Governor Donald L. Carcieri and Attorney General Patrick Lynch today asked the Rhode Island Supreme Court to grant an advisory opinion on the constitutionality of the casino referendum that was approved by the General Assembly and is currently scheduled to appear on the November election ballot.

In the weeks since the measure was approved by the General Assembly, serious concerns have been raised that the referendum to amend the Rhode Island constitution to authorize the establishment of a privately-owned and operated casino in West Warwick might itself suffer from two major constitutional flaws.

First, the amendment may be unconstitutional because it inappropriately gives the Town of West Warwick and the potential casino operators a constitutional right – the right to own and operate a casino – that it denies to all other communities and citizens. Second, the amendment may be unconstitutional because it gives one Rhode Island community – the Town of West Warwick – veto power over a constitutional amendment.

As the two statewide elected officials charged with upholding and preserving the Rhode Island constitution, both the Governor and the Attorney General believe it is their duty to determine if the proposed amendment is constitutional before a vote occurs.

“As Governor of this state, I have a solemn duty to uphold and defend the constitutions of both Rhode Island and the United States,” Governor Carcieri said. “After much consideration, I have decided that the people have a right to know if the casino question is constitutional before they vote on it. It would be a tragedy if Rhode Islanders were to vote to approve the casino amendment, only to see it overturned by the courts afterwards. As our Supreme Court has already said, chaos might ensue if we don’t effectively deal with this type of question before a vote occurs.”

“Everyone knows that I have strongly opposed casino gambling in Rhode Island, and that I think that amending the state constitution to give a special deal to a specific out-of-state gambling corporation is inexcusable,” the Governor continued. “But let me be clear: My primary purpose here is to defend the state constitution and to protect Rhode Islanders from voting on an amendment that might itself prove unconstitutional. The people have a right to decide. But it makes no sense to ask them to vote on a question that might be struck down after the vote takes place.”

“An advisory opinion from the Supreme Court will conclusively lay to rest any question about the constitutionality of this casino proposal,” the Governor concluded. “And it will provide clarity to the voters and to the interested parties. Consequently, it is in the interests of Rhode Island -- and of Harrah’s Entertainment -- for us to resolve this issue now, instead of after the election.”

“As I’ve said consistently for several years now, the people deserve the right to vote on whether or not there should be a casino in Rhode Island, but they should know beforehand—they should have the absolute certainty—that what they’re voting on is, in fact, constitutionally valid,” said Attorney General Lynch. “Otherwise, to quote the Court’s opinion from Casino I, ‘chaos might well ensue.’ As presented, the ballot question is not constitutionally valid, in my opinion. It represents a sweetheart deal for one entity. It excludes 38 out of the 39 cities and towns in Rhode Island from enjoying any of the possible benefits that a casino may generate. And it excludes competitive bidding, thereby preventing Rhode Island taxpayers from getting the best possible deal that they might otherwise get.”

Potential Equal Protection Violation

In guaranteeing equal protection under the law, both the state and federal constitutions dictate that, all things being equal, people and entities have the right to be treated the same. In particular, all persons have a constitutional right to access our state's three-branch government -- the legislature, the executive, and the judiciary. The proposed amendment appears to violate that core constitutional protection by giving one municipality and one group of owners a right that it would deny to other potential host communities and other potential casino owners.

In Romer v. Evans, 517 U.S. 620, 626 (1996) the U.S. Supreme Court said that the "fundamental right to participate equally in the political process" is impinged by a state constitutional amendment that "alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress…”

Applying the Romer decision to this situation, it appears that the targeted class is every casino operator except Harrah's and every community except West Warwick.

Potential Procedural Violation

Rhode Island’s constitution (like those in all other states) requires passage of a constitutional amendment by a majority of voters at an election. No state allows a veto of a constitutional amendment by any group or municipality.

The proposed amendment, however, specifically provides one Rhode Island community – West Warwick – with veto power over the amendment itself. As a result, the West Warwick veto provision appears to violate both Article I and Article XIV of the Rhode Island constitution, which mandate majority rule.

Four Advisory Questions

In order to resolve these outstanding questions regarding the constitutionality of the latest casino proposal, Governor Carcieri and Attorney General Lynch today asked the Rhode Island Supreme Court to render an advisory opinion on the following four questions.

1. Does the Proposed Amendment’s unprecedented insertion into the Rhode Island Constitution of a special privilege to a single business entity to run the State’s sole privately-operated casino in one municipality to the exclusion of all other persons, entities and municipalities violate “the fundamental right to participate equally in the political process” identified by the United States Supreme Court in Romer v. Evans, 517 U.S. 620, 626 (1996) and its progeny?
2. Does the Proposed Amendment violate the Equal Protection guarantees of the Rhode Island and United States Constitutions, the First Amendment to the United States Constitution and Article I, section 21 of the Rhode Island Constitution, and the Privileges and Immunities clause of the United States Constitution?
3. Article XIV, section 1 of the Rhode Island Constitution provides, inter alia, that a proposed constitutional amendment shall be submitted to the voters of the State at a general election and “if then approved by a majority of the electors voting thereon; it shall become part of the Constitution” and Article I, section 1 provides that any change in the Constitution must be “by an explicit and authentic act of the whole people . . .” The proposed Amendment is only effective “provided that a majority of the electors of the Town of West Warwick have voted to approve this amendment . . . .” Does the ability of the Town to veto the proposed Amendment violate Article XIV, section 1 and Article I, section 1?
4. Does the proposed Amendment’s retroactive and selective repeal of Article VI, section 15 and section 22 violate the executive power of the Governor and the General Assembly’s plenary power over lotteries?

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