| People Against a Casino Town | ||
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The following document was filed on
September 15, 2003.
IN THE SUPREME COURT OF
THE STATE OF OREGON PLAINTIFFS-RELATORS'
MEMORANDUM
I. INTRODUCTION Plaintiffs-Relators seek to vindicate the structure of government in the State of Oregon. The Governor of Oregon violated the Oregon Constitution when he executed an agreement relating to tribal casino gambling in the Florence, Oregon vicinity. In so agreeing, the Governor violated the Oregon Constitution’s Article XV, section 4(12) (formerly section 4(7)) prohibition against casinos and the Article III separation of powers provisions. This action seeks to reverse those actions. II. FACTUAL SUMMARY A concise statement of facts is fully set forth in the Alternate Writ of Mandamus. This memorandum adopts and incorporates by reference facts stated therein. This memorandum makes use of terms defined therein. III. ARGUMENT A. The Governor’s Execution of the Compact Violates Oregon Constitutional Prohibitions Against Casinos and the Constitutional Separation of Powers. 1. The Governor has Violated Oregon’s Constitutional Prohibitions Against Casinos The Oregon Constitution requires legislators to prohibit casinos. Article XV, section 4(12) provides that, “the legislative assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon.” Under Oregon law, the Tribe’s Proposed Casino comes within the scope of the meaning of “casinos“ as set forth in the Article XV, section 4(12) and in Oregon case law. See Ecumenical Ministries of Oregon v. Oregon State Lottery Commiss. 318 Or 551, 561 - 562, 871 P2d 106 (1994) (casinos are establishments where gambling is the dominant purpose, aside from lotteries). The Governor’s decision to execute the Compact violates the Constitutional prohibition in Article XV, Section 4(12). The Governor cannot suggest his predecessor’s execution of the Compact was a result of mistake or oversight. The Compact itself, approved and executed by both the Tribe and the State, acknowledges that casinos are prohibited in Oregon: “The Tribes’ contributions to the community benefit fund, * * * may be discontinued if the Oregon Constitution is amended to remove the prohibition of casinos in the State. The Tribes and the State agree that if the Tribes are prohibited for any reason from offering [Class III games] * * * the parties shall enter into negotiations to establish how the community benefit fund contribution * * * shall be adjusted to reflect the impact of the discontinuation of those games on the Tribal Gaming Operations Net Income.” (Emphasis added).See, Ex “B” (hereinafter referred to as “Compact”) at § 10(C)(6). The State Attorney General defends the Governor’s actions by claiming authority under ORS 190.110 to enter into the Compact. See Ex “F.” ORS 190.110 provides that: (1) In performing a duty imposed upon it, in exercising a power conferred upon it or in administering a policy or program delegated to it, a unit of local government or a state agency of this state may cooperate for any lawful purpose, by agreement or otherwise, with * * * an American Indian tribe or an agency of an American Indian tribe.The Attorney General misinterprets this statute. Any compacting power the Governor exercises pursuant to ORS 190.110, must be a power or duty that the Governor is lawfully authorized to exercise in the first place. ORS 190.100 does not license the Governor to do what the Oregon Constitution forbids even the Legislative Assembly from doing. Moreover, ORS 190.110 creates for the State no new duties, powers or obligations that it may use in negotiating agreements with Indian tribes. In State ex rel State Office for Services to Children and Families v. Klamath Tribe, 170 Or App 106, 115, 11 P3d 701 (2000) the court held that ORS 190.110 does not grant a governmental body powers it does not otherwise already posses. The “duties” referenced in ORS 190.110 cannot thereby include complete and absolute constitutional disabilities. And, "duties" do not, customarily, include usurpations of power as discussed later herein. The Indian Gaming Regulatory Act, the federal act governing Indian Casinos, (“IGRA”), is likewise not an independent source of Executive power. See State ex rel. Clark v. Johnson, 120 NM 562, 569, 904 P2d 11 (1996); see also, State ex rel. Stephan v. Finney, 251 Kan 559, 836 P2d 1169 (1992). IGRA expressly limits is reach by stating that, "Class III gaming activities shall be lawful on Indian lands only if such activities are * * * located in a State that permits such gaming for any purpose by any person, organization, or entity." 