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(Cite as: 2015 WL 917921 (R.I.))

Supreme Court of Rhode Island.

NARRAGANSETT INDIAN TRIBE

v.

STATE of Rhode Island and UTGR, Inc. d/b/a Twin River and Newport Grand, LLC
(Intervenors).

No. 2012-322-Appeal.

March 4, 2015.

Washington County Superior Court.William P. Devereaux, Esq., for Plaintiff.

Michael W. Field, Department of Attorney General, Mitchell R. Edwards, Esq., for
Defendant.

Present: SUTTELL, C.J., FLAHERTY, ROBINSON, and INDEGLIA, JJ.

 

OPINION

Justice INDEGLIA, for the Court.

*1 The plaintiff, the Narragansett Indian Tribe ( Tribe), appeals from the
entry of partial summary judgment in the Superior Court in favor of the defendant,
the State of Rhode Island (state), and the intervenor defendant, UTGR, Inc. d/b/a
Twin River (UTGR), finding that the 2011 Casino Act, G.L.1956 chapter 61.2 of
title 42 (Casino Act or the act) is not facially unconstitutional. For the reasons
set forth in this opinion, we affirm the judgment of the Superior Court.

I

Facts and Travel

Much of the background of the lengthy disputes between the state and the Tribe
as it pertains to gambling in Rhode Island is succinctly summarized in our
previous opinion in this case. See Narragansett Indian Tribe v. State, 81 A.3d
1106, 1107-09 (R.I.2014) (Tribe I ). Accordingly, here, we summarize only the
pertinent facts necessary to the disposition of this appeal.

The present appeal concerns only the facial constitutionality of the Casino
Act.FN1 On September 28, 2011, the Tribe filed a complaint against the state
seeking a declaration that the Casino Act is unconstitutional in violation of
article 6, section 15 of the Rhode Island Constitution, which provides, in
relevant part, that "[a]ll lotteries shall be prohibited in the state except
lotteries operated by the state * * * and all shall be subject to the prescription
and regulation of the general assembly." Additionally, the Tribe asserted that the
Casino Act was unconstitutionally vague and in violation of the non-delegation
doctrine embodied in sections 1 and 2 of article 6 of the Rhode Island
Constitution. Subsequently, UTGR was permitted to intervene as a defendant.

A hearing before the Washington County Superior Court on the parties'
cross-motions for partial summary judgment was held on May 30, 2012. The hearing
justice later issued a written decision, which found that, although the Tribe had
standing, it nonetheless had failed to meet its burden of proving beyond a
reasonable doubt that the Casino Act is facially unconstitutional.

The Tribe timely appealed the decision on the merits, and the state timely
cross-appealed the determination that the Tribe had standing. This Court declined
to consolidate the two appeals, and directed the parties to first address the
issue of standing. On January 10, 2014, we issued an opinion affirming the hearing
justice's decision that the Tribe had standing. Tribe I, 81 A.3d at 1111. However,
we relied on different reasons from those relied on by the hearing justice. Id
Rather than invoking the public interest exception to standing, we held that the
Tribe had "demonstrated an injury in fact" sufficient to maintain standing. Id.

Having cleared the standing hurdle, we proceed to address the merits of the
Tribe's challenge.

II

Standard of Review

[1][2] It is well settled that "[t]his Court reviews a lower court's grant of a
motion for summary judgment de novo, 'employing the same standards and rules used
by the hearing justice.' " Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 258
(R.I.2011) (quoting Planned Environments Management Corp. v. Robert, 966 A.2d 117,
121 (R.I.2009)). "In addition, since we have before us a pure statutory issue,"
our review is de novo. Planned Environments Management Corp., 966 A.2d at 121.

