LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF WISCONSIN, Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin, and Sakaogon Chippewa Community, Mole Lake Band of Lake Superior Chippewa Indians, Plaintiffs-Appellants, v. UNITED STATES of America, United States Department of the Interior, Gale A. Norton, Secretary of the Department of the Interior, et al., Defendants-Appellees, James E. Doyle, Governor of the State of Wisconsin and State of Wisconsin, Intervening Defendants-Appellees.
No. 03-2323.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 16, 2004. Decided April 29, 2004.
David C. Shilton (argued), Department of Justice, Washington, DC, for Defendants-Appellees.
John S. Greene, Thomas C. Bellavia (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Intervenors-Appellees.
Thomas F. Gede, Conference of Western Attorneys General, Sacramento, CA, for Amicus Curiae.
Before FLAUM, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.
FLAUM, Chief Judge.
The Plaintiff Tribes appeal the district court‘s opinion and order declaring the gubernatorial concurrence provision of the Indian Gaming Regulatory Act (“IGRA“) constitutional and not in violation of the federal government‘s trust obligation to Indians. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Plaintiffs are three federally-recognized Indian Tribes with reservations in sparsely populated areas of northern Wisconsin (“the Tribes“). While each of the Tribes operates a casino on reservation land, these casinos do not generate income comparable to casinos operated by tribes who have reservations near Wisconsin‘s urban centers or destination resorts. Seeking to advance their tribal and economic development, the Tribes joined together for the purpose of establishing a jointly owned and operated off-reservation gaming facility in a lucrative location.
The Tribes found a struggling pari-mutuel greyhound racing facility in Hudson, Wisconsin that they wished to acquire and convert into a casino gaming facility. Hudson was attractive to the Tribes because they believed its proximity to the metropolitan areas of Minneapolis and St. Paul and easy accessibility to Interstate Highway 94 would ensure a broad customer base. In October 1992 the Tribes formally submitted their application under the Indian Gaming Regulatory Act (“IGRA“)
The Secretary of the Interior has broad discretion to acquire lands in trust for the benefit of Indian tribes pursuant to Indian Reorganization Act of 1934,
the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary‘s determination.
The Department of the Interior initially denied the Tribes’ application, but later vacated the rejection following a lawsuit and settlement. In February 2001, the Department of the Interior issued findings that the proposal was in the best interests of the Tribes and would not be detrimental to the surrounding community. The Department of the Interior sent the matter to then Governor of Wisconsin Scott McCallum for his concurrence. In May 2001, Governor McCallum issued a letter declining to concur in the Secretary‘s findings, citing Wisconsin‘s general disapproval of off-reservation gaming and public policy of permitting only “limited exceptions to the general prohibition against gambling.” Governor McCallum opined that the public interest would not be served by the addition of another major casino gaming facility to the seventeen casino gaming facilities already operating in Wisconsin. In June 2001, the Department of the Interior issued a final decision denying the Tribes’ application on the grounds that, absent the Governor‘s concurrence, the exception provided in
In April 2003, the district court granted the defendants’ motions for judgment on the pleadings, finding that the gubernatorial concurrence provision is not an unconstitutional delegation of power, nor does it violate the separation of powers doctrine, the Appointments Clause, Art. II, § 2, or the Tenth Amendment. Further, the district court found that the Tribes’ claim that the gubernatorial concurrence requirement represented a breach of trust was barred by sovereign immunity and was without support in law. Finally, the district court denied the Tribes’ conditional motion to amend, stating that it was untimely and futile. The district court subsequently denied the Tribes’ Rule 59 motion to vacate the judgment and the Tribes now appeal. We uphold the judgment of the district court because we conclude that
II. Analysis
The Tribes challenge the constitutionality of the gubernatorial concurrence provision of the Indian Gaming Regulations Act (“IGRA“),
Following the Supreme Court‘s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), which held that Congress had not yet expressly granted the States jurisdiction to enforce state civil gaming regulations on Indian reservation land, Congress passed IGRA for the purpose of creating a federal regulatory scheme for the operation of gaming on Indian lands.
At issue in this litigation is
A.
