| People Against a Casino Town |
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The following document was filed on March
9, 2004.
IN THE CIRCUIT COURT OF
THE STATE OF OREGON COMPLAINT (Declaratory
Judgment) Plaintiffs allege as follows: Introduction
1. This proceeding seeks to vindicate the constitutional structure of government in the State of Oregon. Plaintiffs seek relief, pursuant to ORS 28.010 et seq. declaring unconstitutional, illegal, null and void an agreement between the State of Oregon and the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (the “Tribes”), entitled the Amended Tribal-State Compact for Regulation of Class III Gaming between the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (the “Compact”). 2.
The Compact authorizes the Tribes to operate a Class III gaming facility as defined in the Indian Gaming Regulatory Act 25 U.S.C. §§ 2701 – 21 (the “Proposed Casino”) on lands controlled by the Tribes near Florence, Oregon (the "Hatch Tract"). Parties
3.
Plaintiff Susan Dewberry (“Dewberry”) is a taxpayer and individual who resides and owns real property in Florence, Lane County, Oregon. Dewberry will suffer economic damage resulting from the Class IIII casino gambling authorized by the Compact. Dewberry’s state, county, municipal and local property tax burdens will increase as a result of the Compact and Proposed Casino. Dewberry’s real property value will decrease as a result of the Compact and Proposed Casino. She also will suffer damage resulting from the proximity of her residence to the increased traffic volume and increased roadway dangers associated with the Proposed Casino. 4.
Plaintiff Carol Holcombe (“Holcombe”) is a taxpayer and individual who resides and owns real property in Florence, Lane County, Oregon. Holcombe will suffer economic damage resulting from the Class IIII casino gambling authorized by the Compact. Holcombe’s state, county, municipal and local property tax burdens will increase as a result of the Compact and the Proposed Casino. Holcombe’s residential and commercial real property values will decrease as a result of the Compact and Proposed Casino. She also will suffer damage resulting from the proximity of her residence to the increased traffic volume and increased roadway dangers associated with the Proposed Casino. 5.
Plaintiff Suzanne Danielson (“Danielson”) is a taxpayer and individual who resides and owns real property in Florence, Lane County, Oregon. Danielson will suffer economic damage resulting from the Class IIII casino gambling authorized by the Compact. Danielson’s state, county, municipal and local property tax burdens will increase as a result of the Compact and the Proposed Casino. Danielson’s residential real property value will decrease as a result of the Compact and Proposed Casino. She also will suffer damage resulting from the proximity of her residence to the increased traffic volume and increased roadway dangers associated with the Proposed Casino. 6.
Plaintiff Arnold Buchman (“Buchman”) is an individual who resides in Florence, Lane County, Oregon. Buchman will suffer economic damage resulting from the Class IIII casino gambling authorized by the Compact. Buchman’s state, county, municipal and local property tax burdens will increase as a result of the Compact and the Proposed Casino. Buchman’s residential real property value will decrease as a result of the Compact and Proposed Casino. He also will suffer damage resulting from the proximity of his residence to the increased traffic volume and increased roadway dangers associated with the Proposed Casino. 7.
Plaintiff Don Heath (“Heath”) is an individual who resides in Florence, Lane County, Oregon. Heath will suffer economic damage resulting from the Class IIII casino gambling authorized by the Compact. Heath’s state, county, municipal and local property tax burdens will increase as a result of the Compact and the Proposed Casino. Heath’s residential real property value will decrease as a result of the Compact and Proposed Casino. He also will suffer damage resulting from the proximity of his residence to the increased traffic volume and increased roadway dangers associated with the Proposed Casino. 8.
Plaintiff Dale Schaffner (“Schaffner”) is an individual who resides in Florence, Lane County, Oregon. Schaffner will suffer economic damage resulting from the Class IIII casino gambling authorized by the Compact. Schaffner’s state, county, municipal and local property tax burdens will increase as a result of the Compact and the Proposed Casino. Schaffner's residential real property value will decrease as a result of the Compact and Proposed Casino. He also will suffer damage resulting from the proximity of his residence to the increased traffic volume, increased roadway dangers, and noise associated with the Proposed Casino. 9.
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 ("Kitzhaber"). 10.
The Honorable Theodore R. 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. 11.
The Tribes are a federally recognized Indian Tribe with a principal office at 1245 Fulton, Coos Bay, Coos County, Oregon. 12.
The Tribes are a party who has or may have an interest, which would be affected by a declaration issued pursuant to ORS 28.010 et seq. General
Factual Allegations
13.
On January 8, 2003, Kitzhaber executed the Compact. 14.
