2014-09-25 / Front Page

Lawsuit Challenges Referendum

By Barry Bridges

In the latest development surrounding the Newport Grand casino proposal, three Newport residents have filed a civil lawsuit against Rhode Island Secretary of State A. Ralph Mollis. The action asks a judge to declare that the state constitution will be violated if the casino initiative only appears on the statewide portion of November’s ballot. It also seeks an injunction that would prohibit the referendum from going to the electorate.

Attorney R. Daniel Prentiss, representing plaintiffs Deborah Arnold, Elizabeth P. de Ramel, and Charles Weishar, filed the case in Providence Superior Court on Thursday, Sept. 18.

Prentiss is no stranger to highprofile cases in Newport. He is also involved with the Bellevue-Ochre Point Neighborhood Association’s efforts to halt the construction of a welcome center at The Breakers.

The litigation emanates from legislation that passed in the final hours of the General Assembly’s 2014 session. The measure removed the casino question from the local section of the ballot. As a result of that law, Newporters will vote on the proposed Newport Grand expansion along with other statewide initiatives, although local votes will still be tallied separately.

The plaintiffs seek a declaration that this arrangement is contrary to Article VI, § 22 of the Rhode Island Constitution, which specifies that legislation expanding gambling in Rhode Island may not take effect “until it has been approved by the majority of those electors voting in a statewide referendum and by the majority of those electors voting in a referendum in the municipality in which the proposed gambling would be allowed.”

The meaning of this constitutional language, and whether it literally requires both statewide and local questions, will be the source of debate as the lawsuit unfolds. Prentiss says that a plain reading of the provision indicates that two referendums are “unambiguously” required. The action maintains that “the clear and sensible meaning of Sec. 22, Art. VI is that there must be both a local and a statewide referendum.” Moreover, the plaintiffs point to other factors that support their interpretation, including a 2005 advisory opinion from the Rhode Island Supreme Court that addressed a similar issue in West Warwick.

The lawsuit asserts that “plaintiffs are entitled to the complete protection of the full referendum process” and that there are practical implications of omitting the local question. “The plaintiffs are aggrieved because the referendum procedure established in the unconstitutional legislation will dilute their vote and unlawfully tilt the election in favor of approval.”

To bolster this assertion, the suit presents statistics from the last casino vote in 2012, when both statewide and local questions were presented. While the issue passed statewide, it was defeated in Newport. The pleadings emphasize, however, that “there was a materially larger number of voters in Newport who voted on the local referendum than … in the statewide referendum.” Pointing out that there were 249 more ballots cast locally, the complaint states, “Clearly, there is a material number of Newport electors who voted only on the local referendum, and passed on voting on the statewide question.” In other words, as the complaint states, the “local referendum drew a larger turnout.”

Opponents fear that without a local ballot counterpart, a similar number of voters skipping the state portion this year could impact the outcome of the closely-watched initiative. Elaborating on the number of concerned residents, Prentiss said that there were at least 50 anti-casino Newporters who were willing to be named as plaintiffs in the lawsuit, although only one is needed.

Prentiss also told Newport This Week that an actual trial may not be necessary since its function would be to resolve disputed facts. “The judge may be able to decide the case based simply on the legal briefs,” he said. “There may not be a dispute as to the pertinent facts in this case, as we have the relevant language of the constitution and statutes, as well as events of history” upon which the parties are relying.

Regardless of who prevails, the losing side will most likely appeal the decision to the Rhode Island Supreme Court, he predicted.

With the Nov. 4 election looming and time limited, Superior Court Associate Justice Brian Van Couyghen met with the attorneys from both sides at a conference on Monday, Sept. 22. He advised the legal teams that the City of Newport should be added as a party to the lawsuit.

Prentiss thereafter amended the pleadings to name the city as a defendant, but noted, “The city’s presence as a party is a formality, but it is required because, as the entity being deprived of the ability to conduct a municipal referendum, it has a direct interest in this litigation. If it wanted to, the city could have its position realigned to be a plaintiff” in order to defend the interests of its citizens.

Interim City Solicitor Christopher Behan said that it probably doesn’t make a practical difference whether the city is in the case as a plaintiff or defendant. He added that Van Couyghen was probably exercising an abundance of caution in requiring the city to be added to the suit. The judge was relying on the dictates of Rhode Island General Laws

§ 9-30-11, which provides that “when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration.”

The city has not decided on the steps it will take, if any, since being joined in the litigation. “We’ll think about what we need to do, but right now I can’t say what that will be,” Behan said, while acknowledging that the November election is less than six weeks away.

Meanwhile, another conference is scheduled for Thursday, Sept. 25, when Van Couyghen will work with the parties in hammering out an expedited schedule to move forward.

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