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The following document was
filed on December 10, 2003.
IN THE CIRCUIT COURT OF
THE STATE OF OREGON ALTERNATIVE WRIT OF MANDAMUS On relation of Susie Dewberry, Carol Holcomble, Suzanne Danielson, and Arnold Buchman, the State of Oregon alleges: 1.
This Court has jurisdiction in this mandamus
proceeding under ORS 34.120(1). Upon filing of this Petition,
this Court shall allow the writ pursuant to ORS 34.130(3). Jurisdiction 2.
Parties Plaintiff-Relator Susan Dewberry (“Dewberry”) is an individual who resides in Florence, Lane County, Oregon. Dewberry is a beneficially interested party on whose interest this mandamus proceeding is brought as she will suffer infringements of her constitutional rights stemming from the Governor of Oregon’s January 8, 2003, execution of an indian gaming agreement (“Compact”) between the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (“Tribes”) and the State of Oregon. The Compact authorizes operation of a gaming casino (“Proposed Casino”) on the Tribes’ trust lands near Florence, Oregon. Dewberry’s tax burdens will increase as a result of the Compact. She also has a beneficial interest in preventing the increased traffic volume and increased roadway dangers associated with the Proposed Casino. Plaintiff-Relator Carol Holcombe (“Holcombe”) is an individual who resides in Florence, Lane County, Oregon. Holcombe is a beneficially interested party on whose interest a mandamus proceeding is brought as she will suffer a similar violation of constitutional rights and the increased tax burdens anticipated by Dewberry. Further, Holcombe will suffer financial losses as she anticipates that tenants of her commercial leaseholds will be unable to compete with the untaxed businesses associated with the Proposed Casino. Plaintiff-Relator Suzanne Danielson (“Danielson”) is an individual who resides in Florence, Lane County, Oregon. Danielson is a beneficially interested party on whose interest a mandamus proceeding is brought as she will suffer a similar violation of constitutional rights and the increased tax burdens anticipated by Dewberry. Further, as Danielson resides on Highway 126, adjacent to the site of the Proposed Casino, she will be injured and will suffer damage from the increased traffic on roadways adjacent to the Proposed Casino, the increased dangers of Highway 126, and the decrease in the value of her property that will result from the Proposed Casino. Plaintiff-Relator Arnold Buchman (“Buchman”) is an individual who resides in Florence, Lane County, Oregon. Buchman is a beneficially interested party on whose interest a mandamus proceeding is brought as he will suffer a similar violation of constitutional rights and the increased tax burdens anticipated by Dewberry. Defendant State of Oregon is a governmental entity whose chief executive officer is the Honorable Theodore R. Kulongoski, successor to former Governor John A. Kitzhaber. Defendant Kulongoski is a resident and citizen of the State of Oregon and is the duly elected and serving Governor of the State of Oregon, with his principal offices at 254 State Capitol, Salem, Oregon, 97310. Defendant Kulongoski was sworn in as governor shortly after the Compact was executed, but has, for all purposes of this Petition, taken over responsibility of and liability for official acts of his predecessor former Governor John A. Kitzhaber. 3.
Questions Presented (1) Did the Governor of Oregon contravene Article XV, section 4(12) (formerly section 4(7)) of the Oregon Constitution by entering into the Compact between the State of Oregon and the Tribes for the Proposed Casino near Florence, Oregon? (2) Did the Governor of Oregon violate the separations of powers provisions under Article III, section 1, Article VI, section 1, and Article V, section 10 of the Oregon Constitution in entering into the Compact between the State of Oregon and the Tribes for the Proposed Casino near Florence, Oregon? 4.