The Tribes assert that the gubernatorial concurrence provision of
At issue in Chadha was Section 244(c)(2) of the Immigration and Nationality Act,
Unlike the one-House veto provision at issue in Chadha, the gubernatorial concurrence provision does not prevent the Executive Branch from accomplishing its delegated function under IGRA. Section 2719(b)(1)(A) assigns the Secretary of the Interior two responsibilities: (1) to evaluate whether gaming on the proposed trust land would be in the best interest of the applicant tribe and not detrimental to the surrounding community; if so, then (2) to ascertain whether the Governor of the State where the proposed trust land is located concurs with his or her favorable determination. A governor‘s concurrence is no less a precondition to the Executive Branch‘s authority to waive IGRA‘s general prohibition of gaming on after-acquired lands than are the factual circumstances that give rise to Secretary of the Interior‘s conclusion that gaming on the proposed trust land would be in the Indian tribe‘s best interests and would not be detrimental to the surrounding community. Unless and until the appropriate governor issues a concurrence, the Secretary of the Interior has no authority under
The power delegated to the Attorney General in Chadha had no similar contingency predicate to the Attorney General‘s statutory authority to execute the law. The one-House veto wrested final decision-making power away from the Executive Branch over an issue that had been legislatively entrusted to the Attorney General and thereby directly impeded the Attorney General from accomplishing the function delegated: to determine whether to suspend, and to suspend, the deportation of a particular alien. In contrast, after the two preconditions to the Secretary of the Interior‘s authority are met — i.e., the two factual predicates exist and the governor issues a concurrence — the Secretary of the Interior‘s decision to execute
We agree with the Ninth Circuit that
The Tribes contend that the contingent legislation rationale is an inappropriate analogy to
According to the Tribes,
We find that the remaining separation of powers issues illustrated by the one-House veto in Chadha are not present here. The gubernatorial concurrence provision does not aggrandize the power of the Legislative Branch at the expense of the Executive Branch. The Secretary of the Interior would have no authority to permit gaming on after-acquired trust lands absent the power delegated by Congress in IGRA. Congress may, consistent with the doctrine of separation of powers, condition that delegation on the approval of an actor external to the Executive Branch. See Currin, 306 U.S. at 1, 59 S.Ct. 379. Congress has not wrongfully enhanced its power by the use of the contingent legislation mechanism; whether the governor concurs and thereby triggers the Secretary of the Interior‘s power under
Finally, the Tribes argue that
Unlike the Brady Act‘s requirement that state officers temporarily execute federal law by performing background checks, the gubernatorial concurrence provision does not require or even permit any governor to execute federal law. The execution of
As only the Secretary of the Interior may execute the
B.
We now turn to the Tribes’ argument that Congress violated a related branch of the separation of powers jurisprudence: the nondelegation doctrine. In the Tribes’ view, if
The Supreme Court has explained that the nondelegation doctrine generally pro
Congress exercised its legislative authority by enacting IGRA‘s general prohibition of gaming on after-acquired land, creating an exception to that rule in
During oral argument, it became evident that the Tribes’ concern is not so much the unconstrained discretion that Congress permitted the Governors of the 50 States to exercise under
At issue in Carter were certain provisions of the Bituminous Coal Conservation Act of 1935. Under that Act, the largest producers of coal were delegated the power to establish the maximum hour and minimum wage terms that controlled the entire coal industry. Carter, 298 U.S. at 284, 56 S.Ct. 855. In striking down the provision, the Supreme Court was troubled that the statute did not empower “an official or an official body, presumptively disinterested,” but instead empowered “private persons whose interests may be and often are adverse to the interests of others in the same business.” Id. at 311. The
We conclude that the gubernatorial concurrence provision does not raise the concerns presented in Carter. The Governors of the 50 States are politically accountable to their constituencies and will therefore be motivated to maximize the public good, contrary to the chief coal producers in Carter, whose relationship with minor coal producers was “conflicting and even antagonistic,” and whose motivations were self-serving. See Carter, 298 U.S. at 311, 56 S.Ct. 855. Even if a particular governor might enjoy ultimate authority over a state lottery or gaming system, that role will surely be eclipsed by the governor‘s responsibility to regulate the broader state economy.
In conclusion, we find that
C.