25 USC § 2710(d)(1)(B) (1988). (Emphasis added). Even the Compact itself references no authority under which the Governor binds the State. Absent authority to breach these provisions, the Governor wrongfully violated the Oregon Constitution. This Court must order him to correct this violation by voiding the Compact. 2. The Governor’s Execution of the Compact Violates the Oregon constitutional Separation of Powers. The Oregon Constitution sets forth, among other things, the essential, inviolate structures of government. First is the Article III concept of separation of powers or "Distribution of Powers." Article III, section 1 provides: “The powers of the Government shall be divided into three separate departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with any official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”The powers of the Legislative, Executive and Judicial Departments are set out in Articles IV through VII of the Oregon Constitution. The Constitution directs that the power to make laws for the people of the State of Oregon, "except for the initiative and referendum powers reserved to the people, is vested in the Legislative Assembly, consisting of a Senate and a House of Representatives." Or Const Art IV, § 1. These lawmaking powers cannot be delegated to any other branch of government. Conversely, no other branch of government (e.g., the executive department) may usurp these same lawmaking powers from the legislature. As for the Governor, he cannot make law at all. He must simply ensure that the laws of the State of Oregon are “faithfully executed.” Or Const Art V, § 10. Applying the strictures of the Constitutional separation of powers to the Compact, there is little doubt that the Governor’s endorsement of the Compact was improper. Nothing in the Compact claims a legislative heritage. And, as these policy decisions involve the expansion of casino gambling, the legislature could not have lawfully authorizing casino gambling in any event. Indeed, the only State entity lawfully entitled to consider the matter is constitutionally prohibited from doing so. See Or Const Art XV, § 4(12). As the legislature has no grounds to authorize casinos, the Governor has even less authority to do so. Specifically, the Governor has absolutely no power whatsoever to make "law and policy" for the State; much less a brand of law and policy that contravenes completely Oregon’s plainly-expressed constitutional prohibition. Any attempt to make new law or policy, would mean a violation of the Oregon’s constitutional provisions governing the structure of government under Article III and the substantive gambling law prohibition of the people under Article XV, section 4(12). In executing the Compact the Governor not only violated the Article III separation of powers doctrines, but he burdened the State with obligations that neither the legislature nor the people have approved. For instance, in agreeing to the Compact the Governor has: a) decided that Tribes "may" engage in "any other Class III game that has been approved by the Nevada Gaming Control Board", and in so doing, he has improperly delegated Oregon lawmaking authority to the State of Nevada and its Gaming Control Board; Compact at § 4(B)(2); b) determined that 850 video lottery terminals in the Casino are the appropriate number permitted by Oregon law; Compact at §4(D); c) expanded the review and oversight authority of the state police to cover the gambling contemplated in the Compact; Compact at §4(E)(1)(e), (f); d) limited judicial oversight and dispute resolution mechanisms available to the State by the terms of the Compact; Compact at § 6(B); e) created and given state police diverse powers to review documents absent any authority or infrastructure under which the police are to operate; Compact at § 7; f) granted authority to the Tribe and the Liquor Control Commission to decide among themselves which liquor laws apply to the Proposed Casino; Compact at § 8(F); and g) determined the amount, collection and nature of payments made to the State as its "costs" or "assessments" under the Compact for state law purposes. Compact at §10. In executing the Compact and binding the State to comply with these responsibilities, the Governor failed to execute faithfully the laws of the State of Oregon as required by the Article V, section 10 of the Oregon Constitution. Further, he undermined legislative enactments prohibiting casino gambling and refused to abide by constitutional and statutory prohibitions against