Mudarri v. State
| Decision Date | 18 November 2008 |
| Docket Number | No. 36130-2-II.,36130-2-II. |
| Citation | 196 P.3d 153,147 Wn. App. 590 |
| Court | Washington Court of Appeals |
| Parties | Eugene "Chip" MUDARRI, an individual, Lakeside Casino, LLC and C F S, LLC d/b/a Freddie's Club of Fife, Appellant/Cross Respondent, v. The STATE of Washington, which is comprised of various State entities including, but not limited to, Christine Gregoire, Governor of the State of Washington, Gary Locke, former Governor of the State of Washington, and as an individual, Rick Day, Director of the Washington State Gambling Commission, Ken Nakamura, Director of the Washington State Lottery, the Washington State Gambling Commission: Commissioners Janice Niemi, Alan Parker, Curtis Ludwig, and George Orr, and the Washington State Lottery Commission: Commissioners Rachel Garson, Carol Keljo, Robert Scargrough, Larry Taylor, and Melinda Travis, Respondents/Cross Appellants. |
¶ 1 Eugene Mudarri appeals the trial court's summary judgment dismissal of his declaratory judgment action against the State of Washington, in which he sought (1) authorization to operate electronic scratch ticket lottery games at his private casino; or (2) alternatively, invalidation of the 1996 State-Tribe Compact,1 under which the Puyallup Tribe (Tribe) operates electronic scratch ticket games at its nearby tribal casino. Mudarri's arguments fall into three basic categories: (1) challenges to the validity of the State-Tribe Compact, which allows the Tribe's Casino to operate electronic scratch ticket games; (2) claims that allowing the Tribe to operate these games, but not Mudarri, violates statutory and constitutional provisions; and (3) other claims for relief, including equitable estoppel and attorney fees.
¶ 2 In the first category, Mudarri requests a declaratory judgment that the State-Tribe Compact is invalid; we characterize this declaratory judgment argument as Mudarri's "direct" challenge. He also makes the following Compact-related arguments: (1) The State-Tribe Compact violates the separation of powers and the delegation doctrine;2 (2) the State-Tribe Compact allows the Tribe to operate illegal gaming on fee land; (3) the State-Tribe Compact granted the Tribe an illegal monopoly for electronic scratch ticket games; and (4) the Tribe enjoys illegal favorable tax rates under the State-Tribe Compact.3 We characterize these four Compact-related arguments as "indirect" challenges to the validity of the State-Tribe Compact.
¶ 3 In the second category, Mudarri argues that the State should allow him, like the Tribe, to operate electronic scratch ticket games based on the following statutory and constitutional arguments: (1) Electronic scratch ticket games are equivalent to both the State lottery and the previous State-offered paper (non-electronic) scratch ticket Zip game; and (2) preventing Mudarri from operating these games violates his (a) constitutional equal protection rights,4 (b) substantive due process rights,5 and (c) rights under the Privileges and Immunities Clause of the Washington Constitution.6 In the third category, Mudarri argues that he is entitled to damages under the doctrine of equitable estoppel, and he requests attorney fees on appeal under RCW 4.84.350.
¶ 4 The State cross-appeals the grounds on which the trial court dismissed Mudarri's claims indirectly attacking the validity of the State-Tribe Compact. The State argues that the trial court should have dismissed these claims for failure to join the Tribe as an indispensable party under Civil Rule (CR) 19(b), rather than on grounds of failure to state a claim on which relief can be granted under CR 12(b)(6).
¶ 5 We hold that (1) the Tribe, which is not a party to Mudarri's action, is "indispensable"7 to adjudication of his challenges to the State-Tribe Compact; (2) because the Tribe cannot be sued without waiving its sovereign immunity, the trial court lacked jurisdiction to consider all of Mudarri's claims challenging the validity of the State-Tribe Compact both directly and indirectly; (3) Mudarri's proposed private electronic scratch ticket game is not equivalent to either the State lottery or the State's previously offered, but now defunct, paper Zip game; (4) by entering into the State-Tribe Compact, the State did not violate Mudarri's equal protection, due process, or privileges and immunities rights; (5) Mudarri fails to establish equitable estoppel; and (6) because he does not prevail on appeal, Mudarri is not entitled to attorney fees. Accordingly, we affirm the trial court's summary judgment dismissal of Mudarri's action.