We now address the Tribes’ argument that the gubernatorial concurrence provision violates the Appointments Clause. That Clause states that:
[The President] ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Tribes contend that a governor is required by
At issue in Buckley were certain provisions of the Federal Election Campaign Act which vested the members of the Federal Election Commission (“commissioners“) with broad authority, including “recordkeeping, disclosure and investigative functions“; “extensive rulemaking and adjudicative powers“; and the power to “institute a civil action” for the purposes of enforcing the Act. Buckley, 424 U.S. at 110, 96 S.Ct. 612. The Supreme Court held that, because the commissioners enjoyed “primary responsibility for conducting civil litigation ... for vindicating public rights,” their “authority ... cannot possibly be regarded as merely in aid of the legislative function of Congress,” but rather extended to typically executive functions of administering and enforcing the law. Id. at 139-40, 96 S.Ct. 612. Therefore, because the Act specified a procedure
Unlike the members of the Federal Election Commission in Buckley, the Governors of the 50 States do not enjoy power under
Nor is the governor‘s role under
The Tribes argue vociferously that the Governor of Wisconsin is not permitted by any Wisconsin state law to communicate with the federal government regarding proposals to acquire Wisconsin land in trust for the benefit of Indians. Rather, only federal law authorizes the Governor of Wisconsin to respond to the Secretary of the Interior‘s request for concurrence; in their view, this necessarily imbues the Governor with the role of an Officer of the United States. Notwithstanding the absence of a specific Wisconsin state law authorizing the Governor of Wisconsin to respond to the Secretary of the Interior‘s request for concurrence, we conclude that the Governor of Wisconsin‘s role under
The text of the relevant portion of the Appointments Clause limits its applicability to Appointments “... not herein otherwise provided for, and which shall be established by Law ...”
Further, we note that the separation of powers concerns underlying the Appointments Clause are not suggested by the gubernatorial concurrence provision. See Freytag, 501 U.S. at 878, 111 S.Ct. 2631 (“The roots of the separation-of-powers concept embedded in the Appointments Clause are structural and political.“). In
D.
The Tribes seek to persuade this Court that the gubernatorial concurrence provision compels state governors to administer federal law in violation of principles of federalism as interpreted in New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) and in Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). In New York v. United States, at issue were provisions of the Low-Level Radioactive Waste Policy Amendments Act which required each state to either enact legislation providing for the disposal of locally generated radioactive waste or to take title to and possession of that waste. New York v. United States, 505 U.S. at 153-54, 112 S.Ct. 2408. The Supreme Court invalidated the provisions at issue, holding that the Tenth Amendment prohibited the federal government from compelling “the States to enact or administer a federal regulatory program.” Id. at 188, 112 S.Ct. 2408. In Printz, the Supreme Court applied the rule of New York to the Brady Act, a federal statute which required state law enforcement officers to conduct background checks of prospective handgun purchasers. The Printz Court held that Congress may no more “command the State‘s officers ... to administer or enforce a federal regulatory program,” than it may command State legislatures to do so. Printz, 521 U.S. at 935, 117 S.Ct. 2365.
The Tribes contend that the Secretary of the Interior‘s request for a governor‘s concurrence pursuant to
The Tribes counter that it is immaterial to the federalism analysis that a governor‘s
Despite the impact of gubernatorial inaction under
Nor does the gubernatorial concurrence provision obstruct the political accountability of the dual sovereigns. Because the provision does not require a governor to respond, each governor is solely responsible for the decision to grant, decline, or deny consideration of the request for concurrence. The inability to shift blame to Congress for the decision ensures that a governor will remain attuned to political pressure from his or her constituents. See New York v. United States, 505 U.S. at 168, 112 S.Ct. 2408 (“Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate‘s preferences; state officials remain accountable to the people.“). It is only when Congress mandates that state officials devote attention to a particular matter that the local electorate is rendered politically mute. In that instance, as in New York v. United States, no amount of lobbying will resonate with local lawmakers because the state‘s agenda is no longer within their control.
In addition, the procedure under
Lastly, the Tribes argue that the gubernatorial concurrence provision violates principles of federalism because it impermissibly interferes with the functioning of state government by rearranging its struc
The Tribes erroneously assume that
The establishment of a state lottery signals Wisconsin‘s broader public policy of tolerating gaming on Indian lands. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). In Cabazon, the Supreme Court held that a state has no authority to enforce its gaming laws on Indian lands if it permits any gaming activity under state law. Id. at 211, 107 S.Ct. 1083. Further, because IGRA permits gaming on Indian lands only if they are “located in a State that permits such gaming for any purpose by any person, organization or entity,”
The Tribes and the Governor of Wisconsin may not share an opinion of the overriding goal of Wisconsin‘s gaming policy, but they must concede that a gaming policy exists. When the Governor of Wisconsin considers the Secretary of the Interior‘s request for concurrence regarding an off-reservation gaming proposal, he or she will be informed by the public policy represented by the Wisconsin Constitution and relevant statutes. Thus, the Governor‘s decision regarding any particular proposal is not analogous to creating Wisconsin‘s gaming policy wholesale—a legislative function—but rather is typical of the executive‘s responsibility to render decisions based on existing policy. The governor‘s role is not inconsistent with the Wisconsin Constitution, which vests “the executive
Additionally, the Governor of Wisconsin‘s power to respond to the Secretary of the Interior‘s request for concurrence is not without a check in the Wisconsin Legislature. Indeed, on two occasions, the Wisconsin Legislature has attempted to curtail the Governor‘s power to concur. See 1999 Wis. Act 9, § 7(q), and 2003 Assembly Bill 144. Although the Legislature did not override the Governor‘s veto of either bill, the Wisconsin Constitution provides a mechanism for the Legislature to do so. See Wis. Const. Art. 5 § 10(2)(a). Moreover, the citizens of Wisconsin could render the gubernatorial concurrence provision a nullity by repealing the Constitutional amendments that sanction gaming in Wisconsin; if Wisconsin prohibited all gaming,
In conclusion, we hold that
E.
