State ex rel. Stephan v. Finney

• Decision Date: 27 January 1994
• Docket Number: No. 69616,69616
• Citation: 254 Kan. 632,867 P.2d 1034
• Parties: STATE of Kansas, ex rel. Robert T. STEPHAN, Attorney General, Petitioner, v. The Honorable Joan FINNEY, Governor of the State of Kansas, Respondent.
• Court: Kansas Supreme Court

Page 1034

867 P.2d 1034

254 Kan. 632

STATE of Kansas, ex rel. Robert T. STEPHAN, Attorney General, Petitioner, v. The Honorable Joan FINNEY, Governor of the State of Kansas Respondent.

No. 69616.

Supreme Court of Kansas.

Jan. 27, 1994.

Syllabus by the Court

1. A lottery, as that term is used in art. 15, § 3 of the Kansas Constitution, means any game, scheme, gift, enterprise, or similar contrivance wherein persons agree to give valuable consideration for the chance to win a prize or prizes.

2. The essential difference between a constitution and a statute is that a constitution usually states general principles or policies, and establishes a foundation of law and government, whereas a statute must provide the details of the subject of the statute. A constitution, unlike a statute, is intended not merely to meet existing conditions but to govern future contingencies.

3. Although a constitution is usually a declaration of principles of fundamental law, with many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, it is entirely within the power of those who establish and adopt the constitution to make any of its provisions self-executing.

4. It is the function and duty of this court to define constitutional provisions. The definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time. It is the nature of the judicial process that the construction becomes equally as controlling upon the legislature of the state as the provisions of the constitution itself.

5. A state-owned lottery, as that term is used in art. 15, § 3c of the Kansas Constitution, means any state-owned and operated game, scheme, gift, enterprise, or similar contrivance wherein a person agrees to give valuable consideration for the chance to win a prize or prizes.

Carla J. Stovall, Sp. Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., and Jeffrey A. Chanay, of Entz & Chanay, Topeka, were with her on the briefs, for petitioner.

Pedro L. Irigonegaray, of Irigonegaray & Associates, Topeka, argued the cause, and Elizabeth R. Herbert and Robert V. Eye, of the same firm, were with him on the briefs, for respondent.

David V. Schneider, Topeka, was on the brief, for amicus curiae Kansans for Life at Its Best.

LOCKETT, Justice:

In accordance with Senate Resolution 1844, dated March 30, 1993, the Attorney General filed this mandamus and quo warranto action to determine the Governor's authority to negotiate compacts with Indian tribes which authorize casino gambling or other Class III gaming on Indian lands which is not specifically authorized by Kansas statute or by the Kansas Constitution. Respondent removed the matter to the federal courts. The federal court subsequently remanded the action to this court.

After remand, at a prehearing conference the parties agreed that the issues would be limited to:

1. What is a lottery as that term is used in Art. 15, § 3 of the Kansas Constitution?

2. Did the adoption of Art. 15, § 3c alter the broad definition of lottery previously expressed in Kansas judicial decisions?

3. What effect do the provisions in the Kansas Criminal Code relative to gambling (K.S.A. 21-4302 through 21-4308) have on the issues herein, with particular reference to Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179 (10th Cir.1993)?

4. With reference to the status of casino-type (Class III) gambling or gambling devices in Kansas, is there a distinction between the terms "permits" or "are legal," and, if so, the significance thereof in this litigation?

To answer Issues 3 and 4, federal law must be applied.

The interpretation placed on the Constitution and laws of the United States by the decisions of the Supreme Court of the United States is controlling upon state and federal courts and must be followed. Murray v. State, 226 Kan. 26, Syl. p 1, 596 P.2d 805 (1979). The interpretation of the constitution of the State of Kansas and the laws of Kansas by the Supreme Court of Kansas is controlling upon the federal and all Kansas courts. Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P.2d 731 (1958).

The federal courts are the proper forum to answer the federal questions posed in Issues 3 and 4, which relate both to the Johnson Act, 15 U.S.C. § 1171 et seq. (1988), and the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. (1988). We will only address the state constitutional questions found in Issues 1 and 2.

