People Against a Casino Town
News from PACT
PACT Lawsuit - Oral Arguments
before Oregon Court of Appeals
 
12/12/07 - PACT - ORAL ARGUMENTS BEFORE COURT OF APPEALS
Oregon Court of Appeals, Oregon Judicial Department, Supreme Court Courtroom, Oral Arguments for PACT v. the Honorable Theodore R. Kulongoski

AUDIENCE IMPRESSIONS

The following report of a hearing held in Salem are the observations of a person who attended the hearing. Bear in mind that this person was NOT an attorney and that this account is the best account of what happened, without expert legal analysis.

Present at the hearing:
- PACT attorneys Kelly Clark, Jill McDonald, and Kristian Roggendorf.

- Kaye Ellen McDonald Assistant Attorney General, arguing for the State and Governor
Kulongoski.

- Stephanie Striffler - Special Counsel to the Attorney General (“advises the Attorney General on a wide range of policy and legal
issues” according to the DOJ website.) Ms. Striffler sat in the audience but did not directly participate in oral arguments.
She's primarily Governor Kulongoski's point person for Three Rivers Casino from the Attorney General's office. She has been
coordinating all of the legal affairs concerning this casino starting with the OR v. Norton lawsuit, the PACT v. Kulongoski, and was the person from the AG's office that PACT's constitutional attorney, Alexis Johnson, met with when he first came to Oregon when he wanted to talk about our case with someone from the AG's office. She was also present at the ODOT meeting held in Florence.

- Noted in audience was Wayne Shammel, the attorney from the Seven Feathers Casino Tribe. Also in audience were a number of PACT supporters.

- Notably not present: Representative from the Florence Casino Tribe.

The Court of Appeals cases are heard in the Oregon Supreme Court courtroom. It is an impressive courtroom – it has a huge stained glass roof and lots of carved wood with antique-looking fixtures. It makes one think of the history of Oregon while sitting there. Surprisingly, however the size of the room is relatively small, and has very little room for spectators.

Judges were Rex Armstrong, Rick Haselton (Presiding Judge) and Ellen F. Rosenblum.

There was a lot of discussion back and forth between the attorneys and the judges. Our case was the last one on the docket for the day, perhaps to allow for more questions from the judges than was possible in cases scheduled earlier in the day.

Oral arguments lasted for about 90 minutes (which was longer than the 60 minutes the case was scheduled to be heard.) Each of
the three judges asked challenging questions of attorneys from both sides to clarify their positions. It was obvious that this was a very, very complicated case and the judges were trying to flesh out the pertinent details. Our attorney later told us that this is one of the most procedurally  complicated cases he has ever dealt with.

At least from the viewpoint of one audience member, it seemed that the judges were less detached observers (as they mostly were in the three cases that preceded ours in the court that afternoon). They were definitely more engaged in their questioning and commentary. It appeared that that this is not just "any old case" for the court.

At issue was the narrow question of whether this case should be heard as a Mandamus case.

The Mandamus procedure is rarely used. After the oral arguments were completed, it appeared to the audience member that none of the judges or attorneys in the court had ever been involved with a Mandamus case. A Mandamus is a form of civil action designed to compel a government actor to perform a duty owed to the plaintiff - in this case, we believe the governor owes a duty to the Oregon public to obey the State Constitution - which says there shall be no casinos in Oregon. It is a very, very old remedy (Oregon cases from the 1800's were mentioned in the arguments), going all the way back to English common law.

If you remember, PACT originally filed this in the Lane County Court as a request for a Writ of Mandamus. Lane County Judge Rasmussen ruled that we could have filed this as a Declaratory Action and should have done so before we took the less common step of a Writ of Mandamus. PACT appealed Judge Rasmussen's ruling, and it was put on hold while we tried to pursue a Declaratory Action as the judge indicated. Then the governor dragged the case into federal court and the federal judge ruled against us on procedural grounds.

In this case (continuation of the appeal of Lane County's decision), our attorney's job was to convince the judges that this case is a good fit for the Writ of Mandamus purposes, and that Lane County Judge Rasmussen made the wrong decision in rejecting it as such.

Our attorney argued that this case should have been allowed to proceed as a Mandamus because what we are seeking is a writ. (Dictionary definition of writ: a written order demanding that the addressee do or stop doing whatever is specified in the order). A Writ of Mandamus is telling a government official to show up and do your job or explain yourself. Mr. Clark stated that, contrary to Lane County Judge Rasmussen's opinion, the tribes are not a necessary party to what the governor should have done. He went on to say that he believed that Judge Rasmussen did not do a proper "Rule 29" (Oregon Rules of Procedure) analysis that was key in making his decision.

One of the judges said that if the lack of a Rule 29 analysis was accurate, then the best that we could get would be a remand of the case to the lower court. Kelly affirmed that this was true. (That would send the case back to the Circuit Court for the judge to try it  as a Mandamus, which was our goal here.)

Next up was the State, represented by Ms. McDonald. Ms. McDonald started by attempting to give a summary of the case by saying that PACT really shouldn't be upset about not getting our case heard because we had that opportunity before federal Judge Aiken in
federal court. Judge Haselton commented that he was incredulous at Judge Aiken's ruling because she first ruled that the case could not be heard because we did not have standing and the tribes were considered to be an indispensable party - and then she went on to and hear the case and make a ruling. Judge Haselton commented something to the effect that it looked like the federal judge said she didn't have the authority, but she was going to make a ruling anyway. The judges came back to this point a number of times.

The judges discussed the State's analysis about the Lane County Judge's Rule 29 analysis, and appeared unsatisfied with Ms. McDonald's responses.

When it was time for Mr. Clark's rebuttal, the judges kept him answering questions for longer that his allotted time.

The overall impression of the reporter in the audience was that the judges intended to do some more legal research. Mr. Clark
indicated it might be as soon as four months, or even as long as 10 months before the Court of Appeals issued an opinion.

Mr. Clark indicated that the next level of appeal would be to the Oregon Supreme Court, and that regardless of who 'won' at this
level, that is probably where this case is heading. 

Related Links:
PACT   SEARCH   FACTS   LAWSUIT   LINKS   NEWS   RESEARCH   ACTION