People Against a Casino Town
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The following document was filed on January 20, 2004.

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR LANE COUNTY

PLAINTIFFS-RELATORS' MEMORANDUM
IN OPPOSITION OF
DEFENDANTS' MOTION TO DISMISS
Mandamus Proceeding
Case No.  16-03-23044


I.    Introduction

Defendants' Motion to Dismiss is based on three flawed alternative theories.  The first insists that Plaintiffs-Relators ("Plaintiffs") have a plain, speedy and adequate remedy through a declaratory judgment action.  The second relies on inaccurate allegations that the Confederated Tribes are a necessary party to the litigation.  The third, relies on a tortured attempt to expand the doctrine of laches to insulate the Governor from having to comply with the state Constitution.  As shown below, each of these grounds for dismissal are meritless.

II.    Material Facts

On January 8, 2003, former Governor John A. Kitzhaber executed an Indian gaming agreement ("Compact") between the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians ("Tribes") and the State of Oregon.  The Honorable Theodore R. Kulongoski was sworn in as governor shortly after that date and has taken over responsibility and liability for official acts of former Governor John A. Kitzhaber.

The Compact permits the Tribes to set up a casino on the Hatch Tract and to conduct Las Vegas-type Class III gaming activities therein.  These activities are Class III gaming as defined by the Federal Indian Gaming Regulation Act ("IGRA") 25 U.S.C.§ 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 U.S.C. § 2710(d)(1)(B) (1988) (emphasis added).

Casinos are illegal in Oregon.  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."

On July 1, 2003, the United States Court for the District of Oregon decided Oregon v. Norton, 271 F Supp 2d 1270 (D Or 2003).  In that case, the Court found that the Hatch Tract had been reserved and accepted into trust for the benefit of the Tribes.  The land was therefore eligible for gaming activities provided its use was if consistent with the provisions of IGRA.  Id. The State had sixty days to appeal that decision but declined to file an appeal.

On September 3, 2003, attorney Alexis Johnson ("Johnson"), as agent and representative for Plaintiffs,  met with representatives of the Oregon Attorney General's Office. Affidavit of E. Bradley Litchfield filed in Support of Memorandum in Opposition, Ex "A" at 1 ("Litchfield Aff.") Plaintiffs initiated this meeting in an attempt to avoid filing an action against the Governor.  Id. At 1.

Specifically, Johnson met with representatives of the State of Oregon Attorney General's office to ask whether the State Attorney General's office had any plans to challenge the power of the Governor to enter into the Compact and to ask whether the Attorney General had analyzed the Compact for Constitutional infirmities.  Id.  The State officers answered in the negative to each of the questions. Id. At Ex. "B."  On September 10, 2003, the Attorney General's office confirmed its stance by delivering a letter to Johnson indicating that attorneys for the State would not challenge the Compact or the Governor's actions.  Id., Exhibit "B".

Plaintiffs subsequently filed their Petition for an Alternative Writ of Mandamus with the Oregon Supreme Court on September 16, 2003, citing the Court's discretionary authority to accept petitions for writs of mandamus.  Id., Exhibit "C."  The Court declined to hear the case on November 28, 2003.  Id. at Exhibit "D."  This action was filed on December 10, 2003.

III.    Argument

A.    Plaintiffs cannot obtain a plain, speedy and adequate remedy in the ordinary course of the law by filing a declaratory relief action because Oregon law would require the Tribes to be a party to that action and this Court has no civil jurisdiction over the Tribes.

Plaintiffs willingly concede that under most circumstances, a declaratory relief action would be the most logical and reasonable legal mechanism for challenging the legality of a Governor's decision to enter into a contract with a third party.   The declaratory relief statute appears well-tailored to resolve such issues.  Further, a writ of mandamus, "shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law." ORS 34.110.   Relying on these seemingly clear statutory instructions, Defendants ask this Court to dismiss the Petition because they believe that Plaintiffs could obtain plain, adequate, and speedy relief by filing a declaratory judgment action.  Defendants are wrong.