We now address the Tribes’ argument that the gubernatorial concurrence provision is in violation of the federal government‘s trust responsibility to Indians. The Tribes submit that the Indian Commerce Clause,
First, the Tribes argue that the trust doctrine cannot be severed from the Indian Commerce Clause. We disagree. The Supreme Court has acknowledged the “distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people,” Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942), and the “undisputed existence of a general trust relationship between the United States and the Indian people,” United States v. Mitchell, 463 U.S. 206, 225, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), yet it has not held that this obligation arises from any particular provision of the Constitution. Rather, the trust relationship arises from the United States’ unfortunate history of Indian policy, as is explained in the following paternalistic terms: “[i]n the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an
Despite the trust doctrine‘s lack of foundation in the Constitution, the Tribes seek to persuade this Court that all Indian legislation must be related rationally to furthering the federal government‘s trust obligation to Indians. In support, the Tribes cite Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 97 S.Ct. 911, 51 L.Ed.2d 173 (1977) for the proposition that “legislative judgment should not be disturbed ‘[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians ....‘” Weeks, 430 U.S. at 85, 97 S.Ct. 911 (quoting Morton v. Mancari, 417 U.S. at 555, 94 S.Ct. 2474).
In Morton, non-Indian employees of the Bureau of Indian Affairs (“BIA“) challenged the Indian Reorganization Act on the ground that the preference granted to qualified Indians for employment at the BIA constituted invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment. Id. at 537, 94 S.Ct. 2474. The purpose of the employment preference was to “give Indians a greater participation in their own self-government; to further the Government‘s trust obligation toward Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.” Id. at 542-43, 94 S.Ct. 2474 (internal footnotes omitted). Similarly, in Weeks, an Act of Congress was challenged on the grounds that it denied non-beneficiaries of Indian legislation the equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment. Weeks, 430 U.S. 73, 97 S.Ct. 911. At issue in Weeks was an authorization by Congress to disburse funds to certain Delaware Indians in order to redress the United States’ breach of a particular treaty. Id. It was challenged by a group of Delaware Indians who were excluded from the distribution. Id.
In both cases, the Supreme Court established that congressional legislation was subject to judicial review “to determine whether it violates the equal protection component of the Fifth Amendment.” Id. at 919 (citing Morton, 417 U.S. 535, 94 S.Ct. 2474). The Morton Court cautioned, however, that courts must consider the constitutional validity of Indian legislation in the “historical and legal context” of the United States’ trust obligation to Indians. Morton, 417 U.S. at 553, 94 S.Ct. 2474. The Supreme Court noted that “[l]iterally every piece of legislation dealing with Indian tribes ... single[s] out for special treatment a constituency of tribal Indians,” and that if such legislation were to be “deemed invidious racial discrimination, ... [that] the solemn commitment of the Government toward the Indians would be jeopardized.” Id. at 552, 94 S.Ct. 2474. Thus, in order to preserve Congress‘s ability to legislate in furtherance of the United States’ trust obligation to Indians, the Supreme Court held that “special treatment [that] can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians ... will not be disturbed.” The Supreme Court applied the Morton standard to the Fifth Amendment challenge in Weeks, and again upheld the Act of Con
To read Morton as requiring that all legislation enacted pursuant to the Indian Commerce Clause be rationally related to the United States’ trust obligation to Indians would be to take the Morton rule outside of the limited context in which it arose. Neither Morton nor Weeks holds that all legislation enacted pursuant to the Indian Commerce Clause be rationally related to the trust obligation. Rather, they hold that courts may not invalidate Indian legislation on the ground that the legislation offends the Due Process Clause of the Fifth Amendment if that legislation was enacted in furtherance of the trust obligation. See Weeks, 430 U.S. at 85, 90, 97 S.Ct. 911. In arguing that all Indian legislation must comply with the trust doctrine, the Tribes seek to impose a limitation on Congress‘s plenary power which has no basis in the Constitution and has not yet been recognized by the Supreme Court.