Since the admission of Kansas to the Union in 1861, the Kansas Constitution has provided that "[l]otteries and the sale of lottery tickets are forever prohibited." Kan. Const. art. 15, § 3. Statutory prohibitions of lotteries and the sale of lottery tickets were enacted in 1895. See L.1895, ch. 152, §§ 1-6, codified in G.S.1909, §§ 2856 through 2861 and later as G.S.1949, 21-1501 through 21-1506. On November 4, 1986, Kansas citizens amended the Kansas Constitution to authorize a state-owned and operated lottery, providing:

"Notwithstanding the provisions of section 3 of Article 15 of the constitution of the state of Kansas, the legislature may provide for a state-owned and operated lottery, except that such state-owned lottery shall not be operated after June 30, 1990, unless authorized to be operated after such date by a concurrent resolution approved by a majority of all of the members elected (or appointed) and qualified of each house and adopted in the 1990 regular session of the legislature. The state shall whenever possible provide the public information on the odds of winning a prize or prizes in a lottery game." Kan. Const. art. 15, § 3c.

In 1990, the Kansas Legislature extended the life of "a state-owned lottery" indefinitely. L.1990, ch. 370.

On October 17, 1988, the IGRA became law. The act classifies gaming into three categories and the provisions for regulation differ depending upon the class. Class I gaming is defined as "social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or celebrations." 25 U.S.C. § 2703(6) (1988). Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribe and is not subject to the IGRA. 25 U.S.C. § 2710(a) (1988). Class II gaming on Indian lands is also within the jurisdiction of the Indian tribe, but it is subject to the IGRA and is regulated in part by the National Indian Gaming Commission. 25 U.S.C. § 2710(a)(2); 25 U.S.C. § 2705 (1988); 25 U.S.C. § 2706 (1988). Class III gaming is defined as "all forms of gaming that are not class I gaming or class II gaming." 25 U.S.C. § 2703(8). Class III gaming generally includes "slot machines, casino games including banking card games, horse and dog racing, pari-mutuel, jai-alai, and so forth." S.Rep. No. 100-446, 100th Cong., 2nd Sess. 5 (1988), reprinted in 1988 U.S.Code Cong. & Ad.News 3071, 3073. Banking card games are those games in which the players play against the house and the house acts as banker; non-banking card games are those in which players play against each other. 1988 U.S.Code Cong. & Ad.News at 3079. Class III games may be operated on Indian lands in states that permit such gaming activities and are to be regulated pursuant to a tribal-state compact. 25 U.S.C. § 2710(d)(1), (3). Under the provisions of the IGRA, Indian tribes are allowed to conduct casino-type gambling on Indian lands only if "located in a State that permits such gaming for any purpose by any person, organization, or entity." 25 U.S.C. § 2710(d)(1)(B).

On July 10, 1992, we held that the Governor had the authority to enter into negotiations with the Kickapoo Nation, but, in the absence of an appropriate delegation of power by the Kansas Legislature or legislative approval of the compact, the Governor had no power to bind the State to the terms thereof. State ex rel. Stephan v. Finney, 251 Kan. 559, 583, 836 P.2d 1169 (1992) (Finney I). On March 4, 1993, the Kansas Tribal-State Gaming Compact Act (KTSGCA) was enacted into law. The KTSGCA established the procedures for negotiating tribal gaming compacts with the State. On March 30, 1993, Senate Resolution 1844 required the Attorney General to bring an action to determine the Governor's authority to negotiate compacts authorizing casino gambling and other Class III gaming on Indian lands in light of the gaming prohibitions contained in the Kansas Constitution and Kansas statutes.

On March 31, 1993, pursuant to the KTSGCA, Governor Joan Finney submitted to the Joint Committee on Gaming Compacts two proposed compacts between the State of Kansas and (1) the Prairie Band of Potawatomi Indians and (2) the Kickapoo Nation. The compacts provide for a wide range of casino-type gambling, including blackjack, poker, roulette, and keno. On March 31, 1993, pursuant to the KTSGCA, the proposed tribal-state compacts were submitted to the House and Senate of the Kansas Legislature. On April 2, 1993, the Senate voted to reject both compacts, reasoning, in part, that approval would be premature absent a judicial determination of the issues raised in S.Res. 1844.

On April 15, 1993, the Attorney General filed this mandamus and quo warranto action. Respondent caused the action to be removed to federal court. Upon hearing, the United States District Court found that because the petitioner's claims for relief could be resolved without deciding or addressing a substantial issue of federal law, the petition does not arise under federal law. The federal court then remanded the case to this court.

At oral argument, counsel for respondent made two challenges to the jurisdiction of this court to hear the matter. Respondent first claims that "whether Kansas is a state subject to the provisions of the Indian Act" had already been decided in Finney I. Petitioner claims that respondent...