Noh v. Cenarrusa, 28590.

• Citation: 53 P.3d 1217,137 Idaho 798
• Decision Date: 28 August 2002
• Docket Number: No. 28590.,28590.
• Parties: In the Matter of the Petition/Action to Determine the Constitutionality of the Indian Gaming Initiative, Proposition One. Laird NOH; Maxine T. Bell; Paul Christensen; Pamela Eaton; and Bryan Fischer, Petitioners, v. Pete T. CENARRUSA, in his capacity as Idaho Secretary of State, and Ernest L. Stensgar, real party in interest, Respondents, and Idaho Coalition for Indian Self Reliance, Intervenor-respondent.
• Court: Idaho Supreme Court

53 P.3d 1217

137 Idaho 798

In the Matter of the Petition/Action to Determine the Constitutionality of the Indian Gaming Initiative, Proposition One.

Laird NOH; Maxine T. Bell; Paul Christensen; Pamela Eaton; and Bryan Fischer, Petitioners, v. Pete T. CENARRUSA, in his capacity as Idaho Secretary of State, and Ernest L. Stensgar, real party in interest, Respondents, and Idaho Coalition for Indian Self Reliance, Intervenor-respondent.

No. 28590.

Supreme Court of Idaho, Boise, September 2002 Term.

August 28, 2002.

Moffatt, Thomas, Barrett, Rock & Fields, Chtd, Boise, for petitioners. Robert E. Bakes argued.

Hon. Alan G. Lance, Attorney General, Boise, for respondent Secretary of State. Michael S. Gilmore argued.

Givens, Funke & Work, Coeur d'Alene, for respondent Stensgar. Raymond C. Givens argued.

Nez Perce Tribe Office of Legal Counsel for intervenor-respondent Idaho Coalition for Indian Self Reliance. Rob Roy Smith argued.

Crowell Law Offices, Kirkland Washington, and Office of Tribal Attorney for Amicus Curiae Shoshone-Bannock Tribe. Scott Crowell argued.

SCHROEDER, Justice.

The Petitioners assert the Indian Gaming Initiative violates the Idaho Constitution's prohibition against gambling, violates notions of equal protection, and that it extinguishes existing debts. The Petitioners seek an order and/or writ prohibiting the Secretary of State from placing the initiative on the November, 2002 ballot. This matter is before the Court upon the petition and a motion to dismiss the petition.

I. FACTS AND PROCEDURAL HISTORY

The Indian Gaming Initiative (Proposition One) has qualified to appear on the ballot in the November 2002 general election. Proposition One would create two new Idaho statutes, Idaho Code §§ 67-429B and 67-429C, which would allow Indians to continue with the same type of gambling they currently conduct under the tribal-state compact and allow the use of electronic gaming machines which the statute would specifically declare not to be slot machines or simulations of slot machines. The statutes would also allow the tribes to amend their compact with the State to allow this type of gambling.

Petitioners Laird Noh, Maxine Bell, Paul Christensen, Pamela Eaton, and Bryan Fisher filed an original action in this Court pursuant to Article III, § 19 of the Idaho Constitution, Idaho Code § 34-1809, and Article V, § 9 of the Idaho Constitution. The Petitioners seek a declaration that Proposition One violates the Idaho Constitution and a writ prohibiting Proposition One from appearing on the November ballot. The Respondents have moved to dismiss the petition. Hearings on the petition and the motion to dismiss were consolidated.

II. THE PETITION DOES NOT PRESENT A JUSTICIABLE CONTROVERSY

Idaho Code § 34-1809 allows any "qualified elector" to file suit after the Attorney General has issued a certificate of review. The Petitioners are qualified electors and a certificate of review was issued on July 12, 2001.¹ The Petitioners maintain that I.C. § 34-1809 requires the Court to decide the validity of Proposition One at this time. The Secretary of State agrees with the Petitioners. The remaining respondents argue that the case is not justiciable. The standards of justiciability are set forth in Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988, 991 (1984).

While the elements of an actual or justiciable controversy are not subject to a mechanical standard, the United States Supreme Court aptly summarized the pivotal elements of a justiciable controversy in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937).

"A `controversy' in this sense must be one that is appropriate for judicial determination .... A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot.... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests .... It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."

