Memorandum TO: FROM: Gerald S. Aubin Director Rhode Island Lottery John A. Tarantino DATE: March 16, 2018 SUBJECT: Sports Wagering Legislation You have asked for our review of House Bill 7200, Article 4, which proposes an amendment to Chapter 42-61.2 of the Rhode Island General Laws entitled Video-Lottery Terminal, to add a section titled 42-61.2-2.4. State to conduct sports wagering hosted by Twin River and the Tiverton Gaming Facility. Specifically, we have examined whether the State of Rhode Island (the State ) may operate sports wagering at the Twin River facility located at 100 Twin River Road in the Town of Lincoln ( Twin River ) and the Tiverton gaming facility under construction at the intersection of William S. Canning Boulevard and Stafford Road in the Town of Tiverton ( Twin River- Tiverton ) (once Twin River-Tiverton is licensed as a video lottery and game retailer) if a federal law is enacted or repealed or a United States Supreme Court decision has been issued that affirms the authority of states to regulate sports wagering within their respective borders. This memorandum is intended to set forth our analysis, based on the facts as have been presented to us. If and when further legislation on the issue of sports wagering is proposed we will be in a position to analyze the specific provisions of the proposed legislation, continue our research and update our analysis accordingly. I. Federal and State Prohibitions on Sports Wagering A. The Professional and Amateur Sports Protection Act of 1992 Currently, the Professional and Amateur Sports Protection Act of 1992, 28 U.S.C. 3701 et seq. ( PASPA ) generally prohibits state-sanctioned sports wagering except in certain exempt states. Rhode Island is not one of the exempt states. In June 2017, the United States Supreme Court agreed to hear Christie v. National Collegiate Athletic Association and NJ Thoroughbred
Horsemen v. National Collegiate Athletic Association, No. 16-476, in which it is argued that PASPA is unconstitutional. If the Supreme Court concludes that the PASPA is unconstitutional, such a decision would open the door for states to permit and regulate sports wagering within their respective borders. B. Rhode Island General Laws 11-19-1 In addition to the federal prohibition on state-sanctioned sports wagering, in Rhode Island all forms of gambling are prohibited unless explicitly authorized in Chapter 11-19, Title 41, and Title 42, Chapters 61 and 61.2. To that end, R.I. Gen. Laws 11-19-1 provides: Every person who shall, directly or indirectly, set up, put forth, carry on, promote, or draw, publicly or privately, any lottery, chance, game, or device of any nature or kind whatsoever, or by whatsoever name it may be called, for the purpose of exposing, setting for sale or disposing of any money, houses, lands, merchandise, or articles of value, or shall sell or expose to sale lottery policies, purporting to be governed by the drawing of any public or private lottery, or shall sign or endorse any book, document, or paper whatsoever, for the purpose of enabling others to sell, or expose to sale, lottery policies, except as authorized in this chapter and in title 41 and chapters 61 and 61.2 of title 42, shall be deemed guilty of a felony and shall be imprisoned not exceeding two (2) years or be fined not exceeding two thousand dollars ($2,000). The proposed amendment addressed in this letter is to Title 42, Chapter 61.2. Therefore, if the proposed amendment is enacted by the General Assembly, it would fall within one of the exceptions to the general prohibition on gambling. A separate section of Rhode Island s General Laws prohibits bookmaking and activities related to bookmaking. See R.I. Gen. Laws 11-19-14. Unlike R.I. Gen. Laws 11-19-1, which includes an exception for activities authorized in both Title 41 and Title 42, Chapters 61 and 61.2, the statute related to bookmaking does not include an exception for activities authorized under Title 42, Chapters 61 and 61.2. Thus, if the proposed amendment is enacted by the General Assembly, an amendment to R.I. Gen. Laws 11-19-14 to include an exception for activities authorized under Title 42, Chapters 61 and 61.2 also would be necessary. 1 1 R.I. Gen. Laws 11-19-1 was amended a year after Title 42, Chapter 61.2 governing Video- Lottery Terminals was enacted. R.I. Gen. Laws 11-19-14, however, has not been amended since the 1956 amendments to the General Laws. Page 2 of 14