¶ 6 During the 1990s, the Puyallup Tribe and other Washington Indian tribes sued the State of Washington in federal court to determine the types of gambling that were subject to negotiation in state-tribe compacts under the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701-2721.8 As a result of that federal court litigation, in 1998 the Tribe and the State negotiated changes to their State-Tribe Compact to allow Washington Indian tribes to operate electronic scratch game terminals.
¶ 7 The Puyallup Tribe's Emerald Queen Casino in Fife has been in operation since January 2005. It is located within the Puyallup Indian Reservation 1873 survey boundary area, near Mudarri's non-tribal casino. After Mudarri commenced the lawsuit at issue here, the United States Government took the Tribe's fee simple land on which the Tribe had built the Emerald Queen Casino and, on May 18, 2006, placed this land in trust for the Tribe's benefit.
¶ 8 The Tribe's Emerald Queen Casino has multiple electronic scratch ticket game terminals, which comprise part of the Tribe's lottery system. Unlike traditional slot machines, a player at an electronic scratch ticket game terminal does not play against the individual machine. Instead, he or she plays against the Tribe's central lottery computer, on which a fixed number of electronic scratch tickets are stored for each terminal and to which the individual electronic terminals are linked. Each terminal displays the outcome of every electronic scratch ticket played on that terminal.
¶ 9 In December 2004, Mudarri complained to the State Gambling and Lottery Commissions that his non-tribal casino was losing money because he could not operate electronic scratch ticket games, for which Indian tribes have exclusive rights. Mudarri proposed that the State allow him to operate 250 electronic scratch ticket machines in his private casino; in return, he would commit 20 percent of the machines' profits to the State. Mudarri also asked whether the State commissions would take action against him if he installed and began operating electronic scratch ticket games in his casino.
¶ 10 The State Lottery Commission Director (1) explained that the state legislature had not authorized the State Lottery to operate or to receive profits from electronic gaming machines, and (2) denied Mudarri's request for permission to install the electronic scratch ticket machines. Noting that "absent a change in state law," only Indian tribes could operate electronic ticket machines, the State Gambling Commission Director similarly denied Mudarri's request for permission to install electronic gaming machines. After describing the Indian Gaming Regulatory Act,9 the Director explained, "If your facility installs and operates electronic machines, we will have no choice but to seize the machines and commence an action to forfeit them to the State." CP at 149.
¶ 11 On January 27, 2005, Mudarri filed a declaratory judgment action in Thurston County Superior Court. He asked the court (1) to declare his proposed electronic scratch ticket games legal; and (2) alternatively, to declare invalid the gaming Compact between the State and the Tribe because it violated his constitutional rights. Both parties filed motions for summary judgment. The State moved to dismiss Mudarri's action for failure to join the Tribe as a necessary and indispensable party under CR 19 and RCW 7.24.110.
¶ 12 Noting that the Tribe had not waived its sovereign immunity,10 the trial court summarily dismissed Mudarri's request to declare the State-Tribe Compact invalid because Mudarri had not joined the indispensable Tribe as a party.11 But the trial court denied the State's motion to dismiss Mudarri's remaining claims on this failure-to-join ground; instead, in a later order, the trial court denied Mudarri's motion for summary judgment, granted summary judgment to the State, and dismissed Mudarri's remaining claims.12 The trial court ruled that (1) it lacked jurisdiction to review the State-Tribe Compact and tribal gaming practices, (2) the State lacked legal power to authorize Mudarri's request to install electronic gaming machines, and (3) the State did not violate Mudarri's constitutional rights by denying him permission to install them.
