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The state Gaming Control Board (GCB) has officially come out on top in its legal fight against Philadelphia’s City Council, but at least one prominent Philadelphia-based jurist appears none too happy about it. Months after a series of orders from a majority of the state Supreme Court meant that Philadelphia’s voters weren’t able to vote on an anticasinos question during the May ballot, the justices have entered an opinion laying out their reasoning in the matter. Most gaming law watchers had anticipated the high court would, at some point, file a written decision in Pennsylvania Gaming Control Board v. City Council of Philadelphia. What they probably didn’t expect was a fiery, at times caustic, dissent from the only elected member of the court hailing from Philadelphia. Justice Ronald D. Castille pulled no punches in a dissent that, at 24 pages, was the same length as the majority’s opinion. “This is perverse,” the former Philadelphia district attorney wrote of the case’s outcome. “Bureaucracy has a ‘right’ to be heard; the people do not. I would reverse the majority’s skewed priorities and let the people vote!” In ruling against City Council in a late-June per curiam order, a majority of the court granted a summary relief application from HSP Gaming, the corporate entity associated with the SugarHouse Casino project in Fishtown. Previous rulings from the justices in council-vs.-board actions had resulted in the anticasino referendum’s not being put to the city’s voters on the May ballot. The majority’s order in City Council v. Pennsylvania Gaming Control Board cited to the court’s ruling several weeks before in Society Hill Civic Association v. Pennsylvania Gaming Control Board. In Society Hill, the majority concluded that a group of south-of-Market Street riverfront neighborhood associations lacked standing to appeal the gaming board’s Philadelphia-specific licensures because the neighborhood groups had not participated in the relevant GCB proceedings. The same two justices who dissented in Society Hill also did so in City Council. In both cases, Castille had joined in dissents filed by Justice Thomas G. Saylor, who is up for retention in this fall’s elections. The majority in the court’s latest gaming opinion, filed Friday, consisted of Chief Justice Ralph J. Cappy and Justices J. Michael Eakin, Cynthia A. Baldwin and James J. Fitzgerald III. In his majority opinion, Cappy wrote that the justices enjoyed jurisdiction over the GCB’s petition in the matter not only under Pennsylvania’s Gaming Act, but also the court’s King’s Bench powers. Cappy went on to stress that the Gaming Act had effectively vested in the GCB broad powers with respect to most gaming-related decisions in Pennsylvania, including locations of casinos. “The act does not allow the Philadelphia electorate the right through any means whatsoever to consider or nullify the decision the board made to locate two [casinos] in the city,” he wrote. Cappy ordered City Council permanently enjoined from placing the anticasinos question on the ballot. In a concurring opinion, Justice Max Baer wrote that although he believes the high court didn’t enjoy jurisdiction to hear the matter under the Gaming Act, the justices could have easily accepted the case “on an alternative basis.” He also agreed with the majority’s result on the merits. In a relatively brief dissent, Saylor wrote that “this court should not have intervened to restrain the presentation to the Philadelphia electorate of the ballot question regarding the location of gaming facilities within the city.” But Saylor did agree that the court could have properly accepted the case under its King’s Bench powers. Castille, however, took extreme exception to that argument. “The fact that the gaming board’s displeasure with council’s preliminary legislation action is, in the [majority's] view, a matter of ‘widespread importance and one that has generated . . . substantial public concern’ does not, on its own, explain why King’s Bench authority is any more appropriate here than it would be to call in team officials of the Philadelphia Eagles and the Pittsburgh Steelers to explain their draft selections,” Castille wrote. Castille repeatedly exhorted the majority to “let the people vote.” “There is little doubt that the referendum was a political ploy on council’s part, nor do I doubt that it raised false hopes in some voters,” he wrote. “But, that is no reason to deny the vote. No doubt, the daily business of the board would be easier if Philadelphia voters were denied the opportunity to voice their dissent, or their concurrence, with the contours of gaming in Philadelphia. No doubt, the board would prefer not to be the subject of public criticism.” “Welcome to the brave new world of government in democracy,” he added later. “Memo to board: Criticism is part of the job.” Noting that “Philadelphia is not Las Vegas,” Castille lamented that the residents of the historic neighborhoods surrounding the planned casinos sites were afforded little chance to raise complaints before the General Assembly or the GCB. And a majority of the justices – with himself and Saylor dissenting – had found that those neighbors lacked standing to challenge the licensure decisions, he added. “The neighbors directly affected by the licensing decisions were successfully muzzled before the General Assembly, muted before the board, and totally muzzled before this court,” he wrote. “It is not surprising that the affected citizens pursued a parallel track through City Council, which did respond to their complaints, even if the response is legally meaningless.” Castille went on to challenge the notion that the GCB enjoyed standing to challenge City Council’s anticasinos activity. “The fact that the board has a position on the ballot measure (it inconveniences the board) does not mean it has a cognizable legal interest in it,” he wrote. “The board’s interest is similar to that of an amicus curiae; but it hardly has the substantial, direct and immediate interest required to establish party standing, such that it can properly pursue an action to kill a ballot measure.” At the end of his dissent, Castille seemed to advise City Council to appeal the majority’s holding at the federal level. “Failing to convince my colleagues of their fundamental error, I content myself with this dissent which, I trust, a future court will vindicate.” HSP Gaming had been granted intervenor status in the case and took the lead in opposing City Council’s arguments. The company has been represented by attorneys from Sprague & Sprague in Philadelphia, Lamb McErlane in West Chester and Cozen O’Connor in Philadelphia. “It is a dissent of one,” Charles Handy of Sprague & Sprague said of Castille’s opinion. “We think although he disagrees with the majority of the court, he really has not provided much hope, unless other justices change their mind, for either the city’s electorate or the government of the city to be able to use zoning measures to change the locations of these two casinos . . . I don’t think he’s given them a good basis to take a federal appeal.” But City Council’s attorney in the matter, Maurice Mitts of Mitts Milavec in Philadelphia, said he will be discussing federal appellate options with city Councilman Frank DiCicco, the riverfront district representative who has been at the forefront of council’s anticasinos endeavors. “We thought that Justice Castille’s dissent very robustly described how inappropriate this ruling was,” Mitts said, adding later, “I think [there was] a pretty clear request by a justice of the [state] Supreme Court that a further review by the federal judiciary occur.” (Copies of the 58-page opinion in Pennsylvania Gaming Control Board v. City Council of Philadelphia, PICS No. 07-1182, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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