Hotel Employees and Restaurant Employees Intern. Union v. Davis

Page 56

88 Cal.Rptr.2d 56

21 Cal.4th 585, 981 P.2d 990, 1999 Daily Journal D.A.R. 8671

HOTEL EMPLOYEES & RESTAURANT EMPLOYEES INTERNATIONAL UNION, Petitioner, v. Gray DAVIS, as Governor, etc., et al., Respondents;

Frank Lawrence, Real Party in Interest.

Eric Cortez et al., Petitioners, v. Gray Davis, as Governor, etc., Respondent;

Frank Lawrence et al., Real Parties in Interest.

Nos. S074850, S074851.

Supreme Court of California

Aug. 23, 1999.

Davis, Cowell & Bowe, Richard G. McCracken, Andrew J. Kahn and Michael T. Anderson, San Francisco, for Petitioner Hotel Employees & Restaurant Employees International Union.

Nielsen, Merksamer, Parrinello, Mueller & Naylor, Steven A. Merksamer, John E. Mueller, Richard D. Martland and Cathy A. Christian, Mill Valley, for William Campbell and Barry Keene, Sacramento, as Amici Curiae on behalf of Petitioner Hotel Employees & Restaurant Employees International Union.

Skadden, Arps, Slate, Meagher & Flom, Frank Rothman, Darrell J. Hieber, Harriet S. Posner, Gary S. Glickman, Los Angeles, Gibson, Dunn & Crutcher, Theodore B. Olson, John H. Sharer, Wayne W. Smith, Jeffrey H. Reeves, Thomas S. Jones and Amanda R. Wheeland, Irvine, for Petitioners Cortez et al.

Horvitz & Levy, Ellis J. Horvitz, Barry R. Levy and John A. Taylor, Jr., Encino, for the Dehesa Valley Community Council as Amicus Curiae on behalf of Petitioners Cortez et al.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Roderick E. Walston, Chief Assistant Attorney General, Manuel M. Meideros, Assistant Attorney General, Sara J. Drake, Kenneth R. Williams, Ronald

L. Diedrich and Timothy M. Muscat, Deputy Attorneys General, for Respondents.

Munger, Tolles & Olson, Mark H. Epstein, Douglas A. Axel and Linda M. Burrow, Los Angeles, for Real Parties in Interest.

Lacy & Lacy and James V. Lacy, Laguna Niguel, for California Young Americans for Freedom, Bruce Herschensohn, Congressman Dana Rohrabacher, State Senators Dave Kelley and Cathie Wright, Assemblymen Tony Strickland and Brett Granlund, Brett R. Barbre, Director, Yorba Linda Water District, and Matthew Harper, Governing Board Member, Huntington Beach High School District as Amici Curiae on behalf of Real Parties in Interest.

California Indian Legal Services, James E. Cohen, Michael S. Pfeffer and Stephen V. Quesenberry, Oakland, for Blue Lake Rancheria, Bridgeport Paiute Indian Colony, Cedarville Rancheria, Guidiville Indian Rancheria, Karuk Tribe of California, La Jolla Band of Indians, Manzanita Bank of Mission Indians, Mesa Grande Band of Mission Indians, North Fork Rancheria, Pauma Band of Mission Indians, Table Bluff Reservation-Wiyot Tribe, Timbisha Shoshone Tribe, the Torres Martinez Desert Cahuilla Indians and the U Tu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation as Amici Curiae on behalf of Real Parties in Interest.

Carole E. Goldberg, Los Angeles, for Indian Law Professors Jo Carrillo, Reid Chambers, Robert N. Clinton, Richard B. Collins, Arturo Gandara, Gerald Gardner, David Getches, Raleigh Levine, Nell Newton, Monroe Price, Rennard Strikland and Charles F. Wilkinson as Amici Curiae on behalf of Real Parties in Interest.

Gerald F. Uelman, Santa Clara, for California State Firefighters' Association, Palm Springs Chamber of Commerce, Murrieta Chamber of Commerce and Temecula Valley Chamber of Commerce as Amici Curiae on behalf of Respondents and Real Parties in Interest.

Van Bourg, Weinberg, Rozen & Rosenfeld and Sandra Rae Benson, Oakland, for California State Building and Construction Trades Council, Building and Construction Trades Council of Alameda, AFL-CIO, Contra Costa Building and Construction Trades Council and Napa/Solano Counties Building and Construction Trades Council as Amici Curiae on behalf of Respondents and Real Parties in Interest.

Robert D. Purcell for Laborers' International Union of North America as Amicus Curiae on behalf of Respondents and Real Parties in Interest.

Castle & Krause and Tamara Utens, Temecula, for San Bernardino County Safety Employees' Association as Amicus Curiae on behalf of Respondents and Real Parties in Interest.

WERDEGAR, J.