unlawful gambling. Such actions are improper, unlawful and unconstitutional. Consent of the people is the core of the Oregon Constitution. There follows the delegation of lawmaking power, with limits, to the Legislature; the Legislature may not delegate that power, and the Executive may not usurp the Legislative power from the sister department of government. Executive action and the Compact as the progeny thereof, have thrown these core concepts into confusion and disarray. This Court must, under the light of careful Constitutional scrutiny, issue the Writ and thereby safeguard the structure of Oregon Constitutional government, re-entrench legislative and popular constitutional principals and prohibitions, and avoid the Governor’s usurpation of power and the ill, unconstitutional effects associated therewith. Indeed, no state goal or political expediency is so precious or cherished that it should be entitled to fracture its structure of government. B. The Court has Jurisdiction to Issue Plaintiffs-Relators’ Alternative Writ of Mandamus. This Court may exercise its original jurisdiction in mandamus proceedings. ORS 34.120(2). This grant is based on the authority provided in Oregon Constitution Article VII, § 2 (Amended) which provides, in relevant part, that, “[t]he Supreme Court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.” While this Court is careful to exercise this jurisdiction, it has done so in important cases for over a hundred years. State ex rel. Fidanque v. Paulus, 297 Or 711, 713, 688 P2d 1303 (1984) (relator filed original writ of mandamus alleging that Secretary of State breached constitutional duty by certifying proposed initiative petition and allocating to it a ballot number in violation of "single issue" requirement of State Constitution); State ex rel. Sajo v. Paulus, 297 Or 646, 648, 688 P2d 367 (1984) (Relators brought an original mandamus proceeding to place a measure on the ballot by initiative petition); Putnam v. Norblad, 134 Or 433, 437, 293 P. 940 (1930) (action to enjoin governor’s discretionary acts); State ex rel. Pierce v. Slusher, 119 Or 141, 143 - 146, 248 P 358,!(1926) (original proceeding brought by Governor to compel public official to perform public duties). This Court should again exercise original jurisdiction to vindicate the important rights asserted herein. C. Plaintiffs-Relators have Standing to Seek Issuance of the Writ. Standing in mandamus matters is broadly construed. A mandamus relator must be a “beneficially interested party on whose interest a mandamus proceeding is brought.” ORS 34.105(4); ORS 34.130. Members of the public have standing merely by virtue of their citizenship. State v. Ware, 13 Or 380, 383, 10 P 885 (1886). They do not need to show any legal or special interest in the result. Putnam v. Norblad, 134 Or at 437. Taxpayers who may have to pay higher taxes as a result of government action have standing to seek a writ of mandamus as “beneficially interested” relators. State ex rel. Kane v. Goldschmidt, 308 Or 573, 579, 783 P2d 988 (1989) (taxpayers who would be likely responsible for future taxes as a result of the impugned legislation held to be appropriate relators); see also State ex rel. Metropolitan Public Defender Services, Inc. v. Courtney, 335 Or 236, 64 P3d 1138 (2003) (public defender service relator entitled to challenge budgetary decisions of Oregon legislature); State ex rel. Durkheimer v. Grace, 20 Or 154, 25 P 382 (1890) (voters and taxpayers are parties beneficially interested in using mandamus to enforce performance of a public duty or to ensure enforcement of a public right). The Plaintiffs-Relators each have a beneficial interest in issuance of the Writ. The are individually and collectively affected by the Governor’s unconstitutional decision to execute the Compact. Each is concerned about how the Compact and the Proposed Casino will burden them as taxpayers. Attached hereto and incorporated herein by reference are the affidavits each of the following Plaintiffs-Relators: (a) A true copy of the Affidavit of Susan Dewberry is attached hereto as Exhibit “A”.As the Plaintiffs-Relators are “beneficially interested [parties] on whose interest a mandamus proceeding is brought” standing requirements are met. D. Plaintiffs-Relators lack An Adequate Remedy at Law and the Issues are of Great Public Importance. 