City of Revere v. Massachusetts Gaming Commission

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SJC-12111
SJC-12177

CITY OF REVERE & others1 vs. MASSACHUSETTS GAMING COMMISSION.

Suffolk. December 5, 2016. - March 10, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.

Gaming. License. Administrative Law, Judicial review,
Intervention. Practice, Civil, Action in nature of
certiorari, Review of administrative action, Intervention,
Interlocutory appeal. Jurisdiction, Judicial review of
administrative action.

Civil action commenced in the Superior Court Department on
October 16, 2014.

A motion to dismiss the intervener's complaint and a motion
to dismiss the plaintiffs' second amended complaint were heard
by Janet L. Sanders, J.

The Supreme Judicial Court granted an application for
direct appellate review, and following the order by Sanders, J.,
for entry of final judgment, the Supreme Judicial Court granted
a second application for direct appellate review.

1
International Brotherhood of Electrical Workers Local 103,
Louis Ciarlone, Ronald Hills, Debra A. Santa Anna, and Elaine
Leto; Mohegan Sun Massachusetts, LLC, intervener.
 2

Kenneth S. Leonetti & Christopher E. Hart (Michael Hoven
also present) for the intervener.
Patricia L. Davidson for city of Revere.
David S. Mackey (Mina S. Makarious & Melissa C. Allison
also present) for the defendant.

BOTSFORD, J. This case concerns the process by which the

Massachusetts Gaming Commission (commission) awarded a gaming

license in late 2014 to Wynn MA, LLC (Wynn). The plaintiffs --

an unsuccessful applicant for the license, the city that would

have hosted the unsuccessful applicant, a labor union, and

individual citizens -- filed two complaints in the Superior

Court that alleged numerous defects in the commission's process

for awarding the license to Wynn. The commission filed motions

to dismiss both complaints. A judge in the Superior Court

allowed the motions on all but one count of one of the

complaints, permitting only the unsuccessful applicant's claim

for certiorari review to survive. The parties now appeal

various aspects of the judge's decision. For the reasons

discussed below, we affirm in part, reverse in part, and remand

the case for further proceedings.

Background. 1. Gaming in Massachusetts. In November,

2011, the Legislature enacted St. 2011, c. 194, An Act
 3

establishing expanded gaming in the Commonwealth (act).2 Section

16 of the act created the gaming commission and set forth

standards under which applicants could obtain a license from the

commission to operate a gaming establishment. See G. L. c. 23K,

inserted by St. 2011, c. 194, § 16. The act describes two types

of licenses. The one at issue here, a "category 1 license,"

permits the operation of "a gaming establishment with table

games and slot machines." See G. L. c. 23K, § 2. The act

authorizes the commission to issue up to one such license in

"region A," which encompasses the counties of Suffolk,

Middlesex, Essex, Norfolk, and Worcester. G. L. c. 23K, § 19

(a) (1).

The license application process relevant to this case

unfolded in two phases, as contemplated by the commission's

regulations. See 205 Code Mass. Regs. § 110.01 (2012).

Applicants were required first to demonstrate their suitability

and eligibility based on criteria described in G. L. c. 23K,

§§ 12 and 15. Only those applicants deemed suitable by the

commission proceeded to the second phase, in which the

commission considered the applicant's entire application. See

G. L. c. 23K, § 12 (c). In this phase, the commission evaluated

2
The court's opinion in Abdow v. Attorney Gen., 468 Mass.
478, 480-482 (2014), sets forth a more complete description of
St. 2011, c. 194 (act).
 4

the applicants based on nineteen statutory criteria and issued a

corresponding statement of findings. See G. L. c. 23K, § 18.

The criteria required the commission to evaluate how well the

applicants would advance a broad array of objectives, ranging

from promoting local businesses and using sustainable

development principles to maximizing revenues received by the

Commonwealth and mitigating the potential impacts of gaming on

host and surrounding communities. See id.

Ultimately, the license application process challenged in

this case came down to a choice between two applicants -- Wynn,

which proposed a casino in Everett, and Mohegan Sun

Massachusetts, LLC (Mohegan Sun), which proposed a casino in

Revere. In September, 2014, the commission awarded the license

to Wynn. In November, 2014, the commission issued a thirty-six-

page written determination, with accompanying exhibits,

explaining its evaluation of the competing applications. This

determination formally awarded the license to Wynn and denied

the application of Mohegan Sun.

2. Alleged defects in the licensing process. In October,

2014, the city of Revere (city), the International Brotherhood

of Electrical Workers Local 103 (union), and four union members

(individual plaintiffs) brought suit in the Superior Court

against the commission. In early 2015, these plaintiffs filed a

second amended complaint. At around the same time, Mohegan Sun
 5

filed a motion to intervene and a complaint in intervention.

The motion to intervene was allowed without opposition.

The second amended complaint and Mohegan Sun's complaint in

intervention contain four virtually identical counts. In the

first two counts, Mohegan Sun, the city, and the union seek

review and reversal of the commission's award of the gaming

license to Wynn under G. L. c. 30A, § 14 (count I), and under

G. L. c. 249, § 4 (count II). Concerning counts I and II, they

allege, for example, that the commission in its agreement to

award the license to Wynn failed to include several commitments

or conditions required by the act relating to environmental

requirements, neighboring community obligations and investor

suitability; failed to give proper weight to host and

surrounding community agreements, adopted an improper

arbitration regulation, failed to properly consider various

mitigation plans, and accepted incorrect employment estimates;

treated Wynn and Mohegan Sun differently, with inequitable

results for Mohegan Sun, in part by using differing grading

procedures, inconsistently applying the statutory requirement

that license applicants have no affiliates or close associates

who would not qualify for a license, and engaging in improper ex

parte communications with Wynn; and failed properly to take into

account the suitability (in particular, the criminal history) of

certain individuals allegedly involved in the transaction in
 6

which Wynn purchased the land for its casino. They also allege

that Wynn failed properly to disclose its involvement in an

ongoing criminal investigation as required by the act.

