Fppc v. Santa Rosa Indian Community

20 Cal.Rptr.3d 292

123 Cal.App.4th 672

FAIR POLITICAL PRACTICES COMMISSION, Plaintiff and Appellant, v. SANTA ROSA INDIAN COMMUNITY OF the SANTA ROSA RANCHERIA, Defendant and Respondent.

No. C044555.

Court of Appeal, Third District.

October 27, 2004.

Review Granted January 12, 2005.

Riegels Campos & Kenyon and Charity Kenyon; Fair Political Practices Commission, Steven Benito Russo, Luisa Menchaca, William L. Williams, Jr. and C. Scott Tocher, Sacramento, for Plaintiff and Appellant.

Monteau & Peebles, Christina V. Kazhe and Michael Robinson, Sacramento; Decker & Desjarlis and Daniel F. Decker, Pablo, MT, for Defendant and Respondent.

Bill Lockyer, Attorney General, Andrea Lynn Hoch, Louis R. Mauro, Assistant Attorneys General, Kenneth R. Williams, Robert C. Nash, Deputy Attorneys General, Amicus Curiae on behalf of Plaintiff and Appellant.

SIMS, J.

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

Plaintiff FPPC filed suit against Santa Rosa Indian Community of the Santa Rosa Rancheria (the Tribe),² alleging the Tribe failed to file semi-annual campaign contribution statements and filed late contribution reports from 1998 through 2001, as required by the PRA. The trial court granted the Tribe's motion to quash, which asserted the Tribe, as a federally-recognized Indian tribe, is immune from suit under the doctrine of tribal immunity. FPPC appeals. (Code Civ. Proc., § 904.1, subd. (a)(3) [appeal may be taken from an order granting a motion to quash].)

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. Accordingly, we shall reverse the order granting the motion to quash.³

FACTUAL AND PROCEDURAL BACKGROUND

FPPC filed a complaint against the Tribe, seeking civil penalties for the Tribe's alleged violations of the PRA. The complaint alleged (1) failure to file semi-annual campaign statements, and (2) failure to disclose late contributions, as follows:

The Tribe is a federally recognized Indian Tribe, doing business as Palace Bingo and/or Palace Indian Gaming Center. In the first half of 1998, the Tribe injected itself into state political affairs by contributing at least $125,000 to California political candidates and committees. In the second half of 1998, the Tribe contributed at least $117,250. In the second half of 2000, the Tribe contributed at least $35,000 to California political candidates and committees. The amounts of these contributions made the Tribe a major donor committee under section 82013, subdivision (c).

The Tribe failed to file timely semi-annual campaign statements disclosing contributions, as required by section 84200. Instead, in August and September 2002, the Tribe filed untimely statements reporting 1998 and 2000 activity under different names.

The Tribe violated section 84203 by failing to file a late contribution report with the Secretary of State within 24 hours of making late contributions as defined by section 82036 (i.e., a contribution of $1,000 or more, that is received before an election, but after the closing date of the last pre-election statement). The complaint alleged the Tribe failed to report two late contributions — (1) a $110,000 late contribution to Cruz Bustamante in 1998, and (2) a $250,000 late contribution in 1998 to the committee promoting Indian gaming activities in Proposition 5.

The complaint sought civil penalties, as authorized by section 91004.

The Tribe, appearing specially, filed a motion to quash service of summons and complaint, on the ground the court lacked jurisdiction over the Tribe because of tribal immunity from suit. The Tribe also asserted it was not required to comply with the PRA but had voluntarily filed the campaign statements it filed.

FPPC opposed the motion to quash, arguing the Tribe was not immune from regulation or from suit under the PRA, which implicated the State's interest in protecting the integrity of its electoral process under the Tenth Amendment's reservation of powers to the states and the constitutional guarantee to the states of a republican form of government.

On May 13, 2003, the trial court issued a written order granting the Tribe's motion to quash the summons and complaint. The court said the critical issue was whether a state suit against a tribe to enforce state electoral campaign regulations, even if validly imposed upon the tribe, would be barred by the federal common law doctrine of tribal immunity from suit. The trial court concluded suit was barred by the doctrine of tribal immunity.

The trial court said, "Congress does not impermissibly intrude upon the States' reserved powers under the Tenth Amendment and Guarant[ee] Clause when, by silence, it permits the doctrine of common law tribal immunity from suit to bar suits by the States to enforce against tribes state reporting requirements for electoral campaign contributions."

The trial court said the State had alternative ways to enforce the PRA against the Tribe, the most promising of which was negotiation of a government-to-government agreement (like gaming compacts), which the Tribe "has indicated its willingness to discuss. . . ." Another alternative, said the trial court, was for the State to ask Congress to enact federal legislation allowing the State to sue the Tribe to enforce the PRA. The court also said the State is not without means to obtain information about the Tribe's political contributions, because the PRA requires recipients of contributions to disclose information. The trial court acknowledged searches of recipient reports to track particular donors may be more cumbersome, "and the lack of dual reporting by recipients and donors might lead some recipients to violate PRA requirements by omitting tribal contributions from their reports, but overall, the recipient reports can be expected to provide the information about tribal contributions that is needed to achieve the purposes of the PRA...."

FPPC appeals.

DISCUSSION

In this proceeding, the Tribe contends that, even assuming it is subject to regulation by the State under the PRA, it is immune from a lawsuit to enforce the PRA under the doctrine of tribal immunity from suit.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 that members may catch and report number]; 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 Tribe cites no authority specifically stating that tribal immunity from suit is a constitutional imperative.

In fact, the doctrine of tribal immunity from suit is not found in the federal Constitution or in any federal statute, but is a matter of federal common law. "The term `federal common law,' although it has eluded precise definition, . . . is court-made law that is neither constitutional nor statutory. See Erwin Chermerinsky, Federal Jurisdiction 349 (3d ed.1999) (defining federal common law as `the development of legally binding federal law by the federal courts in the absence of directly controlling constitutional or statutory provisions'); Martha Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L.Rev. 881, 890 (1986) (defining federal common law as `any rule of federal law created by a court ... when the substance of that rule is not clearly suggested by federal enactments — constitutional or congressional')." (United States v. Enas (9th Circ.2001) 255 F.3d 662, 674-675.)

Thus, the Supreme Court has said, "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. [Citations.]" (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 [tribe was immune from suit in federal court brought by female tribe member alleging violation of the Indian Civil Rights Act (ICRA, 25 U.S.C. § 1301 et seq.) which required Indian tribes to...