1. Law Relating to “Plain, Speedy and Adequate Remedy” at Law A writ is not to be issued where there is a “plain, speedy and adequate remedy in the ordinary course of the law.” ORS 34.130. The mere fact that there is another remedy does not prevent issuance of a writ where it is doubtful that there is an adequate remedy at law. State ex rel. Scott v. Dobson, 171 Or 492, 499, 135 P2d 794 (1943). These adequate remedies must afford any and all relief to which relator is entitled. State ex rel. Anderson v. Miller, 320 Or 316, 322, 882 P2d 1109 (1984). A remedy is not speedy if it cannot prevent material injury. State ex rel. Ricco v. Biggs, 198 Or 413, 425, 255 P2d 1055(1953) (overruled on other grounds). Where a matter is of great public importance, this Court will exercise its original jurisdiction to resolve the matter. State ex rel. Sajo v. Paulus, 297 Or 646, 648, 688 P2d 367 (1984) (public importance alone is a reason why this Court may take original jurisdiction to resolve a matter and avoid trial and intermediate appeals); State ex rel. Boe v. Straub, 282 Or 387, 391, 578 P2d 1247 (1978) (this Court may has jurisdiction to consider writ of major importance “rather than have it go through the ordinary channels of appeal”). Plaintiffs-Relators contend that the Governor has violated constitutional prohibitions against gambling and usurped constitutional powers endowed to the legislature. These allegations strike at the very heart of the organic structure of Oregon government. They are critically important to restore constitutionally imposed checks and balances on executive authority. Other state supreme courts have been faced with the exact decision that this Court must now make: whether to use its original mandamus powers to consider the validity of an Indian gaming tribal compact. In an exceptionally similar case, the New Mexico Supreme Court concluded that use of its original jurisdiction to hear a mandamus case was necessary, that relators otherwise lacked an adequate remedy at law, and that the writ should issue as follows: "We next consider whether this case should more properly be brought in district court or whether it is properly before this Court in an original proceeding. Our State Constitution provides that this Court will 'have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions * * * *. As we have said, this proceeding implicates fundamental questions of great public importance. Moreover, an early resolution of this dispute is desirable. The Governor asserts, and it has not been disputed, that several of the compacting tribes are in the process of establishing and building gaming resorts and casinos. These projects entail the investment of large sums of tribal money. Capital financing for these projects may well dependState ex rel. Clark v. Johnson, 904 P2d at 18. In another identical case, the Kansas Supreme Court followed the same course of action in concluding that: “[Plaintiff contends] that the head of the executive branch of government has exceeded the constitutional authority granted that office and usurped the constitutional power granted to the legislative branch of government. The subject of the alleged usurpation is neither minor nor inconsequential. The compact in question, * * * contains provisions which would require the State to expend substantial sums of money in hiring and training new personnel as well as accomplishing a multitude of changes to the existing law * * * *. Clearly, this is a matter of great statewide concern. Additionally, to those directly involved the matter demands immediateState ex rel. Stephan v. Finney, 836 P2d at 1176. Delaying a decision will prejudice Plaintiffs-Relators, the City of Florence, the Tribes and the State and is neither speedy nor adequate. Both the State and the Tribes will continue performance of the compact at “the peril of subsequent invalidation * * * *.” Id. Conduct of this nature risks expending large sums of taxpayer (and presumably Tribe member) money in advancing an agreement that Plaintiffs-Relators seek to have declared void. There is no advantage to this Court, the State of Oregon, the Tribes, Plaintiffs-Relators, taxpayers, and the citizens of Oregon whose Constitution and structure of government have been violated by the Governor, in having this matter proceed through years of litigation until it comes back before this Court. These questions cannot wait. The structure of Oregon government is too critical. See Gregory v. Ashcroft, 501 US 452, 459, 111 S Ct 2395, 115 LEd2d 410 (1991) (accumulation of too much power in one governmental entity presents a threat to liberty). This Court should promptly resolve the issues presented by this writ. What is more, the consequences of the Governor’s decisions may have collateral adverse impacts. Further delays may create additional