Justice INDEGLIA, for the Court.
The plaintiff, the Narragansett Indian Tribe (Tribe), appeals from the entry of partial summary judgment in the Superior Court in favor of the defendant, the State of Rhode Island (state), and the intervenor defendant, UTGR, Inc. d/b/a Twin River (UTGR), finding that the 2011 Casino Act, G.L. 1956 chapter 61.2 of title 42 (Casino Act or the act) is not facially unconstitutional. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Much of the background of the lengthy disputes between the state and the Tribe as it pertains to gambling in Rhode Island is succinctly summarized in our previous opinion in this case. See Narragansett Indian Tribe v. State, 81 A.3d 1106, 1107-09 (R.I.2014) (Tribe I). Accordingly, here, we summarize only the pertinent facts necessary to the disposition of this appeal.
The present appeal concerns only the facial constitutionality of the Casino Act.
A hearing before the Washington County Superior Court on the parties' cross-motions for partial summary judgment was held on May 30, 2012. The hearing justice later issued a written decision, which found that, although the Tribe had standing, it nonetheless had failed to meet its burden of proving beyond a reasonable doubt that the Casino Act is facially unconstitutional.
The Tribe timely appealed the decision on the merits, and the state timely cross-appealed the determination that the Tribe had standing. This Court declined to consolidate the two appeals, and directed the parties to first address the issue of standing. On January 10, 2014, we issued an opinion affirming the hearing justice's decision that the Tribe had standing. Tribe I, 81 A.3d at 1111. However, we relied on different reasons from those relied on by the hearing justice. Id. Rather than invoking the public interest exception to standing, we held that the Tribe had "demonstrated an injury in fact" sufficient to maintain standing. Id.
Having cleared the standing hurdle, we proceed to address the merits of the Tribe's challenge.
It is well settled that "[t]his Court reviews a lower court's grant of a motion for summary judgment de novo, `employing the same standards and rules used by the hearing justice.'" Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 258 (R.I.2011) (quoting Planned Environments Management Corp. v. Robert, 966 A.2d 117, 121 (R.I.2009)). "In addition, since we have before us a pure statutory issue," our review is de novo. Planned Environments Management Corp., 966 A.2d at 121.
One who challenges the constitutionality of a statute bears the burden of "prov[ing] beyond a reasonable doubt that the act violates a specific provision of the [Rhode Island] [C]onstitution * * *." Oden v. Schwartz, 71 A.3d 438, 456 (R.I. 2013) (quoting Mackie v. State, 936 A.2d 588, 595 (R.I.2007)). Additionally, we note "that legislative enactments of the General Assembly are presumed to be valid and constitutional." State v. Faria, 947 A.2d 863, 867 (R.I.2008) (quoting Newport Court Club Associates v. Town Council of Middletown, 800 A.2d 405, 409 (R.I.2002)). "As such, we `exercise[] the greatest possible caution' in reviewing a challenge to a statute's constitutionality." Oden, 71 A.3d at 456 (quoting Mackie, 936 A.2d at 595). "Indeed, `[t]his [C]ourt will attach every reasonable intendment in favor of * * * constitutionality in order to preserve the statute.'" State ex rel. City of Providence v. Auger, 44 A.3d 1218, 1226 (R.I.2012) (quoting Gem Plumbing & Heating Co. v. Rossi, 867 A.2d 796, 808 (R.I.2005)). Therefore, "[t]o be deemed unconstitutional, a statute must palpably and unmistakably be characterized as an excess of legislative power." Faria, 947 A.2d at 867 (quoting Cherenzia v. Lynch, 847 A.2d 818, 822 (R.I.2004)).
The present appeal concerns only the Tribe's facial challenge to the constitutionality
The United States Supreme Court has fairly recently stated that a key distinction between facial and as-applied challenges essentially "goes to the breadth of the remedy employed by the Court." Citizens United v. Federal Election Commission, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). In addition, it has been suggested that "the availability of facial challenges varies on a doctrine-by-doctrine basis and is a function of the applicable substantive tests of constitutional validity." Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1324 (2000); accord Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U.L. Rev. 359, 378 (1998); see also United States v. Stevens, 559 U.S. 460, 472-73, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010); Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008); Sabri v. United States, 541 U.S. 600, 609-10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).
At the current stage,
The Tribe argues that the Casino Act must be invalidated because it is unconstitutionally vague or because it otherwise violates the non-delegation doctrine enunciated in article 6, sections 1 and 2 of the Rhode Island Constitution. We note, however, that there is no allegation that the Casino Act infringes upon First Amendment or other fundamental rights.
