indeed generally precludes such entities
21
from obtaining judicial review of commission licensing
decisions. See G. L. c. 23K, § 17 (g).
Additionally, the commission directed us to certain Federal
cases where the courts upheld a general statutory bar to
judicial review of agency decisions, but left open the
possibility of limited review in egregious cases. See, e.g.,
United States v. Bozarov, 974 F.2d 1037, 1044–1045 (9th Cir.
1992), cert. denied, 507 U.S. 917 (1993), and cases cited
(upholding general preclusion of judicial review, but noting
review would remain possible for "colorable constitutional
claims" and when agency head "acted in excess of his delegated
authority"). One problem with this cluster of cases is that
they do not specify the precise mechanism for obtaining review
in the hypothetical egregious case. More to the point, they do
not stand for the proposition that certiorari is an
inappropriate mechanism for seeking review when those egregious
cases arise in the shadow of a general statutory bar to judicial
review. Thus, the cases do not help the commission with respect
to the second element.
In these circumstances, Mohegan Sun has sufficiently
demonstrated a lack of adequate alternative relief such that it
satisfies the second element for certiorari review.
Finally, Mohegan Sun has satisfied the third element for
certiorari review by alleging that the proceeding under review
22
has worked a substantial injury or injustice. See Indeck, 450
Mass. at 385. As the motion judge observed, the commission
relies heavily on Abdow v. Attorney Gen., 468 Mass. 478 (2014),
and Caesars Mass. Mgt. Co., LLC v. Crosby, 778 F.3d 327 (1st
Cir. 2015), to support its position that Mohegan Sun does not
have a justiciable right that was injured such that certiorari
review may proceed. The commission overstates the value of
these cases to its position. It is true that, in Abdow, supra
at 495, this court said that the act "provides applicants with
no enforceable legal rights and contains strong language
suggesting that the Legislature intended to give them none."
Similarly, in Caesars, supra at 334, the United States Court of
Appeals for the First Circuit, drawing on our opinion in Abdow,
said that Massachusetts law does not recognize a gaming license
application as "a source of expectable value sufficiently
reliable to be protected as property." But these remarks, in
context, were supporting a narrower holding: that license
applicants do not have a constitutionally protected interest in
a gaming license. See Abdow, supra at 487, 493, 495-496;
Caesars, supra at 334-335.
A constitutionally protected right and a "justiciable
right" for purposes of certiorari review are two different
creatures. In most cases, the former is a subset of the latter.
For instance, in the Hoffer case, this court rejected the
23
plaintiff's argument that she had a constitutionally protected
property interest in the reinstatement of her medical license.
461 Mass. at 455-456. Nevertheless, "we treat[ed] the wrongful
withholding of [the plaintiff's] reinstatement to her chosen
profession as sufficient injury under the third prong of the
Indeck test" such that certiorari review was appropriate. See
id. at 457. See also Bielawski v. Personnel Adm'r of Div. of
Personnel Admin., 422 Mass. 459, 464, 467 (1996) (rejecting
constitutional claims of police officer who was not promoted,
but noting "[t]he appropriate method of review . . . would have
been for the plaintiff to seek relief in the nature of
certiorari"); Saxon Coffee Shop, Inc. v. Boston Licensing Bd.,
380 Mass. 919, 923 (1980) (permitting certiorari review where
agency proceeding "resulted in injury in the form of a lost
license" to operate coffee shop).
We recognize that, in the Hoffer and Saxon cases, for
example, the parties sought certiorari review while attempting
to restore a license that had been taken away from them, whereas
here, Mohegan Sun seeks certiorari review despite not having
been awarded a license in the first place and where the statute
makes clear that "[a]pplicants shall have no legal right or
privilege to a gaming license." G. L. c. 23K, § 17 (g).
Nonetheless, those cases show it is not necessary that Mohegan
Sun assert a constitutional right in order to obtain certiorari
24
review. Cf. Yerardi's Moody St. Restaurant & Lounge, Inc. v.
Selectmen of Randolph, 19 Mass. App. Ct. 296, 303 (1985)
(Yerardi's) ("In this Commonwealth the right to a hearing where
government exerts power upon an individual in a matter of
consequence has been related, on occasion, not strictly to the
constitution, but to an ethic that pervades our legal system").
Here, Mohegan Sun had a legitimate expectation, backed up by
substantial investments of resources in the application process,
that the commission would follow the law in awarding the license
that Mohegan Sun sought. This interest, which Mohegan Sun
asserts was harmed by the commission's alleged deviations from
the statutory standards, satisfies the third element of
certiorari review.