In count III of the respective complaints, Mohegan Sun, the

city, and the union seek a declaratory judgment pursuant to

G. L. c. 231A, § 1, to the effect that the act is

unconstitutional as applied and that, to the extent the act

precludes judicial review, it violates the constitutional

guarantee of due process and also separation of powers

principles. In count IV, the plaintiffs allege that the

commission's regulations implementing the act are ultra vires

and unconstitutional.

Finally, in the second amended complaint only, the

individual plaintiffs seek relief under the open meeting law,

G. L. c. 30A, § 23 (count V). Essentially, count V alleges that

a quorum of the commission engaged in deliberations that should

have taken place in a public meeting, including during the

recess of a public meeting and on other occasions. Additional

allegations in the complaints are discussed where relevant

infra.

3. Procedural history. In July, 2015, the commission

moved to dismiss both complaints. In December, 2015, the motion

judge allowed the motion to dismiss the second amended

complaint. The judge ruled that counts I through IV of that
 7

complaint must be dismissed under Mass. R. Civ. P. 12 (b) (1),

365 Mass. 754 (1974), for lack of standing because the city and

the union are not within the "zone of interests" that the act

arguably protects. She also ruled that the individual

plaintiffs' allegations regarding the open meeting law failed to

rise above the speculative level, and therefore could not

survive a motion to dismiss under Mass. R. Civ. P. 12 (b) (6)

for failure to state a claim.

With respect to Mohegan Sun's complaint in intervention,

the motion judge allowed the motion to dismiss count I, ruling

that § 17 (g) of the act expressly precludes judicial review

under G. L. c. 30A, § 14. However, she denied the motion with

respect to count II, concluding that Mohegan Sun satisfied the

prerequisites for certiorari review. Because this ruling

permitted a form of judicial review of the commission's region A

decision, the judge dismissed as moot counts III and IV of

Mohegan Sun's complaint seeking declaratory relief.

The commission filed a notice of appeal with respect to

Mohegan Sun's surviving count II, claiming that the doctrine of

present execution authorizes interlocutory review. After entry

of final judgment the plaintiffs filed their own notice of

appeal. This court allowed applications for direct appellate

review of both the commission's and the plaintiffs' appeals.
 8

Standard of review. This court reviews orders on motions

to dismiss de novo. Shapiro v. Worcester, 464 Mass. 261, 266

(2013). For purposes of that review, we accept as true the

facts alleged in the plaintiffs' complaints and any exhibits

attached thereto, drawing all reasonable inferences in the

plaintiffs' favor. Burbank Apartments Tenant Ass'n v. Kargman,

474 Mass. 107, 116 (2016).

Discussion. The parties' appeals raise several issues,

which we address in the following order. First, we consider the

claims raised by Mohegan Sun and the commission concerning the

motion judge's dismissal of Mohegan Sun's claim under G. L.

c. 30A, § 14, and the judge's determination that certiorari

review of the commission's decision is available. We also

review, briefly, the judge's dismissal of Mohegan Sun's claims

for declaratory relief in counts III and IV of the complaint.

We next address the claims of the city and the union that the

judge erred in ruling that they lacked standing to challenge the

commission's decision. Finally, we consider the open meeting

law claim of the individual plaintiffs.

1. Claims of Mohegan Sun and the commission. a. Judicial

review under G. L. c. 30A, § 14. General Laws c. 30A, § 14,

provides for judicial review of an agency decision in an

adjudicatory proceeding, "[e]xcept so far as any provision of

law expressly precludes" it. G. L. c. 30A, § 14, first par.
 9

Section 17 (g) of the act, in turn, provides that "[t]he

commission shall have full discretion as to whether to issue a

license. Applicants shall have no legal right or privilege to a

gaming license and shall not be entitled to any further review

if denied by the commission" (emphasis added). G. L. c. 23K,

§ 17 (g).

The motion judge concluded that Mohegan Sun's claim for

relief under G. L. c. 30A, § 14, fails because G. L. c. 23K,

§ 17 (g) expressly precludes such review. Mohegan Sun argues

that § 17 (g) is narrow in scope, barring review under G. L.

c. 30A, § 14, of the commission's denial of Mohegan Sun's

license application, but not of the commission's grant of a

license to Wynn. We agree with the motion judge's reading of

§ 17 (g). Even if we assume, for purposes of argument, that the

commission's licensing proceeding qualified as an "adjudicatory

proceeding" within the meaning of G. L. c. 30A,3 the language in

3
The act is opaque on this point, stating that "[t]he
commission shall conduct a public hearing on [a gaming license]
application pursuant to [§] 11 1/2 of [c.] 30A." G. L. c. 23K,
§ 17 (c). There is no "§ 11 1/2" within G. L. c. 30A. It is
possible (and we think likely) that the Legislature intended to
reference G. L. c. 30A, § 11A 1/2, in which case it would have
been pointing to a version of the open meeting law that was
repealed by a 2009 enactment, effective in 2010 (one year prior
to the passage of the act). See St. 2009, c. 28, §§ 17-18
(repealing G. L. c. 30A, §§ 11A and 11A 1/2, and adding G. L.
c. 30A, §§ 18-25). On the other hand, if the Legislature
intended to refer to G. L. c. 30A, § 11, then it would be
referring to the section that describes adjudicatory
 10

§ 17 (g) evinces a clear legislative intent to "expressly

preclude[]" judicial review of commission licensing decisions

within the meaning of G. L. c. 30A, § 14, first par. This

preclusion includes, but is not limited to, entities whose

applications have been denied by the commission.

Mohegan Sun's main argument to the contrary hinges on the

phrase in § 17 (g) "if denied by the commission." According to

Mohegan Sun, this phrase shows that the Legislature intended

§ 17 (g) to bar review of the denial of a gaming license, but

not the grant of one. This reading distorts the syntax of § 17

(g). The language at issue provides: "Applicants . . . shall

not be entitled to any further review if denied by the

commission." G. L. c. 23K, § 17 (g). The subject of this

sentence is "applicants," which is later modified by the phrase

"if denied by the commission." Thus, the statute withholds "any

further review" from entities whose applications have been

denied by the commission. This structure requires that a

"denial" occur before the bar to review operates. But the bar,

once triggered, attaches to the failed applicant, not to the

"denial" of that entity's application.

proceedings. Although the commission adverted to this problem
its motion to dismiss, the parties do not discuss it in their
briefs to this court.
 11

More importantly, we consider the language of § 17 (g) to

reflect a broader legislative intention to curtail judicial

review, barring anyone, not just failed applicants, from

obtaining review of commission licensing decisions through the

ordinary channels of judicial review that the Legislature has

otherwise provided, including review under G. L. c. 30A, § 14.

