State ex rel. Dewberry v. Kulongoski

• Decision Date: 18 June 2009
• Docket Number: CA A124001.,SC S056410.,CC 16-03-23044.
• Citation: 210 P.3d 884,346 Or. 260
• Parties: STATE ex rel Susan DEWBERRY, Carole Holcombe, Suzane Danielson and Arnold Buchman, Respondents on Review, v. The Honorable Theodore R. KULONGOSKI, Governor of the State of Oregon; and other Executive Officers in the State of Oregon, Petitioners on Review.
• Court: Oregon Supreme Court

210 P.3d 884

346 Or. 260

STATE ex rel Susan DEWBERRY, Carole Holcombe, Suzane Danielson and Arnold Buchman, Respondents on Review, v. The Honorable Theodore R. KULONGOSKI, Governor of the State of Oregon; and other Executive Officers in the State of Oregon, Petitioners on Review.

CC 16-03-23044.

CA A124001.

SC S056410.

Supreme Court of Oregon, En Banc.

Argued and Submitted February 25, 2009.

Decided June 18, 2009.

On review from the Court of Appeals.^*

Anna M. Joyce, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the briefs were Hardy Myers, Attorney General, Stephanie L. Striffler, Special Counsel to the Attorney General, and Mary H. Williams, Solicitor General.

Kelly Clark, O'Donnell Clark & Crew, LLP, Portland, argued the cause for respondents on review. With him on the briefs was Kristian Roggendorf.

Craig J. Dorsay, Dorsay & Easton LLP, Portland; Howard G. Arnett, Dennis C. Karnopp, Karnopp Petersen LLP, Bend; Wayne Shammel, Roseburg; Dan Hester, Hester & Zehren LLC, Louisville, Colorado; Kimberly D'Aquila, Tribal Attorney Office, Grande Ronde; Edmund Clay Goodman, Hobbs, Straus, Dean & Walker, LLP, Portland; Brett Kenney, Tribal Attorney, North Bend,

and Dirk E. Doyle, Roseburg, filed a brief on behalf of amici curiae Confederated Tribes of Siletz Indians of Oregon, The Confederated Tribes of the Warm Springs Reservation of Oregon, The Cow Creek Band of Umpqua Tribe of Indians, The Confederated Tribes of the Umatilla Reservation, The Confederated Tribes of the Grand Ronde Community of Oregon, the Klamath Tribes, and the Coquille Indian Tribe.

DE MUNIZ, C. J.

Relators filed a petition for a writ of mandamus in Lane County Circuit Court in 2003, challenging the Governor's authority to enter into a gaming compact with the Confederated Tribes of Coos, Lower Umpqua, and Suislaw Indians (the Tribes). Under the compact, the Tribes would be permitted to open a casino near Florence, Oregon. On the state's motion, the trial court dismissed relators' petition on two grounds: (1) relators had failed to show that they had no adequate remedy at law; and (2) relators had failed to join the Tribes in the action, in violation of ORCP 29 A.¹ Relators appealed, and the Court of Appeals reversed and remanded. We allowed the state's petition for review, and we now affirm the Court of Appeals decision.

In 2002, the Governor negotiated an amended gaming contract with the Tribes, pursuant to ORS 190.110² and the Indian Gaming Regulatory Act, 25 USC §§ 2701-2721, to operate a casino near Florence. That gaming compact was finalized in early 2003. Relators, who reside in or near Florence, first challenged that compact by filing a petition for a writ of mandamus in this court in September 2003. This court denied that petition.

Shortly thereafter, relators filed a mandamus proceeding in Lane County Circuit Court, naming the Governor of Oregon and "other executive officers" as defendants. In that proceeding, relators argued that, in executing the compact, the Governor had acted unconstitutionally in two ways: (1) he had violated Article XV, section 4(12), of the Oregon Constitution, which, relators argue, prohibits the operation of casinos in the State of Oregon;³ and (2) he had violated the separation of powers provisions of Article III, section 1, Article IV, section 1, and Article V, section 10, of the Oregon Constitution.⁴ Relators requested that the court make findings in accordance with those allegations and to hold that the compact was void. Relators also requested that the court command defendants to "ensure that no state agency or any Executive officer will take any act in furtherance of the Compact[.]"

The state moved to dismiss relators' petition on three grounds: (1) that mandamus relief was not available because relators had an adequate remedy at law in the form of a declaratory judgment action; (2) that relators failed to join the Tribes, which, the state argued, were indispensable parties under ORCP 29; and (3) that relators' petition was not timely. As noted, the trial court granted the state's motion on the first two grounds.

Relators immediately appealed, but moved to hold the appeal in abeyance in order to pursue a declaratory judgment action. Relators then filed a declaratory judgment action against the state and the Tribes in Lane County Circuit Court in March 2004. The state removed the case to federal court. The federal district court dismissed the declaratory judgment action in December 2005, after concluding that relators lacked standing and that the Tribes enjoyed sovereign immunity. Dewberry v. Kulongoski, 406 F Supp 2d 1136 (2005). Following that dismissal, relators reactivated their appeal.