This is because that the declaratory judgment statute requires joinder of any party who may be affected by a declaration by the court.  ORS 28.110 provides:

"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding." (Emphasis added).

In North Pacific Ins. Co. v. Switzler,143 Or.App. 223, 227, 924 P.2d 839, (1996) the court interpreted this language to mean:

'"all affected interests" must be joined as a jurisdictional prerequisite to entering a declaratory judgment. Wright v. Hazen Investments, Inc., 293 Or. 259, 264, 648 P.2d 360 (1982). Failure to join a "necessary party"--i.e., a party with an affected interest--deprives the court of authority to enter a judgment that is binding on that party. Futrell v. Wagner, 96 Or.App. 27, 32, 771 P.2d 292, rev. den., 308 Or. 158, 776 P.2d 859 (1989). If a necessary party cannot be joined, the declaratory action must be dismissed. Id. at 33, 771 P.2d 292."

The State argues that the Tribes are affected by a declaration under the Oregon declaratory judgment statute. Accordingly, as a potentially affected party, the Tribes are necessary parties to a declaratory judgment action.  ORS 28.110.  Yet, as "domestic dependent nations," the Tribes are insulated from claims brought in state or federal courts. Chance v. Coquille Indian Tribe, 327 Or 318, 321, 963 P2d 638 (1998).  In other words, as a sovereign, the tribes are immune from state court actions.  Neither Plaintiffs nor this Court (nor Defendants) can require the Tribes to participate in an action for declaratory relief.

This unavoidable jurisdictional obstacle negates Plaintiffs' ability to obtain adequate and speedy relief through declaratory judgment because upon filing of a motion by the State or sua sponte, this Court would have to dismiss Plaintiffs' declaratory judgment action as a matter of law -- leaving Plaintiffs with no possible remedy, much less a speedy and adequate one.

Contrary to Defendants' insistence that their motion is not "raising these procedural issues as a ploy to avoid addressing the merits of the plaintiffs' claims," Defendants are fully aware that if they can convince this Court to dismiss this action and require Plaintiffs to refile a declaratory action they will have forced Plaintiffs into a procedural cul-de-sac.

B.    Plaintiff's Alternative Writ for Mandamus does not seek a remedy against the Tribes and the Tribes are not a necessary party

In stark contrast to the declaratory relief statute, the proper defendants in an action for a Writ of Mandamus are merely those against whom the relief is sought.  Under ORS 34.105(3), defendant is a "court, corporation, board, officer or person against whom the relief is sought".  A plaintiff may seek relief against:

"Any inferior court, corporation, board, officer or person, to compel performance of an act which the law specifically enjoins, as a duty resulting from an office, trust or station; but through the writ may require such court, corporation, board, officer or person to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion."  ORS 34.110.

In this mandamus action, Plaintiffs seek relief against the Governor, not the tribes, in order to ensure that the Governor's actions comport with his procedural and substantive limits of constitutional authority.  Nothing in the mandamus statute requires joinder of affected third parties and such arguments have been  rejected by other courts.  In State ex rel Clark v. Johnson, 904 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."

Likewise, 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) or from California as to whether Oregon could constitutionally enter into the Klamath River Basin Compact. See ORS 542.610. Though both Washington and California would be affected by any invalidation of the agreement, their sovereign interpretation of Oregon Constitutional law is irrelevant to a determination of the legal and Constitutional issues of the case.

Defendants cite American Greyhound Racing, Inc. v. Hull, 305 F 3d 1015, 1023 (9th Cir. 2002) as support for their position that this action must be dismissed. American Greyhound is a federal court case on injunctive relief that turns on application of Fed. R. Civ. Pro. 19(a)(2)(i), which is very similar to the language of the Oregon declaratory judgment statute.  Id.; see also ORS 28. 110. American Greyhound  provides that a Tribe that may claim an interest in a gaming compact is an indispensable party to the injunction action. American Greyhound Racing, Inc. v. Hull, 305 F 3d  at 1023.   This proposition directly supports Plaintiffs' contentions that a declaratory judgment action provides no adequate remedy for Plaintiffs as the non-joinder of the Tribes would require dismissal of the action.  See  III (A).  However, American Greyhound does not assist this Court in the context of a mandamus action where the necessary parties are clearly designated by statute. See ORS 34.105(3) (defines defendants to be those against whom relief is sought ); ORS 34.130(4) (permitting all other adverse parties to participate in the proceedings). American Greyhound does not support Defendants' request that the Petition be dismissed.

