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In his recent concurring opinion in a casino case, state Supreme Court Justice Ronald D. Castille — soon to be Chief Justice Castille — talked about “judicial fits and starts” with regard to the court’s handling of casino cases.

But what the justices probably haven’t fully recognized is the confusion and unease the court’s fits and starts in this area are causing among those in the legal community.

A lot of eyebrows were raised when a majority of the court sided with the state Gaming Control Board this summer and said Philadelphia City Council couldn’t put an anti-casino question on the ballot. Many lawyers I spoke with seemed to agree with Castille’s blistering dissent that the board had no legal interest in the issue and that it was asking for “extraordinary anti-democratic relief.”

Even more eyebrows were raised in October when the Supreme Court issued an emergency stay that basically shut down a Dauphin County grand jury’s investigation into the board’s licensing process. (Yes, the court ruled last week to let the grand jury proceed. More on that later.)

The confusion — and concern — mounted when the court issued a pair of opinions that many find conflicting.

Both stem from the two proposed casinos for Philadelphia, Foxwoods and SugarHouse, and their push to get moving on building the casinos.

In the first case, Philadelphia Entertainment and Development Partners v. City of Philadelphia, the court ruled against Foxwoods. The justices refused to review the constitutionality of an ordinance that changed the zoning designation to property owned by the casino’s parent company. They also refused to issue a writ of mandamus compelling the city to issue permits the casino was seeking, ruling the matter was not within their jurisdiction and transferring the case to Philadelphia Common Pleas Court.

Castille wrote a concurring opinion in which he tweaked the majority — led by current Chief Justice Ralph J. Cappy — and said while he agreed with the majority’s “hands-off” approach to Foxwoods’ gaming appeal, he couldn’t square it with the court’s previous ruling in the voter referendum case.

“Perhaps, then, this case has simply revealed the judicial ‘fits and starts’… that are inevitable in explicating a new review paradigm. I write separately precisely because I view today’s decision as a departure from our recent precedent, and I believe that, in order to avoid confusion for the bench and bar, and to avoid unsettling the expectations of litigants, such departures, particularly from recent decisions, should be acknowledged and explained.”

Sounds good. The only problem is the court reached a completely different conclusion in SugarHouse’s case, HSP Gaming v. City Council for the City of Philadelphia.

There are some key procedural and strategic distinctions between the cases. Foxwoods was asking the court to force the city to issue permits; SugarHouse was asking the court to force City Council to act on its approved development plan. The city challenged Foxwoods’ petition. The city didn’t challenge SugarHouse’s petition. Some lawyers have characterized Foxwoods’ litigation strategy as a shotgun approach — too many issues — brought too early. They describe SugarHouse’s strategy as much more focused: arguing City Council’s failure to act on the bills related to the casino’s plan for development amounted to an adverse action that was final and appealable.

However, if you read the opinions and think in terms of the real world, these are really distinctions without a difference. Most lawyers I’ve talked to about the cases come to the same conclusion.

It didn’t help that the SugarHouse case was decided in a per curiam order. Even more puzzling is that Castille is in the majority in that case. If he can’t square the majority’s position in Foxwoods’ case with the referendum case, it’s hard to see how he can reconcile his position in either of those cases with his placement in the majority in the SugarHouse decision. It would have been helpful and informative to have guidance from him about why he felt differently about the two cases.

The court took two almost completely different approaches in these cases. One is clearly hands-off, advocating that the casino work its case through the system. The other is very interventionist. In terms of judicial approaches they are from different planets.

When I’ve asked lawyers about the cases, most have said things like: “We’re all scratching our heads,” or “I don’t see how you can square these two opinions.” The more cynical have quipped: “The only real difference between the cases is who’s involved.”

That’s sad. Gaming, because of the level of money and its powerful supporters, has already raised the suspicion of many in Pennsylvania. The court needs to take steps to avoid having that suspicion taint the court.

Some steps would be simple.

First, the court should avoid 24-page per curiam decisions. If the justices are going to devote that much ink to a decision, they should put a name to it. Second, the court should think about having oral arguments in these cases whenever possible. The more these matters are open to the light of day and the public and the more these arguments are conducted out in the open, the greater confidence people will have in the court.

Third, similar to Justice Thomas Saylor’s dissent in the SugarHouse decision, the court should consider sending casino cases to the trial courts for evidentiary hearings or appointing special masters to conduct fact-finding. There has been very little fact-finding in some of these cases. The more facts that have been determined in open court, the better footing the court will have when it makes its decisions.

Lastly, the court should consider the approach Castille has generally advocated, one that is more cautious and hands-off than the approach Cappy has shown. Not because casinos or gaming are bad, but because both are so new to this state, so much money, emotion and change are tied to them, and because everyone — the casinos, the court and the public — will be better served if there is a full, deliberative process applied to these cases, and if the public has faith in that process.

Right now the public and many in the legal community are uneasy with the interventionist approach. Even more people have expressed their unease after Cappy was quoted by Legal reporter Gina Passarella as saying that although he won’t take a direct role in gaming cases when he joins Buchanan Ingersoll & Rooney, he could be of help to other lawyers because he knows “a lot about the Gaming Act,” and has written most of the court’s opinions covering it.

Given the strong statements Castille has made in his concurrences and dissents, and Philadelphia Daily News columnist John Baer’s report that Castille recently joked with him for suggesting the fix was in with regard to casino cases, it’s not a stretch to suggest that Castille is not only concerned with the court’s direction in these cases, but he’s aware of the perception problems the court is facing.

It was Castille who issued the opinion last week that allowed the grand jury to proceed and ruled that district attorneys do have the authority to investigate gaming matters. The decision should restore some confidence in the court’s handling of these cases. It prevented creating the appearance that somehow casino and gaming issues were untouchable once they received the gaming board’s blessing.

Does the decision mark a turning point when the court will adopt Castille’s more cautious approach? The real test is going to come after Cappy steps down, Castille takes over as chief justice, and future justices Seamus McCaffery and Debra Todd join the bench. So far only Castille and Saylor have pushed for a more cautious approach.

Will the two new justices side with them or adopt Cappy’s more interventionist approach? Regardless of how the court rules, it needs to be aware that people are watching and they’re concerned.

Hank Grezlak is the editor-in-chief of The Legal Intelligencer . He may be contacted at 215-557-2486, or by e-mail at [email protected].

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