In 1984, the people of California amended our Constitution to state a fundamental public policy against the legalization in California of casino gambling of the sort then associated with Las Vegas and Atlantic City: "The Legislature has no power to authorize, and shall prohibit casinos of the type currently operating in Nevada and New Jersey." (Cal. Const., art. IV, § 19, subd. (e), added by initiative, Gen. Elec. (Nov. 6, 1984).)

In 1998, at the November 3 general election, the people approved a proposed initiative statute designated on the ballot as Proposition 5--"The Tribal Government Gaming and Economic Self-Sufficiency Act of 1998"--concerning gaming on Indian lands in the State of California. The principal provisions of this statutory initiative purport to authorize various forms of gaming in tribal casinos. As we will explain, to authorize such gaming facilities, however, would be to authorize casinos of the type expressly prohibited by article IV, section 19, subdivision (e) of the California Constitution (hereafter section 19(e)). Because Proposition 5, a purely statutory measure, did not amend section 19(e) or any other part of the Constitution, and because in a conflict between statutory and constitutional law the Constitution must prevail, we conclude Proposition 5's authorization of casino gambling is invalid and inoperative.

We further conclude that only one provision of Proposition 5, the state's consent to suit contained in the final sentence of Government Code section 98005, is separable from the measure's invalid provisions. With the exception of that single provision, therefore, we will issue the writ sought by petitioners, prohibiting the Governor and the Secretary of State from implementing Proposition 5.

PROCEDURAL BACKGROUND

On November 4, 1998, Proposition 5 became effective by operation of law. (See Cal. Const., art. II, § 10, subd. (a).) Between November 4 and 12, the Governor received a request from each of 39 Indian tribes for the state to enter into a standard "Tribal-State Gaming Compact" as set forth in the measure to cover gaming on Indian lands. Under the measure, the Governor was obligated to execute an individual compact within 30 days after receipt of a request and would be deemed to have done so if he should fail. Under the federal Indian Gaming Regulatory Act (IGRA) (Pub.L. No. 100-497 (Oct. 17, 1988) 102 Stat. 2467, as amended, codified at 25 U.S.C. § 2701 et seq. and 18 U.S.C. § 1166 et seq.), before any such compact could go into effect, the Secretary of the Interior had to publish notice in the Federal Register that he had given his approval within a prescribed review period of 45 days. (25 U.S.C. § 2710(d)(3)(B), (d)(8)(C) & (d)(8)(D).)

On November 20, 1998, the Hotel Employees and Restaurant Employees International Union (hereafter the Union) filed a petition for writ of mandate in this court, with a request for a stay pendente lite. In its petition, the Union sought to compel Pete Wilson, in his official capacity as Governor, now succeeded by Gray Davis who takes his place by substitution, and Bill Jones, in his official capacity as Secretary of State, not to implement Proposition 5, claiming the measure was invalid under the law of both California and the United States. The Union named Frank Lawrence, the measure's proponent, as real party in interest. On that same day, Eric Cortez and others (hereafter collectively Cortez) filed a separate, similar petition for writ of mandate in this court, also with a request for a stay pendente lite, and also seeking to compel the Governor not to implement the measure, on the grounds it is invalid under state and federal law. Cortez named Californians for Indian Self-Reliance, as well as Frank Lawrence (hereafter collectively Real Parties) as real parties in interest.

On December 2, we acted in response to the petitions. We did so in recognition that a writ of mandate is available, in the absence of a "plain, speedy, and adequate remedy, in the ordinary course of law" (Code Civ. Proc., § 1086), against the implementation of an invalid statute (Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 264, 226 Cal.Rptr. 361). We determined to decide the matter ourselves, instead of allowing lower courts, in accordance with our custom, to address it in the first instance (see, e.g., Legislature v. Eu (1991) 54 Cal.3d 492, 500, 286 Cal.Rptr. 283, 816 P.2d 1309), because we concluded the underlying questions were of "great public importance and must be resolved promptly" (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845, 59 Cal.Rptr. 609, 428 P.2d 593; accord, Legislature v. Eu, supra, at p. 500, 286 Cal.Rptr. 283, 816 P.2d 1309).

We therefore ordered the Governor, the Secretary of State, and Real Parties to show cause in this court why the relief the Union and Cortez sought against Proposition 5 should not be granted, and stayed implementation of the measure pendente lite. Pursuant to our orders, Real Parties and the Governor and the Secretary of State filed returns to the petitions, and the Union and Cortez each filed a traverse. In his initial returns, Governor Wilson supported the Union's and Cortez's claims against Proposition 5 and their prayers for relief. With our leave, Governor Davis later withdrew the returns of Governor Wilson and filed substitute returns of his own, in which he expressed neutrality on the claims against Proposition 5 and the prayers for relief. On January 13, 1999, we ordered the Union's cause and that of Cortez consolidated for purposes of oral argument and decision.

On or about January 22, 1999, the Secretary of the Interior disapproved the tribal-state gaming compacts requested by Indian tribes under Proposition 5, reasoning that, because this court had stayed the operation of the measure, the...