LAWSUITS


Lawsuits

PACT Lawsuit

  

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."
Oregon Constitution Article I, Section 20

07/4/08 - Lane County Circuit Court - remand from Oregon Court of Appeals pending

04/19/06 - Oregon Court of Appeals - reversed and remand back to Lane County Circuit Court

02/08/05 - U.S. District Court - dismissed

12/10/03 -. Lane County Circuit Court - dismissed, appealed to Oregon Court of Appeals

9/15/03 - Oregon. Supreme Court - dismissed

“The Legislative Assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon.”
Constitution of Oregon, Article XV, Section 4(12)

Re: Oregon Constitutional Prohibition of Casinos - "Article XV, section 4(6), of the Oregon Constitution states: The Legislative Assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon. In Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 871 P2d 106 (1994), the Oregon Supreme Court construed the constitutional prohibition of the operation of casinos in Oregon, concluding that in adopting the prohibition, the voters intended to prohibit the operation of establishments whose dominant use or dominant purpose, or both, is for gambling. 318 Or at 562."

"However, regardless of whether an establishment is a race track or another type of business, we regard a concentration of 75 video lottery terminals at any single establishment under one ownership or devoted to a single general function as having a high probability of violating the prohibition against the operation of casinos." (Oregon Attorney General Theodore Kulongoski, Oregon Attorney General Opinions: NO. 95-5 [48 Or. Op. Atty. Gen. 15] , December 12, 1995)

INTRODUCTION: "MORE CASINOS!" In their summary judgment response briefs, Defendants present a myriad of arguments trying to counter Plaintiffs' straightforward claims that the Governor violated the State Constitution in entering into the Tribal Compact with the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians ("Tribes"), but Defendants' arguments all founder. Defendants completely ignore the actual text of the Oregon Constitution and fail to acknowledge that it contains both an absolute prohibition on all casino gaming and an explicit separation of powers provision. Defendants also ignore that the Oregon Constitution is manifestly silent as to the putative gubernatorial power to make public policy and new law. In effect, Defendants argue that the Governor did not violate the Oregon Constitution, but never bother to consider the plain meaning of the text.

The Governor and his lawyers should be especially embarrassed at the position they are taking - they who have sworn to protect and uphold the Oregon Constitution as their first public duty. That prime duty is higher than advocating for some new public policy that the Governor fancies (more casinos), or for new and "steady" sources of revenue for Tribal and State coffers (more casinos), or some byzantine reading of federal standing law, of IGRA, or of tribal sovereignty and indispensability that would get the Governor the result he seeks (more casinos). His first job is to serve the Oregon Constitution. He should be making all the arguments the Plaintiffs here make: why the Oregon Constitution controls in this case, why it means what is says about no casinos in Oregon, and why he has no authority to violate its separation of powers clause. And he should instead be arguing why he therefore refused to enter into a compact with the Tribes for (more casinos).

OREGON COURT OF APPEALS

PACT LAWSUIT UPDATE

06/11/08 - Oregon Court of Appeals issues decision - The Oregon Court of Appeals yesterday delivered a setback to tribal casinos statewide, and to Governor Kulongoski for signing the compact for the casino in Florence. A unanimous court ruled that the People Against a Casino Town (PACT), a group of Florence citizens opposed to the Florence, Oregon casino, were entitled to go forward with their suit against the Governor that seeks to determine whether the he has the ability to enter into these compacts in light of the Oregon Constitution's prohibition on casinos. (Opinion: http://www.publications.ojd.state.or.us/A124001.htm) (PACT wins court approval to challenge Governor 6/12/08)

12/12/07 - PACT - Oral Arguments at Court of Appeals - It might be as soon as four months, or even as long as 10 months before the Court of Appeals issued an opinion.

  • On 1/18/07, the Oregon Court of Appeals denied the Governor's latest effort to dismiss PACT's lawsuit. The Order, issued on January 18, 2007, directed the Governor to respond by February 15. We understand that the Court has allowed the Governor four extensions of time to file his response, and the new due date is May 25, 2007.
    Background: http://pactoregon.org/pactnews-070122-CtAppOrder.html

  • 01/22/07 - Oregon Governor loses another battle in casino war - Once again, Governor Kulongoski's tactics have been exposed for what we believe them to be - stalling and trying to 'out money' PACT. The Oregon Court of Appeals denied yet another of the Governor's efforts, this one to dismiss PACT's lawsuit. The Order, issued on January 18, 2007, directs the Governor's respond by February 15. Four courts and three lawsuits later, we are still trying to get an answer to our Very Simple Question - how is it legal for a governor to approve casinos in a state whose constitution expressly says "no casinos.

  • October 17, 2006 - PACT files Response to Governor's Motion to Dismiss ... Defendants (Governor Kulongoski) should be judicially estopped from changing their position on the proper process and forum for Relators-Appellants to obtain relief. This bald-faced about-face by the State amounts to a disingenuous bait-and-switch, and would lead to a manifestly unjust result. Originally, Defendants argued that filing a declaratory judgment action was necessary before Relators-Appellants could seek mandamus relief. Now, Defendants argue that mandamus relief is precluded because Relators-Appellants have already filed a declaratory judgment action. According to the Defendants,
    the step that was once a requirement for Relators-Appellants' mandamus lawsuit is now fatal to it. This Court should not allow such a "shell game" to deprive Relators-Appellants of their opportunity to pursue the claims, and to force the Governor to explain how he can justify siting casinos in a state whose constitution prohibits casinos.