¶ 13 Mudarri appealed to the Washington Supreme Court, seeking direct review of the trial court's summary judgment dismissal of his action. The State filed a cross appeal, challenging the grounds on which the trial court dismissed some of Mudarri's claims. The Supreme Court declined direct review and transferred the appeals to us.
¶ 14 When reviewing a summary judgment, we engage in the same inquiry as the trial court. Hisle v. Todd Pacific Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wash.2d 715, 722, 853 P.2d 1373 (1993)). The standard of review is de novo. Id. Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...
To continue reading
Request your trial
-
Byrd v. Pierce Cnty.
... ... (1) as a matter of law, equitable estoppel may not be alleged offensively as a cause of action by plaintiffs, so the Byrds complaint failed to state an equitable estoppel claim, (2) the Byrds failed to state a quiet title claim, and (3) because the Byrds failed to state claims upon which relief ... 1. PRINCIPLES OF LAW 20 "Equitable estoppel is not available for offensive use by plaintiffs. " Mudarri v. State , 147 Wash. App. 590, 619, 196 P.3d 153 (2008) (quoting Greaves v. Med. Imaging Sys., Inc. , 124 Wash.2d 389, 397, 879 P.2d 276 (1994) ) ... ...
-
Auto. United Trades Org. v. State
... ... Id. (quoting Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765, 777 (D.C.Cir.1986)). Embracing this same rationale, two Washington Court of Appeals decisions have dismissed challenges to state-tribe compacts. Mudarri v. State, 147 Wash.App. 590, 196 P.3d 153 (2008) (gambling compacts); Matheson v. Gregoire, 139 Wash.App. 624, 161 P.3d 486 (2007) (cigarette compacts). [175 Wash.2d 231] 39 Here, the extent of prejudice to the tribes may be significant, even though the absent tribes will not themselves be bound ... ...
-
Zdi v. State ex rel. State Gambling Com'n
... ... Specifically, ZDI argues that such a discrepancy is "fundamentally unfair." But ZDI's argument that such a distinction is "unfair" is insufficient to merit our consideration; ZDI failed to articulate a fundamental right that a state law has infringed upon. See Mudarri v. State, 147 Wash. App. 590, 196 P.3d 153 (2008), review denied, 166 Wash.2d 1003, 208 P.3d 1123 (2009). In Mudarri, a private casino owner argued that the Commission's refusal to allow him to operate electronic scratch ticket games, while allowing tribal casinos to do so, violated his right ... ...
-
Auxier Fin. Grp. LLC v. Sellars
...AUXIER FINANCIAL GROUP LLC, Appellant, v. JOSEPH T. SELLARS AND GREGORY GREENE, Respondents.No. 71729-4-ICOURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONEJune 29, 2015UNPUBLISHED OPINIONSPEARMAN, C.J. Respondent Joseph Sellars executed a promissory note (the "Note") in favor ... See Mudarri v. State, 147 Wn. App. 590, 619, 196 P.3d 153 (2008).3. 11.U.S.C. 524 (c)An agreement between a holder of a claim and the debtor, the consideration ... ...
-
§19.7 Significant Authorities
...state when the tribe could not be joined due to tribal sovereign immunity and was found to be an indispensable party. Mudarri v. State, 147 Wn.App. 590, 605, 196P.3d153 (2008), review denied, 166 Wn.2d 1003 (9)Contractors and subcontractors In Farrell Construction Co. v. Jefferson Parish, L......
-
§21.6 Analysis
...with respect to an indispensable party's joinder under CR 19. The court must add the party or dismiss the action. See Mudarri v. State, 147 Wn.App. 590, 196 P.3d 153 (2008), review denied, 166 Wn.2d 1003 The court may drop parties who have no actual or present interest in the controversy. S......
-
§21.7 Significant Authorities
...states that misjoinder is not a ground for dismissal, failure to join an indispensable party is grounds for dismissal. Mudarri v. State, 147 Wn.App. 590, 196P.3d153 (2008), review denied, 166 Wn.2d 1003 (2009); Matheson v. Gregoire, 139 Wn.App. 624, 161P.3d486 (2007), review denied, 168 Wn.......