Florida House of Representatives v. Crist

• Decision Date: 03 July 2008
• Docket Number: No. SC07-2154.,SC07-2154.
• Citation: 999 So.2d 601
• Parties: FLORIDA HOUSE OF REPRESENTATIVES, et al., Petitioners, v. The Honorable Charles J. CRIST, Jr., etc., Respondent.
• Court: Florida Supreme Court

999 So.2d 601

FLORIDA HOUSE OF REPRESENTATIVES, et al., Petitioners, v. The Honorable Charles J. CRIST, Jr., etc., Respondent.

No. SC07-2154.

Supreme Court of Florida.

July 3, 2008.

Rehearing Denied September 11, 2008.

Jeremiah H. Hawkes, General Counsel, Florida House of Representatives, Tallahassee, FL, and Jon L. Mills and Timothy McLendon, Gainesville, FL, for Petitioners.

Christopher M. Kise and James A. McKee of Foley and Lardner, Tallahassee, FL, and Paul C. Huck, Jr., General Counsel, Gerald B. Curington, Deputy General Counsel, and Erick M. Figlio, Assistant General Counsel, Executive Office of the Governor, Tallahassee, FL, for Petitioner, Charles J. Crist, Jr., in his capacity as Governor of Florida.

Barry S. Richard and Glenn T. Burhans, Jr. of Greenberg Traurig, P.A., Tallahassee, FL, and Jerry C. Straus, F. Michael Willis, and Joseph H. Webster of Hobbs, Straus, Dean, and Walker, LLP, Washington, DC, for Petitioner, The Seminole Tribe of Florida.

Jason Vail, Special Counsel, Tallahassee, FL, on behalf of The Florida Senate; Cynthia S. Tunnicliff, Marc W. Dunbar, and Brandice D. Dickson of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A., Tallahassee, FL, on behalf of Gulfstream Park Racing Association, Inc.; and Andre McKenney and David Jove, Hallandale Beach, FL, on behalf of City of Hallandale Beach, as Amici Curiae.

CANTERO, J.

After almost sixteen years of sporadic negotiations with four governors, in November 2007 the Seminole Indian Tribe of Florida signed a gambling "compact" (a contract between two sovereigns) with Florida Governor Charles Crist. The compact significantly expands casino gambling, also known as "gaming," on tribal lands. For example, it permits card games such as blackjack and baccarat that are otherwise prohibited by law. In return, the compact promises substantial remuneration to the State.

The Florida Legislature did not authorize the Governor to negotiate the compact before it was signed and has not ratified it since. To the contrary, shortly after the compact was signed, the Florida House of Representatives and its Speaker, Marco Rubio, filed in this Court a petition for a writ of quo warranto disputing the Governor's authority to bind the State to the compact. We have exercised our discretion to consider such petitions, see art. V, § 3(b)(8), Fla. Const., and now grant it on narrow grounds. We hold that the Governor does not have the constitutional authority to bind the State to a gaming compact that clearly departs from the State's public policy by legalizing types of gaming that are illegal everywhere else in the state.

In the remainder of this opinion, we describe the history of Indian gaming compacts in general and the negotiations leading up to the compact at issue. We then explain our jurisdiction to consider the petition. Finally, we discuss the applicable constitutional provisions, statutes, and cases governing our decision.

I. THE FACTUAL AND LEGAL BACKGROUND

We analyze the compact in the context of the federal regulations authorizing it as well as the background of the negotiations in this case. We first review the statutory foundation for the compact: the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (2000) (IGRA). Next, we detail the history of the Tribe's attempts to negotiate a compact with the State. Finally, we explain the compact's relevant terms.

A. IGRA

Indian tribes are independent sovereigns. The Indian Commerce Clause of the United States Constitution grants only Congress the power to override their sovereignty on Indian lands. U.S. Const., art. I, § 8, cl. 3 ("The Congress shall have Power ... [t]o regulate Commerce with ... the Indian Tribes."); see also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987) (noting that tribal sovereignty is subordinate only to the federal government). Before IGRA, states had no role in regulating Indian gaming. See Cabazon, 480 U.S. at 202, 107 S.Ct. 1083.

Congress enacted IGRA in 1988. Among other things, the statute provides "a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1). IGRA divides gaming into three classes: Class I includes "social games solely for prizes of minimal value." Id. § 2703(6). Class II includes "the game of chance commonly known as bingo" and "non-banked" card games—that is, games in which participants play against only each other; the host facility (the "house") has no stake in the outcome. Id. § 2703(7). Class III— the only type relevant here—comprises all other types of gaming, including slot machines, pari-mutuel wagering (such as horse and greyhound racing), lotteries, and "banked" card games—such as baccarat, blackjack (twenty-one), and chemin de fer—in which participants play against the house. Id. § 2703(6)-(8).

