Justice hearing casino repeal case tied to Suffolk Downs
By Andrea Estes
| Globe Staff May 11, 2014
Ted Fitzgerald/pool
Justice Robert Cordy sharply tested lawyers arguing to get a casino repeal on November’s ballot, though he represented Suffolk Downs and another gambling firm in the 1990s.Justice Robert Cordy of the Supreme Judicial Court led the questioning of casino foes who asked the court last week to allow a ballot question that could repeal the state’s 2011 casino law. He sharply challenged the opponents’ argument that voters can abruptly make casinos illegal after casino companies have spent millions of dollars applying for licenses.
“A five-year exclusive license that’s already been awarded . . . at great cost by the applicants, can simply be taken away with a big never mind?” Cordy asked the lawyer representing the group Repeal the Casino Deal. “You can do that? Without compensation? Wow.”
Cordy also served as senior adviser to Governor William Weld, who is now an attorney for Steve Wynn, Suffolk Downs’s rival for the Boston-area casino license.
Cordy’s past ties to the gambling industry came as a surprise to the parties arguing before him Monday and raised questions among some judicial ethicists. Unlike legislators, judges are not required to file disclosures about potential conflicts, and Cordy did not voluntarily notify parties in the case.
“Our attorneys have faith in the impartiality of the Supreme Judicial Court, but, as a grass-roots activist new to this world, I have to say this sure puts some of what we have heard in perspective and is a reminder of the deep tentacles of this industry,” said John Ribeiro, chairman of the casino repeal campaign.
Cordy would not discuss his former work for the gambling industry, but he said through a court spokeswoman that his efforts then were completely unrelated to the debate now before the SJC.
Donahue said Cordy has recused himself from participating in some cases during his 13-year career at the SJC, but she did not provide specific cases.
Suffolk Downs, in a statement Saturday, downplayed the connection to Cordy, noting that the racetrack had different owners then.
“This has to do with matters from almost 20 years ago under the prior ownership interest,’’ said William J. Mulrow, chairman of Suffolk Downs. “We don’t believe this has any bearing on our current efforts to preserve Suffolk Downs’ 79-year legacy as one of the area’s sports and entertainment venues, and to preserve the hundreds of jobs here and at small businesses and family farms in the Commonwealth.”
As a partner at McDermott Will & Emery in the 1990s, Cordy represented the owners of Suffolk Downs, which was looking to open a slot machine parlor in collaboration with the Wampanoag tribe, the Globe reported at the time. From 1995 to 1997, Cordy hosted meetings at his office in failed attempts to work out a formal agreement, according to the Globe articles.
Someone who worked at the firm said Cordy organized at least one outing for McDermott Will & Emery attorneys to the racetrack.
Cordy also worked for Hilton Gaming, records show. Hilton was one of three casino operators that financed a successful 1995 campaign to persuade voters in Holyoke to approve casino gambling, records say. Cordy acknowledged at the time that he had lobbied his former boss, Governor Weld, on gambling matters.
Some 15 years later, Suffolk Downs, one of Cordy’s former clients, is helping to pay for the opposition to the repeal effort now before the SJC. The racetrack is also part of a group that has formally intervened in the case, and a lawyer for the group argued Monday before the SJC.
In addition, a lawyer and a consultant Cordy worked with in the 1990s now work for Suffolk Downs.
Specialists in judicial ethics said judges have to be sensitive to the appearance of impropriety, but they are given a lot of latitude as to when they should step down from cases.
For instance, Justice Elena Kagan has removed herself from US Supreme Court cases she had been working on months before as a top litigator for the Obama administration. But judges do not automatically disqualify themselves from cases just because they worked on similar ones years before or even because they once represented parties before them
“There is a catch-all provision [in the judges’ code of ethics] that says a judge must recuse if the judge’s impartiality might reasonably be questioned,” said Stephen Gillers, professor of legal ethics at New York University School of Law.
“There are thousands of cases on the subject. But what they all say is you don’t look through the eyes of a suspicious person. You look through the eyes of an objective, fair-minded observer knowing all the facts.”
But Gillers said the general public has a different perception of judicial fairness.
“What . . . you often hear from the public is a chasm between what the public believes should be the conflict rules for the judges and what judges think the conflict rules should be,” said Gillers. “The scope of disqualification is much narrower from the judicial point of view.”
Attention to Cordy’s past ties comes days after the gambling commission chairman decided to remove himself from the debate over an Eastern Massachusetts casino because of accusations of favoritism.
Chairman Stephen P. Crosby withdrew from further involvement in the awarding of the Greater Boston license, acknowledging that recent actions, including his attendance at a private party at Suffolk Downs, raised questions about his impartiality.
Boston officials and a former casino applicant, Caesars Entertainment, had called on Crosby to recuse himself, complaining of bias. Caesars has filed suit against Crosby and others accusing him of favoring the Wynn proposal because of his former business relationship with one of the owners of the land where Wynn wants to build his casino.
In Cordy’s case, none of the parties in the casino repeal debate say they will ask him to step down because of his past casino connections, but casino opponents were concerned about the relationships.
Matt Cameron, general counsel of No Eastie Casino, said he knew “casino money had infiltrated every branch of government.”
“The attorney general, the governor, the gaming commission have all been directly influenced by casino interests,” Cameron said. “But I wouldn’t have said it about the SJC before you told me this. I watched the oral arguments and was surprised by Justice Cordy’s vehemence.”
Another casino opponent agreed. “It doesn’t surprise me,” said Brian Herr, a leader in the casino repeal campaign and a Republican candidate for US Senate, referring to Cordy’s previous gambling ties. “It’s become obvious to me that the reach of the casino industry is far, wide, and deep, even in a state like Massachusetts that doesn’t have a resort-style casino.”
But Carl Valvo, a lawyer for the pro-gambling group that wants to keep the referendum off the ballot, said he has “utmost faith in the system.”
“Each of the justices has their own connections to the world and the past,” he said.
Attorney General Martha Coakley, who is a defendant in the lawsuit brought by the anti-casino activists, declined to comment.
An SJC decision on the gambling repeal question is expected this summer.
Even if casino opponents win their case, they still need to collect 11,485 new signatures by June 18 to be able to secure a spot on the November ballot. Secretary of State William F. Galvin needs to know whether the SJC will allow the ballot question to go forward by July 9 in order to print ballots.
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