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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-sixpage 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. AmherstPelham 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 informationgathering 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.