*2 [3][4][5][6][7] One who challenges the constitutionality of a statute bears
the burden of "prov[ing] beyond a reasonable doubt that the act violates a
specific provision of the [Rhode Island] [C]onstitution * * *." Oden v. Schwartz,
71 A.3d 438, 456 (R.I.2013) (quoting Mackie v. State, 936 A.2d 588, 595
(R.I.2007)). Additionally, we note "that legislative enactments of the General
Assembly are presumed to be valid and constitutional." State v. Faria, 947 A.2d
863, 867 (R.I.2008) (quoting Newport Court Club Associates v. Town Council of
Middletown, 800 A.2d 405, 409 (R.I.2002)). "As such, we 'exercise[ ] the greatest
possible caution' in reviewing a challenge to a statute's constitutionality."
Oden, 71 A.3d at 456 (quoting Mackie, 936 A.2d at 595). "Indeed, '[f]his [C]ourt
will attach every reasonable intendment in favor of * * * constitutionality in
order to preserve the statute.' " State ex rel. City of Providence v. Auger, 44
A.3d 1218, 1226 (R.I.2012) (quoting Gem Plumbing & Heating Co. v. Rossi, 867 A.2d
796, 808 (R.I.2005)). Therefore, "[t]o be deemed unconstitutional, a statute must
palpably and unmistakably be characterized as an excess of legislative power."
Faria, 947 A.2d at 867 (quoting Cherenzia v. Lynch, 847 A.2d 818, 822 (R.I.2004)).

III

Discussion

[8] The present appeal concerns only the Tribe's facial challenge to the
constitutionality of the Casino Act under the Rhode Island Constitution. At the
outset, we recognize that "[t]he doctrine surrounding the 'facial' and 'as
applied' forms of judicial review is 'currently a subject of hot debate, both in
the [United States] Supreme Court and among commentators.' " United States v.
Jones, 689 F.3d 696, 704 (7th Cir.2012) (quoting Richard H. Fallon, Jr., Fact and
Fiction About Facial Challenges, 99 Calif. L.Rev. 915, 917 (2011). Nonetheless,
the current consensus appears to be that "facial challenges are generally equated
with claims of unconstitutionality in toto," Gillian E. Metzger, Facial and
As-Applied Challenges Under the Roberts Court, 36 Fordham Urb. L.J. 773, 786
(2009), whereas, "[a]s-applied challenges are then treated as the residual,
although ostensibly preferred and larger, category." Fallon, 99 Calif. L.Rev. at
923. As the name suggests, as-applied challenges evaluate the constitutionality of
a statute "as applied to the particular facts at issue." Holder v. Humanitarian
Law Project, 561 U.S. 1, 18, 130 S.Ct. 2705, 177 L.Ed.2d 355(2010).

The United States Supreme Court has fairly recently stated that a key
distinction between facial and as-applied challenges essentially "goes to the
breadth of the remedy employed by the Court." Citizens United v. Federal Election
Commission, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). In addition,
it has been suggested that "the availability of facial challenges varies on a
doctrine-by-doctrine basis and is a function of the applicable substantive tests
of constitutional validity." Richard H. Fallon, Jr., As-Applied and Facial
Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321, 1324 (2000); accord
Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule
Requirement, 48 Am. U.L.Rev. 359, 378 (1998); see also United States v. Stevens,
559 U.S. 460, 472-73, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010); Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184,
170 L.Ed.2d 151 (2008); Sabri v. United States, 541 U.S. 600, 609-10, 124 S.Ct.
1941, 158 L.Ed.2d 891 (2004).

*3 At the current stage,FN2 the Tribe's facial challenge is roughly analogous
in form to what has been described as a "valid rule facial challenge," which "is a
challenge to a statute based on a constitutional infirmity evident in the written
words of the statute itself." Isserles, 48 Am. U.L.Rev. at 428. Accordingly, we
shall assess, as written, the Casino Act's constitutionality against the
infirmities alleged by the Tribe.

The Tribe argues that the Casino Act must be invalidated because it is
unconstitutionally vague or because it otherwise violates the non-delegation
doctrine enunciated in article 6, sections 1 and 2 of the Rhode Island
Constitution. We note, however, that there is no allegation that the Casino Act
infringes upon First Amendment or other fundamental rights.

A

Vagueness

[9] To the extent that a sufficient basis for invalidating the Casino Act under
the vagueness doctrine FN3 has been articulated, at the current stage of these
proceedings, we may succinctly dispose of this argument.

The United States Supreme Court has stated that "[v]agueness challenges to
statutes not threatening First Amendment interests are examined in light of the
facts of the case at hand; the statute is judged on an as-applied basis." Maynard
v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); see
Humanitarian Law Project, 561 U.S. at 18 ("We consider whether a statute is vague
as applied to the particular facts at issue."); Chapman v. United States, 500 U.S.
453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) ( "First Amendment freedoms are
not infringed by [the statute], so the vagueness claim must be evaluated as the
statute is applied to the facts of this case."). Accordingly, the Casino Act must
be evaluated on an as-applied basis when that challenge is considered by the
Superior Court.

