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During oral arguments in a gaming case before the state Supreme Court last week, one of the casino lawyers expressed confidence that the court wouldn’t have its judicial independence threatened by the rhetoric surrounding the case. When I read that, my first reaction was: If you’re confident the court won’t have its judicial independence threatened, then why say it? Then I wondered if that statement would rile up the anti-casino crowd, which already seems to think the court has surrendered its independence to gaming interests. For instance, The Philadelphia Inquirer recently ran a particularly tough editorial on the high court, accusing it of rubber-stamping everything that casino owners and gaming advocates ask for. The piece, entitled: “A Supreme Court in thrall to casinos,” accused Chief Justice Ronald D. Castille “and his robed colleagues” of being “there to please” the wants and needs of casino owners. What spurred the editorial were two actions by the court. First was an opinion authored by Castille which said Philadelphia had no authority to stall or weigh in on plans for the proposed Foxwoods Casino. Second was the court’s decision by “Castille’s bunch” to “fast-track” a hearing involving the dispute between city and state government officials and the SugarHouse Casino over riparian rights – the case the court heard last week. “Look for another win for the casinos,” the editorial predicted. Ouch. Forget for a second that the Inky is not the most sophisticated court-watcher around. The editorial is telling and a useful barometer for public perceptions of the court on this issue. The concern regarding the perceived favoritism for casino owners and the state’s gaming board merely echoes concerns that are shared by a segment of the state’s population, including quite a few members of the legal community. Until recently, that concern was shared by at least one prominent member of the state’s judiciary – Castille himself. That’s what adds such a thick cloud of irony to the editorial and mystery to Castille’s latest decision in the Foxwoods case. It was Castille who earlier had taken his fellow justices to task for what he called “its accomodationist approach to gaming appeals.” It was Castille, when the court previously denied Foxwoods’ request for relief, who chided the majority for coming around to seeing things his way and expressed surprise that his earlier position was vindicated “so quickly.” And yet Castille was a member of the per curiam majority that later ruled in favor of SugarHouse in a similar case. Now, in his opinion granting Foxwoods its relief – essentially reversing the court’s earlier ruling, all procedural postures and nuanced arguments aside – he’s seemingly adopted the same “accomodationist” approach he’d criticized earlier. More confusing is that Castille didn’t provide any clues as to the change of heart. I’ve asked lawyers who’ve read the opinions, and they’ve told me they can’t figure out why Castille’s position has changed. All judges are entitled to rethink and re-evaluate their positions. But it helps when judges provide some explanation. Castille hasn’t, and in the process, the court has lost out on a chance to quiet some of the criticism over these cases. For example, in Castille’s majority opinion from the most recent Foxwoods’ case, he repeatedly slams Philadelphia City Council, and particularly Councilman Frank DiCicco, for inaction and delaying and impeding efforts to build the casinos. What Castille doesn’t talk about in that opinion is why. But he knows why. Castille gets it, as he demonstrated in his dissent in the anti-casino referendum case, in which he talked about how “Philadelphia is not Las Vegas.” “The approved remaking of the Philadelphia waterfront is extraordinary,” he wrote. “Imagine gaming halls being placed this close to the U.S. Capitol or the White House, or as near to Faneuil Hall in Boston. Aside from the fact that the people of Philadelphia had no opportunity to participate in a public debate on the specifics of the legislation ultimately adopted by the General Assembly, the people in the historic neighborhoods most affected by the approved casinos had a very limited say before the Board . . . . “And so, 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. 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.” That perfectly sums up the frustrations and anger of anti-casino folks, at least in Philadelphia. The missed opportunity in all of this is that if anyone on the court could help make a pro-casino decision more palpable to the public, it’s a justice who has been as critical as Castille. Drastic change often stirs up fear and apprehension in people. It’s one thing when that change is the result of a popular vote or a legislative process that allows people to at least weigh in. People are most hostile to change dictated to them by the courts. Sometimes courts must dictate that change. While they should never simply give in to public opinion, courts can often make the public more receptive to their rulings – thus blunting criticism and preserving the public’s confidence in the courts – by acknowledging concerns and making every effort to explain why a court must rule in a particular fashion. That’s what the court can do to preserve the public’s confidence in gaming cases. But is that alone the answer? No. The real culprit in all of this is the gaming law itself. By setting it up so all appeals go directly to the Supreme Court, the gaming law has put the high court in a bad spot. It has forced the court to rule on controversial issues representing sweeping changes, without the benefit of any real fact-finding or extensive hearings or trials. That sets up the court in the public’s view as a monolithic entity dictating extraordinary change. It doesn’t help when the implementation of the gaming law has shut out public opinion and been criticized by many, including Castille. Having appeals go directly to the Supreme Court was no doubt intended to make things more efficient. However, it has had the unintended consequence of making it appear to some as if gaming interests and the court are overly chummy. That isn’t good for the casinos either. It’s why some people view them as “running to daddy” – the high court – every time they encounter something they don’t like. Democracy is often frustrating and inconvenient. But it also serves to protect the interests of and give voice to all. The gaming law should be revised. The gaming board, and gaming issues, should be treated like any other administrative matter. Appeals should go to the Commonwealth Court first. There should be built-in opportunities for hearings and fact-finding. By doing this, the Legislature would take the Supreme Court out of the awkward position it’s in. It would guarantee that gaming matters are thoroughly vetted. And in the long run it would also help the gaming board and the casinos, because the more people who are involved in the process, the harder it is for citizens to view events through a sinister lens. 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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