Nez Perce Tribe v. Cenarrusa
| Decision Date | 05 October 1993 |
| Docket Number | No. 20281,20281 |
| Citation | 125 Idaho 37,867 P.2d 911 |
| Parties | NEZ PERCE TRIBE, Petitioner, v. Pete T. CENARRUSA, Secretary of State, State of Idaho, and Tom Boyd, Robert C. Geddes, Albert M. Johnson, Gary L. Montgomery, Harold W. Reid, James F. Stoicheff, JoAn E. Wood, Michael D. Crapo, Marti Calabretta, Herb Carlson, Patricia L. McDermott, Atwell Parry, Bruce L. Sweeney and Jerry Twiggs, Individually and in their capacity as members of the Idaho Legislative Council, Respondents. |
| Court | Idaho Supreme Court |
Hon. Larry EchoHawk, Atty. Gen., David G. High, Deputy Atty. Gen., Boise, for respondents. David G. High argued.
This is an original proceeding to determine the constitutionality of an amendment to Article 3, § 20 of the Idaho Constitution. The amendment clarifies Idaho's policy on gambling and specifically prohibits casino gambling within the State. The issue presented by Petitioner's amended petition is whether the legislature violated constitutionally mandated procedures for submitting a proposed amendment to the electorate.
On July 27, 1992, the Idaho Legislature met in special session to consider a constitutional amendment addressing the issue of gambling in Idaho. The impetus for the special session was concern about the possible development of gambling on Indian reservations in Idaho. The legislature held public hearings and invited interested parties to testify on the proposed amendment, then drafted and passed the amendment as House Joint Resolution No. 4 (H.J.R. 4), to be submitted to the public on the November 3, 1992 ballot.
The measure proposed to amend Article 3, § 20 of the Idaho Constitution to declare that gambling is contrary to public policy and is strictly prohibited. It would exempt from coverage parimutuel betting, charitable bingo and the state lottery; while specifically declaring that casino gambling is not allowed. The amendment would also permit promotional contests and games which award only additional play by stating that these activities are not gambling.
On October 23, 1992, the Nez Perce filed a petition for an extraordinary writ of mandamus to prohibit H.J.R. 4 from being presented on the election ballot. This Court denied the writ without prejudice, and on November 3, 1992, fifty-eight percent of the Idaho electorate voted in favor of H.J.R. 4.
On November 23, 1992, the Nez Perce Tribe submitted an amended petition for extraordinary writ or other relief requesting that the Court find the statement of purpose, and the arguments supporting and opposing H.J.R. 4, prepared by the legislative council violated Article 20, § 1 of the Idaho Constitution and the provisions of House Bill 2 (H.B. 2). The Nez Perce also requested that the Court issue a writ of mandamus directing the Secretary of State to respond to the petition and to invalidate the results of the November 3, 1992 election.
Article 5, § 9 of the Idaho Constitution grants this Court "original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction." We will accept jurisdiction to review a petition for extraordinary relief where the petition alleges sufficient facts concerning possible constitutional violations. See Sweeney v. Otter, 119 Idaho 135, 138, 804 P.2d 308, 311 (1990). Furthermore, in certain circumstances this Court will exercise its original jurisdiction to rule on the constitutionality of a statute. See Mead v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990); see also Evans v. Andrus, 124 Idaho 6, 855 P.2d 467 (1993).
In Mead v. Arnell, the Idaho Board of Health and Welfare requested that the Court issue a writ of mandamus to require District VII to comply with rules issued by the Board and a writ of prohibition to nullify legislative action on a statute. 117 Idaho at 664, 791 P.2d at 414. Under these circumstances, the Court stated "[o]ur disposition of the constitutionality of [the statute] will be limited to a simple declaration of its constitutionality or lack thereof." Id.
In submitting this amendment for public approval, the legislature was required to follow the procedures set forth in House Bill 2 1 and Article 20, § 1 of the Idaho Constitution. Idaho Code § 67-453 and H.B. 2 require the legislative council to draft a statement of meaning and purpose which is to be published next to the amendment on the ballot and publish arguments for and against the amendment. Article 20, § 1 further requires that proposed amendments to the Constitution be passed by two-thirds of both houses of the legislature and submitted to the electors for approval.
The Nez Perce argue that the statement of meaning and purpose for H.J.R. 4 violated Article 20, § 1 of the Idaho Constitution and the provisions of H.B. 2 because it did not mention Indian gaming. We disagree.
The Court has said that "the only method of submitting a public question to the individual voter is by proper ballot advising him directly or by general reference to the actual issue to be determined." Lane v. Lukens, 48 Idaho 517, 523, 283 P. 532, 533 (1929). We differ from the Nez Perce in our definition of the "actual issue to be determined" by the proposed amendment.
H.J.R. 4 provides:
That Section 20, Article III, of the Constitution of the State of Idaho be amended to read a[s] follows:
SECTION 20. GAMBLING PROHIBITED. (1) Gambling is contrary to public policy and is strictly prohibited except for the following:
a. A state lottery which is authorized by the state if conducted in conformity with enabling legislation; and
b. Pari-mutuel betting if conducted in conformity with enabling legislation; and
c. Bingo and raffle games that are operated by qualified charitable organizations in the pursuit of charitable purposes if conducted in conformity with enabling legislation.
(2) No activities permitted by subsection (1) shall employ any form of casino gambling including, but not limited to, blackjack, craps, roulette, poker, bacarrat, keno and slot machines, or employ any electronic or electromechanical imitation or simulation of any form of casino gambling.
(3) The legislature shall provide by law penalties for violations of this section.
(4) Notwithstanding the foregoing, the following are not gambling and are not prohibited by this section:
a. Merchant promotional contests and drawings conducted incidentally to bonafide nongaming business operations, if prizes are awarded without consideration being charged to participants; and
b. Games that award only additional play.
The question to be submitted to the electors of the State of Idaho at the next general election shall be a[s] follows:
"Shall Section 20, Article III, of the Constitution of the State of Idaho be amended:
(1) To clarify that gambling is contrary to public policy and is strictly prohibited except for a state lottery which is authorized by the state of Idaho, pari-mutuel betting, and bingo and raffle games that are operated by qualified charitable organizations in the pursuit of charitable purposes if the lottery, pari-mutuel betting, and charitable bingo or raffle games are conducted in conformity with enabling legislation;
(2) To prohibit the employment of any game that is typical of casino gambling including, but not limited to, blackjack, craps, roulette, poker, bacarrat, keno and slot machines, and to prohibit the employment of any electronic or electromechanical imitation or simulation of any form of casino gambling;
(3) To provide that the legislature shall provide by law penalties for violations of this constitutional amendment; and
(4) To provide that: (i) merchant promotional contests and drawings conducted incidentally to bona fide nongaming business operations if prizes are awarded without consideration being charged to participants; and (ii) games that award only additional play are not gambling and shall not be prohibited by this constitutional amendment?".
The statement of meaning and purpose prepared by the legislative council for H.J.R. 4 reads:
Meaning and Purpose
The purpose of the proposed amendment to Section 20, Article III of the Constitution of the State of Idaho is to clarify state policy on gambling. The amendment specifically prohibits casino gambling and limits authorized gaming to the state lottery, pari-mutuel betting and bingo and raffle games conducted by qualified charitable organizations for charitable purposes. The amendment imposes the further limitation that even though authorized under the constitution, such gaming may be conducted only in conformity with enabling legislation. A final...
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