B

Non-delegation

[10][11] We begin with the recognition that "the delegation of legislative
functions is not a per se unconstitutional action." Milardo v. Coastal Resources
Management Council of Rhode Island, 434 A.2d 266, 270-71 (R.I.1981); see Davis v.
Wood, 427 A.2d 332, 335 (R.I.1981) ("As a practical matter, the [non-delegation]
doctrine has not prohibited the delegation of legislative power."). Nonetheless,
we are mindful that "merely calling a casino 'state operated' does not make it so
for purposes of fulfilling the very explicit terms of our Constitution." In re
Advisory Opinion to the House of Representatives (Casino II), 885 A.2d 698, 707 n.
8 (R.I.2005). However, we are also cognizant of our role in evaluating the
constitutionality of legislation. In performing this task, "if two alternate
interpretations are possible, we shall favor that which presents no potential
constitutional difficulties." Mosby v. Devine, 851 A.2d 1031, 1045 (R.I.2004)
(quoting Pontbriand v. Sundlun, 699 A.2d 856, 866 (R.I.1997)).

The Tribe emphasizes that the extensive regulatory power given to the state in
the Casino Act is an indication that the act is unconstitutional. This assertion
must be rejected. That the Casino Act grants the state regulatory power does not
necessarily take away from whatever grant of operational power the Casino Act also
provides. Indeed, the Rhode Island Constitution recognizes that regulation and
operation are not mutually exclusive. Article 6, section 15 excludes lotteries
operated by the state from the general prohibition on lotteries and also provides
that all lotteries, including those operated by the state, "shall be subject to
the prescription and regulation of the general assembly."

*4 [12][13] Additionally, we note that among the extensive operational powers
given to the state through the Casino Act is the power not only to "[d]etermine
the number, type, placement and arrangement of casino gaming games, tables and
sites," s 42-61.2-2.1(c)(1), but also the "power to terminate or suspend any
casino gaming activities." Section 42-61.2-2.1(c)(5). The justices of this Court
previously opined FN4 that this power was "essential to the exercise of
operational control." Casino II, 885 A.2d at 710 n. 12. Accordingly, this clause's
existence among the panoply of powers present in the Casino Act supports the
determination that the law is constitutional.

Further, as the hearing justice correctly recognized, the Casino Act does not
suffer from any of the previous constitutional infirmities that were identified in
In re Advisory Opinion to the Governor (Casino), 856 A.2d 320 (R.I.2004) (Casino I
) or Casino II. In Casino I, 856 A.2d at 330, the proposed operator of the casino
was clearly identified as an affiliate of Harrah's Entertainment, rather than the
state. Here, in contrast, the Casino Act authorizes state-operated casino
gambling.FN5 In Casino II, 885 A.2d at 708, the justices of this Court opined that
the proposed legislation was constitutionally deficient because, inter alia, it
granted a private entity "largely unmitigated control over the table games at the
proposed casino." Here, however, the Casino Act explicitly vests the state with
the power and authority to "[d]etermine the number, type, placement and
arrangement of casino gaming games, tables and sites," s 42-61.2-2.1(c)(1), as
well as the "power to terminate or suspend any casino gaming activities." Section
42-61.2-2.1(c)(5).

The Casino Act directly references article 6, section 15 of the Rhode Island
Constitution and explicitly provides that, pursuant to that clause, the state
"shall have full operational control" and have the "authority to make all
decisions about all aspects FN6 of the functioning of the business enterprise * *
*." Section 42-61.2-2.1(c). That the Casino Act lists specific aspects over which
the state has authority does not limit the broad grant of power because it is
clear that by employing the language "including, without limitation," the specific
enumerations are not intended to be the exclusive aspects over which the state has
control. Id; see 2A Sutherland Statutory Construction s 47:26 at 451 (7th ed.
Norman J. Singer 2014) ("Where a statute contains a grant of power enumerating
certain things which may be done and also a general grant of power which, standing
alone, would include these things and more, the general grant may be given full
effect if the context shows that the enumeration was not intended to be
exclusive." quoting Springer v. Government of Philippine Islands, 277 U.S. 189,
206, 48 S.Ct. 480, 72 L.Ed. 845 (1928)). This is bolstered by the fact that the
Casino Act contains a clause which provides that the state shall "[h]old all other
powers necessary and proper to fully effectively execute and administer the
provisions of" the Casino Act. Section 42-61.2-2.1(c)(10).

