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SJC

- 121 11 SJC

- 121 7 7
CITY OF REVERE & others 1 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.

C ivil 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 S u n Massachusetts, LLC, intervener
.2

Kenneth S. Leonetti & Christopher E. Hart ( Michael Hoven also present) for the intervener
. Patricia L. Davidson for c ity of Revere. D avid 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) a warded 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 in dividual citizens

-- filed two complaints in the Superior
Court that alleged numerous defects in the commission 's process for awarding the license to Wynn . The c ommission filed motion s to dismiss both complaints. A judge in the Superior Court allowed the motion s 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. Gamin g in Massachusetts . In November, 2011, the Legislature enacted St. 2011, c. 194 , An Act3

establishing expanded gaming in the Commonwealth (act)
. 2 Section 16 of the act created the gaming c ommission and set forth standards under which applicants could obta in a license from the

c ommission 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 establis hment with table games and slot machines. " See G. L. c. 23K, § 2. The act authorizes the c ommission 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)
. T he 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 eligibili ty based on criteria described in G. L. c. 23K, §§ 12 and 15. Only those applicants deemed suitable by the

c ommission proceeded to the second phase, in which the

c ommission considered the applicant's entire application. See
G. L. c. 23K, § 12 ( c ). In th is phase, t he c ommission evaluate d

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 issue d 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 Moh egan Sun Massachusetts, LLC (Mohegan Sun), which proposed a casino in Revere. In September, 2014, the c ommission awarded the license to Wynn. In November, 2014, the c ommission issued a thirty

- six

page written determination, with accompanying exhibits,

ex plaining 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 Inte rnational Brotherhood of Electrical Workers Local 103 ( union ), and four union members (individual plaintiffs) brought suit in the Superior Court against the c ommission
. I n early 2015, these plaintiffs filed a second amended complaint . A t a round the same time, Mohegan Sun5

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 identica l counts. In the first two counts, Mohegan Sun, the city , and the union seek review and reversal of the c ommission's award of the gaming license to Wynn under G. L. c. 30A , § 14 ( c ount I) , and under
G. L. c. 249, § 4 ( c ount II). Concerning c ounts I and I I , they allege, f or 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 in vestor 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 inequitabl e 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 in6

which Wynn purchased the land for it s casino
. They also allege that Wynn failed properly to disclose its involvement in an ongoing criminal investigation as required by the act.
In c ount 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 c ount 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 o pen m eeting l aw , G. L. c. 30A, § 23 ( c o unt V). Essentially, c ount V alleges that a quorum of the c ommission 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 c ommission moved to dismiss both complaints. In December, 2015, the motion judge allowed the motion to dismiss the second amended complaint. The judge ruled t hat counts I through IV of that7

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 protect s . She also ruled that the individual plaintiff s' allegations regarding the o pen m eeting l aw 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 Mohe gan Sun's complaint in intervention , the motion judge allowed the motion to dismiss c ount I , ruling that § 17 ( g ) of the act expressly precludes judicial review under G. L. c. 30A, § 14 . However, s he denied the motion with respect to c ount II, concluding that Mohegan Sun satisfie d the prerequisites for certiorari review. Because this ruling permitted a form of judicial review of the commission ' s r egion A decision , the judge dismissed as moot c ounts III and IV of Mohegan Sun's complaint seeking declaratory relief.
T he c ommission filed a notice of appeal with respect to Mohegan Sun's surviving c ount II, claiming that the doctrine of present execution authorizes interlocutory review. After entry of final judgment the plaintiffs filed their own notice of appeal. T his 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 motion s 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 ' complaint s and any exhibits attached thereto, drawing all reasonable inferences in the pla intiff s ' favor. Burbank Apartments Tenant Ass'n v. Kargma n , 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 judg e' s determination that certiorari review of the commission ' s decision is available. W e also review, briefly, the judge ' s dismissal of Mohegan Sun ' s claims for declaratory relief in counts III and IV of the comp laint.
W e next addres s the claims of the city and the union that the judge erred in ruling that they lacked standing to challenge the commission ' s decision
. F inally, we consider the o pen m eeting
l aw claim of the individual plaintiffs. 1. Claims of Mohegan Sun and the commission
. a . Judicial

r eview 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. 30 A , § 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 entitle d 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, fail s 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 c ommission's denial of Mohegan Sun's license application, but not of the commission's grant of a license to Wynn . W e agree with the motion judge ' s readin g 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. 23 K, § 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 v ersion of the o pen m eeting l aw that was repealed by a 2009 enactment , effective in 2010 ( one year pr ior 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, i f the Legislature intended to r efer to G. L. c. 30A, § 11, then it would be referring to the section that describes adjudica tory10

