Agua Caliente Band v. Superior Court

10 Cal.Rptr.3d 679

116 Cal.App.4th 545

AGUA CALIENTE BAND OF CAHUILLA INDIANS, Petitioner, v. SUPERIOR COURT of Sacramento County, Respondent Fair Political Practices Commission, Real Party in Interest.

No. C043716.

Court of Appeal, Third District.

March 3, 2004.

As Modified March 26, 2004.

Review Granted June 23, 2004.

Reed Smith Crosby Heafey, Bernard P. Simons, Century City, James C. Martin, George P. Schiavelli, Denise M. Howell, Los Angeles; Law Offices of Art Bunce, Art Bunce, Escondido, Kathryn Clenney; Reed & Davidson, Dana W. Reed and Darryl R. Wold, Irvine, for petitioner.

No appearance for Respondent.

Riegels Campos & Kenyon, Charity Kenyon, Sacramento; Fair Political Practices Commission, Steven Benito Russo, Luisa Menchaca, Sacramento, William L. Williams, Jr., Rio Oso, and Holly B. Armstrong for Real Party in Interest.

Bill Lockyer, Attorney General, Andrea Lynn Hoch, Louis R. Mauro, Assistant Attorneys General, Kenneth R. Williams, Robert C. Nash, Deputy Attorneys General for the Attorney General; Heller Ehrman White & McAuliffe, John C. Ulin and D. Eric Shapland, Los Angeles, for California Common Cause, Amici Curiae on behalf of Real Party in Interest.

SIMS, J.

The question in this case is whether the Fair Political Practices Commission (FPPC) can sue an Indian tribe to force it to comply with reporting requirements for campaign contributions contained in the Political Reform Act (PRA), Government Code section 81000 et seq.¹

Real party in interest, the FPPC, filed suit against Agua Caliente Band of Cahuilla Indians (the Tribe), alleging failure to disclose lobbying activities and contributions to political campaigns, as required by the PRA. The Tribe claims that, as a federally-recognized Indian tribe, it is immune from suit under the doctrine of tribal immunity. In this writ proceeding, the Tribe asks this court to issue a peremptory writ of mandate directing the trial court to vacate its ruling denying the Tribe's motion to quash service of summons for lack of personal jurisdiction and enter a new order granting the motion.

We shall deny the Tribe's petition.² We shall conclude, on the one hand, that the doctrine of tribal immunity, as announced by the United States Supreme Court, has no foundation in the federal Constitution or in any federal statute but is rather a doctrine created by the common law power of the Supreme Court. On the other hand, the State has a constitutional right, under article IV, section 4 and the Tenth Amendment to the United States Constitution, to maintain a republican form of government. That form of government entails government by representatives elected by the People. The right to sue to enforce the PRA is necessary to preserve a republican form of government free of corruption and therefore has constitutional stature. The constitutional right of the State to sue to preserve its republican form of government trumps the common law doctrine of tribal immunity. The FPPC can therefore sue the Tribe.

FACTUAL AND PROCEDURAL BACKGROUND

FPPC's complaint sought civil penalties and injunctive relief for the Tribe's alleged violations of the PRA. The complaint alleged an express purpose of the PRA, as stated in section 81002, is to ensure that contributions to California election campaigns be fully disclosed to the public in order that voters may be fully informed and improper practices may be inhibited. Section 84200 mandates that specified contributions be disclosed to the public in a timely manner.³ The PRA also mandates reporting of lobbying activities to regulate lobbyists and ensure that lobbyists do not exert improper influence on public officials. (§§ 81002, 86116.)

The complaint alleged the Tribe is a federally recognized Indian tribe and constitutes a "person" pursuant to section 82047 of the PRA, which defines "Person" as "an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, limited liability company, association, committee, and any other organization or group of persons acting in concert."

The complaint alleged the Tribe constituted a major donor subject to PRA reporting requirements because of the Tribe's extensive contributions to political campaigns, including more than $7,500,000 in 1998, $175,250 in the first half of 2001, and $426,000 in the first half of 2002.

In the first cause of action, the complaint alleged two PRA violations for failure to file semi-annual campaign statements by July 31, 1998, and January 31, 1999, as required by section 84200. The Tribe made contributions to California candidates and committees totaling at least $1,218,413 between January 1 and June 30 of 1998, but failed to file the disclosure statement by the July 31, 1998, due date. The Tribe did not file the required statement until October 2000, more than two years after the due date. The Tribe made contributions totaling at least $6,291,764 between July 1 and December 31 of 1998, but failed to file the disclosure statement by the January 31, 1999, due date. The Tribe filed an untimely statement on March 8, 1999, but amended it in a final statement on November 27, 2000.