problems for relations between the State, Native American tribes and the federal government, as parties rely on the decisions made in this or other compacts. By way of example, in defending the Governor’s actions, the Attorney General’s suggests that ORS 190.110 authorizes the Governor to execute the Compact. By taking this position, the State unwittingly has created new tribal rights and privileges not recognized under any federal treaty, executive order, agreement, statute, policy or any other authority. Yet, this outcome is precluded by the very provision that the State cites as support for the Governor’s actions. ORS 190.110(3) mandates the state may only cooperate with America Indian tribes for lawful purposes. Other tribes may recognize and seek concessions for other casinos or other concessions entirely unrelated to current tribal rights and privileges. Whether this Court tackles this decision now or in the future, it will undoubtedly finally be called to answer these questions. Indeed the Compact itself contemplates being bound only by a final decision of this Court. For instance, the Compact states that it will remain in effect until a “court of competent authority makes a final determination that all of the Class III games authorized by this Compact are criminally prohibited under the law of the State, and the determination has become final and enforceable.” (Emphasis added). While a trial court’s decision may be a “final determination” under ORCP 67B, that decision would not be “final and enforceable” during the appeal process. See ORS 19.335 – 19.350; ORCP 72. These issues are not only important to state courts, but also to federal courts whose decisions in Indian gaming cases are often founded on state law principles. See State ex rel. Clark v. Johnson, 904 P2d at 16. For instance, a federal court will need to decide whether Oregon is a state that does not, as “a matter of criminal law and public policy, prohibit such gaming activity” in order to determine whether the Proposed Casino is valid under IGRA. 25 U.S.C. § 2701(5); Pueblo of Santa Ana v. Kelly, 104 F3d at 1559. As federal courts consider federal Indian gaming cases, they depend upon a state’s high court for answers. Trial or intermediate appellate decisions do not conclusively resolve the issue for federal courts. Only an unambiguous decision of a State’s highest court will conclusively suffice. Pueblo of Santa Ana v. Kelly, 104 F3d at 1559 (federal court will look to unambiguous decisions of the highest State Court); see also CIR v. Bosch Estate, 87 S Ct 1776 (USNY 1967) (while decrees of lower state courts should be attributed some weight, their decisions are not controlling where the highest court of the state has not spoken on point). Federal courts and state supreme courts alike have agreed that the important Constitutional issues as alleged in this Writ are solely for the state’s highest court to decide. Pueblo of Santa Ana v. Kelly, 104 F3d at 1557, 1558-59 (“state law must determine whether a state has validly bound itself to a compact” and such decision must come from an unambiguous decision of the state supreme court); Finney, at 836 P2d at 1126 (Kansas Supreme Court is proper forum to interpret use of term “lottery” in state constitution); Clark, 904 P2d at 18 (exercise of original mandamus jurisdiction by highest court is appropriate to determine if governor exceeded authority to enter into compact). This writ presents profound state constitutional law and separation of power issues. These issues touch directly on the sanctity of Oregon governmental distribution of powers, the power to declare law in the State of Oregon, the structure of Oregon government, the interpretation of the Oregon Constitution. This Court should reject the temptation to let other courts decide. Federal courts are not skilled at and should not be required to determine the meaning of the Oregon Constitution. Trial and intermediate appellate courts should not be forced to answer the questions not ultimately resolved until this Court speaks. It is in the interest of the State and all others that this matter be heard as soon as possible. The potential prejudice to the State and the structure of Oregon Government is too costly. IV. CONCLUSION For the reasons set forth above, the requested Alternative Writ of Mandamus should issue. DATED: September 15, 2003 HUTCHINSON, COX, COONS, DUPRIEST, ORR & SHERLOCK, P.C. By: William H. Sherlock, OSB #90381 E. Bradley Litchfield, OSB #99311 Of Attorneys for Plaintiffs-Relators |
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