300 U.S. at 240-41, 57 S.Ct. at 464, 81 L.Ed. at 621 (citations omitted). See also Sanchez v. City of Santa Fe, 82 N.M. 322, 481 P.2d 401 (1971)

; Cummings Construction Co. v. School District No. 9, 242 Or. 106, 408 P.2d 80 (1965); Brown v. Oregon State Bar [293 Or. 446, 648 P.2d 1289 (1982)], supra. We believe this federal standard provides a concise guideline for our analysis, and therefore, we will apply these criteria in conjunction with pertinent Idaho case law cited infra.

A. Standing

Standing is a fundamental prerequisite to invoking this Court's jurisdiction. "The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated." Miles v. Idaho Power Co., 116 Idaho 635, 641, 778 P.2d 757, 763 (1989). In order to satisfy the requirement of standing, the petitioners must "allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." Id. However, "a citizen and taxpayer may not challenge a governmental enactment where the injury is one suffered alike by all citizens and taxpayers of the jurisdiction." Id. The petitioners must "establish a peculiar or personal injury that is different than that suffered by any other member of the public." Selkirk-Priest Basin Ass'n v. State, 128 Idaho 831, 834, 919 P.2d 1032, 1035 (1996).

The following are the alleged injuries the petitioners claim exist: Petitioners Noh, Bell, and Christensen each allege that they will suffer injury because the authorized gambling will require additional funding of social services and law enforcement. These programs are under the jurisdiction of the Joint Finance and Appropriation Committee of which Bell is co-chair and Christensen is a member. Petitioner Eaton alleges she will suffer because gambling will result in increased incidents of bad checks and the inability of customers to pay bills to businesses Eaton represents as Executive Director of the Idaho Retailers Association. Petitioner Fischer argues that he will suffer injury because gambling will cause a decline in moral values and create a greater need for charitable services, placing a burden upon Fischer and his church. The petitioners argue that they "will" suffer injury if Proposition One becomes law. If Proposition One fails in November, the Petitioners will not suffer injuries. The Petitioners have not alleged an injury in fact at this point. Proposition One may not pass. Any injury suffered is speculative. At this time it is not possible to determine the accuracy of the alleged future injuries. Under traditional standards for determining standing, the petitioners do not have standing.

B. Ripeness

The traditional ripeness doctrine requires a petitioner or plaintiff to prove 1) that the case presents definite and concrete issues, 2) that a real and substantial controversy exists, and 3) that there is a present need for adjudication. E.g., Boundary Backpackers v. Boundary County, 128 Idaho 371, 376, 913 P.2d 1141, 1146 (1996)

. This case presents the issue of whether or not Proposition One violates the Idaho Constitution. However, there is not a real controversy at this point because Proposition One is simply a proposal. It has not become a law. There is no present need for adjudication. If Proposition One does not pass, there will not be a need for an adjudication as to its validity. This case does not meet the elements of the traditional ripeness test.

C. Idaho Code § 34-1809

While the petitioners do not meet the traditional requirements of standing and ripeness, Idaho Code § 34-1809 specifically allows them to file the present action. I.C. § 34-1809 states, in relevant part:

Any qualified elector of the state of Idaho may, at any time after the attorney general has issued a certificate of review, bring an action in the Supreme Court to determine the constitutionality of any initiative.

A "qualified elector" is defined in Idaho Code § 34-402:

Every male or female citizen of the United States, eighteen (18) years old, who has resided in this state and in the county for thirty (30) days where he or she offers to vote prior to the day of election, if registered within the time period provided by law, is a qualified elector.

There is no dispute that the attorney general has issued a certificate of review or that the petitioners are qualified electors. However, respondent Stensgar, intervenor Coalition, and amicus Tribe all argue that this code section violates the Separation of Powers doctrine contained in Article II, § 1 of the Idaho Constitution. Respondent Stensgar argues that I.C. § 34-1809 cannot create a justiciable controversy.

Idaho has adopted the federal justiciability requirement. Harris at 516, 681 P.2d 988. Federal justiciability is constitutionally based. Congress may not circumvent it. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 1365 n. 3, 31 L.Ed.2d 636, 641 n. 3 (1971)

.

Congress may not confer jurisdiction on Art. III federal courts to render advisory opinions, Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, or to entertain "friendly" suits, United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413, or to resolve "political questions," Luther v. Borden, 7 How. 1, 12 L.Ed. 581, because suits of this character are inconsistent with the judicial function under Art. III. But where a dispute is otherwise justiciable, the question whether the litigant is a "proper party to request an adjudication of a particular issue," Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, 961, is one within the power of Congress to determine.

Under the federal justiciability standard, Congress may determine who a "proper ...