Defendant Kulongoski was sworn in as governor on January 13, 2003, shortly after the execution of the Compact, and has assumed responsibility and liability for official acts of Kitzhaber. First
Claim for Relief
(Violation of the Constitution of Oregon Article XV, Section 4(12)) 15.
Plaintiffs reallege allegations set forth in paragraphs 1 – 14. 16.
The Oregon Constitution prohibits the State’s authorization and operation of casinos in Oregon. Article XV, section 4(12) provides that, “[t]he legislative assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon.” 17.
The Compact is an express authorization by the State for the operation of the Proposed Casino and Class III gaming facility. 18.
The uses authorized by the Compact come within the scope of the meaning of “casinos “ as set forth in the Article XV, section 4(12) and related Oregon case law. 19. The Compact expressly uses the term “casino” in describing the Proposed Casino and Class III gaming activity. 20.
The Governor and State, by and through the Oregon Attorney General, have refused and continue to refuse to reject or disavow the Compact’s authorization of the Proposed Casino and Class III gaming facility. 21.
Defendant Kulongoski’s decision not to reject the Compact and instead allow operation of the Proposed Casino is an on-going violation of Article XV, section 4(12) because operation of the Proposed Casino would contravene Article XV, section 4(12). 22.
The Compact’s authorization of a Proposed Casino and Class III gaming facility violates Article XV, section 4(12) and is unconstitutional, illegal, null and void. Second
Claim for Relief
(Violation of Constitutional Separation of Powers) 23.
Plaintiffs reallege allegations set forth in paragraphs 1 – 22. 24.
Article III, section 1 of the Oregon Constitution establishes a republican form of government that grants specific powers to separate, coordinate branches of government, including the legislative and executive branches. Article III, section 1 provides 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.” 25.
Legislative power, other than initiative and referendum powers reserved to the citizenry, is vested in the legislature under Oregon Constitution Article IV, section 1. 26.
The Governor has no independent legislative powers under Article III or
the Oregon Constitution generally.27.
The Governor is constitutionally required by Article V, section 10, to ensure that the laws of the State of Oregon are “faithfully executed.” 28.
In executing the Compact, Defendant Kulongoski, as successor to former Governor Kitzhaber, violated Oregon’s constitutional separation of powers in one or more of the following particulars: a) by authorizing the Tribes to operate a casino, when the Oregon legislature has no power to authorize and is specifically required to prohibit casinos in Oregon pursuant to the Oregon Constitution Article XV, section 4(12); b) by violating Article III, section 1, in exercising legislative functions absent any express constitutional authority to do so; c) by assuming for the State and thereby the public and plaintiffs, as members of the public, obligations and duties set forth in the Compact, where those obligations and duties are not authorized, adopted, or enacted by the Oregon Legislature; d) by entering into the Compact that authorizes operation of the Proposed Casino, contrary to the Governor's constitutional obligations to execute faithfully the laws as provided by the Oregon Constitution Article V, section 10; and e) by binding the State and thereby the public and plaintiffs as members of the public, to the terms of the Compact and thereby depriving plaintiffs of their right to have their elected representatives act on their behalf. 29.
As the Compact violates the Oregon Constitution, including the Article III, section 1, separation of powers provisions, it is unconstitutional, illegal, null and void. WHEREFORE, Plaintiffs pray for a judgment as follows: (a) Declaring that the Constitution of Oregon, Article XV, section 4(12) prohibits the Proposed Casino contemplated by the Compact; (b) Declaring the Compact unconstitutional, illegal and void on the grounds that it authorizes operation of a casino contrary to Oregon Constitution Article XV, section 4(12); (c) Declaring the Compact unconstitutional, illegal and void as it contravenes the Oregon Constitution, including the Article III, section 1 and Article 4, section 1, separation of powers provisions. (d) Declaring that Defendant Kulongoski, as successor to Kitzhaber, had no authority to enter into the Compact; (e) Declaring that the Compact is unconstitutional, illegal and void as a matter of law; (f) Such other legal or equitable relief as may be just and proper, which may include awarding Plaintiffs their reasonable attorney fees together with their costs and disbursements included herein as Plaintiffs seek to compel the State to perform its public duties. DATED: March 9, 2004 HUTCHINSON, COX, COONS,
DUPRIEST, ORR & SHERLOCK, P.C. By: William H. Sherlock, OSB #90381 E. Bradley Litchfield, OSB #99311 Patrick L. Stevens, OSB #98001 Of Attorneys for Plaintiffs Trial Attorney: William H. Sherlock, #90381 |