Boston wins some, loses some on gaming suit

Judge to rule on viability of case in late September

THE CITY OF BOSTON survived a procedural challenge to its lawsuit against the Massachusetts Gaming Commission on Thursday, but the municipality’s bid to start issuing subpoenas and deposing witnesses was put on hold by Superior Court Judge Janet Sanders.

Boston Mayor Marty Walsh is trying to prevent Wynn Resorts from building a $1.7 billion casino in Everett on the border with Charlestown by arguing in court that Wynn won its casino license from the Gaming Commission through a “corrupt process.” The city’s private attorneys say the Wynn license should be revoked and the five members of the Gaming Commission should be barred from handing out any future licenses in the Greater Boston area.

Sanders tried to bring some order to a case that has become something of a media circus, reflected in the packed courtroom and the many media outlets covering the proceedings. She rejected a motion by the Gaming Commission to have Boston’s complaint thrown out because it wasn’t written in a short and plain manner.

Superior Court Judge Janet Sanders (left) and Gaming Commission attorney David Mackey, standing.

Superior Court Judge Janet Sanders (left) and Gaming Commission attorney David Mackey, standing.

But she also rejected a last-minute Boston filing that suggested Gaming Commission officials knew and tried to cover up that Wynn representatives were aware that a convicted felon held an ownership interest in the land in Everett the casino developer was purchasing. The same filing claimed private investigators hired by Wynn gained improper access to a wiretap room at the state attorney general’s office in the fall of 2013 at a time when the convicted felon’s involvement with the Everett land deal was being investigated. Wynn Resorts has claimed it was not aware of the convicted felon’s involvement until it was informed by investigators much later.

David Mackey, one of the attorneys representing the Gaming Commission, said the agency had not been aware of Boston’s wiretap room allegation previously and has referred the matter to the agency’s Investigations and Enforcement Bureau.

Sanders also rejected Boston’s bid to start issuing 17 subpoenas and deposing witnesses (including one present in the courtroom on Thursday) until after she rules on a Gaming Commission motion to dismiss the case on Sept. 22. Sanders indicated she would also decide on Sept. 22 whether to move forward with similar cases against the Gaming Commission brought by Mohegan Sun and Revere, the casino developer and host city that lost out to Wynn Resorts and Everett in the casino sweepstakes.

The judge indicated some of the cases may not proceed. “There may be one or more parties that don’t survive,” she said.

Boston corporation counsel Eugene O'Flaherty confers after hearing with attorney Thomas Frongillo, back to camera.

Boston corporation counsel Eugene O’Flaherty confers after hearing with attorney Thomas Frongillo, back to camera.

The Gaming Commission asserts Mohegan Sun, as a losing casino applicant, is barred by the state gaming law from challenging the commission’s license award. The commission claims Revere and Boston have “no greater right to judicial review than the disappointed applicant,” according to one of its briefs in the case.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

While most of the two-hour hearing was taken up with procedural matters, Sanders at times raised concerns about the way Boston’s private attorney, Thomas Frongillo, was crafting his legal briefs on behalf of the city. At one point Sanders noted the introduction to his 153-page complaint was 19 pages long, filled with arguments “colored by a lot of adjectives and adverbs.” Frongillo quickly interjected: “We’re prepared to prove all of it.”

At another point in the hearing, Sanders openly suggested the city of Boston was playing to the press in its legal documents. “This content was not written just for the court. There was another audience in mind,” she said.