II. The Rhode Island Constitution Even if the United States Supreme Court concludes that PASPA is unconstitutional, for the State to commence operation of sports wagering at Twin River and Twin River-Tiverton, the requirements of the Rhode Island Constitution also must be met. Two provisions of the constitution are relevant to this matter: R.I. Const. art. 6, sec. 15, which addresses lotteries, and R.I. Const. art. 6, sec. 22, which addresses gambling. A. Lotteries: R.I. Const. art. 6, sec. 15 From 1744 until 1843, the Rhode Island General Assembly authorized and supervised a number of lotteries for the purpose of funding public improvements. Almond v. Rhode Island Lottery Comm n, 756 A.2d 186, 187 (R.I. 2000). Initially, the lotteries were supervised by the General Assembly but by the 1820s, the General Assembly began to delegate the supervision of lotteries to professional managers. Id. However, when the constitution was ratified in 1843, it included an absolute prohibition on the creation of new lotteries. See In re Advisory Opinion to the Governor, 856 A.2d 320, 332 (R.I. 2004) (Casino I); accord Almond, 756 A.2d at 187. The prohibition remained in effect until 1973, when the constitution was amended to allow only lotteries run by the State and lotteries that had been permitted prior to 1973. Id. The current version of Article 6, Section 15 provides: R.I. Const. art. 6, sec. 15. All lotteries shall be prohibited in the state except lotteries operated by the state and except those previously permitted by the general assembly prior to the adoption of this section, 2 and all shall be subject to the proscription and regulation of the general assembly. B. Restriction of Gambling: R.I. Const. art. 6, sec. 22 The constitution separately places restrictions on gambling. In 1994, the constitution was amended to add Article 6, Section 22, which, at that time, provided that no act expanding the types of gambling permitted within the State or within any municipality therein or expanding the municipalities in which a particular form of gambling was authorized could take effect unless it had been approved by a majority of statewide electors voting in a statewide referendum and by a majority of those electors voting in a referendum in the municipality where the proposed gambling would be allowed. See Rhode Island Voter Information Handbook 2014 at 10. 2 The language except those previously permitted by the general assembly prior to the adoption of this section, has been construed as meaning except those previously permitted by the general assembly prior to 1973. Casino I, 856 A.2d at 332. Page 3 of 14
In 2014, the General Assembly proposed by joint resolution an amendment to Article 6, Section 22 for approval by the State s electors, which would have the effect of providing that no change in the location of gambling permitted in a municipality would occur without approval of the majority of those electors voting on the proposed location change within the applicable municipality. The voters in the 2014 election approved the amendment. This amendment is discussed in more detail in Section IV(B) infra. Accordingly, the current version of Article 6, Section 22 provides: No act expanding the types or locations of gambling which are permitted within the state or within any city or town therein or expanding municipalities in which a particular form of gambling is authorized shall take effect until it has been approved by the majority of those electors voting in a statewide referendum and by the majority of those electors voting in said referendum in the municipality in which the proposed gambling would be allowed and, having been so approved in said referendum in any city or town on or after November 4, 2014, the location where the gambling is permitted in any city or town shall not be changed within said city or town without approval of the majority of those electors voting on said proposed change in a referendum in said city or town. III. The 2011 and 2012 Legislation and the 2012 Referendums A. The 2011 Legislation In 2011, the General Assembly passed 2011 R.I. Pub. Laws art. 25, ch. 151 to amend Chapter 61.2 of Title 42 of the General Laws titled Video Lottery Terminal for the purpose of authorizing Twin River, a licensed video lottery terminal retailer, to engage in state-operated casino gaming (emphasis added) at its facility in Lincoln (the 2011 Twin River Legislation ). The amendment defined casino gaming as: any and all table and casino-style games played with cards, dice or equipment, for money, credit, or any representative of value; including, but not limited to roulette, blackjack, big six, craps, poker, baccarat, pai gow, any banking or percentage game, or any other game of device 3 included within the definition of Class III 3 It appears that the definition of Casino gaming in P.L. 2011, art. 25, chap. 151, which was codified as 42-61.2-1(8), has a typographical error both in the public law and the statute. As noted in III(C) infra, the definition of Casino gaming in the Voter Information Handbook included any other game or device included within the definition of Class III gaming (emphasis added), however, the definition of Casino gaming in the public law and the current statute refers to any other game of device included within the definition of Class III gaming. Page 4 of 14
gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which is approved by the state through the division of state lottery. 4 Id. The amendment also provided, inter alia, that the state, through the division of the state lottery and/or the department of business regulation, may expand Twin River s existing video lottery license or issue Twin River a new casino gaming license. 5 Significantly, the amendment included a finding by the general assembly that [p]ursuant to R.I. Const., Art. VI, Sec. XV... the state shall have full operational control over the specified location at which casino gaming shall be conducted. Id. (emphasis added). It further stated that [n]otwithstanding the provisions of any other law and pursuant to R.I. Const., Art. VI, Sec. XV, the state is authorized to operate, conduct, and control casino gaming at Twin River... and that [s]ubject to subsection (a), all rules and regulations shall be promulgated by the state, through the division of state lottery, in accordance with the authority conferred upon the general assembly pursuant to R.I. Const., Art. VI, Sec. XV. Id. (emphasis added). Thus, by specifically referencing Article 6, Section 15 of the constitution throughout the 2011 Twin River Legislation, it appears that the State has already concluded that casino gaming is a lottery subject to the restrictions set forth in Article 6, Section 15. Finally, the amendment made clear that a referendum was required pursuant to Article 6, Sec. 22 for it to be effective. B. The 2012 Legislation Similar to the 2011 Twin River Legislation, in 2012 the General Assembly passed 2012 R.I. Pub. Laws chs. 24 and 25 to amend Chapter 61.2 of Title 42 of the General Laws for the purpose of also authorizing Newport Grand, another licensed video lottery terminal, to engage in stateoperated casino gaming (emphasis added) at its facility in Newport (the 2012 Newport Grand Legislation ). To further protect State gaming revenues and to maintain the competitiveness of Twin River and Newport Grand, in 2012 the General Assembly also passed the Revenue Protection Act, 2012 R.I. Pub. Laws chs. 289 and 290, inter alia, to address the share of table game revenues to be received by the State if casino gaming is approved, establish the share of video lottery terminal revenue to be received by the Town of Lincoln and the City of Newport, respectively, and establish a regulatory framework for table games (the 2012 Revenue Protection Act ). Similar Compare Rhode Island Voter Information Handbook 2012 at 7 with 2011 Twin River Legislation (emphasis added). It is unlikely that use of the word of instead of or will have any particular consequence given that the definition presented to the voters was clear. 4 The games included within the definition of Class III gaming are discussed in VI(B)-(C) infra. 5 To further analyze the issues presented in this memorandum, it would be useful for us to review the license issued to Twin River for casino gaming. Page 5 of 14
to the 2011 Twin River Legislation and the 2012 Newport Grand Legislation, the 2012 Revenue Protection Act made clear that a referendum was required pursuant to Article 6, Sec. 22 for it to be effective. C. The 2012 Referendums In accordance with the constitutional requirement that electors approve through referendums any expansion of the type of gambling permitted in Rhode Island, in 2012, state constitutional approval was sought of an act authorizing state-operated casino gaming (emphasis added) at Twin River in the Town of Lincoln. Referendum Question 1, provided as follows: 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 type of gambling it offers? Rhode Island Voter Information Handbook 2012 at 7 (emphasis added). The term casino gaming was defined in the Voter Information Handbook as: any and all table and casino-style games played with cards, dice or equipment, for money, credit, or any representative of value; including, but not limited to roulette, blackjack, big six, craps, poker, baccarat, pai gow, any banking or percentage game, or any other game or device 6 included within the definition of Class III 6 As noted above, the Voter Handbook uses the language game or device, while the 2011 Twin River Legislation uses the language game of device, which appears to be a typographical error. Compare Rhode Island Voter Information Handbook 2012 at 7 with 2011 Twin River Legislation (emphases added). Our research in connection with this opinion did not uncover anything to suggest that the phrase game of device is a term of art in the gaming industry. Additionally, the phrase game of device does not appear in the authoritative publication, Kathryn Hashimoto and George G. Fenich, Casino Dictionary: Gaming and Business Terms (Pearson/Prentice Hall 2007), or in the Gambling Dictionary (available at GamblingDictionary.com) or the Casinopedia (available at Casinopedia.org). Moreover, other sections of