*5 [14] It is contended that the Casino Act "allows the State to potentially
delegate disproportionate power to a private entity to operate what is supposed to
be a State entity, in violation of the Rhode Island Constitution." However, "[i]n
determining whether a law is facially invalid, we must be careful not to * * *
speculate about 'hypothetical' or 'imaginary' cases." Washington State Grange. 552
U.S. at 449-50. Indeed, "[t]he fact that the * * * [Casino] Act might operate
unconstitutionally under some conceivable set of circumstances is insufficient to
render it * * * [facially] invalid." Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 634 (1989) (quoting United States v. Salerno, 481 U.S. 739,
745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

The Tribe acknowledges that "[m]any questions concerning the operation of the *
* * casino[ ] simply remain unanswered * * *." We must emphasize, however, that
"[f]acial challenges are disfavored for several reasons," including that they
"threaten to short circuit the democratic process by preventing laws embodying the
will of the people from being implemented in a manner consistent with the
Constitution." Washington State Grange, 552 U.S. at 450, 451. Accordingly, if the
answers to those lingering questions are to be elucidated, it is through the
as-applied challenge to the Casino Act that remains pending in the Superior Court.

Based on the strong presumption of constitutionality and the heavy burden in
mounting a facial challenge, we cannot say that the Casino Act is facially
unconstitutional.

IV

Conclusion

For the foregoing reasons, the judgment of the Superior Court is affirmed. The
record in this case shall be remanded to that court.

Justice GOLDBERG did not participate.

FN1. The Tribe's as-applied challenge remains pending in the Superior Court.
Additionally, the parties disagree whether subsequent legislation and
materials produced by the state in connection with the Casino Act should be
taken into account on this appeal. Also, on April 19, 2012, the Tribe filed
an amended complaint concerning, inter alia, matters pertaining to the
operation of video lottery terminal machines. Since these matters were not
addressed by the hearing justice, we decline to consider them at this stage.
In any event, these matters appear more appropriate for as-applied
adjudication.

FN2. While we understand the time sensitive exigency (i.e., adjudication
prior to the ballot referenda) that led the Superior Court to separate the
as-applied and facial analyses, we note that such bifurcation is not
preferable for purposes of judicial review.

FN3. "The void-for-vagueness doctrine emanates from the due process
requirements that a law must be defined '[1] with sufficient definiteness
that ordinary people can understand what conduct is prohibited and [2] in a
manner that does not encourage arbitrary and discriminatory enforcement.' "
State ex rel. City of Providence v. Auger, 44 A.3d 1218, 1233 (R.I.2012)
(quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d
903 (1983)).

FN4. We note that "in giving advisory opinions, the [justices] of the
Supreme Court do not render a decision of the [C]ourt, but only express
their opinions as individual [justices] * * * [and] that for this reason
such opinions have no binding force * * *." Opinion to the Governor, 109
R.I. 289, 291, 284 A.2d 295, 296 (1971). Still, "although we realize that
they are of limited precedential effect * * * [advisory opinions] may be
persuasive although not binding upon future or even the present members of
this Court." In re Advisory Opinion to the Governor (Rhode Island Ethics
Commission-Separation of Powers), 732 A.2d 55, 73 (R.I.1999). Nonetheless,
it remains that advisory opinions are "not an exercise of judicial power"
and therefore are "not binding" and "carr[y] no mandate." In re Advisory
Opinion to the House of Representatives (Casino II), 885 A.2d 698, 701
(R.I.2005) (quoting In re Advisory Opinion to the Governor (Casino), 856
A.2d 320, 323 (R.I.2004) (Casino I )).

FN5. The ballot referendum approved by voters asked:

"Shall an act be approved which would authorize the facility known as
'Twin River' in the town of Lincoln to add state-operated casino gaming,
such as table games, to the types of gambling it offers?"

We find that there was no constitutional infirmity in that question.

FN6. We are aware that the Casino Act contains certain language copied from
our advisory opinions in Casino I and Casino II. As the hearing justice
astutely recognized, however, the Tribe has not identified any particular
constitutional deficiency with respect to the copied language. Components of
the Casino Act may be derived in haec verba from Casino I and Casino II, yet
nothing about that ipso facto renders the language constitutionally infirm.