(4) Nature and scope of certiorari review. Generally, the
standard of review for a certiorari action is calibrated to the
nature of the action for which review is sought. See, e.g.,
Frawley, 473 Mass. at 728, and cases cited. "Ordinarily, where
the action being reviewed is a decision made in an adjudicatory
proceeding where evidence is presented and due process
protections are afforded, a court applies the 'substantial
evidence' standard." Figgs v. Boston Hous. Auth., 469 Mass.
354, 361–362 (2014). On the other hand, "where the decision
under review was not made in an adjudicatory proceeding," but
rather "entails matters committed to or implicating a board's
25
exercise of administrative discretion, the court applies the
'arbitrary or capricious' standard" (citation omitted). Id. at
362 n.14. Further, in order to best tailor the scope of review
to the nature of the administrative decision at issue, it is
sometimes necessary to analyze separately the component parts of
the underlying decision. See Yerardi's, 19 Mass. App. Ct. at
300. In other words, some components of an administrative
decision may be unreviewably discretionary, while others will be
"submissible to the test of elementary justice that is invoked
by the words 'arbitrary or capricious.'" Id. at 301.
The Legislature intended § 17 (g) to sharply curtail the
availability of judicial review of commission licensing
decisions, and thereby avoid protracted legal battles over every
commission licensing decision. Such litigation would result in
lost tax revenue and might make gaming companies more reluctant
to apply for a license because of the risk of burdensome
litigation. Section 17 (g) embodies a directive to avoid, to
the extent possible, those costs.
Accordingly, the standard of review for a certiorari action
should be extremely deferential to the commission. In essence,
the act places a number of "unreviewable policy considerations,"
Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377 Mass.
231, 234 (1979), squarely in the hands of the commission. See,
e.g., G. L. c. 23K, § 18 (2) ("promoting local businesses in
26
host and surrounding communities); § 18 (5) ("building a gaming
establishment of high caliber with a variety of quality
amenities . . . so that patrons experience the diversified
regional tourism industry"); § 18 (13) ("offering the highest
and best value to create a secure and robust gaming market in
the region and the commonwealth"). To review the commission's
decisions regarding these types of highly discretionary
determinations -- exercises of the commission's "professional
expertise and judgment in weighing and balancing a wide range of
considerations peculiar to the petitioner in light of the public
interest" (quotation and citation omitted), Hoffer, 461 Mass. at
455 -- would be inappropriate.
On the other hand, Mohegan Sun alleges, for example, that
the commission, in awarding the license to Wynn, violated
certain requirements of the act, ignored specific statutory
criteria, and gave favorable treatment to Wynn in contravention
of the act. Such allegations are amenable to arbitrary and
capricious review, where courts ask whether an agency's
discretionary decision was "legally erroneous or so devoid of
factual support as to be arbitrary and capricious." MacLaurin
v. Holyoke, 475 Mass. 231, 238 (2016). These components of the
commission's decision can be disturbed only if they were based
on a "legally untenable ground" or if "unreasonable, whimsical,
capricious, or arbitrary" in nature (citation omitted). See
27
Forsyth Sch. for Dental Hygienists v. Board of Registration in
Dentistry, 404 Mass. 211, 218 (1989). Such a carefully
circumscribed mode of analysis accords with the animating
principle behind certiorari review -- that it is "a limited
procedure reserved for correction of substantial errors of law
apparent on the record created before a judicial or
quasi[]judicial tribunal." School Comm. of Hudson, 448 Mass. at
575-576. It also accords with our understanding that the
Legislature, through § 17 (g), sharply curtailed the
availability of judicial review of commission licensing
decisions, and thereby vested a tremendous amount of discretion
in the commission.
c. Declaratory judgment. Mohegan Sun also seeks a
declaratory judgment regarding the constitutionality of the act
and the commission's regulations. However, it concedes that the
motion judge properly ruled that because it has met the
prerequisites to obtain certiorari review, its constitutional
claims, which are premised on the absence of any available
avenue of judicial review, are moot. Therefore, these claims
were properly dismissed.
2. Claims of the city and the union. The city and the
union assert substantially the same claims against the
commission as does Mohegan Sun, seeking review under both G. L.
c. 30A and the certiorari statute, and seeking declaratory
28
judgment. The motion judge ruled that the city and the union
both lacked standing to bring those claims because, unlike
Mohegan Sun, their injuries did not fall within the "zone of
interests" protected by the act.
