City of Revere v. Massachusetts Gaming Commission ( 2017 )


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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-six-
    
    page 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. Amherst-
    
    Pelham 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 information-
    gathering 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.