Confederated Tribes of Chehalis Reservation v. Johnson
| Decision Date | 09 July 1998 |
| Docket Number | No. 65294-5,65294-5 |
| Court | Washington Supreme Court |
| Parties | THE CONFEDERATED TRIBES OF THE CHEHALIS RESERVATION, The Upper Skagit Indian Tribe, The Swinomish Indian Tribal Community, and The Squaxin Island Tribe, federally recognized Indian tribes, Appellants, v. James M. JOHNSON; State of Washington, Washington State Gambling Commission; and Frank Miller, Executive Director, Respondents. |
James Johnson, Olympia, for Respondent James Johnson.
Christine Gregoire, Attorney General, Jonathan McCoy, Assistant Attorney General, Olympia, for Respondent State of Washington.
At issue in this case is whether State Gambling Commission records showing the amount of the "community contribution" paid by an Indian tribe, under the terms of a tribal-state gaming compact, are subject to
disclosure under the public records act, RCW 42.17.250-.348. We hold that the records are not protected from disclosure under any provision of state or federal law and, accordingly, we affirm the trial court order requiring the Gambling Commission to comply with the public records request.
Appellants are four Indian tribes (Tribes) which conduct casino-style gambling operations on reservation lands located in the state of Washington. 1
Gambling on Indian reservations is heavily regulated by tribal, state and federal law. See 25 U.S.C. §§ 2701-2721; RCW 9.46.300.
In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721; in order to provide a statutory framework for the operation and regulation of gambling activities conducted by Indian tribes. 2 25 U.S.C. § 2702; Seminole Tribe v. Florida, 517 U.S. 44, 48, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
The IGRA divides gambling, or gaming, into three classes. Class I gaming includes social games played solely for prizes of minimal value, or traditional forms of Indian gaming which are played as a part of or in connection with tribal ceremonies or celebrations. 25 U.S.C. § 2703(6). These activities are within the exclusive regulatory jurisdiction of the Indian tribes. 25 U.S.C. § 2710(1). Class II gaming includes games of chance, such as bingo and certain card games. 25 U.S.C. § 2703(7). These are regulated by the The IGRA provides that class III gaming on Indian lands is legal only if it is: (1) authorized by a valid tribal ordinance or regulation; (2) located in a state that permits such gaming; and (3) conducted in conformance with a tribal-state compact. 25 U.S.C. § 2710(d)(1); Seminole Tribe, 517 U.S. at 48-49, 116 S.Ct. 1114. The tribal-state compact, which must be approved by the Secretary of the Interior, 25 U.S.C. § 2710(d)(3)(B), may include provisions relating to the following:
tribes and according to the provisions of the IGRA. 25 U.S.C. § 2710. Class III gaming is defined as "all forms of gaming that are not class I gaming or class II gaming." 25 U.S.C. § 2703(8). Class III gaming includes such activities as blackjack, roulette, craps, slot machines, horse racing, keno, table games, and sports pools.
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;
(ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations;
(iii) the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity;
(iv) taxation by the Indian tribe of such activity in amounts comparable to amounts assessed by the State for comparable activities;
(v) remedies for breach of contract;
(vi) standards for the operation of such activity and maintenance of the gaming facility, including licensing; and
(vii) any other subjects that are directly related to the operation of gaming activities.
25 U.S.C. § 2710(d)(3)(C).
Each of the tribes involved in this appeal has entered into a compact with the State of Washington. The compacts Each of the compacts involved here also provides for an assessment, or impact fee, to be paid by the Tribes to defray nontribal, local agency costs of providing law enforcement and emergency services and other services, such as transportation and highway maintenance. The assessments, called "community contributions" in the compacts, are to be in the amount of two percent of the compacting tribe's "net win" from class III gaming activities. 4 The compacts all contain paragraphs that state in essence:
all recognize that it is this state's policy to highly regulate and strictly limit gambling activities. 3
The Tribe recognizes that adequate enforcement and the availability of support services and assistance is critical to the safe operation of the gaming activities and that activities directly and indirectly associated with the operation of gaming facilities on the ... Reservation may impact surrounding local law enforcement and other local governmental service agencies, and place an increased burden on them. To that end, the Tribe hereby agrees to establish a fund for [the] purpose of providing Clerk's Papers at 316-17 (Squaxin Island compact). (The compacts of the other Appellant Tribes contain substantially similar language.)