§ 17 ( g ) evinces a clear legislative intent to "expressly preclude[]" judicial review of c ommission 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 c ommission. Mohegan Sun's main argume nt 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 b y 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, t he 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 intent ion 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 c ertiorari review
. Given o ur 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 ther eby qualifie s , 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)
. T hat history provides an independent basis for certiorari review outs ide 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 w e do not read t he 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) ( c ertiorari 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 objec tive" 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 i s, as precluding even the extraordinary remedy of certiorari review. Again, t here was no error. Here, t here are f our issues related to certiorari review : (1) whether Mohegan Sun's complaint in intervention was timely; (2) whether the doctrine of p resent execution allowed the

c ommission to bring an immediate , interlocutory appeal from the motion judge's decision that certiorari review is available to Mohegan Sun ; (3 ) whether Mohegan Sun satisf ies 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), ci ting 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, R ules 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 file14

their second amended complaint. Mohegan Sun's motion to intervene then was allow ed 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. W elfare , 383 Mass. 808, 81 9 (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 Mari a 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 add ing 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 no15

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 presen t 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, 15 1

- 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 c ommission's attempt to invoke the doctrine hinges on it s position that § 17 ( g ) precludes any and all forms of judicial review of its licensing decisions , and therefore immunizes the commission from suit
. W e have decide d in this case that certiorari review of licensing d ecisions sometimes may be available. The refore, 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 other16

two issues concerning certiorari review that we have i dentified because they have been briefed fully by the parties, they raise significant issue s 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 c ertiorari 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 jud icial 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 ga ming 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 e xtent to which it resembles judicial action. See Hoffer v. Board of Registration in Med ., 461 Mass. 451, 457 (2012). However, the17

line beyond which an agency proceeding becomes quasi judicial is rarely a bright one. Instead, courts have looked to a numb er 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 Com m '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 H udson , 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 judici al 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 c ommission "truthfully, fully and under oath." 205 Code Mass. Regs. § 118.07 (2). Applicants also were provided an opportunity to respond to the c ommission as part of the licensing he aring, both to correct perceived factual errors in the c ommission's presentations and to respond to conditions that the c ommission proposed to place on the granting of a license. Further, the c ommission 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 c ommission 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, a s discussed in note 3 , s upra , 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 hearin g is conducted, see G. L. c. 30A, §§ 10, 11. As discussed in more detail in t he 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. Consequen tly, 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 particul ar benefit upon a particular entity and denied that benefit to another entity. T he determination was accompanied by more than twenty pages of f indings and e valuation analyzing the manner in which each applicant proposed to advance the statutory objectives of the act . W e conclude that, on balance, the category of quasi judicial proceedings is flexible enough to include the

c ommission'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 revi ew, demonstrating that it has available to it no other adequate remedy. See Indeck , 450 Mass. at 385. T he c ommission does not contest this point . T o the contrar y, it argues that its licensing deci sions 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 pre cisely where the extraordinary remedy of certiorari may come into play. See Indeck , 450 Mass. at 384 (" c ertiorari review is not necessarily precluded even if20

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 m eans of relief are open"). Thus, our conclusion that § 17 ( g ) generally precludes judi cial 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 c ommission pointed out other areas of the law that might allow judicial r eview of certain c ommission 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 a n adjudicatory hearing under G. L. c. 30A. See G. L. c. 23K, §§ 35 ( g ), 36 ( d ), 45 ( e ). T he act makes no such provision for gaming license applicants (like Mohegan Sun) whose applications have been denied, and indeed generally pre clude s such entities21

from obtaining judicial review of commission licensing decisions
. See G. L. c. 23K, § 17 ( g )
. Additionally, the c ommission directed us to certain F ederal 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. d enied, 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 wit h 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 wh en those egregious cases arise in the shadow of a general statutory bar to judicial review. T hus, the cases do not help the c ommission 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 review22

has worked a substantial injury or injusti ce. See Indeck , 450 Mass. at 385. As the motion judge observed, the c ommission 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 S un does not have a justiciable right that was injured such that certiorari review may proceed. T he c ommission 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 for mer is a subset of the latter. For instance , in the Hoffer case, this court rejected the23

plaintiff's argument that she had a constitutionally protected property interest in the reinstatement of her medical license. 461 Mass. at 45 5

- 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 i d . at 457. See also Bielawski v. Personnel Adm'r of Div. of
Pers onnel 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 recogniz e 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 n ot 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 certiorari24

review. Cf. Yerardi's Moody St. Rest aurant & 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 e xerts 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 investmen ts of resources in the application process, that the c ommission would follow the law in awarding the license that Mohegan Sun sought. This interest, which Mohegan Sun asserts was harmed by the c ommission'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 evid ence' standard ." Figgs v. Bo ston Hous. Auth. , 469 Mass. 354, 361

– 362 (2014) . On the other hand, " where the decision under review was not mad e in an adjudicatory proceeding, " but rather " entails matters committed to or implicating a board's25

exercise of administrative dis cretion, 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 com ponent 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.
T he Legislature intended § 17 ( g ) to sharply curtail the availability of judicial review of commission licensing decisions , and thereby avoid p rotracted legal battles over every commission lic ensing 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 place s 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 c ommission. See, e.g., G. L. c. 23K, § 18 (2) ("promoting local businesses in26

ho st 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 c ommission'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" (quotat ion and citation omitted), Hoffer , 461 Mass. at 455

