Update on State Compacting Authority Litigation CWAG August 2009 Stephanie Striffler Senior...

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Transcript of Update on State Compacting Authority Litigation CWAG August 2009 Stephanie Striffler Senior...

Update on State Update on State Compacting Authority Compacting Authority

Litigation Litigation CWAG August 2009CWAG August 2009

Stephanie StrifflerStephanie Striffler

Senior Assistant Attorney Senior Assistant Attorney GeneralGeneral

Oregon Dept of JusticeOregon Dept of Justice

Background: relationship of Background: relationship of state and federal lawstate and federal law

Indian Gaming Regulatory Indian Gaming Regulatory ActAct

25 U.S.C. Sec. 2710(d)(1)(C) requires that Class III 25 U.S.C. Sec. 2710(d)(1)(C) requires that Class III gaming be “conducted in conformance with a gaming be “conducted in conformance with a Tribal-State compact entered into by the Indian Tribal-State compact entered into by the Indian tribe and the State...that is in effect.”tribe and the State...that is in effect.”

The compact takes effect only when approval by The compact takes effect only when approval by the Secretary of Interior is published. 25 U.S.C. the Secretary of Interior is published. 25 U.S.C. sec. 2710(d)(3)(B). sec. 2710(d)(3)(B).

Secretarial approval can not cure a defect in state Secretarial approval can not cure a defect in state authority. Pueblo of Santa Ana v. Kelly , 104 F3d authority. Pueblo of Santa Ana v. Kelly , 104 F3d 1546 (10th Cir. 19971546 (10th Cir. 1997).).

Kinds of challenges and Kinds of challenges and forms of invalidityforms of invalidity

Separation of powersSeparation of powers

Invalidation based on view that matters Invalidation based on view that matters negotiated in compacts are matters of negotiated in compacts are matters of policy for the legislature that the legislature policy for the legislature that the legislature has not authorized.has not authorized.

E.g., State ex rel Stephan v. Finney, 836 P2d E.g., State ex rel Stephan v. Finney, 836 P2d 1169 (Kan. 1992): “We conclude the 1169 (Kan. 1992): “We conclude the legislature has enacted no legislation legislature has enacted no legislation authorizing the Governor to negotiate the authorizing the Governor to negotiate the compact herein and bind the State compact herein and bind the State thereby.”thereby.”

Illegal gaming authorizedIllegal gaming authorized

Invalidation based compact authorizingInvalidation based compact authorizingtribes to engage in forms of gaming not tribes to engage in forms of gaming not otherwise authorized in state law.otherwise authorized in state law.

E.g. Florida House of Representatives v. E.g. Florida House of Representatives v. CristCrist, , 999 So.2d 601 (Fla. 2008), cert 999 So.2d 601 (Fla. 2008), cert den ___US___, 129 S Ct 1526, 173 L den ___US___, 129 S Ct 1526, 173 L Ed2d 657 (2009)Ed2d 657 (2009)

Compacting AuthorityCompacting Authority

Initiative or other legislative compactInitiative or other legislative compact

Legislative delegationLegislative delegation

Legislative ratificationLegislative ratification

Issues in LitigationIssues in Litigation

StandingStanding

Indispensable partiesIndispensable parties

Recent CasesRecent Cases

Taxpayers of Michigan Against Casinos v. Taxpayers of Michigan Against Casinos v. Michigan (TOMAC II) , 732 NW2d 487 (Mich. Michigan (TOMAC II) , 732 NW2d 487 (Mich. 20072007))

Florida House of Representatives v. Crist, Florida House of Representatives v. Crist, 999 So.2d 601 (Fla 2008), cert den. ___US___, 999 So.2d 601 (Fla 2008), cert den. ___US___, 129 S Ct 1526, 173 L Ed2d 657 (2009)129 S Ct 1526, 173 L Ed2d 657 (2009)

Mudarri v. State, 196 P3d 153, rev den 203 Mudarri v. State, 196 P3d 153, rev den 203 P3d 1123 (Wash App 2009)P3d 1123 (Wash App 2009)

DewberryDewberryv. Kulongoski, ___Or___ (Or June 18, 2009)v. Kulongoski, ___Or___ (Or June 18, 2009)

Mudarri v. State of Mudarri v. State of WashingtonWashington

Suit by private casino operator on numerous Suit by private casino operator on numerous groundsgrounds

The court held :The court held : 1) The tribe was an indispensable party to 1) The tribe was an indispensable party to

challenge to compact , so did not address challenge to compact , so did not address challengeschallenges

2) The equal protection claim failed because 2) The equal protection claim failed because plaintiff was not similarly situated to the Tribe. By plaintiff was not similarly situated to the Tribe. By entering compact with the tribe, the state was not entering compact with the tribe, the state was not conferring a privilege to a “citizen or class of conferring a privilege to a “citizen or class of citizens” under the state Privileges and Immunities citizens” under the state Privileges and Immunities clause. clause.

Taxpayers of Michigan Against Taxpayers of Michigan Against Casinos v. MichiganCasinos v. Michigan (TOMAC II) (TOMAC II)

Legislature approved gaming compacts – Legislature approved gaming compacts – Under TOMAC I form of legislation was Under TOMAC I form of legislation was constitutionalconstitutional

The court held: amendatory provision of The court held: amendatory provision of legislatively approved compact did not legislatively approved compact did not violate separation of powers. “The violate separation of powers. “The Legislature chose to approve an amendment Legislature chose to approve an amendment procedure that gives the Governor broad procedure that gives the Governor broad power to amend the compacts, and the power to amend the compacts, and the Legislature was well within its authority to Legislature was well within its authority to make such a decision.”make such a decision.”

Florida House of Florida House of Representatives v. CristRepresentatives v. Crist

Governor did not have authority to execute Governor did not have authority to execute compact, violation of separation of powers.compact, violation of separation of powers.

Compact authorized games prohibited under Compact authorized games prohibited under Florida law, such as house-banked card games – Florida law, such as house-banked card games – did not consider whether other compact provisions did not consider whether other compact provisions encroached on legislature’s policymaking encroached on legislature’s policymaking authority.authority.

““Necessary business” clause does not authorize Necessary business” clause does not authorize governor to executive compacts to create governor to executive compacts to create exceptions to the law . exceptions to the law .

Dewberry v. KulongoskiDewberry v. Kulongoski

Challenge by “People Against a Challenge by “People Against a Casino Town”Casino Town”

Federal court, 406 F. Supp. 2d 1136 Federal court, 406 F. Supp. 2d 1136 (D. Or. 2005) held (D. Or. 2005) held Tribes were indispensable parties Tribes were indispensable parties Governor had statutory and Governor had statutory and

constitutional authority to enter compactconstitutional authority to enter compact Compact did not authorize prohibited Compact did not authorize prohibited

gamesgames

Oregon Supreme Court reversed and Oregon Supreme Court reversed and remanded mandamus dismissal, remanded mandamus dismissal, holding:holding: Indispensable party rule did not apply in Indispensable party rule did not apply in

mandamusmandamus Plaintiffs did not have adequate alternate Plaintiffs did not have adequate alternate

remedyremedy