Before the Court of Appeals, relators offered three arguments: (1) the trial court erred procedurally by not issuing an alternative writ of mandamus on receipt of relators' petition, as required by ORS 34.130; (2) the trial court erred in dismissing the petition based on the availability of a declaratory judgment action, which was not an adequate remedy at law; and (3) the trial court erred in concluding that ORCP 29 A, concerning joinder of parties, applied to mandamus proceedings. In addition to countering those arguments, the state argued, as an alternative basis for affirmance, that the relators were precluded from litigating issues that had already been litigated in the declaratory judgment proceedings in federal court.

The Court of Appeals disposed of relators' first argument by concluding that any error committed by a trial court in failing to follow the precise procedure set forth in ORS 34.130 was harmless. State ex rel Dewberry v. Kulongoski, 220 Or. 345, 220 Or.App. 345, 350, 187 P.3d 220 (2008).

As to relators' other arguments, the Court of Appeals first analyzed whether ORCP 29 applies to the circuit court mandamus proceeding. Id. at 351, 187 P.3d 220. That court concluded that ORCP 29 A does not apply to a mandamus proceeding, because the statute governing mandamus actions specifies a different procedure as to parties. Id. at 353, 187 P.3d 220. ORCP 1 A, the court noted, states that the Oregon Rules of Civil Procedure apply in "all civil actions and special proceedings ... except where a different procedure is specified by statute or rule." Id. at 351, 187 P.3d 220 (emphasis added). After reviewing the procedures governing joinder of parties outlined in ORCP 29 A and the procedures governing parties outlined in the mandamus statute, the court concluded that the mandamus provisions "differ[ed] in substance from the provisions of ORCP 29[.]" Id. at 353, 187 P.3d 220. ORCP 29 A, the court explained, governs the joinder of a "broad class of persons-including persons `claim[ing] an interest relating to the subject of the action' whose `ability to protect that interest' may be `impair[ed] or impede[d]' by a disposition in their absence." Id. (quoting ORCP 29 A). The court contrasted ORCP 29 A with the mandamus statute, which provides that the only required parties to a mandamus proceeding are a "relator" and a "defendant." Id. The court also noted that the mandamus statute provided that "adverse parties" may participate in mandamus proceedings by way of intervention, but did not require that they do so. Id. at 354, 187 P.3d 220. Based on those differences, the court concluded that ORCP 29 does not apply in mandamus proceedings. Id.

The Court of Appeals then addressed whether the trial court erred in dismissing relators' mandamus petition because relators have a "plain, speedy and adequate" alternate remedy, in the form of a declaratory judgment action under the Uniform Declaratory Judgments Act. Id. at 355, 187 P.3d 220 (quoting ORS 34.110). In answering the question in the affirmative, the Court of Appeals explained that two circumstances led to its conclusion: (1) the Tribes' participation in the declaratory judgment action was a jurisdictional prerequisite to the availability of an adjudication on the merits of that action and (2) the satisfaction of that prerequisite was a matter entirely within the Tribes'—and not relators'—control. Id. at 358-59, 187 P.3d 220. ORS 28.110 requires that "all persons shall be made parties who have or claim any interest which would be affected by the declaration[.]" Id. at 355-56, 187 P.3d 220. The court reasoned that that requirement was jurisdictional and, therefore, any declaratory judgment action pursued by relators could not proceed without the Tribes' participation, as the Tribes are signatories to the challenged compact. Id. at 359, 187 P.3d 220. Because the Tribes could invoke sovereign immunity, the Tribes controlled their participation in the action and, therefore, also controlled the availability of declaratory relief. Id. For those reasons, the Court of Appeals held that a declaratory judgment action affords relators neither a "plain" nor "adequate" remedy. Id.

Finally, the Court of Appeals rejected the state's claim preclusion argument, because it was not and could not have been pleaded before the trial court.⁵ Id. at 360, 187 P.3d 220. The Court of Appeals concluded that the trial court erred in dismissing relators' mandamus petition, and, therefore, reversed and remanded. Id. at 361, 187 P.3d 220. We allowed the state's petition for review.

We begin with a brief review of the background and purpose of the writ of mandamus. Mandamus has its origins in England, where the writ was "a command of the central courts, in the name of the sovereign, requiring a local official to do his duty." State ex rel Kashmir Corp. v. Schmidt, 291 Or. 603, 608, 633 P.2d 791 (1981). Under Oregon law, the writ may be issued to "any inferior court, corporation, board, officer or person to compel the performance of an act which the law specially enjoins[.]" ORS 34.110. A writ of mandamus is an extraordinary remedy, awarded upon equitable principles, and is a special proceeding with pleading and practice requirements that...