At the outset, we note that the city and the union cannot
be within the "zone of interests" protected by the act for
purposes of review under G. L. c. 30A, § 14, because, as
previously discussed, § 17 (g) of the act expressly precludes
such review. If disappointed license applicants cannot obtain
judicial review under G. L. c. 30A, § 14, it would be absurd to
construe the statute as allowing such review to parties, like
the city and the union, who suffer a less direct injury from the
licensing process. See Flemings v. Contributory Retirement
Appeal Bd., 431 Mass. 374, 375–376 (2000) (declining to construe
statute in way that "produce[s] absurd results"). Because G. L.
c. 30A, § 14, is an inappropriate vehicle for either the city or
the union to challenge commission licensing decisions, their
standing to bring such a claim is immaterial. See Frawley, 473
Mass. at 724-725 & n.6.
With respect to the certiorari and declaratory judgment
claims of the city and the union, "[w]e treat standing as an
issue of subject matter jurisdiction." Ginther v. Commissioner
of Ins., 427 Mass. 319, 322 (1998). "A party has standing when
it can allege an injury within the area of concern of the
29
statute or regulatory scheme under which the injurious action
has occurred." School Comm. of Hudson, 448 Mass. at 579,
quoting Massachusetts Ass'n of Indep. Ins. Agents & Brokers,
Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977).
Whether a plaintiff's injury falls within the so-called "zone of
interests" of a statute or regulatory scheme depends upon a
number of factors, including "[1] the language of the statute in
issue; [2] the Legislature's intent and purpose in enacting the
statute; [3] the nature of the administrative scheme; [4]
decisions on standing; [5] any adverse effects that might occur,
if standing is recognized; and [6] the availability of other,
more definite, remedies to the plaintiffs." Enos v. Secretary
of Envtl. Affairs, 432 Mass. 132, 135–136 (2000).5 In weighing
these factors, "we pay special attention to the requirement that
5
The union (and, to a lesser extent, the city) argues that
the "zone of interests" test and the accompanying factors
enunciated in Enos v. Secretary of Envtl. Affairs, 432 Mass.
132, 135–136 (2000), apply only where the relevant statute
provides no independent basis for standing, and thus would
govern for its declaratory judgment claim, but not for its
certiorari claim. We disagree. The union cites no authority,
and we have located none, to support such a distinction.
Moreover, the argument is at odds with the logic of Enos itself,
which seems to suggest its factors may apply regardless of
whether a statute provides an independent basis for standing.
Even if we agreed that the union and the city have standing,
those claims would fail because, for the same reasons stated in
the text, neither has suffered the requisite "substantial injury
or injustice" to satisfy the third element for certiorari
review. See Indeck v. Clients' Sec. Bd., 450 Mass. 379, 385
(2008).
30
standing usually is not present unless the governmental official
or agency can be found to owe a duty directly to the
plaintiffs." Id. at 136.
We now apply these factors to the city and the union.
a. The city's standing for certiorari and declaratory
judgment claims. The city argues that the act ensures that the
licensing process takes into account the interests of
municipalities, especially "host communities." See G. L.
c. 23K, §§ 2, 15 (8), (13), (14). Because the city was a host
community to Mohegan Sun, with a statutorily mandated host
community agreement in place, the city argues it should have
standing to challenge the ultimate decision of the commission in
awarding the license to Wynn and denying the license to Mohegan
Sun.
Although § 17 (g) reveals a clear legislative intent to
sharply curtail judicial review of commission licensing
decisions, and thereby avoid the costs and delays of protracted
litigation, an important purpose is served by keeping open at
least some limited avenue for judicial review in order to
prevent wholesale violations of the act and to ensure public
confidence in the licensing process. Against that backdrop, we
conclude that granting standing for a certiorari action only to
the disappointed applicant, and not to its host community,
strikes the appropriate balance. At the end of the day, the
31
potential benefits affiliated with the award of a gaming license
accrue first to the applicant, and only secondarily to the host
community.6 If the Legislature intended for host communities to
have standing to challenge a commission licensing decision, it
would have done so far more clearly than in anything we can find
in the act and its associated regulations.
With respect to the fourth Enos factor, we are aware of no
other decisions concerning standing that are particularly
instructive here. Regarding the fifth and sixth factors, we
acknowledge that our opinion today effectively leaves the city
with no avenue to challenge the commission's licensing decision.
On the other hand, the city understates the adverse effect of
protracted litigation that would result if the statute conferred
standing on municipalities to challenge the grant of a gaming
license. This factor deserves particular weight given our
understanding that the Legislature intended § 17 (g) to restrict
judicial review of commission licensing decisions.
6
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. 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. See G. L.
c. 23K, § 17 (g).