See Olmstead v. Department of Telecomm. & Cable, 466 Mass. 582,

588 (2013) (court gives effect to statute's plain and ordinary

meaning where statute's words are clear). There was no error.

b. Availability of certiorari review. Given our

interpretation of § 17 (g), the obvious threshold question

regarding certiorari review is whether such review of a

commission licensing decision may be available notwithstanding

§ 17 (g). The answer to the question is yes. Although § 17 (g)

precludes ordinary modes of judicial review and thereby

qualifies, for purposes of G. L. c. 30A, § 14, as a provision

rendering review under that statute unavailable, it does not

have the same effect with respect to certiorari review, which

"is of extraordinary nature" and "is one of the ancient

prerogative writs, whose history stretches far back toward the

beginnings of the common law." Swan v. Justices of Superior

Court, 222 Mass. 542, 544 (1916). That history provides an

independent basis for certiorari review outside the scope of

§ 17 (g) and G. L. c. 30A, § 14. As the court stated in Swan,
 12

supra, only "words unmistakable in import" will "express a

legislative purpose to deprive parties . . . from the shelter of

this writ," and we do not read the language of § 17 (g) as going

so far. See Swan at 543-544 (statutory language, "there shall

be no appeal" from decision of Superior Court judge "falls far

short" of precluding certiorari review). See also Indeck v.

Clients' Sec. Bd., 450 Mass. 379, 384 (2008) (certiorari review

"not necessarily precluded" even where decision declared "final

or unreviewable"). Our conclusion is reinforced when we

consider the language of § 17 (g) against the backdrop of the

Legislature's declaration that a "paramount policy objective" of

the act is to "ensur[e] public confidence in the integrity of

the gaming licensing process." G. L. c. 23K, § 1 (1). It would

be difficult to give meaning to that declaration were we to read

§ 17 (g) as the commission suggests we should -- that is, as

precluding even the extraordinary remedy of certiorari review.

Again, there was no error.

Here, there are four issues related to certiorari review:

(1) whether Mohegan Sun's complaint in intervention was timely;

(2) whether the doctrine of present execution allowed the

commission to bring an immediate, interlocutory appeal from the

motion judge's decision that certiorari review is available to

Mohegan Sun; (3) whether Mohegan Sun satisfies the necessary

conditions to entitle it to certiorari review; and (4) if so,
 13

what is the nature and scope of certiorari review of a licensing

decision by the commission.

(1) Timeliness. The commission argues that Mohegan Sun's

certiorari claim is jurisdictionally time barred because the

complaint was not filed within the sixty-day limitations period

in G. L. c. 249, § 4. Mohegan Sun responds that its motion to

intervene and accompanying complaint relate back to the time of

the original plaintiffs' complaint in much the same way as Mass.

R. Civ. P. 15 (c), 365 Mass. 761 (1974), permits for amended

complaints.

"Whether a party should be allowed to intervene is a matter

that is largely left to the discretion of the judge below."

Corcoran v. Wigglesworth Mach. Co., 389 Mass. 1002, 1003 (1983),

citing Mass. R. Civ. P. 24 (b), 365 Mass. 769 (1974). Although

a statute of limitations and its accompanying rationale of

repose certainly are important factors in resolving the issue,

they are not necessarily dispositive; rather, timeliness in the

intervention context is a more flexible concept that also may

take into account (1) the stage at which the party intervened,

(2) any prejudice that arises from a delayed intervention, and

(3) an applicant's particular need to intervene. See J.W. Smith

& H.B. Zobel, Rules Practice, § 24.4, at 374-376 (2d ed. 2006).

Here, at the time of Mohegan Sun's motion to intervene, the

original plaintiffs had just filed an assented to motion to file
 14

their second amended complaint. Mohegan Sun's motion to

intervene then was allowed without opposition from the

commission. As discussed supra, the claims and allegations in

the second amended complaint and the intervenor's complaint are

very similar. The commission did not challenge the timeliness

of the intervention, in its motion to dismiss, until several

months after the intervention was allowed. Given those

circumstances, the commission cannot show that it was prejudiced

by Mohegan Sun's intervention. See Corcoran, 389 Mass. at 1003.

See also Sargeant v. Commissioner of Pub. Welfare, 383 Mass.

808, 819 (1981).

Furthermore, we agree with the motion judge that, at least

in this case, there is little functional difference between

Mohegan Sun filing a complaint in intervention and Mohegan Sun

being added as a new plaintiff to the original plaintiffs'

second amended complaint under Mass. R. Civ. P. 15; if the

latter course of action had been followed, the generous

relation-back principles applicable to amendments to complaints

would permit the amendment. Cf. Rafferty v. Sancta Maria Hosp.,

5 Mass. App. Ct. 624, 628 (1977) ("[T]he distinction in this

case between a motion to intervene and a motion to amend by

adding plaintiffs is purely formal . . . . Whether we treat the

new plaintiffs as parties added by an amendment which relates

back to the original complaint or as interveners makes no
 15

difference in the circumstances of this case"). Accordingly, we

decline to disturb the motion judge's ruling that Mohegan Sun's

certiorari claim is not barred as untimely.

(2) Doctrine of present execution. The denial of the

commission's motion to dismiss Mohegan Sun's certiorari review

claim is an interlocutory ruling. The doctrine of present

execution provides a narrow exception to the general rule

prohibiting interlocutory appeals, provided two conditions are

met: (1) the matter is collateral to the merits of the

controversy, and (2) the interlocutory ruling will interfere

with rights in a way that cannot be remedied on appeal from the

final judgment. See Marcus v. Newton, 462 Mass. 148, 151-152

(2012). Generally, orders denying motions to dismiss based on

immunity from suit satisfy both criteria. Shapiro, 464 Mass. at

264–265, and cases cited.

