Heard: December 5, 2016.
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.
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.
Kenneth S. Leonetti & Christopher E. Hart (Michael Hoven
also present) for the intervener.
Patricia L. Davidson for city of Revere.
S. Mackey (Mina S. Makarious & Melissa C. Allison also
present) for the defendant.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
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.
Gaming in Massachusetts.
November, 2011, the Legislature enacted St. 2011, c. 194, An
Act establishing expanded gaming in the Commonwealth
(act). 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).
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 (c0 . In this
phase, the commission evaluated 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.
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.
Alleged defects in the licensing process.
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 filed a motion to intervene and a
complaint in intervention. The motion to intervene was
allowed without opposition.
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 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.
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.
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
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 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.
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.
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
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).
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.
Claims of Mohegan Sun and the commission.
Judicial review under G. L. c. 30A, § 14.
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. 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 ...