Filer v. Tohono O'odham Nation Gaming Enter.

Decision Date28 February 2011
Docket Number2 CA-CV 2005-0129
PartiesGARY FILER, a widower, on his own behalf, and also separately for and on behalf of all surviving statutory wrongful death beneficiaries of BARBARA LINEHAN, deceased, including ALEXANDRA FILER, surviving daughter, and LINEHAN FILER, surviving daughter, Plaintiff/Appellant, v. TOHONO O'ODHAM NATION GAMING ENTERPRISE, dba DESERT DIAMOND CASINO; and EUGENE ROSE, liquor license holder for the TOHONO O'ODHAM NATION GAMING ENTERPRISE dba DESERT DIAMOND CASINO, Defendants/Appellees.
CourtArizona Court of Appeals


Cause No. C2004-5666

Honorable Deborah Bernini, Judge


Goldberg & Osborne

By David J. Diamond and D. Greg Sakall


Attorneys for Plaintiff/Appellant

Jones, Skelton & Hochuli, P.L.C.

By Eileen Dennis GilBride



Daniel J. Quigley


Attorneys for Defendants/Appellees

PELANDER, Chief Judge.

¶1 Plaintiff/appellant Gary Filer filed this personal injury and wrongful death action in superior court against the Tohono O'odham Gaming Enterprise ("Gaming Enterprise"), doing business as Desert Diamond Casino, and several of its employees. On the Gaming Enterprise's motion, the trial court dismissed the action, ruling it "lack[ed] jurisdiction to hear the matter" because the Gaming Enterprise "ha[d] not waived its sovereign immunity." On appeal, Filer argues the court erred because no tribal sovereign immunity exists against a dram shop action filed pursuant to A.R.S. § 4-311.1 Although we find the issue a close one, we affirm.


¶2 The Gaming Enterprise's motion to dismiss, and presumably the trial court's order of dismissal, were grounded on Rules 12(b)(1), (2), and (6), Ariz. R. Civ. P., 16A.R.S., Pt. 1. Therefore, "we accept as true the allegations in plaintiffs complaint." Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 424, 909 P.2d 486, 491 (App. 1995); see also Fid. Sec. Life Ins. Co. v. State of Ariz., Dep't of Ins., 191 Ariz. 222, ¶ 4, 954 P.2d 580, 582 (1998) (in reviewing trial court's dismissal of complaint on ground of immunity, "we assume as true the facts alleged in the complaint"); Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986) (same).2

¶3 In his complaint, Filer alleged that, in July 2004, Gaming Enterprise employees had "furnished excessive quantities of alcoholic beverages to Douglas Michael Levitski while he was at the Desert Diamond Casino," in violation of § 4-311. Filer further alleged Levitski had then driven his vehicle onto Interstate 10, traveling westbound in the eastbound lanes, where it collided with Filer's vehicle, injuring him and killing his wife. In October 2004, Filer brought this action, alleging claims for wrongful death, negligence, and statutory dram-shop liability against the Gaming Enterprise, the individual who held its liquor license, and fictitiously named Casino employees who had served alcohol to Levitski.

¶4 The Gaming Enterprise moved to dismiss the action against all defendants

based on sovereign immunity. In a signed minute entry, the trial court granted the motion, dismissing the action without prejudice, on that basis.3 We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(B). See Focal Point, Inc. v. Court of Appeals, 149 Ariz. 128, 129-30, 717 P.2d 432, 433-34 (1986) (minute entry disposing of case appealable if written, signed by a judge, and filed with clerk of court); State v. Birmingham, 96 Ariz. 109, 111, 392 P.2d 775, 776 (1969) ("The word 'order' is synonymous with the words 'judgment' and 'decree' [for purposes of §12-2101].").

I. Tribal Immunity

¶5 As noted above, the trial court found that "the tribe has not waived its sovereign immunity for purposes of the Plaintiff's lawsuit," thus implicitly ruling that the Gaming Enterprise and its employees were protected by such immunity. Filer argues "the trial court err[ed] when it found that the Gaming Enterprise... was vested with tribal sovereign immunity and, thus, not subject to suit for a statutory dram shop action in an Arizona state court." We review de novo the question whether the doctrine of sovereign immunity applies to divest the Arizona courts of jurisdiction over Filer's claims. Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir. 2002); see also Mitchell v.Gamble, 207 Ariz. 364, ¶ 6, 86 P.3d 944, 947 (App. 2004) (order dismissing case for lack of subject matter jurisdiction reviewed de novo).