Given these requirements, the commission's attempt to

invoke the doctrine hinges on its position that § 17 (g)

precludes any and all forms of judicial review of its licensing

decisions, and therefore immunizes the commission from suit.

We have decided in this case that certiorari review of

licensing decisions sometimes may be available. Therefore, the

commission is not entirely immune from suit, and it may not

invoke the doctrine of present execution to obtain review of the

judge's interlocutory order. Nevertheless, we discuss the other
 16

two issues concerning certiorari review that we have identified

because they have been briefed fully by the parties, they raise

significant issues of statutory interpretation concerning the

commission (a relatively new and important public agency), and

addressing them is in the public interest. See Marcus, 462

Mass. at 153, and cases cited.

(3) Prerequisites for certiorari review. In general, a

plaintiff is only entitled to certiorari review of an

administrative decision if it can demonstrate the presence of

three elements: "(1) a judicial or quasi judicial proceeding,

(2) from which there is no other reasonably adequate remedy, and

(3) a substantial injury or injustice arising from the

proceeding under review." Indeck, 450 Mass. at 385. The

commission argues that Mohegan Sun, as an applicant for a gaming

license, does not have a justiciable right to vindicate through

certiorari review and that, even if it does, the proceedings

appealed from are not judicial or quasi judicial. We agree

with the motion judge that Mohegan Sun meets the prerequisites

for certiorari review in this case.

When distinguishing a quasi judicial agency proceeding from

a legislative or purely administrative one, we have looked

generally to the form of the proceeding and examined the extent

to which it resembles judicial action. See Hoffer v. Board of

Registration in Med., 461 Mass. 451, 457 (2012). However, the
 17

line beyond which an agency proceeding becomes quasi judicial is

rarely a bright one. Instead, courts have looked to a number of

factors in deciding the question: (1) whether the proceeding is

preceded by specific charges, see School Comm. of Hudson v.

Board of Educ., 448 Mass. 565, 576 (2007); (2) whether the

proceeding involves sworn testimony by witnesses subject to

cross-examination, see id., or a party attesting to certain

facts, see Frawley v. Police Comm'r of Cambridge, 473 Mass. 716,

727 (2016), as opposed to unsworn statements by interested

persons advocating for or against a proposed new policy, see

School Comm. of Hudson, 448 Mass. at 576; (3) whether the agency

conducts an investigation into the veracity of attested-to

facts, see Frawley, supra; (4) whether the proceeding culminates

in an individualized determination of a party's entitlement to

some benefit, see id., or an individualized course of

discipline, see Hoffer, supra, as opposed to culminating in the

adoption of a rule of general applicability, see Pronghorn, Inc.

v. Licensing Bd. of Peabody, 13 Mass. App. Ct. 70, 72 (1982);

and (5) whether the proceeding is followed by the adoption of

formal findings of fact, see School Comm. of Hudson, supra.

Applying those factors here, we observe, on the one hand,

that the licensing hearing was not preceded by specific charges,

was not adversarial in the typical judicial sense, and provided

no opportunity for cross-examination. See 205 Code Mass. Regs.
 18

§ 118.07 (1)-(2) (2014).4 Further, it invited unsworn statements

by persons advocating support or opposition to a license

application. See G. L. c. 23K, § 17 (d).

On the other hand, applicants were required to present

information to the commission "truthfully, fully and under

oath." 205 Code Mass. Regs. § 118.07 (2). Applicants also were

provided an opportunity to respond to the commission as part of

the licensing hearing, both to correct perceived factual errors

in the commission's presentations and to respond to conditions

that the commission proposed to place on the granting of a

license. Further, the commission was required to conduct

thorough investigations into the applicants, first into their

suitability, see G. L. c. 23K, § 12, and later, for those deemed

suitable, into the materials the applicants submitted as part of

their applications, see G. L. c. 23K, §§ 15 (11), 17, 18. Once

those steps were completed, the commission made a highly

4
The commission points out that its regulations describe
the proceedings in the second phase of the licensing process as
"administrative and legislative in nature, not adjudicatory."
205 Code Mass. Regs. § 118.07 (1) (2014). However, as discussed
in note 3, supra, the statutory authority for that declaration
is less than clear. More to the point, the term "adjudicatory
proceeding" has a specific statutory definition, see G. L.
c. 30A, § 1 (1), with specific consequences regarding, for
instance, how the hearing is conducted, see G. L. c. 30A, §§ 10,
11. As discussed in more detail in the text, the term "quasi
judicial proceeding" has a substantially broader and more
flexible meaning than the term "adjudicatory proceeding" as
defined in G. L. c. 30A. Consequently, our analysis is not
dependent on the designation "adjudicatory proceeding."
 19

individualized determination to issue a gaming license to Wynn

and to deny the same to Mohegan Sun. This determination did not

concern a new rule of general applicability, but rather

conferred a particular benefit upon a particular entity and

denied that benefit to another entity. The determination was

accompanied by more than twenty pages of findings and evaluation

analyzing the manner in which each applicant proposed to advance

the statutory objectives of the act.

We conclude that, on balance, the category of quasi

judicial proceedings is flexible enough to include the

commission's licensing hearing at issue here. Accordingly,

Mohegan Sun has satisfied the first element for certiorari

review.

Mohegan Sun also satisfies the second element of certiorari

review, demonstrating that it has available to it no other

adequate remedy. See Indeck, 450 Mass. at 385. The commission

does not contest this point. To the contrary, it argues that

its licensing decisions generally are not subject to any

judicial review whatsoever; it further contends that such

preclusion of review is both commonplace and constitutional.

However, the point at which ordinary avenues of review vanish

(e.g., G. L. c. 30A, § 14) is precisely where the extraordinary

remedy of certiorari may come into play. See Indeck, 450 Mass.

at 384 ("certiorari review is not necessarily precluded even if
 20

a decision is declared [by rule or statute] to be final or

unreviewable"); MacKenzie v. School Comm. of Ipswich, 342 Mass.