assistance to non-tribal local law enforcement, emergency services and/or other local governmental service agencies (including those agencies responsible for traffic and transportation) impacted by the Class III gaming facility and to withhold and disburse 2.0% of the Net Win from Class III gaming operation ... for this fund ("Community Contribution").
The community contribution is paid into a fund which is administered and distributed by a committee composed of representatives from the State Gambling Commission, the tribe, and nontribal, local agencies which are impacted by the Indian tribe's gambling operation.
It is the amount of these community contributions, as reflected in Gambling Commission records, that was requested in this case.
On December 9, 1996, Respondent James M. Johnson filed a public disclosure request with the Gambling Commission. The request was for:
All reports or other documents showing the amounts of money paid or dispersed [sic] as community contributions, or accrued into a fund for that purpose from any Washington Indian Tribe engaged in gaming, for the period 1991 to the present.
The Gambling Commission's position, since the time of the request, has been that the records requested by Mr. Johnson are "public records" and are subject to disclosure under the public records act. However, the Gambling Commission did not immediately release the records. Instead, it notified each tribe having a compact with the State of the request, in order to give the tribes an opportunity to request an injunction to prevent the Gambling Commission from releasing the records. Only the Appellant Tribes After considering memoranda and documents submitted by the parties, and following oral argument, the trial court ordered the Gambling Commission to disclose the records as requested by Mr. Johnson. Although the trial court denied a motion for stay, it delayed the effective date of the order in order to give the Tribes time to appeal.
objected to the release of the records. 5 These Tribes filed actions in Thurston County Superior Court, pursuant to RCW 42.17.330, requesting injunctive relief, and Mr. Johnson filed a cross complaint asking for an order requiring the records be disclosed
The Tribes did appeal, and a motion for stay of the trial court order was granted by the Court of Appeals Commissioner. Respondent Johnson moved to modify the ruling granting a stay and the Court of Appeals granted his motion, lifting the stay. The Tribes then filed a petition for discretionary review of the Court of Appeals order and moved, in this court, for an emergency stay. This court stayed the trial court order and, on its own initiative, accepted review on the merits of the appeal.
1. Are the State Gambling Commission records showing "community contributions" paid pursuant to tribal-state gaming compacts "public records" which are subject to disclosure under the public records act?
2. Has the State agreed, under the terms of the tribal-state gaming compacts, that the requested information will not be disclosed?
3. Does federal law prevent the disclosure of state records
showing community contributions paid pursuant to tribal-state gaming compacts?
Because this case presents a question of law which was decided by the trial court solely on the basis of documentary evidence and legal arguments, review is de novo. Amren v. City of Kalama, 131 Wash.2d 25, 32, 929 P.2d 389 (1997); Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 35-36, 769 P.2d 283 (1989). The parties seeking to prevent disclosure--in this case the Tribes--bear the burden of proof. Spokane Police Guild, 112 Wash.2d at 35, 769 P.2d 283; Ames v. City of Fircrest, 71 Wash.App. 284, 857 P.2d 1083 (1993).
The Gambling Commission initially argues that the Tribes should not be permitted to raise new arguments on appeal. The Tribes assert two new legal grounds (the Indian preemption doctrine and the Interstate Compact Clause) in support of their position. The Tribes claim that time restraints involved in pursuing the action limited the Tribes' ability to adequately brief and argue all legal theories at the trial court level.
This court previously has permitted an agency to argue new legal theories for nondisclosure on review of a public disclosure decision. In Progressive Animal Welfare Soc'y (PAWS ) v. University of Wash., 125 Wash.2d...
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