Judge Gorton Holds Massachusetts Gaming Act Passes Constitutional Scrutiny

Here are the materials in KG Urban v. Patrick (D. Mass.):

140 Mass Gaming Commission Motion for Summary J

143 KG Urban Motion for Summary J

151 KG Urban Opposition

152 Mass Gaming Commission Opposition

153 Mass Gaming Commission Reply

160 DCT Opinion

News coverage here.

Prior posts in this case are here, here, here, and here. First Circuit materials are here.

KG Urban v. Patrick Update — Matter Not Moot

Here are updated materials in KG Urban v. Patrick (D. Mass.):

DCT Order Denying MTD

Motion to Dismiss

KG Urban Opposition


Amended complaint here.

Federal Court Denies Tribal Intervention Motions in KG Urban v. Patrick

Here is that order:

DCT Order Denying Intervention

The intervention motions are here.

Massachusetts Tribes Move to Intervene in KG Urban v. Patrick Case

Here are those materials:

2012-09-07_(40)_Memo in Support of Motion to Intervene and Exhibits

Mashpee Motion to Intervene [Rule 19 motion]

First Circuit Remands Equal Protection Challenge to Mass. Gaming Law; Remands for Trial on Merits (and Carcieri)

The opinion is here.


Given this situation, the lack of clear answers on questions of both state and federal law, the shifting of the nature of the injury to KG, and the apparent attempt to allow some time for the IGRA process to work (including any Carcieri fix), we cannot say there was an abuse of discretion in the denial of preliminary injunctive relief. “An injunction is an exercise of a court’s equitable authority, to be ordered only after taking into account all of the circumstances that bear on the need for prospective relief.” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010). “Equitable relief is not granted as a matter of course, and a court should be particularly cautious when contemplating relief that implicates public interests.” Id. (citations omitted).


The district court’s dismissal of the complaint is another matter. We simply cannot say that KG’s equal protection claim as to § 91 fails to state a claim on which relief may be granted, or that the issuance of equitable relief may not be appropriate at some future date.
We also affirm the dismissal with prejudice of KG’s claims as to the $5 million appropriation, the advisory committee seat, and the preemption challenge to § 91. We dismiss KG’s state-law claims without prejudice. We remand the case for further proceedings consistent with this opinion.

Indian Gaming and Buying Local

The Mashpee Wampanoag gaming compact discussion (whether 21 percent is too high; whether Massachusetts gaming law is constitutionally valid) should, I think, take an additional factor into consideration. Massachusetts is, for lack of a better term, buying local. Massachusetts had no legal obligation to enter into a gaming compact with an Indian tribe. Leaving moral obligations aside, what did Massachusetts do? It bought local.

Compare the tribe to KG Urban, an equity development boutique whose address is Park Avenue, New York. I assuming without knowing for sure that profits from the Massachusetts casino they would propose would largely leave the state. Profits from a tribal casino would largely stay in the state. It is possible that KG Urban would pay more in taxes than a tribal casino would (this is usually the case in other states) but the large gaming corporations that run non-Indian gaming operations take their profits elsewhere (maybe where Mitt Romney puts his profits). I’d like to know if the increase in taxes on a non-Indian gaming operation offset the locality of Indian gaming profits, but I bet it’s on the side of tribal gaming. Going with a corporate gaming entity will generate those “lost revenues” state tax officials are always taking about more than tribal gaming, in other words. The state and tribe will be more significant commercial partners — both have the same interests at stake. Under our Morton v. Mancari/political status analysis of Massachusetts gaming law, local tribal control is a rational, political reason for sticking with tribal gaming (as opposed to just doing it because they like Indians, which trends toward a race-based reason).

For the tribe, this is significant as well. Massachusetts going with a tribal compact instead of a corporate (non-Indian) deal seems to be a meaningful concession, maybe on taxes, maybe on other things. It’s a tax-for-commercial partnership swap. Maybe that’s not what Congress meant in 1988, but it’s something that takes into consideration real-world economic interests.

KG Urban Reply Brief in First Circuit Appeal


KG Urban Reply Brief

State of Massachusetts Brief (and Supporting Amicus) in KG Urban v. Patrick (1st Circuit)


Massachusetts Brief

Suffolk Indian Law Clinic Amicus Brief

Prior materials here.

Opening Brief in KG Urban v. Patrick (Mass. State Gaming Case)


KG Urban Motion to Expedite CA1 Appeal

Mass Response to Motion to Expedite

KG Urban Opening CA1 Brief

Lower court materials are here and here and here.

News coverage here, h/t Pechanga.