Rhode Island s General Laws supports the conclusion that the language game of device is a typographical error and should have been game or device. Indeed, R.I. Gen. Laws 11-19-1, which identifies the forms of gambling that are prohibited in Rhode Island utilizes the language game, or device. See Section I(B) for the full text of R.I. Gen. Laws 11-19-1. Numerous other sections of the General Laws use the term device independent of the word game. See R.I. Gen. Laws 11-19-5; 11-19-6; 11-19-18; 11-19-24. For example, R.I. Gen. Laws 11-19-18 uses the term device in connection with the prohibition on possession of certain gambling apparatus. See R.I. Gen. Laws 11-19-18 (prohibiting the possession of cards, dice, table, bowls, wheel of fortune, shuffleboard, or Page 6 of 14
gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which is approved by the State of Rhode Island through the Lottery Division. Id. at 5 (emphasis added). The Voter Information Handbook explained the 2011 Twin River Legislation as authorizing Twin River to engage in state-operated casino gaming at its Lincoln facility. Id. at 7. The Voter Information Handbook further explained that [a]pproval of the act authorizing Twin River to engage in state-operated casino gaming will result in Twin River being authorized to engage in state-operated casino gaming at its facility in the Town of Lincoln in accordance with the legislation adopted by the General Assembly. Id. (emphasis added). The Voter Information Handbook also described in 2012 Revenue Protection Act. Id. at 8. In doing so, the Voter Information Handbook noted that the act was enacted to address, among other things, the share of net table game revenues to be received by the State if casino gaming is approved, establish the share of video lottery terminal revenue to be received by the Town of Lincoln going forward, incentive gaming programs to protect market share and mitigate the potential impact of casino gaming in Massachusetts, and a regulatory framework to ensure oversight of casino gaming by the Lottery Division. Id. (emphasis added). As noted above, while the 2012 Revenue Protection Act establishes a regulatory framework for oversight of table games, it does not establish a regulatory framework for the broader category of casino gaming. Referendum Question 1 was approved by the majority of those electors voting in the statewide referendum and the majority of those electors voting in that referendum in the Town of Lincoln. A similar referendum was included on the 2012 ballot with respect to Newport Grand. Referendum Question 2, provided as follows: Shall an act be approved which would authorize the facility known as Newport Grand in the city of Newport to add state-operated casino gaming, such as table games, to the type of gambling it offers? Voter Information Handbook at 10. A nearly identical explanation of the referendum was included in the Voter Information Handbook. The statement concerning the creation of a billiard table, or any device, implement, or apparatus whatsoever to be used in gambling or playing at any game or games of chance for money or other valuable consideration). Similarly, R.I. Gen. Laws 11-19-6 uses the term device in connection with a prohibition on the possession of certain items used in carrying on or playing a particular type of lottery game. See R.I. Gen. Laws 11-19-6. To that end, the statute prohibits the possession of any bill, slip, certificate, token, or other device, or article of any kind of any kind such as is used in carrying on, promoting, or playing the game commonly known as lottery-policy or policy. Id. (emphasis added). Page 7 of 14
regulatory framework to ensure oversight of casino gaming noted above with respect to Referendum Question 1 also was included with respect to Referendum Question 2. Referendum Question 2 was approved by the majority of those electors voting in the statewide referendum but it was rejected by the majority of those electors voting in that referendum in the City of Newport. As a result, the 2011 Twin River Legislation went into effect, but the 2012 Newport Grand Legislation did not. The 2012 Revenue Protection Act also went into effect, but had no impact on Newport Grand because the 2012 Newport Grand Legislation had failed. IV. The 2014 Legislation and the 2014 Referendums A. The 2014 Legislation In 2014, the General Assembly attempted again to obtain approval for state-operated casino gaming at Newport Grand. To that end, the General Assembly enacted 2014 R.I. Pub. Laws ch. 436 to amend Chapter 61.2 of Title 42 of the General Laws for the purpose of authorizing Newport Grand to engage in state-operated casino gaming at its facility in Newport (the 2014 Newport Grand Legislation ). Unlike the 2012 Newport Grand Legislation, the 2014 Newport Grand Legislation provided that it would only take effect if voters not only approved the required