Concise Statement of Material Facts On January 8, 2003, former Governor John A. Kitzhaber executed the Compact between the State of Oregon and the Tribes. The Honorable Theodore R. Kulongoski was sworn in as Governor on January 13, 2003, shortly after execution of the Compact and has taken over responsibility and liability for official acts of former Governor John A. Kitzhaber. The Compact authorizes Tribes to engage in various forms of Class III gaming activities (“gambling”) on the Hatch Tract, an undeveloped parcel of land held in trust for the Tribes and located near Florence, Oregon. Under the Compact, the Tribes are permitted to set up the Proposed Casino on the Hatch Tract and to conduct gambling. The Class III gambling activities covered by the Compact include Keno, Blackjack, Craps, Roulette, Poker, Let-it-Ride, Mini-Baccarat, Big 6 Wheel, and off-track pari-mutuel wagering on animal racing. These activities are Class III gaming as defined by the Indian Gaming Regulation Act (“IGRA”), 25 U.S.C. ßß 2701 – 21. IGRA specifically mandates 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 ß 2710(d)(1)(B) (Emphasis added). The people of Oregon have forbidden the Legislative Assembly from authorizing casinos and commanded that no casinos shall operate within the state. In 1984, the Oregon Constitution, Article XV, section 4(12), was amended by initiative and now states, “[t]he legislative assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon.” Article III, section 1 of the Oregon Constitution allocates specific powers to various branches of Oregon government, including the legislative and executive branches and states that “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.” Legislative power, other than initiative and referendum powers reserved to the citizenry, is vested in the legislature under Article IV, section 1 of the Oregon Constitution. The Governor of Oregon has no independent legislative powers under Article III to enter into a Compact for a casino. The Governor, however, is constitutionally required by Article V, section 10, to ensure that the laws of the State of Oregon are “faithfully executed.” The Compact binds the State to undertake a number of tasks. Among other responsibilities, the State is to: (a) monitor and oversee gambling operations at the Proposed Casino; (b) provide law enforcement for the Proposed Casino; (c) maintain public order and safety at the Proposed Casino; (d) provide assistance in the licensing of employees of the Proposed Casino; and (e) inspect and enforce gaming regulations at the Proposed Casino. On September 3, 2003, Alexis Johnson, as agent and representative for Plaintiffs-Relators (“Johnson”), met with representatives of the Oregon Attorney General’s Office. This meeting was initiated at the request of Plaintiffs-Relators. Johnson attended the meeting with representatives of the State of Oregon Attorney General’s office to discuss enforcement of the Constitutional prohibitions against the Proposed Casino development on the Hatch Tract property. Following the meeting, Johnson and representatives of the Attorney General confirmed in writing that the State would not pursue or resolve the alleged constitutional deficiencies of the Compact. The Attorney General asserted that the Governor is entitled to execute and perform under the Compact pursuant to ORS 190.110. 5.
Incorporating the foregoing paragraphs, this petition for Alternate
Writ of Mandamus alleges that neither the people of Oregon nor the
Legislative Assembly have delegated authority to the Governor to enter
into the Compact at issue. By executing the Compact to allow the
Proposed Casino without authority from the Legislative Assembly or the
people of this State, the Governor actively violated the substantive
prohibition against casinos under Article XV, section 4(12), as well as
the Oregon Constitution’s requirement that there be a separation of
powers exercised by the Legislative and Executive Departments of State
government under Article III, section 1, Article IV, section 1, and
Article V, section 10.Claim for Relief Plaintiffs-Relators have no plain, speedy, or adequate remedy at law. *
* * *
* *
WHEREFORE, the Plaintiffs-Relators respectfully petition the Court to find that the act of the Governor in compacting with the Tribes for a Casino on the Hatch Tract contravenes Article XV, section 4(12), Article III, section 1, and Article 4, section 1, of the Oregon Constitution, and accordingly, that the State has not yet entered into the Compact and it is void, and therefore for this Court to issue its Alternative Writ to the Defendants commanding them as follows: 1. To ensure that no state agency or any Executive officer will take any act in furtherance of the Compact on behalf of the State; or, in the alternative, 2. To appear before this Court at a time and place specified by the Court, to show cause why he has not done as commanded; and further, 3. To return the Writ then and there, with his certificate annexed, showing that he has performed the acts sought above or showing the cause of his omission to do so. Plaintiffs-Relators also respectfully request for such other and further relief, including, but not limited to, reasonable attorney fees and costs allowed under ORS 34.210 if the Court finds that Plaintiffs-Relators have vindicated important public rights and Constitutional safeguards. DATED: December 10, 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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