612, 614 (1961) ("Apart from review under [G. L. c. 30A], if

available, certiorari is the only way of reviewing decisions

declared final by statute"); Natick v. Massachusetts Dep't of

Pub. Welfare, 341 Mass. 618, 620 (1961) ("It is well established

that certiorari lies notwithstanding provisions barring appeal

by any party"); Swan, 222 Mass. at 544. (certiorari review

available "when no other means of relief are open"). Thus, our

conclusion that § 17 (g) generally precludes judicial review of

commission licensing decisions under G. L. c. 30A, § 14,

supports Mohegan Sun's argument that it meets the second element

for certiorari review.

At oral argument, the commission pointed out other areas of

the law that might allow judicial review of certain commission

decisions. For instance, it mentioned §§ 35, 36, and 45 of the

act itself. However, these provisions do not pertain to a

decision by the commission regarding the issuance of a license.

Even if they did, these sections explicitly provide for an

adjudicatory hearing under G. L. c. 30A. See G. L. c. 23K,

§§ 35 (g), 36 (d), 45 (e). The act makes no such provision for

gaming license applicants (like Mohegan Sun) whose applications

have been denied, and indeed generally precludes such entities
 21

from obtaining judicial review of commission licensing

decisions. See G. L. c. 23K, § 17 (g).

Additionally, the commission directed us to certain Federal

cases where the courts upheld a general statutory bar to

judicial review of agency decisions, but left open the

possibility of limited review in egregious cases. See, e.g.,

United States v. Bozarov, 974 F.2d 1037, 1044–1045 (9th Cir.

1992), cert. denied, 507 U.S. 917 (1993), and cases cited

(upholding general preclusion of judicial review, but noting

review would remain possible for "colorable constitutional

claims" and when agency head "acted in excess of his delegated

authority"). One problem with this cluster of cases is that

they do not specify the precise mechanism for obtaining review

in the hypothetical egregious case. More to the point, they do

not stand for the proposition that certiorari is an

inappropriate mechanism for seeking review when those egregious

cases arise in the shadow of a general statutory bar to judicial

review. Thus, the cases do not help the commission with respect

to the second element.

In these circumstances, Mohegan Sun has sufficiently

demonstrated a lack of adequate alternative relief such that it

satisfies the second element for certiorari review.

Finally, Mohegan Sun has satisfied the third element for

certiorari review by alleging that the proceeding under review
 22

has worked a substantial injury or injustice. See Indeck, 450

Mass. at 385. As the motion judge observed, the commission

relies heavily on Abdow v. Attorney Gen., 468 Mass. 478 (2014),

and Caesars Mass. Mgt. Co., LLC v. Crosby, 778 F.3d 327 (1st

Cir. 2015), to support its position that Mohegan Sun does not

have a justiciable right that was injured such that certiorari

review may proceed. The commission overstates the value of

these cases to its position. It is true that, in Abdow, supra

at 495, this court said that the act "provides applicants with

no enforceable legal rights and contains strong language

suggesting that the Legislature intended to give them none."

Similarly, in Caesars, supra at 334, the United States Court of

Appeals for the First Circuit, drawing on our opinion in Abdow,

said that Massachusetts law does not recognize a gaming license

application as "a source of expectable value sufficiently

reliable to be protected as property." But these remarks, in

context, were supporting a narrower holding: that license

applicants do not have a constitutionally protected interest in

a gaming license. See Abdow, supra at 487, 493, 495-496;

Caesars, supra at 334-335.

A constitutionally protected right and a "justiciable

right" for purposes of certiorari review are two different

creatures. In most cases, the former is a subset of the latter.

For instance, in the Hoffer case, this court rejected the
 23

plaintiff's argument that she had a constitutionally protected

property interest in the reinstatement of her medical license.

461 Mass. at 455-456. Nevertheless, "we treat[ed] the wrongful

withholding of [the plaintiff's] reinstatement to her chosen

profession as sufficient injury under the third prong of the

Indeck test" such that certiorari review was appropriate. See

id. at 457. See also Bielawski v. Personnel Adm'r of Div. of

Personnel Admin., 422 Mass. 459, 464, 467 (1996) (rejecting

constitutional claims of police officer who was not promoted,

but noting "[t]he appropriate method of review . . . would have

been for the plaintiff to seek relief in the nature of

certiorari"); Saxon Coffee Shop, Inc. v. Boston Licensing Bd.,

380 Mass. 919, 923 (1980) (permitting certiorari review where

agency proceeding "resulted in injury in the form of a lost

license" to operate coffee shop).

We recognize that, in the Hoffer and Saxon cases, for

example, the parties sought certiorari review while attempting

to restore a license that had been taken away from them, whereas

here, Mohegan Sun seeks certiorari review despite not having

been awarded a license in the first place and where the statute

makes clear that "[a]pplicants shall have no legal right or

privilege to a gaming license." G. L. c. 23K, § 17 (g).

Nonetheless, those cases show it is not necessary that Mohegan

Sun assert a constitutional right in order to obtain certiorari
 24

review. Cf. Yerardi's Moody St. Restaurant & Lounge, Inc. v.

Selectmen of Randolph, 19 Mass. App. Ct. 296, 303 (1985)

(Yerardi's) ("In this Commonwealth the right to a hearing where

government exerts power upon an individual in a matter of

consequence has been related, on occasion, not strictly to the

constitution, but to an ethic that pervades our legal system").

Here, Mohegan Sun had a legitimate expectation, backed up by

substantial investments of resources in the application process,

that the commission would follow the law in awarding the license

that Mohegan Sun sought. This interest, which Mohegan Sun

asserts was harmed by the commission's alleged deviations from

the statutory standards, satisfies the third element of

certiorari review.

(4) Nature and scope of certiorari review. Generally, the

standard of review for a certiorari action is calibrated to the

nature of the action for which review is sought. See, e.g.,

Frawley, 473 Mass. at 728, and cases cited. "Ordinarily, where

the action being reviewed is a decision made in an adjudicatory

proceeding where evidence is presented and due process

protections are afforded, a court applies the 'substantial

evidence' standard." Figgs v. Boston Hous. Auth., 469 Mass.