Notwithstanding the fact that the Tribes are in no way necessary parties required to participate in a mandamus action, should they wish to participate, the mandamus statute provides liberal intervention for "adverse parties."  ORS 34.130(4).  If the Tribes can show that they are an adverse party they may intervene as a matter of right in the action.  The right to intervene fully addresses Defendants alarmist assertion that "this court should not resolve issues of such import without considering the perspectives of those who would be directly affected by the court's ruling."  Motion to Dismiss at 12, l. 5.

C.  The doctrine of laches does not deprive Plaintiffs' of their cause of action

Defendants also argue that the Plaintiffs' petition is barred by laches.  Defendants' Memo at 12.  As explained below, the facts and timeline of this matter demonstrate that plaintiffs have not delayed bringing this action and that they made reasonable and timely efforts under the circumstances of this case to obtain the relief they sought prior to filing the Petition.

As an initial and overriding matter of law and equity, it must be emphasized that 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.

The Governor continues to violate the Oregon Constitution by refusing to declare the Compact void, thereby allowing the State to be a party to an unconstitutional Compact.  The State is complicitious in the wrongdoing for refusing to enjoin operation of the Compact. Resolution of this significant legal question must be decided on the merits. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803) (Emphasis added.) Deference and judicial restraint, as urged by defendants, have no application when the issue is whether the governor has, defacto, overridden the State's Constitution.

1.    Plaintiffs made timely and good faith efforts to compel the Governor to comply with the constitutional limitations regarding separation of powers and prohibition of casinos

As an equitable defense, laches is defined by the Oregon Supreme Court in Hanns v. Hanns, 246 Or. 282, 423 P.2d 499 (1967) as:

"* * * (N)eglect, for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done, resulting in a disadvantage to the other party.' 30A C.J.S. Equity s 112, pp. 19, 20. It is to be emphasized that laches does not result from delay alone, but from unreasonable and unexplained delay in asserting rights which has resulted in disadvantage or prejudice, making it inequitable to afford the relief sought against a party asserting laches as a bar thereto. Dahlhammer and Roelfs v. Schneider Exec., 197 Or. 478, 252 P.2d 807 (1953).

Defendants' make a confusing and misguided attempt to analogize this situation with one falling under the Administrative Procedures Act ("APA") and tries to adopt an irrational sixty-day standard to shelter the Governor from a judicial review. Plaintiffs' Petition, however, is not challenging a state officer's routine administrative decision or indecision.  Instead, it responds to blatant violations of core principles of Oregon State Government.

Moreover, the State asserts that key constitutional violations may go unremedied if not challenged within that two-month period of time.  Relying on that flawed premise, the people of Oregon would only have sixty days to challenge a governor's decision to suspend Lane County resident's rights against unreasonable search and seizure; (see Or. Const. Art. I, section 9); or to invalidate a governor's edict to eliminate freedom of speech (see Or. Const. Art. I, section 8); or finally, the people of Oregon could not wait more than sixty days to attack a governor's compact with the State of California to give Jackson and Josephine Counties to the State of California (see Or. Const. Art. XVI, section 1 (provides for legislative change of State boundaries only upon execution of a valid compact).

In this case, any step that the Defendants take, other than to void and disavow the Compact constitutes a continuing violation of the Oregon Constitution.  The Constitutional breaches continue each day the Compact remains intact or each day that the State or Governor takes actions thereunder.  Indeed, it is almost an axiomatic principle of law that constitutional interpretation can go decades or centuries before it is correctly interpreted by a court.

