| People Against a Casino Town | ||
|
The following document was filed on
October
29, 2003.
IN THE SUPREME COURT OF
THE STATE OF OREGON PLAINTIFFS-RELATORS'
REPLY
I. INTRODUCTION Plaintiffs-Relators ("Relators") respectfully submit this Reply in Support of their Petition for Alternative Writ of Mandamus and Request for Stay. This Reply responds to some of the glaring omissions from the Defendants-Adverse parties' (State") Memorandum in Opposition, as well as some of the contradictory admissions also contained therein. Specifically, the State admits that the issues in this case are "extremely important" yet it attempts to fend off Supreme Court consideration by relying on inconsequential arguments. This Court should reject positions taken by the State for the reasons set fourth herein. II. ARGUMENT A. The State has not challenged Relators' position that the Governor's Acts were unconstitutional. In its Memorandum in Opposition, the State does not challenge Relators' contentions that the Governor exceeded his authority and violated Constitutional separations of powers in approving the Compact. See Ex "B" to Petition. Therefore, those critical allegations stand undisputed. What is more, the State does not cite any basis of power to rationalize why the Governor entered into the Compact. Thus, for the purposes of this Petition for Writ of Mandamus, Relators' allegations, to the extent they are not challenged by the State, should be deemed undisputed. B. This Court need not hear from the Tribes to decide whether the Governor has violated the Constitution. The State contends that the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians ("Tribes") are necessary participants in this action. Memo in Opp at 11. The State is wrong. This Court does not need guidance from another sovereign to interpret its own Constitution. It would not be necessary to hear from the State of Washington if this Court were to consider whether Oregon violated its Constitution in entering into the Columbia River Light Rail Transit Compact. See ORS 391.301 et seq. California need not weigh in before this Court can analyze whether Oregon could constitutionally enter into the Klamath River Basin Compact. See ORS 542.610. The British Columbia government has no right under Oregon, Federal, or international law to appear before this Court to argue Oregon's constitutional ability to execute the Pacific Ocean Resources Compact. See ORS 196.175. The voices of these sovereign entities, though parties to and affected by any invalidation of the agreement, are not necessary to determine the State constitutional power of the Governor to "enter into" the compacts and thus bind the State of Oregon to them. Similarly, the Tribes are not a necessary participant in the adjudication of this case. The argument that the Tribes are necessary parties has been soundly rejected by other courts. In State ex rel Clark v. Johnson, 90\4 P2d 11, 20 (NM 1995), the New Mexico Supreme Court faced the same issues and held: "Petitioners seek a writ of mandamus against the Governor of New Mexico, not against any of the tribal officials. Resolution of this case requires only that we evaluate the Governor's authority under New Mexico law to enter into the compacts and agreements absent legislative authorization or ratification. Such authority cannot derive from the compact and agreement; it must derive from state law. This is not an action based on breach of contract, and its resolution does not require us to adjudicate the rights and obligations of the respective parties to the compact."The State in the current action is similarly without merit in alleging that the Tribes need to be a party to this action. The State contends that if the Tribes were party to this action, they "might well argue" that because the "issue of whether tribal casinos are permitted in Oregon is in large part a question of federal law, that issue should be prosecuted in federal court." See Memo in Opp at 12. Relators respectfully observe that Tribes could, in an appropriate forum, raise any variety of issues on any variety of questions: but the State's allegation that this action is about "federal law" rather than state gubernatorial powers, state separation of powers, state courts, and the state constitution is wrong and distracting. Although the Tribes are not necessary for the adjudication of the Petition, they may participate as amicus of any party seeking to argue the constitutional merits in the Petition. C. The State has failed to recognize the harm arising from execution of the Compact. The State sets forth a litany of misplaced and contradictory arguments suggesting that there is little urgency to Relators' claims and therefore that other traditional remedies in the circuit court system are adequate. Memo in Opp at 10-20. First, the State takes the alarming position that Relators have failed to prove that the alleged Constitutional violations are severe enough to "warrant emergency relief." Memo in Opp at 12-13. The State argues this on the basis that the Governor's actions in authorizing the operation of tribal casinos have not been challenged for over a decade. Id. at 13. Argument of this nature merely underscores the critical significance of the issues; neither the State Attorney General nor the Governor are going to do anything about these blatant and egregious constitutional violations. Moreover, the State's position is contrary to common sense and Oregon case law. State ex rel Adams v. Powel, 171 Or App 81, 96 (2000) ("When possible, we must give effect 'to every part and every word of a Constitution and that unless there is some reason to the contrary, no portion of the fundamental law shall be treated as superfluous"). Unless Relators move to vindicate constitutional rights, nobody from the executive branch will. Second, the State suggests that "the legislature presumably would fill the resulting gap" for any "separation-of-powers problem," that Relators might prove. Memo in Opp at 15. Though compacted relationships are usually an expression of legislative power (not gubernatorial power), even the Oregon legislature cannot bless acts that violate Article XV. Speculation that the legislature can cure the constitutional violations alleged in this Petition is misguided and incorrect. Third, the State takes the surprising position that the relief sought "likely will not address the harms they allege." Memo in Opp at 14. Again, such an approach relies on profoundly flawed reasoning. This Court would not permit a police officer to continue unconstitutional searches simply because that officer performed those illegal searches in the past, and because the State did not believe it could prevent all future illegal searches. Similarly, this Court should not turn a blind eye to the Governor's unlawful acts simply because to date, those acts had gone unchallenged. A constitutional violation is a violation regardless of who made the act and how long it has festered. Fourth, the State admits that this action presents issues that are "extremely important." Memo in Opp at 17. Yet, it contends that these issues should "percolate" through trial and appellate courts before being presented to this Court. Id. Such an assertion makes little sense. Nothing in the trial or appellate process is necessary to distill the issue of this case: Did the Governor violate the Oregon Constitution in executing the Compact? No additional material facts are necessary to create an "extensive record." Memo in Opp at 16-17. For example, the State suggests that there is some question as to whether this "gambling facility" described in the Compact is a "casino" that would be proscribed by Article XV Section 4(12). Such a suggestion is disproved by the Compact itself. First, the Compact itself refers to the Tribes' gambling facility as a casino. See Compact at 6. Specifically, the Compact references its net income as being "the net income of casino operations, Class III gaming" and other revenue-producing activities. Compact at 6. (emphasis added). Also, the Compact refers to the casino as a "Gaming Facility," which is defined as "any building or structure and grounds used by the Tribes for Class III gaming purposes, including any property used to store Class III gaming equipment." Id. This definition is exactly congruent with this Court's definition of a "Casino" in Ecumenical Ministries of Oregon v. Oregon State Lottery Commission, 318 Or 551, 562, 871, P2d 106 (1994) ("Casino" as defined in Article XV, section 4(12) is "an establishment whose dominant use, or dominant purpose, or both, is for gambling"). the State's position that this Court should withhold its original jurisdiction so that immaterial facts can be cast into the record is short sighted and a waste of judicial resources. Should this Court assume original jurisdiction, the issues can be dealt with quickly and efficiently because no "facts" other than the words of the Oregon Constitution as applied to the plain language of the Compact signed by Governor Kitzhaber (and attached to the Petition as an exhibit) are necessary to resolve this specific proceeding. Further, this Court has affirmed its willingness to assume original jurisdiction over an action where the issues are of critical importance to the State, often in the face of an action where other remedies or venues exist. State ex rel. Sajo v. Paulus, 297 Or 646, 649, 688 P2d 367 (1984) (Supreme Court will consider issues in a case found to be of sufficient public importance and where the decision will provide guidance for responsible officials and the legislature); see also State ex rel. Boe v. Straub, 282 Or 387, 578 P2d 1247 (1978) (where an issue is of great public importance original jurisdiction may be appropriate). By answering the important questions posed in the Petition, this Court can provide essential and immediate direction to State officials and avoid years of the State laboring under the unlawful, yet intensive obligations placed on it by the Compact, all with the potential of having this Court ultimately determine that the Compact was void, unconstitutional and unenforceable. D. A stay is necessary to avoid the consequences of the illegal Compact. The State argues that a stay prohibiting the State from further activities under the Compact is too extreme. Memo in Opp at 20. This Court should reject this position for several reasons. First, the State seeks a continuing license for acts designed to promote activities plainly prohibited by the Oregon Constitution. The State's Memorandum in Opposition provides no excuses why this conduct would be lawful. Further, this conduct consumes scarce taxpayer resources, expenditures that are especially frivolous in light of this Court's power to nullify anything done under the Compact. There is no valid reason why further action by the executive branch should not be stayed pending this Court's sober review of the issues, but especially on the unsupported speculation by the State that a stay will cause traffic jams and roadside dangers. See, id. Second, while Relators admit that this Court has no jurisdiction until it agrees to issue the alternative writ, Oregon mandamus practice generally provides that a court or other body against which a mandamus proceeding is commenced will stay the underlying proceeding until the mandamus action is resolved. Oregon Civil Pleading and Practice, Section 34.16. Third, it is not a "drastic action" to prevent continuing unconstitutional acts by the state executive. See Id. Should this Court grant the alternative writ, further action by the State under the Compact should be stayed. III. CONCLUSION This Court should allow Relators' Alternative Writ of Mandamus and should grant all relief sought in the Petition. DATED: October 29, 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 |
||