354, 361–362 (2014). On the other hand, "where the decision

under review was not made in an adjudicatory proceeding," but

rather "entails matters committed to or implicating a board's
 25

exercise of administrative discretion, the court applies the

'arbitrary or capricious' standard" (citation omitted). Id. at

362 n.14. Further, in order to best tailor the scope of review

to the nature of the administrative decision at issue, it is

sometimes necessary to analyze separately the component parts of

the underlying decision. See Yerardi's, 19 Mass. App. Ct. at

300. In other words, some components of an administrative

decision may be unreviewably discretionary, while others will be

"submissible to the test of elementary justice that is invoked

by the words 'arbitrary or capricious.'" Id. at 301.

The Legislature intended § 17 (g) to sharply curtail the

availability of judicial review of commission licensing

decisions, and thereby avoid protracted legal battles over every

commission licensing decision. Such litigation would result in

lost tax revenue and might make gaming companies more reluctant

to apply for a license because of the risk of burdensome

litigation. Section 17 (g) embodies a directive to avoid, to

the extent possible, those costs.

Accordingly, the standard of review for a certiorari action

should be extremely deferential to the commission. In essence,

the act places a number of "unreviewable policy considerations,"

Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377 Mass.

231, 234 (1979), squarely in the hands of the commission. See,

e.g., G. L. c. 23K, § 18 (2) ("promoting local businesses in
 26

host and surrounding communities); § 18 (5) ("building a gaming

establishment of high caliber with a variety of quality

amenities . . . so that patrons experience the diversified

regional tourism industry"); § 18 (13) ("offering the highest

and best value to create a secure and robust gaming market in

the region and the commonwealth"). To review the commission's

decisions regarding these types of highly discretionary

determinations -- exercises of the commission's "professional

expertise and judgment in weighing and balancing a wide range of

considerations peculiar to the petitioner in light of the public

interest" (quotation and citation omitted), Hoffer, 461 Mass. at

455 -- would be inappropriate.

On the other hand, Mohegan Sun alleges, for example, that

the commission, in awarding the license to Wynn, violated

certain requirements of the act, ignored specific statutory

criteria, and gave favorable treatment to Wynn in contravention

of the act. Such allegations are amenable to arbitrary and

capricious review, where courts ask whether an agency's

discretionary decision was "legally erroneous or so devoid of

factual support as to be arbitrary and capricious." MacLaurin

v. Holyoke, 475 Mass. 231, 238 (2016). These components of the

commission's decision can be disturbed only if they were based

on a "legally untenable ground" or if "unreasonable, whimsical,

capricious, or arbitrary" in nature (citation omitted). See
 27

Forsyth Sch. for Dental Hygienists v. Board of Registration in

Dentistry, 404 Mass. 211, 218 (1989). Such a carefully

circumscribed mode of analysis accords with the animating

principle behind certiorari review -- that it is "a limited

procedure reserved for correction of substantial errors of law

apparent on the record created before a judicial or

quasi[]judicial tribunal." School Comm. of Hudson, 448 Mass. at

575-576. It also accords with our understanding that the

Legislature, through § 17 (g), sharply curtailed the

availability of judicial review of commission licensing

decisions, and thereby vested a tremendous amount of discretion

in the commission.

c. Declaratory judgment. Mohegan Sun also seeks a

declaratory judgment regarding the constitutionality of the act

and the commission's regulations. However, it concedes that the

motion judge properly ruled that because it has met the

prerequisites to obtain certiorari review, its constitutional

claims, which are premised on the absence of any available

avenue of judicial review, are moot. Therefore, these claims

were properly dismissed.

2. Claims of the city and the union. The city and the

union assert substantially the same claims against the

commission as does Mohegan Sun, seeking review under both G. L.

c. 30A and the certiorari statute, and seeking declaratory
 28

judgment. The motion judge ruled that the city and the union

both lacked standing to bring those claims because, unlike

Mohegan Sun, their injuries did not fall within the "zone of

interests" protected by the act.

At the outset, we note that the city and the union cannot

be within the "zone of interests" protected by the act for

purposes of review under G. L. c. 30A, § 14, because, as

previously discussed, § 17 (g) of the act expressly precludes

such review. If disappointed license applicants cannot obtain

judicial review under G. L. c. 30A, § 14, it would be absurd to

construe the statute as allowing such review to parties, like

the city and the union, who suffer a less direct injury from the

licensing process. See Flemings v. Contributory Retirement

Appeal Bd., 431 Mass. 374, 375–376 (2000) (declining to construe

statute in way that "produce[s] absurd results"). Because G. L.

c. 30A, § 14, is an inappropriate vehicle for either the city or

the union to challenge commission licensing decisions, their

standing to bring such a claim is immaterial. See Frawley, 473

Mass. at 724-725 & n.6.

With respect to the certiorari and declaratory judgment

claims of the city and the union, "[w]e treat standing as an

issue of subject matter jurisdiction." Ginther v. Commissioner

of Ins., 427 Mass. 319, 322 (1998). "A party has standing when

it can allege an injury within the area of concern of the
 29

statute or regulatory scheme under which the injurious action

has occurred." School Comm. of Hudson, 448 Mass. at 579,

quoting Massachusetts Ass'n of Indep. Ins. Agents & Brokers,

Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977).

Whether a plaintiff's injury falls within the so-called "zone of

interests" of a statute or regulatory scheme depends upon a

number of factors, including "[1] the language of the statute in

issue; [2] the Legislature's intent and purpose in enacting the

statute; [3] the nature of the administrative scheme; [4]

decisions on standing; [5] any adverse effects that might occur,

if standing is recognized; and [6] the availability of other,

more definite, remedies to the plaintiffs." Enos v. Secretary

of Envtl. Affairs, 432 Mass. 132, 135–136 (2000).5 In weighing

these factors, "we pay special attention to the requirement that

5
The union (and, to a lesser extent, the city) argues that
the "zone of interests" test and the accompanying factors
enunciated in Enos v. Secretary of Envtl. Affairs, 432 Mass.
132, 135–136 (2000), apply only where the relevant statute
provides no independent basis for standing, and thus would
govern for its declaratory judgment claim, but not for its
certiorari claim. We disagree. The union cites no authority,
and we have located none, to support such a distinction.
Moreover, the argument is at odds with the logic of Enos itself,
which seems to suggest its factors may apply regardless of
whether a statute provides an independent basis for standing.
Even if we agreed that the union and the city have standing,
those claims would fail because, for the same reasons stated in
the text, neither has suffered the requisite "substantial injury
or injustice" to satisfy the third element for certiorari
review. See Indeck v. Clients' Sec. Bd., 450 Mass. 379, 385
(2008).
 30

standing usually is not present unless the governmental official

or agency can be found to owe a duty directly to the

plaintiffs." Id. at 136.