2.    Plaintiffs brought their Petitions within a reasonable time

Oregon law provides that before a party may bring an action seeking a writ of mandamus, it must first demand that the State take such action.  Putnam v. Norblad, 133 Or 433, 437, 293 P 940 (1970) (plaintiffs must show refusal of the State to take action against impugned conduct).  Until the State had concretely refused to honor its duty to challenge the unconstitutionality of the Compact, Plaintiffs arguably had no standing to seek a writ of mandamus.  The facts leading up to the filing of the first Petition confirm the Plaintiffs' good faith efforts to avoid litigation.  These efforts cannot be said to be an "unreasonable delay." Specifically, on September 3, 2003, attorney Johnson, a representative for Plaintiffs, met with representatives of the Oregon Attorney General's Office to ask the State to challenge the legal validity of the Compact.  Id.  The State refused.  Id. On September 10, 2003, the State sent a confirming letter to Plaintiffs' representative that it would not challenge the Governor's decision to execute the Compact.  See Litchfield Aff at Ex "B".

Plaintiffs filed their first action before the Oregon Supreme Court on September 16, 2003, six days after receiving the letter from the State Attorney General's office.  Accordingly, the filing of the initial Petition in this case was well within sixty days from when the case was ripe. Plaintiffs subsequently filed this action on December 10, 2003, twelve days after the Supreme Court's November 28, 2003 decision not to hear this case.

Furthermore, Plaintiffs, for good reason, reasonably waited until after the 60-day appeal period lapsed following the United States District Court decision in Oregon v. Norton, 2003 271 F Supp 2d 1270 on July 1, 2003.  Before Norton, neither Petitioners, nor the public would have known whether the Proposed Casinos were to proceed on the Hatch Tract (or at all).  Any action to challenge the Compact before that date would have been speculation as to the site, whether the project would actually proceed, and whether State officers would actually be obliged to take steps pursuant to the Compact.  These issues were not ripe until the end of the Federal court appeal period, i.e., September 1, 2003.  Had the State appealed and prevailed in the Norton case, this Petition challenging the Compact at issue would have had no practical consequences and would have squandered judicial resources.

Therefore, even accepting Defendant's 60-day to file a mandamus action theory, Plaintiffs had until November 1, 2003 to file their Petition.  Plaintiffs filed their initial petition on September 10, 2003, well within the window conceded by the State.

3.    Plaintiffs have satisfactorily explained any filing delay and Defendants have suffered no prejudice thereby.

The State has made no showing of any prejudice from any alleged delay in bringing this action.   Where a defendant cannot point to prejudice, a court is entitled to allow the Petition to proceed, even though the Petition might otherwise be denied. State ex rel K.B. Recycling, Inc.  v. Clackamas County, 171 Or App 46, 51, 14 P3d 643 (2000) (action in mandamus not barred by laches though plaintiff failed to bring action until after relevant statutory limitation period, as defendant suffered no prejudice).

While there is no evidence of prejudice to the defendants, dismissal would cause grave prejudice to Plaintiff.  As is stated above, unless permitted to have its case on the merits heard pursuant to a writ of mandamus, Plaintiff will be left without legal remedy to challenge the unlawful actions of the Governor and the State in upholding the Governor's acts.  Mandamus is the only guaranteed means by which the Courts can review and uphold the Oregon Constitution and vindicate the structure of Government in Oregon.

In summary, it is folly for the State to suggest the Governor's actions were unreviewable only within sixty days of the Governor executing the Compact. Furthermore, the Petitions were filed within a reasonable time of when Plaintiffs became aware of the State's unwillingness to act.  Either the end of the sixty day appeal period for Oregon v. Norton, or the date of the State's September 10, 2003 letter to Plaintiff, would commence the sixty-day filing period suggested by the State.  Accordingly, Plaintiffs' Petition was filed within a reasonable time and without prejudice to Defendants.

IV    Conclusion

This Court should deny Defendants' Motion to Dismiss.

DATED this          day of January, 2004.

By:                       

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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