In a second cause of action, the complaint alleged the Tribe failed to report, in its July 31, 2002, semi-annual statement, a March 2002 contribution to a statewide ballot measure committee on Proposition 51. Proposition 51 authorized expenditure of $15 million per fiscal year for eight years for projects that included a passenger rail line from Los Angeles to an area of Palm Springs where the Tribe operates a casino.

In a third cause of action, the complaint alleged 13 PRA violations for failure to report late contributions (totaling more than $1 million) under section 84203, which requires the donor to file a report within 24 hours of making a contribution before an election but after the closing date of the last pre-election statement.

In a fourth cause of action, the complaint alleged four PRA violations for failure to report lobbying interests (§ 86116), leaving voters unable to correlate the Tribe's campaign contribution information with the interests being lobbied by the Tribe.

The complaint sought monetary penalties, as authorized by sections 91004 and 91005.5, and an injunction commanding the Tribe to file disclosure statements required by the PRA.

In November 2002, the Tribe, specially appearing, filed a motion to quash service of summons for lack of personal jurisdiction. The Tribe asserted it was immune from suit under the doctrine of tribal sovereign immunity. The Tribe also asserted all the information sought by the lawsuit was available to FPPC through other sources, i.e., reports filed by the recipients of the campaign contributions.

On February 27, 2003, the trial court issued a written ruling denying the Tribe's motion to quash. The trial court observed that case law applying the doctrine of tribal sovereign immunity concerned activities affecting tribal self-governance or economic development, not activities affecting the governance and development of another sovereign. To apply immunity to PRA enforcement actions would (1) intrude upon the State's exercise of its reserved power under the Tenth Amendment of the United States Constitution, to regulate its electoral and legislative processes, and (2) interfere with the republican form of government guaranteed to the State by article IV, section 4 of the United States Constitution.

On April 7, 2003, the Tribe filed a petition for writ of mandate in this court, seeking a writ to make the trial court grant its motion to quash. We denied the petition.

On July 23, 2003, the California Supreme Court granted the Tribe's petition for review and transferred the matter to this court with directions to vacate the order denying mandate and to issue an order directing respondent to show cause why the relief sought should not be granted.

On August 12, 2003, we issued the order to show cause.

FPPC filed a return to the petition. We also allowed the filing of amicus curiae briefs by the Attorney General of the State of California and California Common Cause, both in support of FPPC's position.

DISCUSSION

In this proceeding, the Tribe does not contend it is immune from the PRA's requirements for disclosure of campaign contributions. Rather, the Tribe contends it is immune from a lawsuit to enforce the PRA.⁴

The Tribe argues it has immunity from any state lawsuit unless it waives immunity (which it has not done) or unless Congress expressly authorizes the suit (which Congress has not done).

Courts have recognized tribal immunity from suit in a variety of contexts. (E.g., Kiowa Tribe v. Manufacturing Tech. (1998) 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (Kiowa Tribe) [Indian tribes enjoy immunity from suit on contracts regardless of whether they were made on or off the reservation]; Oklahoma Tax Com. v. Potawatomi Tribe (1991) 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 [state may impose tax on Indian cigarette sales to non-Indians, but may not sue tribe to collect tax]; Puyallup Tribe v. Washington Game Dept. (1977) 433 U.S. 165, 172-173, 97 S.Ct. 2616, 53 L.Ed.2d 667 [state court had no jurisdiction to order tribe to limit number of fish which members may catch and report number]; Middletown Rancheria v. Workers' Comp. Appeals Bd. (1998) 60 Cal.App.4th 1340, 71 Cal.Rptr.2d 105 [Workers' Compensation Appeals Board lacked jurisdiction over Indian tribe for purposes of enforcing California's workers' compensation laws]; Redding Rancheria v. Superior Court (2001) 88 Cal.App.4th 384, 105 Cal.Rptr.2d 773 [Indian tribe was immune from tort suit arising outside of tribal lands, where woman alleged she was injured while working as a bartender at a Redding hotel, hosting a party for the Indian tribe's casino].)

The Tribe suggests tribal immunity from suit has a constitutional basis because the Constitution gives Congress plenary power over Indian affairs. However, the...