We now apply these factors to the city and the union.

a. The city's standing for certiorari and declaratory

judgment claims. The city argues that the act ensures that the

licensing process takes into account the interests of

municipalities, especially "host communities." See G. L.

c. 23K, §§ 2, 15 (8), (13), (14). Because the city was a host

community to Mohegan Sun, with a statutorily mandated host

community agreement in place, the city argues it should have

standing to challenge the ultimate decision of the commission in

awarding the license to Wynn and denying the license to Mohegan

Sun.

Although § 17 (g) reveals a clear legislative intent to

sharply curtail judicial review of commission licensing

decisions, and thereby avoid the costs and delays of protracted

litigation, an important purpose is served by keeping open at

least some limited avenue for judicial review in order to

prevent wholesale violations of the act and to ensure public

confidence in the licensing process. Against that backdrop, we

conclude that granting standing for a certiorari action only to

the disappointed applicant, and not to its host community,

strikes the appropriate balance. At the end of the day, the
 31

potential benefits affiliated with the award of a gaming license

accrue first to the applicant, and only secondarily to the host

community.6 If the Legislature intended for host communities to

have standing to challenge a commission licensing decision, it

would have done so far more clearly than in anything we can find

in the act and its associated regulations.

With respect to the fourth Enos factor, we are aware of no

other decisions concerning standing that are particularly

instructive here. Regarding the fifth and sixth factors, we

acknowledge that our opinion today effectively leaves the city

with no avenue to challenge the commission's licensing decision.

On the other hand, the city understates the adverse effect of

protracted litigation that would result if the statute conferred

standing on municipalities to challenge the grant of a gaming

license. This factor deserves particular weight given our

understanding that the Legislature intended § 17 (g) to restrict

judicial review of commission licensing decisions.

6
By no means does this belittle the loss that the city
suffered when the commission ultimately awarded the region A
license to Wynn and not Mohegan Sun. The potential economic
benefits to the city, discussed at length in its brief, were
substantial. But the city loses sight of the fact that these
benefits were never more than potential, and always were
contingent upon Mohegan Sun's receipt of a license that the
commission had "full discretion" not to award. See G. L.
c. 23K, § 17 (g).
 32

In light of all of these factors, we concur with the motion

judge that the city does not have standing to pursue its

certiorari and declaratory judgment claims.

b. The union's standing for certiorari and declaratory

judgment claims. Essentially, the union argues that its members

had an expectation of significant employment opportunities

should the commission have awarded the region A license to

Mohegan Sun. Further, it argues that the act expressly included

employment opportunities and the support of organized labor as

considerations in the licensing process. See G. L. c. 23K, §§ 1

(5), 18 (18).

The reasons discussed with respect to the city apply with

equal, if not greater, force to defeat the union's argument,

where the harm it claims to have suffered is even more remote

than that claimed by the city. In essence, the potential

benefits that the union claims to have lost do not suffice to

confer standing in the face of forceful statutory language

limiting judicial review of commission licensing decisions. We

do not read the act to bestow any right or interest upon the

union, nor to create any duty between the commission and it. We

agree with the motion judge that, if the act did either of those

things in a way that was sufficient to confer standing,

virtually any resident who could have been employed by Mohegan

Sun would also have standing to challenge the commission's award
 33

of the license to Wynn. Thus, in addition to the delay

discussed in connection with the city, conferring standing upon

the union could have the drawback of exposing the commission to

a flood of lawsuits, all despite the language in § 17 (g) aimed

at curtailing exactly such litigation. That harm would inure

not only to the commission, but to successful applicants and

their host communities as well. Accordingly, we conclude that

the union lacks standing to assert its certiorari and

declaratory judgment claims.

3. The individual plaintiffs' open meeting law claim. The

individual plaintiffs allege the commission violated the open

meeting law, G. L. c. 30A, §§ 18-35, based on three bundles of

allegations: (1) the facts and circumstances surrounding the

recess of an otherwise public September, 2014, hearing; (2) the

inferences of nonpublic deliberations to be drawn from the

public statements of two commissioners; and (3) calendar entries

suggesting a quorum of the commission engaged in nonpublic

deliberations. The commission argues, in line with the motion

judge, that none of the individual plaintiffs' allegations raise

their claim for relief above a speculative level.

A complaint only survives a motion to dismiss if it

includes enough factual heft "to raise a right to relief above

the speculative level." Iannacchino v. Ford Motor Co., 451

Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550
 34

U.S. 544, 555 (2007). The open meeting law provides a framework

under which "all meetings of a public body shall be open to the

public" unless a statutory exception applies. G. L. c. 30A,

§ 20 (a). A "meeting" under the statute consists of "a

deliberation by a public body with respect to any matter within

the body's jurisdiction." G. L. c. 30A, § 18. There are

several statutory exceptions from this broad definition of

"meeting" -- for example, "attendance by a quorum of a public

body at a public or private gathering, including a conference or

training program or a media, social or other event, so long as

the members do not deliberate" (emphasis added). G. L. c. 30A,

§ 18 (b). A "deliberation," in turn, includes "an oral or

written communication through any medium, including electronic

mail, between or among a quorum of a public body on any public

business within its jurisdiction." G. L. c. 30A, § 18. It does

not include "the distribution of a meeting agenda, scheduling

information or distribution of other procedural meeting [sic] or

the distribution of reports or documents that may be discussed

at a meeting, provided that no opinion of a member is expressed"

(emphasis added). G. L. c. 30A, § 18. The statute also permits

a public body to deliberate on certain matters in executive

session, closed to the public. G. L. c. 30A, §§ 18, 21.