    Since Defendants have reversed course on this matter, they are now in the "unenviable position" - in the words of the trial judge - of trying
    audaciously to establish claim and issue preclusion and explaining why
    Relators-Appellants "no longer have a remedy at all." Defendants are
    unable to do so because the federal district court had no jurisdiction over the declaratory judgment action and, thus, had no authority to reach a final decision on the merits. The federal district court either wrote dicta, or else acted ultra vires in an effort to protect the Governor's ultra vires actions in agreeing to the establishment of a casino in violation of Oregon's constitutional separation of powers doctrine and the prohibition of casinos. Because the declaratory judgment action was dismissed and did not provide an adequate remedy, Relators-Appellants are now appropriately appealing the dismissal of their original mandamus action - in complete vindication of what they told the Circuit Court would happen some three years ago if it followed the State's argument. This court should put a stop to the procedural games of the State, allow this appeal to go forward, and answer the serious and straightforward questions Relators-Appellants raise in this case.

  • 06/05/06 - PACT Files Opening Brief in Petition for Writ of Mandamus lawsuit

  • 05/26/06 - Casino put on notice - To the extent that there are plans underway to expand the casino, the Tribes are on notice that they undertake those plans at their own risk. They should not come back a year, two years, or five years from now and claim that it would be unfair, or a hardship, for them to have to undo what they have done knowing the risks.

  • 05/03/06 - Florence casino lawsuit not dead - PACT attorney Kelly Clark says the case is finally on track to being heard on its merits. He argues that Gov. Ted Kulongoski violated the state's constitution by entering into a gaming compact with the Florence casino tribe. Because the governor lacked the power to enter the compact allowing the casino, the compact is void. They seek a writ of mandamus invalidating the casino compact.

  • 04/19/06 - Florence casino opponents continue legal battle -The Big Question: "How is it in a state whose constitution says "no casinos," the Governor keeps signing compacts to site casinos?"

U.S. DISTRICT COURT

  • 01/08/06 - Gambling threatens to overwhelm - ... residents of Florence sued to stop another tribal casino from sprouting on the coast, U.S. District Judge Ann Aiken ruled (a) they had no standing to object to increased gambling activity in town; and (b) the Oregon Constitution prohibits gambling establishments, not gaming activities, and that document is superfluous when it "interferes or is incompatible with federal or tribal interests." Kelly Clark, the lawyer representing those Florence residents, said the attitude of the law, the governor and Oregon's attorney general "seems to be, 'Shut up. Don't rock the boat. We have a deal here where bucketloads of money are coming in. The tribes are doing well. The fix is in.'

  • 09/22/05 - Plaintiffs' Reply to State's motion for summary judgment - The Governor and his lawyers should be especially embarrassed at the position they are taking - they who have sworn to protect and uphold the Oregon Constitution as their first public duty. That prime duty is higher than advocating for some new public policy that the Governor fancies (more casinos), or for new and "steady" sources of revenue for Tribal and State coffers (more casinos), or some byzantine reading of federal standing law, of IGRA, or of tribal sovereignty and indispensability that would get the Governor the result he seeks (more casinos). His first job is to serve the Oregon Constitution.

  • 07/05/05 - Plaintiffs' Memorandum of Law in Support of Motion for Summary Judgment - Because the Oregon Constitution expressly prohibits casinos, the Governor violated the Oregon Constitution by entering into the compact; The Governor of Oregon acted outside his authority when he signed the compact on behalf of the state; The compact is invalid under IGRA because Oregon law and public policy do not permit "such gaming" as casino gaming, and Compact was not validly entered into within the meaning of IGRA.

  • 06/03/05 - Plaintiff's Reply on Motion to Certify Questions to the Oregon Supreme Court - "... this suit is at best only tangentially about Indian Tribes and casinos. The gravamen of this case lies with the Oregon Governor's usurpation of authority to bind the State to a public policy course not set by the Legislature."

  • 5/5/05 - Gorge and Florence Groups to File New Lawsuits against Casino Compacts - Representatives of two citizen's groups, one from Florence and one from Cascade Locks, along with their attorney, Kelly Clark, of O'Donnell & Clark LLP in Portland, announced new legal strategies and actions they are taking concerning the planned casinos in their respective communities.

  • 4/27/05 - PACT Meeting - People Against a Casino Town haven't given up yet, and with some financial support, the group may outlast Governor Ted Kulongoski in its bid to have a gaming compact with local tribes declared unconstitutional. That was the message from PACT attorneys at the groups' meeting this week.

  • 04/06/05 - PACT Adds Kelly Clark to Legal Team - Mr. Clark is a trial and appellate lawyer with an extensive background in fighting government agencies - and all of the political, legal and constitutional angles that those fights present.

  • 10/14/04- Plaintiff's Reply on Motion to Strike - PACT responds to the Governor's continued efforts to avoid having the merits of PACT's case heard by the State court.

  • 9/3/04 - Plaintiff's Reply to All Defendants' Responses to Motion to Remand to Oregon Circuit Court

  • 7/8/04 - PACT Files Motion to Remand Lawsuit Back to State Court - PACT responds to the Governor's continued efforts to avoid having the merits of PACT's case heard by the State court.

LANE COUNTY CIRCUIT COURT

OREGON SUPREME COURT

  

 

Links:

  


P.O. Box 978
Florence, Oregon 97439
e-mail: info@pactoregon.org

  

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