32
In light of all of these factors, we concur with the motion
judge that the city does not have standing to pursue its
certiorari and declaratory judgment claims.
b. The union's standing for certiorari and declaratory
judgment claims. Essentially, the union argues that its members
had an expectation of significant employment opportunities
should the commission have awarded the region A license to
Mohegan Sun. Further, it argues that the act expressly included
employment opportunities and the support of organized labor as
considerations in the licensing process. See G. L. c. 23K, §§ 1
(5), 18 (18).
The reasons discussed with respect to the city apply with
equal, if not greater, force to defeat the union's argument,
where the harm it claims to have suffered is even more remote
than that claimed by the city. In essence, the potential
benefits that the union claims to have lost do not suffice to
confer standing in the face of forceful statutory language
limiting judicial review of commission licensing decisions. We
do not read the act to bestow any right or interest upon the
union, nor to create any duty between the commission and it. We
agree with the motion judge that, if the act did either of those
things in a way that was sufficient to confer standing,
virtually any resident who could have been employed by Mohegan
Sun would also have standing to challenge the commission's award
33
of the license to Wynn. Thus, in addition to the delay
discussed in connection with the city, conferring standing upon
the union could have the drawback of exposing the commission to
a flood of lawsuits, all despite the language in § 17 (g) aimed
at curtailing exactly such litigation. That harm would inure
not only to the commission, but to successful applicants and
their host communities as well. Accordingly, we conclude that
the union lacks standing to assert its certiorari and
declaratory judgment claims.
3. The individual plaintiffs' open meeting law claim. The
individual plaintiffs allege the commission violated the open
meeting law, G. L. c. 30A, §§ 18-35, based on three bundles of
allegations: (1) the facts and circumstances surrounding the
recess of an otherwise public September, 2014, hearing; (2) the
inferences of nonpublic deliberations to be drawn from the
public statements of two commissioners; and (3) calendar entries
suggesting a quorum of the commission engaged in nonpublic
deliberations. The commission argues, in line with the motion
judge, that none of the individual plaintiffs' allegations raise
their claim for relief above a speculative level.
A complaint only survives a motion to dismiss if it
includes enough factual heft "to raise a right to relief above
the speculative level." Iannacchino v. Ford Motor Co., 451
Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550
34
U.S. 544, 555 (2007). The open meeting law provides a framework
under which "all meetings of a public body shall be open to the
public" unless a statutory exception applies. G. L. c. 30A,
§ 20 (a). A "meeting" under the statute consists of "a
deliberation by a public body with respect to any matter within
the body's jurisdiction." G. L. c. 30A, § 18. There are
several statutory exceptions from this broad definition of
"meeting" -- for example, "attendance by a quorum of a public
body at a public or private gathering, including a conference or
training program or a media, social or other event, so long as
the members do not deliberate" (emphasis added). G. L. c. 30A,
§ 18 (b). A "deliberation," in turn, includes "an oral or
written communication through any medium, including electronic
mail, between or among a quorum of a public body on any public
business within its jurisdiction." G. L. c. 30A, § 18. It does
not include "the distribution of a meeting agenda, scheduling
information or distribution of other procedural meeting [sic] or
the distribution of reports or documents that may be discussed
at a meeting, provided that no opinion of a member is expressed"
(emphasis added). G. L. c. 30A, § 18. The statute also permits
a public body to deliberate on certain matters in executive
session, closed to the public. G. L. c. 30A, §§ 18, 21.
Finally, the open meeting law permits an array of remedies for a
violation, ranging from nullifying the action taken at a meeting
35
to imposing a civil penalty or compelling compliance with the
law. G. L. c. 30A, § 23 (c).
Although the statute was substantially revised and
reorganized in 2009, see St. 2009, c. 28, §§ 17, 18, we conclude
that the new statutory language and structure does not require
us to abandon wholesale our existing open meeting law
jurisprudence. In particular, we interpret the open meeting law
as continuing to be a statute "designed to eliminate much of the
secrecy surrounding the deliberations and decisions on which
public policy is based." Ghiglione v. School Comm. of
Southbridge, 376 Mass. 70, 72 (1978). And the new version of
the statute does not alter our belief that "[i]t is essential to
a democratic form of government that the public have broad
access to the decisions made by its elected officials and to the
way in which the decisions are reached." Foudy v. Amherst-
Pelham Regional Sch. Comm., 402 Mass. 179, 184 (1988).