¶6 Filer first contends that, "[b]ecause the claims raised... involve the service of alcohol... pursuant to an Arizona Liquor License..., tribal sovereign immunity cannot defeat the jurisdiction of an Arizona state court to hear this lawsuit." The parties do not dispute that the Gaming Enterprise, as a subordinate economic enterprise of the Tohono O'odham Nation, is entitled to the same immunity as the Nation. See generally Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989). They also agree on the well-settled principle that "tribal immunity is a matter of federal law and is not subject to diminution by the States." Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 756, 118 S. Ct. 1700, 1703, 140 L. Ed. 2d 981, 986 (1998). And, sovereign immunity bars lawsuits against Indian tribes in state court "absent a clear waiver by the tribe or congressional abrogation." Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S. Ct. 905, 909, 112 L. Ed. 2d 1112, 1119 (1991). "Arizona courts have also recognized the doctrine of tribal sovereign immunity." Val/Del, Inc. v. Superior Court, 145 Ariz. 558, 560, 703 P.2d 502, 504 (App. 1985).

¶7 As Filer correctly points out, "Congress authorized state regulation of liquor transactions by enacting 18 U.S.C. § 1161." Enacted in 1953, that section provides that the federal prohibition of liquor on tribal lands

shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian countryprovided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register.

¶8 In Rice v. Rehner, 463 U.S. 713, 103 S. Ct. 3291, 77 L. Ed. 2d 961 (1983), the Supreme Court addressed that statute and the states' ability to regulate liquor on tribal land.4 The Court found that Indian tribes lacked "a tradition of self-government in the area of liquor regulation" and that, "[b]y enacting § 1161, Congress intended to delegate a portion of its authority to the tribes as well as to the States, so as to fill the void that would be created by the absence of the discriminatory federal prohibition [of alcohol on Indian lands]." Rice, 463 U.S. at 731, 733, 103 S. Ct. at 3302, 3303, 77 L. Ed. 2d at 978, 979. Thus, the Court held, the states could "regulate the use and distribution of alcoholic beverages in Indian country" by requiring a state liquor license. Rice, 463 U.S. at 715, 103 S. Ct. at 3293-94, 77 L. Ed. 2d at 967.

¶9 The Tohono O'odham Nation has adopted its own Alcoholic Beverages Licensing and Control Regulations. A person violates those regulations by failing "to comply with the law of the State of Arizona applicable under 18 U.S.C. § 1161." Filer thus argues, apparently without disagreement, that "the Gaming Enterprise must comply withArizona's licensing and regulatory system pursuant to 18 U.S.C. § 1161." We agree that, under § 1161 and Rice, the Nation and the Gaming Enterprise are subject to alcohol regulation by the state, at least as to Arizona's liquor-licensing requirements. But the question remains whether that also means tribal sovereign immunity is inapplicable to any statutory actions involving alcohol, as Filer broadly asserts, so that the Gaming Enterprise may be liable for damages in a civil dram shop action.

¶10 In addressing that difficult issue of first impression in this state, we must first determine if Arizona's prohibition against a liquor licensee's serving alcohol to an obviously intoxicated person, see A.R.S. §§ 4-244(14), 4-311, constitutes regulation by the state under the Supreme Court's interpretation of § 1161 in Rice. If so, we must then determine if such regulation can be enforced by a private lawsuit against a tribal entity in state court absent a waiver of immunity. And, if not, we must decide whether the Gaming Enterprise or Congress has expressly waived the Gaming Enterprise's immunity from suit in state court. See Okla. Tax Comm 'n, 498 U.S. at 509, 111 S. Ct. at 909, 112 L. Ed. 2d at 1119.

¶11 As Filer points out, "[t]here is no controlling law in Arizona" addressing these questions. The Texas Court of Appeals, however, addressed them in Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843 (Tex. App. 1997).5 The court there ultimately held that tribalsovereign immunity applied, had not been waived, and therefore barred "a private suit brought under the Texas Dram Shop Act."6 Id. at 854. Before so holding, however, the court in Holguin concluded that the Texas dram shop act was a legitimate exercise of the state's regulatory power over alcohol and that the tribe was subject to enforcement of the act by license and permit revocation. Id. at 853-54. Similarly, as explained below, we find that § 4-311 falls within the scope of permissible liquor regulation by the State of Arizona.7

¶ 12 Section 4-311 is part of a regulatory scheme set forth in Title 4 of Arizona Revised Statutes. Although § 4-311 is not included within that title's chapter 2, entitled "Regulations and Prohibitions," A.R.S. §§ 4-201 to 4-261, it nonetheless falls within Title 4's broad title of"Alcoholic Beverages." A.R.S. §§ 4-101 to 4-312. And, § 4-244(14), part of the "Regulations and Prohibitions," makes it unlawful to serve spirituous liquor...

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