Finally, the open meeting law permits an array of remedies for a

violation, ranging from nullifying the action taken at a meeting
 35

to imposing a civil penalty or compelling compliance with the

law. G. L. c. 30A, § 23 (c).

Although the statute was substantially revised and

reorganized in 2009, see St. 2009, c. 28, §§ 17, 18, we conclude

that the new statutory language and structure does not require

us to abandon wholesale our existing open meeting law

jurisprudence. In particular, we interpret the open meeting law

as continuing to be a statute "designed to eliminate much of the

secrecy surrounding the deliberations and decisions on which

public policy is based." Ghiglione v. School Comm. of

Southbridge, 376 Mass. 70, 72 (1978). And the new version of

the statute does not alter our belief that "[i]t is essential to

a democratic form of government that the public have broad

access to the decisions made by its elected officials and to the

way in which the decisions are reached." Foudy v. Amherst-

Pelham Regional Sch. Comm., 402 Mass. 179, 184 (1988).

With this framework in mind, we agree with the motion

judge's decision except insofar as she dismissed the plaintiffs'

claim based on the commissioners' calendar entries. As the

foundation for that theory, the plaintiffs submitted a compact

disc of the commissioners' calendar entries from 2012 to 2015,

along with a summary table, alleging numerous violations of the
 36

open meeting law. Although the full disc is not now before us,7

the record does include two examples that appear to "plausibly

allege" violations of the law. One set of entries shows four

commissioners8 were scheduled to attend a three-hour "applicants

discussion" on July 31, 2013. Another shows three commissioners

were scheduled to attend a one-hour "advisory groups

brainstorming" session on April 8, 2014.9 Indulging all

7
The precise status of this disc is somewhat unclear.
According to the parties' briefs, the disc was not attached to
the second amended complaint. However, it was submitted to the
court and the parties after the commission's motion to dismiss
had been filed, and was before the motion judge prior to the
motion to dismiss being argued and decided. It further appears
that the judge took judicial notice of these documents, and her
decision indicates she took them into account in her ruling on
the motion to dismiss.
8
Typically, for a five-member body, a quorum consists of
three members. See G. L. c. 30A, § 18 ("quorum" consists of "a
simple majority of the members of the public body, unless
otherwise provided"); G. L. c. 23K, § 3 (d) (quorum of
commission consists of three commissioners).
9
A third set of entries depicts what the plaintiffs allege
constitutes a so-called "rotating quorum" violation of the open
meeting law, in which one commissioner, followed in close
sequence by two other commissioners, received a traffic
briefing. See McCrea v. Flaherty, 71 Mass. App. Ct. 637, 648-
649 (2008) (describing "rotating quorum" open meeting law
violation). It is not clear from the calendar entries alone
whether these meetings consisted of the mere distribution of
information to be discussed at a meeting, see G. L. c. 30A,
§ 18, or whether, as the plaintiffs suggest, they constituted
three commissioners engaging in serial deliberation.
Nevertheless, this court has held that even the information-
gathering activity of a public body may constitute a "verbal
exchange" such that the body has deliberated within the meaning
 37

reasonable inferences in the plaintiffs' favor, it appears

plausible that an "applicants discussion" or "advisory groups

brainstorming" session, attended by a quorum of the commission,

would include at least some discussion that qualifies as a

"deliberation" of a matter within the commission's jurisdiction,

such that the meeting should have been open to the public under

the statute. Accordingly, we conclude that these calendar

entries raise the plaintiffs' claim for relief above a

speculative level. Moreover, we must accept as true the

allegations in the plaintiffs' summary chart, of which the above

are merely two examples. This chart depicts, albeit with

somewhat less precision and detail than the full calendar

entries, numerous additional potential violations of the open

meeting law.10

Contrary to the commission's argument on appeal, a letter

to the commission from the Attorney General, dated December 23,

2015, entitled "Open Meeting Law Review," demonstrates why

of the statute. See Gerstein v. Superintendent Search Screening
Comm., 405 Mass. 465, 470 (1989).
10
We take no position about whether the plaintiffs will
ultimately succeed in proving this claim. In particular, we
note that the commission, in its motion papers and appellate
briefs, did not specifically address the two sets of calendar
entries that we mention in the text.
 38

dismissal was inappropriate at this stage in the litigation.11

The letter describes the Attorney General's investigation into

the commission's meeting practices and concludes that, despite

"broad compliance" with the open meeting law, the commission did

violate the law on some occasions. At least some of the

commissioners' meetings determined by the Attorney General to

have violated the law appear to be reflected in the plaintiffs'

summary chart. Thus, the letter illustrates that sorting out

which of the plaintiffs' allegations can be substantiated and

which cannot requires some degree of investigation, and

therefore is a task for the discovery process.

Finally, the individual plaintiffs argue that the motion

judge effectively carved out a new exception to the open meeting

law for public bodies, like the commission, whose members are

also full-time employees of the agency. We need not decide

whether the motion judge indeed did carve out such an exception

by her ruling. In any event, no such exception exists. The

fact that the commissioners are full-time employees of the

commission, see G. L. c. 23K, § 3 (e), does not change the

statutory definition of "deliberation" for purposes of the open

meeting law, nor does it change the conditions under which a

11
We acknowledge that the motion judge did not have this
letter before her, as it postdates her ruling, and we do not
consider it as to the merits of the plaintiffs' claims. Rather,
we use it simply to illustrate why dismissal was inappropriate.
 39

"meeting" of a public body must be open to public. In other

words, the fact that the commission's structure may make it

difficult to comply with the law does not alter the requirement

of compliance.

In sum, we conclude that the individual plaintiffs have

plausibly stated a claim for relief under the open meeting law.

Accordingly, we reverse that portion of the judge's decision.

Conclusion. For the foregoing reasons, we affirm in part,

reverse in part, the judge's allowance of the defendant's motion

to dismiss, and remand the case for further proceedings

consistent with this opinion.

So ordered.