To the extent that a sufficient basis for invalidating the Casino Act under the vagueness doctrine
The United States Supreme Court has stated that "[v]agueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); see Humanitarian Law Project, 561 U.S. at 18, 130 S.Ct. 2705 ("We consider whether a statute is vague as applied to the particular facts at issue."); Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) ("First Amendment freedoms are not infringed by [the statute], so the vagueness claim must be evaluated as the statute is applied to the facts of this case."). Accordingly, the Casino Act must be evaluated on an as-applied basis when that challenge is considered by the Superior Court.
We begin with the recognition that "the delegation of legislative functions is not a per se unconstitutional action." Milardo v. Coastal Resources Management Council of Rhode Island, 434 A.2d 266, 270-71 (R.I.1981); see Davis v. Wood, 427 A.2d 332, 335 (R.I.1981) ("As a practical matter, the [non-delegation] doctrine has not prohibited the delegation of legislative power."). Nonetheless, we are mindful that "merely calling a casino `state operated' does not make it so for purposes of fulfilling the very explicit terms of our Constitution." In re Advisory Opinion to the House of Representatives (Casino II), 885 A.2d 698, 707 n. 8 (R.I.2005). However, we are also cognizant of our role in evaluating the constitutionality of legislation. In performing this task, "if two alternate interpretations are possible, we shall favor that which presents no potential constitutional difficulties." Mosby v. Devine, 851 A.2d 1031, 1045 (R.I.2004) (quoting Pontbriand v. Sundlun, 699 A.2d 856, 866 (R.I.1997)).
The Tribe emphasizes that the extensive regulatory power given to the state in the Casino Act is an indication that the act is unconstitutional. This assertion must be rejected. That the Casino Act grants the state regulatory power does not necessarily take away from whatever grant of operational power the Casino Act also provides. Indeed, the Rhode Island Constitution recognizes that regulation and operation are not mutually exclusive. Article 6, section 15 excludes lotteries operated by the state from the general prohibition on lotteries and also provides that all lotteries, including those operated by the state, "shall be subject to the prescription and regulation of the general assembly."
Additionally, we note that among the extensive operational powers given to the state through the Casino Act is the power not only to "[d]etermine the number, type, placement and arrangement of casino gaming games, tables and sites," § 42-61.2-2.1(c)(1), but also the "power to terminate or suspend any casino gaming activities." Section 42-61.2-2.1(c)(5). The justices of this Court previously opined
Further, as the hearing justice correctly recognized, the Casino Act does not suffer from any of the previous constitutional infirmities that were identified in In re Advisory Opinion to the Governor (Casino), 856 A.2d 320 (R.I.2004) (Casino I) or Casino II. In Casino I, 856 A.2d at 330, the proposed operator of the casino was clearly identified as an affiliate of Harrah's Entertainment, rather than the state. Here, in contrast, the Casino Act authorizes state-operated casino gambling.
The Casino Act directly references article 6, section 15 of the Rhode Island Constitution and explicitly provides that, pursuant to that clause, the state "shall have full operational control" and have the "authority to make all decisions about all aspects
It is contended that the Casino Act "allows the State to potentially delegate disproportionate power to a private entity to operate what is supposed to be a State entity, in violation of the Rhode Island Constitution." However, "[i]n determining whether a law is facially invalid, we must be careful not to * * * speculate about `hypothetical' or `imaginary' cases." Washington State Grange, 552 U.S. at 449-50, 128 S.Ct. 1184. Indeed, "[t]he fact that the * * * [Casino] Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it * * * [facially] invalid." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 634, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).
The Tribe acknowledges that "[m]any questions concerning the operation of the * * * casino[ ] simply remain unanswered * * *." We must emphasize, however, that "[f]acial challenges are disfavored for several reasons," including that they "threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." Washington State Grange, 552 U.S. at 450, 451, 128 S.Ct. 1184. Accordingly, if the answers to those lingering questions are to be elucidated, it is through the as-applied challenge to the Casino Act that remains pending in the Superior Court.
Based on the strong presumption of constitutionality and the heavy burden in mounting a facial challenge, we cannot say that the Casino Act is facially unconstitutional.
For the foregoing reasons, the judgment of the Superior Court is affirmed. The record in this case shall be remanded to that court.
Justice GOLDBERG did not participate.
We find that there was no constitutional infirmity in that question.