The Supreme Court has not yet invalidated a federal statute on the ground that it did not advance the federal government‘s trust obligation to Indian tribes. Indeed, even after concluding that an Act of Congress failed to comport with Congress‘s fiduciary responsibility to Indians, the Supreme Court refrained from acknowledging a cause of action on that ground. See United States v. Sioux, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). In Sioux, the Sioux Nation challenged the Congressional Act of February 28, 1877 (“the 1877 Act“) which had authorized the confiscation of lands that had been pledged by treaty to the Sioux Nation. Id. at 374, 100 S.Ct. 2716. Before evaluating the Sioux Nation‘s claim, the Supreme Court sought to answer a preliminary question: had Congress enacted the 1877 Act in its capacity as trustee and guardian of tribal property, or had Congress instead passed the 1877 Act in exercise of its power of eminent domain? Id. at 408, 416, 100 S.Ct. 2716. The Sioux Court endorsed the following test for distinguishing between the two types of Congressional action. If Congress had “made a good faith effort to give the Indians the full value of their lands,” then Congress had acted in its fiduciary capacity. Id. at 416, 100 S.Ct. 2716. In the event that it had not attempted to adequately compensate the Sioux, however, then Congress had exercised its power of eminent domain and effecting a taking for which just compensation was due under the Fifth Amendment. Id. at 408, 416, 100 S.Ct. 2716. Notably, the Supreme Court did not hold that Congress violated the trust doctrine by failing to make a “good faith effort” to “transmut[e]” the Sioux Nation‘s property for property of equal value, even though it acknowledged that a trustee would ordinarily be required to do so when dispensing of the property of her ward. See id. at 416, 100 S.Ct. 2716. The Sioux Nation prevailed in Sioux, but singularly on the ground that 1877 Act effected a taking under the Fifth Amendment. Id. at 423-24, 100 S.Ct. 2716. Thus, Sioux establishes that, in the context of congressional management of Indian land, the trust doctrine imposes no restriction on Congress beyond compliance with the constitutional restrictions which would otherwise constrain Congress‘s power.
Although Weeks states that a court should not refrain “from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment,” Weeks, 430 U.S. 73, 97 S.Ct. at 919, the Supreme Court has not yet held that an Act of Congress is subject to invalidation on the ground that it violates the federal government‘s general trust obligation to Indians. Thus, this
F.
Finally, we address the Tribes’ claim that the district court erred in denying their conditional motion to file a second amended complaint. In the event that the court upheld the gubernatorial concurrence provision, the motion requested that the Tribes be permitted to amend their complaint to add a claim that then-Governor McCallum had relied on improper factors when he refused to concur in the Secretary of the Interior‘s favorable determination. The Tribes submitted the conditional motion and supporting brief with their reply to the State and federal defendants’ cross-motion for judgment on the pleadings.
A “district court‘s denial of a motion to amend pleadings under Fed. R.Civ.P. 15(a) will be overturned on appeal only if it is shown that the district court abused [its] discretion by refusing to grant the leave without any justifying reason.” J.D. Marshall Intern., Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th Cir.1991). In this case, the district court denied the motion for leave to amend on the grounds that the Tribes had unduly delayed in bringing the claim and that allowing such an amendment would be a futility.
The Tribes concede that the facts that demonstrate the invalidity of Governor McCallum‘s withholding of concurrence were known to them when they filed their first amended complaint. In fact, they included those allegations in the first amended complaint, yet they did not assert the invalidity of the Governor‘s concurrence as a theory of relief at that time. Nor did the Tribes assert the claim in their memorandum in support of judgment on the pleadings. The first time that the Tribes advanced the theory that they now wish to present was in their combined reply brief in support of their motion for judgment on the pleadings and brief in response to the defendants’ cross-motions for judgment on the pleadings. The Tribes have not explained their failure to move to amend the complaint prior to that time.
The Tribes have not provided an adequate justification for the delay in stating the claim that they now wish to bring, see Kleinhans v. Lisle Savings Profit Sharing Trust, 810 F.2d 618, 625 (7th Cir.1987), nor have they explained why they failed to argue that claim in their brief in support of their motion for judgment on the pleadings. We therefore conclude that the district court did not abuse its discretion in denying the motion for leave to amend.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court in favor of the federal and State defendants in all respects.
Nicole DELGADO, Plaintiff-Appellant, v. James C. STEGALL and Western Illinois University, Defendants-Appellees.
No. 03-2700.
United States Court of Appeals, Seventh Circuit.
Argued April 5, 2004. Decided May 4, 2004.