With this framework in mind, we agree with the motion
judge's decision except insofar as she dismissed the plaintiffs'
claim based on the commissioners' calendar entries. As the
foundation for that theory, the plaintiffs submitted a compact
disc of the commissioners' calendar entries from 2012 to 2015,
along with a summary table, alleging numerous violations of the
36
open meeting law. Although the full disc is not now before us,7
the record does include two examples that appear to "plausibly
allege" violations of the law. One set of entries shows four
commissioners8 were scheduled to attend a three-hour "applicants
discussion" on July 31, 2013. Another shows three commissioners
were scheduled to attend a one-hour "advisory groups
brainstorming" session on April 8, 2014.9 Indulging all
7
The precise status of this disc is somewhat unclear.
According to the parties' briefs, the disc was not attached to
the second amended complaint. However, it was submitted to the
court and the parties after the commission's motion to dismiss
had been filed, and was before the motion judge prior to the
motion to dismiss being argued and decided. It further appears
that the judge took judicial notice of these documents, and her
decision indicates she took them into account in her ruling on
the motion to dismiss.
8
Typically, for a five-member body, a quorum consists of
three members. See G. L. c. 30A, § 18 ("quorum" consists of "a
simple majority of the members of the public body, unless
otherwise provided"); G. L. c. 23K, § 3 (d) (quorum of
commission consists of three commissioners).
9
A third set of entries depicts what the plaintiffs allege
constitutes a so-called "rotating quorum" violation of the open
meeting law, in which one commissioner, followed in close
sequence by two other commissioners, received a traffic
briefing. See McCrea v. Flaherty, 71 Mass. App. Ct. 637, 648-
649 (2008) (describing "rotating quorum" open meeting law
violation). It is not clear from the calendar entries alone
whether these meetings consisted of the mere distribution of
information to be discussed at a meeting, see G. L. c. 30A,
§ 18, or whether, as the plaintiffs suggest, they constituted
three commissioners engaging in serial deliberation.
Nevertheless, this court has held that even the information-
gathering activity of a public body may constitute a "verbal
exchange" such that the body has deliberated within the meaning
37
reasonable inferences in the plaintiffs' favor, it appears
plausible that an "applicants discussion" or "advisory groups
brainstorming" session, attended by a quorum of the commission,
would include at least some discussion that qualifies as a
"deliberation" of a matter within the commission's jurisdiction,
such that the meeting should have been open to the public under
the statute. Accordingly, we conclude that these calendar
entries raise the plaintiffs' claim for relief above a
speculative level. Moreover, we must accept as true the
allegations in the plaintiffs' summary chart, of which the above
are merely two examples. This chart depicts, albeit with
somewhat less precision and detail than the full calendar
entries, numerous additional potential violations of the open
meeting law.10
Contrary to the commission's argument on appeal, a letter
to the commission from the Attorney General, dated December 23,
2015, entitled "Open Meeting Law Review," demonstrates why
of the statute. See Gerstein v. Superintendent Search Screening
Comm., 405 Mass. 465, 470 (1989).
10
We take no position about whether the plaintiffs will
ultimately succeed in proving this claim. In particular, we
note that the commission, in its motion papers and appellate
briefs, did not specifically address the two sets of calendar
entries that we mention in the text.
38
dismissal was inappropriate at this stage in the litigation.11
The letter describes the Attorney General's investigation into
the commission's meeting practices and concludes that, despite
"broad compliance" with the open meeting law, the commission did
violate the law on some occasions. At least some of the
commissioners' meetings determined by the Attorney General to
have violated the law appear to be reflected in the plaintiffs'
summary chart. Thus, the letter illustrates that sorting out
which of the plaintiffs' allegations can be substantiated and
which cannot requires some degree of investigation, and
therefore is a task for the discovery process.
Finally, the individual plaintiffs argue that the motion
judge effectively carved out a new exception to the open meeting
law for public bodies, like the commission, whose members are
also full-time employees of the agency. We need not decide
whether the motion judge indeed did carve out such an exception
by her ruling. In any event, no such exception exists. The
fact that the commissioners are full-time employees of the
commission, see G. L. c. 23K, § 3 (e), does not change the
statutory definition of "deliberation" for purposes of the open
meeting law, nor does it change the conditions under which a
11
We acknowledge that the motion judge did not have this
letter before her, as it postdates her ruling, and we do not
consider it as to the merits of the plaintiffs' claims. Rather,
we use it simply to illustrate why dismissal was inappropriate.
39
"meeting" of a public body must be open to public. In other
words, the fact that the commission's structure may make it
difficult to comply with the law does not alter the requirement
of compliance.
In sum, we conclude that the individual plaintiffs have
plausibly stated a claim for relief under the open meeting law.
Accordingly, we reverse that portion of the judge's decision.
Conclusion. For the foregoing reasons, 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.
So ordered.