IGRA permits Class III gaming on tribal lands, but only in limited circumstances. It is lawful only if it is (1) authorized by tribal ordinance, (2) "located in a State that permits such gaming for any purpose by any person, organization, or entity," and (3) "conducted in accordance with a Tribal-State compact entered into by the Indian tribe and the State ... that is in effect." Id. § 2710(d)(1) (emphasis added).

IGRA provides for tribes to negotiate compacts with their host states. Upon a tribe's request, a state "shall negotiate with the Indian tribe in good faith to enter into such a compact." Id. § 2710(d)(3)(A) (emphasis added). If the parties successfully negotiate a compact and the Secretary of the Department of the Interior (Department) approves it, the compact takes effect "when notice of approval by the Secretary" is published in the Federal Register. Id. § 2710(d)(3)(B), (8).

If negotiations fail, IGRA allows a tribe to sue the state in federal court. If the state continues to refuse consent, the Secretary may "prescribe ... procedures" permitting Class III gaming. See id. § 2710(d)(7)(B)(vii). The United States Supreme Court has held, however—in a case involving the Seminole Tribe's attempts to offer Class III gaming in Florida—that IGRA did not abrogate the states' Eleventh Amendment immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Therefore, states need not consent to such lawsuits. The Department later created an alternative procedure under which, when a tribe cannot negotiate a compact and a state asserts immunity, the Secretary may prescribe Class III gaming. See Class III Gaming Procedures, 64 Fed. Reg. 17535-02 (Apr. 12, 1999) (codified at 25 C.F.R. pt. 291 (2007)). At least one federal court, however, has held that the Secretary lacked authority to promulgate such regulations. See Texas v. United States, 497 F.3d 491, 493 (5th Cir.2007), petition for cert. filed sub nom. Kickapoo Traditional Tribe of Texas v. Texas, 76 U.S.L.W. 3471 (U.S. Feb. 25, 2008) (No. 07-1109). Therefore, their validity remains questionable.

B. The Negotiations Between the Tribe and the State

With this statutory framework in mind, we briefly describe the protracted history of the Seminole Tribe's efforts to negotiate a compact for conducting Class III gaming in Florida. These negotiations spanned sixteen years and four different governors.

The Seminole Indian Tribe is a federally recognized Indian tribe whose reservations and trust lands are located in the State. The Tribe currently operates Class II gaming facilities, offering low stakes poker games and electronically aided bingo games. The Tribe first sought a compact allowing it to offer Class III gaming in 1991. That January, the Tribe and Governor Lawton Chiles began negotiations, but they ultimately proved fruitless. That same year, the Tribe filed suit in federal court alleging that the State had failed to negotiate in good faith. As noted earlier, the Supreme Court ultimately ruled that the State could assert immunity, and it did. See Seminole Tribe, 517 U.S. at 47, 116 S.Ct. 1114, aff'g Seminole Tribe of Fla. v. Fla., 11 F.3d 1016 (11th Cir.1994).

Over the next several years, the Tribe repeatedly petitioned the Department to establish Class III gaming procedures. In 1999, the Department did so. It found the Tribe eligible for the procedures and called an informal conference, which was held in Tallahassee that December. At the State's suggestion, however, the Tribe agreed to suspend the conference, though only temporarily. In January 2001, the Secretary issued a twenty-page decision allowing the Tribe to offer a wide range of Class III games. When the State requested clarification, however, the Secretary withdrew the decision. The delay continued. Finally, five years later—in May 2006—the Department reconvened the conference in Hollywood, Florida, and in September of that year warned that if the Tribe and the State did not execute a compact within 60 days, the Department would issue Class III gaming procedures. Despite the parties' failure to negotiate a compact, however, the Department never issued procedures.

Apparently exasperated with the slow progress of the procedures, in March 2007 the Tribe sued the Department in federal court. See Seminole Tribe of Fla. v. United States, No. 07-60317-CIV, 2007 WL 5077484 (S.D. Fla. filed Mar. 6, 2007). The Department then urged Governor Crist to negotiate a compact, warning that if a compact was not signed by November 15, 2007, the Department would finally issue procedures. Under the proposed procedures, the State would not receive any revenue and would have no control over the Tribe's gaming operations. The Tribe would be authorized to operate slot machines and "card games," defined as "a game or series of games of poker (other than Class II games) which are played in a nonbanking manner." (Emphasis added.) Notably, the alternative procedures would not have permitted the Tribe to operate banked card...