27139062
Like legendary baseball player and Manager Yogi Berra said, and Rocky Balboa repeated in "Rocky VI," "It ain’t over till it’s over."
Despite the state Supreme Court issuing a preliminary injunction April 13 — pending a final briefing and decision by the court — to remove a referendum regarding casino placement from the May primary ballot, last-ditch efforts are in the works to impact the outcome.
April 17, attorney Maurice Mitts, representing Philadelphia City Council, filed an Emergency Application to modify the injunction, which would allow adequate time for the Court to receive briefings and render an informed decision on whether or not a question will appear on the ballot, giving voters a say in whether casinos should be built within 1,500 yards of a residential area.
After acknowledging receipt of Mitts’ filing, the Court gave until April 19 for attorneys representing the other parties involved — Foxwoods, SugarHouse and the Pennsylvania Gaming Control Board — to respond to the application. "This gives them a chance to be heard," Mitts, of Philadelphia-based Mitts Milavec LLC told the Review.
All had filed their responses by the 10 a.m. deadline, the attorney said.
Foxwoods spokeswoman Maureen Garrity of Tierney Communications said, "Foxwoods opposes modifying the preliminary injunction because the proposed referendum would exclude legalized gambling from any location in the city; the proposed charter amendments are pre-empted by the State Gaming Act, and City Council has not provided any new information to the Court to justify changing the preliminary injunction."
The same day the Court issued the preliminary injunction, it set a deadline of April 27 for briefs to be filed. After reviewing the briefs, which Mitts said typically are quite lengthy, the court will reach a final decision.
With no time restriction, Mitts said the court could take one day or six months; either way, a "disaster" in his opinion. In the unlikely event a decision is reached by April 30 — the next business day after the deadline — it would still be too late because, according to the First Class City Home Rule Act and the Philadelphia Election Code, the Philadelphia County Board of Elections and City Commissioner Romulo Diaz need to perform certain ministerial duties prior to the election. By the time the casino issue is heard by the Supreme Court, it will be too late to take those steps to put the question on the ballot, Mitts said. One of these steps requires the advertising of the referendum for three weeks leading up to the election in three newspapers of "general circulation" and The Legal Intelligencer.
"[The preliminary] would have become a permanent injunction simply by virtue of scheduling. What they did was issue an order that made their subsequent briefing and their own ultimate decision irrelevant. Anything after April 27 is like bringing blood to the cadaver — it really doesn’t matter at that point," Mitts said.
The day before Mitts filed the application, Casino-Free Philadelphia rallied at City Hall, expressing anger at the injunction. "We are shocked and perplexed by this outrageous decision," spokesman Daniel Hunter said. "The Court provided no reason for denying Philadelphia citizens their basic rights, while the dissenting opinion was several pages of rationale."
Mitts, too, felt the Court should have provided some reason for issuing the preliminary injunction. "[They’re divesting the voters of the right to speak and [they’re] not giving a reason," the attorney said.
But the bigger issue, according to Mitts, is the Supreme Court shouldn’t have been involved in the first place, since it is a court of appeals, which reviews decisions made by organizations or a judiciary body. Being a voting body, City Council, which approved the ballot referendum appearance March 15, does not apply, the attorney said.
The only other way the highest court in the state could have gotten involved was by Kings’ Bench jurisdiction, a very rare occurrence in Pennsylvania, Mitts said, that gives it the ability to take over a case from a lower court.
"We would say that without any lawful basis, they should not be involved. This is not a monarchy," the counselor said.
Seven of the nine judges approved the injunction while two dissented, calling it illegal. "That should give great pause," Mitts said, adding an injunction is an "extreme remedy," something in his legal opinion that is not called for regarding placement of a ballot question. "The voters have a right to have something on the ballot. In the end, they may vote it down," he said.
If the preliminary injunction stands, Casino-Free’s Hunter said the group would appeal to Council to assert its zoning powers and reject the sites "forced on the city by the state Gaming Control Board."
Thursday, Council unanimously approved a resolution introduced by 1st District Councilman Frank DiCicco that creates a committee to explore alternate casino sites. The seven members will be appointed by the Council president, the majority leader, majority whip, minority leader and minority whip. None will be culled from elected or appointed officials.
Council also approved the re-zoning of Foxwoods from C-3 Commercial to R10A Residential, which DiCicco believes will force Foxwoods to get a variance from the Zoning Board to move forward, according to his legislative assistant Brian Abernathy. "While the councilman recognizes the new classification will be challenged in court, he believes that the measure is necessary to give residents a voice in this process," Abernathy said.
Garrity reiterated her client’s position that anything standing in the way of Foxwoods’ groundbreaking is only hurting Philadelphians. "These roadblocks put up by City Council — including the re-zoning of the Foxwoods site — only serve to delay thousands of jobs for Philadelphians, as well as delaying millions in tax revenues for the city’s schools, to put more police on the streets and other needed city services. The city is counting on these revenues, which have already been factored into its five-year plan," the spokeswoman said.
Even if Mitts’ application is in vain, he said residents’ voices will ring loud and clear come the judges’ reelection. "The public awareness and public vote is the final analysis," he said. "By keeping the issue in the media, what they can do is let it be known they are watching the Supreme Court and Gaming Control Board. The voters have the ultimate voice."