referendum but also approved an amendment to Article 6, Section 22 of the Rhode Island Constitution that had been proposed a month before. In May 2014, the majority of all members elected to each house of the General Assembly passed a joint resolution to submit to the electors a proposed amendment to Article 6, Section 22. The proposed amendment provided that prior to a change in the location of gambling permitted in a city or town, a referendum approved by the majority of those electors voting in the referendum in the applicable city or town was required. B. The 2014 Referendums Similar to 2012 Referendum Question 2, which sought to authorize casino gaming at Newport Grand, 2014 Referendum Question 1 sought to authorize casino gaming at Newport Grand but specifically limited it to its existing facility. 2014 Referendum Question 1 provided: Shall an act be approved which would authorize the facility known as Newport Grand in the city of Newport to add state-operated casino gaming, such as table games, to the types of gambling it offers only and exclusively at the facility located at 150 Admiral Kalbufus Road, Newport? Page 8 of 14
Referendum Question 1 was approved by the majority of those electors voting in the statewide referendum, but it was rejected by the majority of those electors voting in that referendum in the City of Newport. 2014 Referendum Question 2 addressed the proposal to amend Article 6, Section 22 of the Rhode Island Constitution to prohibit a change in the location of gambling within a municipality unless such a change is approved by the voters in that municipality. 2014 Referendum Question 2 provided: Approval of the amendment to Section 22 of Article VI of the Rhode Island Constitution set forth below will provide that no change in the location of gambling permitted in a municipality would occur without the further approval of the majority of those electors voting on said proposed location change in a referendum within said municipality. Referendum Question 2 was approved by a majority of those electors voting in the statewide referendum and, accordingly, Article 6, Section 22 was amended. The current version of Article 6, Section 22 is set forth in II(B) supra. V. The 2016 Legislation and the 2016 Referendum A. The 2016 Legislation In 2016, the General Assembly enacted 2016 R.I. Pub. Laws ch. 005 to permit, inter alia, stateoperated casino gaming at Newport Grand (which later became Twin River-Tiverton) (the 2016 Twin River Tiverton Legislation ). Similar to the 2011 Twin River Legislation, the 2016 Twin River Tiverton Legislation contained several references to Article 6, Section 15 of the constitution as providing the authority for the State s authorization to operate casino gaming at Newport Grand, thereby suggesting that the State has concluded that casino gaming is a lottery subject to the restrictions in Article 6, Section 15. The amendment was expressly conditioned on passage of a referendum pursuant to Article 6, Section 22. B. The 2016 Referendums In accordance with the constitutional requirement that electors approve through referendums any expansion of the types or locations of gambling permitted in Rhode Island, in 2016, state constitutional approval was sought of an act authorizing state-operated casino gaming at Twin River-Tiverton. Referendum Question 1, provided as follows: Shall an act be approved which would authorize a facility owned by Twin-River Tiverton, LLC, located in the Town of Tiverton at the intersection of William S. Canning Boulevard and Stafford Road, to be licensed as a pari-mutuel facility and offer state- Page 9 of 14
operated video games and state-operated casino gaming, such as table games? Rhode Island Voter Information Handbook 2016 at 10 (emphasis added). Similar to the 2012 Voter Handbook, the 2016 Voter Handbook defined casino gaming as: Id. at 21 (emphasis added). any and all table and casino-style games played with cards, dice or equipment, for money, credit, or any representative of value; including, but not limited to roulette, blackjack, big six, craps, poker, baccarat, pai gow, any banking or percentage game, or any other game or device 7 included within the definition of Class III gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which is approved by the State of Rhode Island through the Lottery Division. Referendum Question 1 was approved by the majority of those electors voting in the statewide referendum and the majority of those electors voting in that referendum in the Town of Tiverton. VI. Class III Gaming As set forth in III(C) and V(B), supra, in 2012 and 2016 voters approved state-operated casino gaming at Twin River and Twin River-Tiverton, respectively. At the time the voters approved state-operated casino gaming, they were informed that casino gaming includes any other game or device included within the definition of Class III gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code. Therefore, and as demonstrated herein, there is a sound argument that Class III gaming includes sports wagering. A. Voters Were Expressly Informed That Casino Gaming Includes Any Game or Device Within the Definition of Class III Gaming. When the respective referendums were put before voters in 2012 and 2016, voters were expressly informed that casino gaming means: any and all table and casino-style games played with cards, dice or equipment, for money, credit, or any representative of value; including, but not limited to roulette, blackjack, big six, craps, 7 Similar to the 2012 Voter Handbook, the 2016 Voter Handbook uses the language game or device, while the 2011 Twin River Legislation, which was codified at R.I. Gen. Laws 42-61.2-8-1(8), uses the language game of device, which appears to be a typographical error. Compare Rhode Island Voter Information Handbook 2016 at 10 with 2011 Twin River Legislation (emphasis added). See supra n.8. Page 10 of 14
poker, baccarat, pai gow, any banking or percentage game, or any other game or device included within the definition of Class III gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which is approved by the State of Rhode Island through the Lottery Division. Thus, in both 2012 and 2016 voters were on notice that their approval of the respective referendum questions would permit any casino-style games played for money, including any game or device included within the definition of Class III gaming as that term is defined in 25 U.S.C. 2703(8). B. Class III Gaming Includes All Forms of Gaming that are Not Class I or Class II Gaming. Section 2703(8) of Title 25 of the United States Code appears within the Indian Gaming Regulatory Act. Section 2703(8) defines Class III gaming as all forms of gaming that are not class I gaming or class II gaming. Class I gaming includes certain social games played for prizes of minimal value and traditional forms of Indian gaming engaged in as part of tribal ceremonies or celebrations. 25 U.S.C. 2703(6). Class II gaming generally includes bingo and certain card games (but generally does not include banking card games, including baccarat, chemin de fer or blackjack, or slot machine games). Sports wagering does not fall within Class I gaming or Class II gaming. Thus, there is a sound argument that sports wagering falls within the plain definition of Class III gaming set forth in Section 2703(8) of Title 25 of the United States Code. C. 25 CFR 502.4 Class III Gaming. In addition to defining Class III gaming, the Indian Gaming Regulatory Act also established the National Indian Gaming Commission and authorized it to promulgate regulations and guidelines to implement the act s provisions. 25 USC 2702(3); 2704; 2705(3). The National Indian Gaming Commission has promulgated regulations implementing numerous sections of Indian Gaming Regulatory Act, which are set forth in the Code of Federal Regulations at 25 CFR part 501 et seq. The Code of Federal Regulations makes explicit that the games that are not Class I Gaming or Class II Gaming and, therefore, fall within Class III gaming include [a]ny sports betting. 25 CFR 502.4. Section 502.4 of Title 25 of the Code of Federal Regulations provides: Class III gaming means all forms of gaming that are not class I gaming or class II gaming, including but not limited to:... Page 11 of 14
25 CFR 502.4. (c) Any sports betting and parimutuel wagering including but not limited to wagering on horse racing, dog racing or jai alai. VII. Voters in 2012 and 2016 Authorized Sports Wagering at Twin River and Twin River-Tiverton, Respectively. Based on the foregoing, we have concluded that voters in the 2012 and 2016 elections authorized sports wagering at Twin River and Twin-River Tiverton, respectively, under Article 6, Section 22 of the constitution. In interpreting the scope of voter approval of referendums and other voter initiatives, courts employ the tenants of statutory construction. See Douglas v. Stillwater Area Public Schools, Independent School Dist. 834, 899 N.W.2d 549 (Minn. Ct. App. 2017); see also Commonwealth v. Keefner, 961 N.E.2d 1083, 1087 (Mass. 2012) (in interpreting voter initiatives, courts apply settled principles of statutory construction as [they] would any other statute adopted in the normal legislative process. ); Robert L. v. Superior Court of Orange Cty., 69 P.3d 951, 955 (Cal. 2003) (stating that California courts apply the same principles that govern statutory construction. ); Roe v. Teletech Customer Care Mgmt. (Colorado) LLC, 257 P.3d 586, 590 (Wash. 2011) ( The rules of construction applied to statutes also apply to initiatives. ). Thus, courts turn first to the language of the statute, giving the words their ordinary meaning. Robert L., 69 P.3d at 955 (internal quotation marks omitted); see also Keefner, 961 N.E.2d at 1087. The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate s intent.] Id. (alteration in original). Courts focus on the language of the statute as the average informed voter voting on the initiative would read it and if the voters intent is clear, [the] court need not look further. Teletech, 257 P.3d at 590. When the language is ambiguous, the courts will refer to other indicia of the voters intent, particularly the analyses and arguments contained in the official ballot pamphlet. Robert L., 69 P.3d at 955 (internal quotation marks omitted); see also Barbuto v. Advantage Sales & Mktg., LLC, 78 N.E.3d 37, 48 (Mass. 2017) (stating that, to determine legislative intent, Massachusetts courts will look to the closest equivalent to legislative history, which is the Information for Voters guide that is prepared by the Secretary of the Commonwealth and sent to each registered voter before the election ) (citing to Teletech); Teletech, 257 P.3d at 591 ( If there is ambiguity in an initiative, the court may look to extrinsic evidence of the voters intent such as statements in a voters pamphlet. ); Santos v. Brown, 238 Cal. App. 4th 398, 409 (2015) ( If language is ambiguous, courts may consider ballot summaries and arguments in determining the voters intent and understanding of a ballot measure. ). Finally, [t]here is a presumption, though not conclusive, that voters are aware of existing laws at the time a voter initiative is adopted. Santos, 238 Cal. App. 4th at 410. Page 12 of 14
Here, the 2012 and 2016 referendums both sought voter approval of state-operated casino gaming, such as table games. (emphasis added). The referendums defined casino gaming, as explained above, to include all games or devices included within the definition of Class III gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which are approved by the State through the Lottery Division. The definition of casino gaming did not need specifically to reference sports wagering because it incorporated the definition of Class III gaming as set forth in the United States Code: [t]here is a presumption, though not conclusive, that voters are aware of existing laws at the time a voter initiative is adopted. Santos, 238 Cal. App. 4th at 410. The language of the referendums supports approval for casino gaming, and not just table games, was sought. Applying well-settled principles of statutory construction, the language such as must be construed as an illustrative example and not an exhaustive or complete list. See Bragdon v. Abbott, 524 U.S. 624, 639 (1998) (use of the term such as confirms[] the list is illustrative, not exhaustive); see also Douglas, 899 N.W.2d at 553 (in reviewing the scope of ballot language regarding bond proceeds, the court read the plain language of the statute and concluded that the term including indicates a nonexclusive list). Moreover, the definition of casino gaming made clear to voters that table games are but one type of casino gaming. Further supportive of that notion is the fact that the referendums also specifically defined table game and table gaming, thereby drawing a distinction between casino gaming and the more limited table games. By approving the 2012 and 2016 referendums, voters generally authorized Class III gaming, but left it to the State, through the division of state lottery, to determine which specific Class III games would be approved. To that end, the definition of casino gaming in the 2012 and 2016 referendums provides: any and all table and casino-style games played with cards, dice or equipment, for money, credit, or any representative of value; including, but not limited to roulette, blackjack, big six, craps, poker, baccarat, pai gow, any banking or percentage game, or any other game or device included within the definition of Class III gaming as that term is defined in Section 2703(8) of Title 25 of the United States Code and which is approved by the State of Rhode Island through the Lottery Division. Thus, in approving the 2012 and 2016 referendums, voters authorized (and intended to authorize), as a general matter, all Class III gaming, but left it to the State through the Lottery Division to approve specific Class III games. Accordingly, if and when a federal law is enacted or repealed or a United States Supreme Court decision affirms the authority of states to regulate sports wagering within their respective borders, the State through the Lottery Division may approve sports wagering as voters already have authorized Class III gaming. Page 13 of 14
In conclusion, if the General Assembly enacts legislation permitting the State to commence operation of sports wagering at Twin River and/or Twin River-Tiverton, for all the foregoing reasons, we have concluded that electors approved casino gaming (which includes sports wagering) during the 2012 and 2016 elections thereby satisfying the requirements of Article 6, Section 22 of the constitution. 886912.v3 Page 14 of 14