-- would be inappropriate. On the other hand, Mohegan Sun alleges, for example, that the c ommission, 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 fac tual 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, capri c ious, or arbitrary" in nature (citation omitted)
. See27

Forsyth Sch
. f or 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 certio rari review

-- that it is "a limited procedure reserved for correction of substantial errors of law apparent on the record cre ated before a judicial or quasi[] judicial tribunal." School Comm. of Hudson , 448 Mass. at 575

- 576. It also accords with our unde rstanding 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 c ommission'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 sam e claims against the

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

c. 30A and the certiorari statute , and seeking declaratory28

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
. I f disappointed license applicants cannot obtain judicial review under G. L. c. 30A, § 14 , it would be absurd to
const rue the statute as allowing such review to parties, like the city and the union , who suffer a less direct inj ury from the licensing process. See Flemings v. Contributory Ret irement Appeal Bd ., 431 Mass. 374, 375

– 376 (2000) (declining to construe statute i n 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 c ommission licensing decisions, their standing to bring such a claim is immaterial. See Frawley , 473 Mass. at 7 24

- 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 the29

statute or regulatory scheme under which the injurious action has occurred." School Comm. of Hudson , 448 Mass. at 579, quoting Massachusett s 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 ] t he 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 M ass. 132, 135

– 136 (2000), apply only whe re 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 s tanding. 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 certiorar i 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 take s 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 statutoril y 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 legislativ e intent to sharply cu rtail judicial review of commission licensing decisions , and thereby avoid the costs and delays of protracted litigation , a n 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, the31

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 stan ding 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 standin g that are particularly instructive here. Regarding the fifth and sixth factors , we acknowledge that our opinion today effectively leaves the city with no avenue t o challenge the c ommission'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

u nderstanding 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 benefi ts 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 d iscretion" 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 unio n 's standing for certiorari and declaratory judgment claims . Essentially, the union argues that its members had an expectation of significant employment opportunities should the c ommission have awarded the r egion A license to Mohegan Sun. Further, it arg ues 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 great er, 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 f orceful statutory language limiting judicial review of c ommission licensing decisions. We do not read the act to bestow any right or interest upon the union , nor to create any duty between the c ommission 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 c ommission's award33

of the license to Wynn. Thus, in addition t o the delay discussed in connection with the city , conferring standing upon the union could have the drawback of exposing the c ommission to a flood of lawsuits, all despite the language in § 17 ( g ) aimed at curtailing exactly such litigation. That harm wo uld inure not only to the c ommission, 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' o pen m e eting l aw claim . The individual plaintiffs allege the c ommi ssion violated the o pen

m eeting l aw , 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 c ommission engaged in nonpublic deliberations. The c ommission 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 l evel. " Iannacchino v. Ford Motor Co ., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp . v. Twombly , 55034

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 membe r 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 remedie s for a violation, ranging from nullifying the action taken at a meeting35

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

a s continuing to be a statute "designed to elim inate much of the secrecy surrounding the deliberations and decisions on which public policy is based." Ghiglione v. Sch ool Comm. of Southbridge , 376 Mass. 70, 72 (1978). And the new version of the statute does not alter our belief that "[i]t is essentia l 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 Reg ional Sch. Comm ., 402 Mass. 179, 184 (1988). With this fr amework in mind, we agree with the motion judge's decision except insofar as she dismissed the plaintiffs' claim based on the commissioners' calendar ent ries. As the foundation for that theory , the plaintiffs submitted a compact disc of the commissioners' calendar entries from 2012 to 2 015, along with a summary table , alleging numerous violations of the36

open meeting law . Although the full disc is not now before us, 7 the record does include two examples that appear to " plausibly alleg e " violations of the law . One set of entries shows four commissioners 8 were scheduled to attend a three

- hour " a pplicants d iscussion " on July 31, 2013. Another shows three commissioners were scheduled to attend a one - hour " a dvisory g roups b rainstorming " s ession 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 t o the second amended complaint. However, it was submitted to the court and the partie s after the c ommission'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 otherw ise 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 commission er, 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 alo ne 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, th is 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 meaning37

reasonable inferences in the plaintiffs' favor, it appears plausible that an " a pplicants d iscussion " or " a dvisory g roups b rainstorming " 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 . Acc ordingly, 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 c ommission's argument on appeal , a letter to the commission from the Attorney Genera l, 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 c ommission 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. T hus, t he letter illustrates that s orting 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, th e individual plaintiffs argue that the motion judge effectively carved out a new exception t o 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 judg e indeed did carve out such an exception by her ruling
. I n any event, no such exception exists. The fact that the commissioners are full

- time employees of the

c ommission , see G. L. c. 23K, § 3 ( e ), does not change the statutory definition of "deliberatio n" 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 c ommission's structure may make it difficult to comply with the law does not alte r 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
.