State Ex Rel. Clark v. JohnsonState Ex Rel. Clark v. Johnson
- Reporters:
- , ,
- Before:
- Minzner
Petitioners filed a verified petition for writ of mandamus or writ of prohibition and declaratory judgment from this Court directed at Respondent, who is the Governor of the State of New Mexico. Attached to the petition was a copy of the “Compact and Revenue Sharing Agreement” entered into by the Governor of New Mexico with the Governor of Pojoaque Pueblo. The petition alleges that the Governor of New Mexico has entered into similar compacts and revenue-sharing agreements with the Presidents of the Jicarilla and Mescalero Apache Tribes, as well as the Governors of Acoma, Isleta, Nam-be, Sandia, Santa Ana, Santa Clara, San Felipe, San Ildefonso, San Juan, Taos, and Tesuque Pueblos pursuant to the Indian Gaming Regulatory Act (the Act or the IGRA). See
Petitioners generally contend that the Governor of New Mexico lacked the authority to commit New Mexico to these compacts and agreements, because he attempted to exercise legislative authority contrary to the doctrine of separation of powers expressed in the state Constitution. See
BACKGROUND
Congress enacted the IGRA in response to 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). In Cabazon Band, the Supreme Court upheld an Indian tribe’s right to conduct bingo games free from interference by the State of California. Id. The Cabazon Band decision rested on the principle that Indian tribes are sovereign entities and that federal law limits the applicability of state and local law to tribal Indians on reservations. Id. at 207, 107 S.Ct. at 1087. The IGRA also recognized the sovereign right of tribes to regulate gaming activity on Indian lands. However, with the IGRA, Congress attempted to strike a balance between the rights of tribes as sovereigns and the interests that states may have in regulating sophisticated forms of gambling. See S.Rep. No. 446, 100th Cong., 2d Sess. 13 (1988).
The IGRA establishes three classes of gambling: Class I gaming, social or ceremonial games; Class II gaming, bingo and similar games; and Class III gaming, all other gambling, including pari-mutuel horse racing, casino gaming, and electronic versions of Class II games. Id. at 3. The IGRA provides for a system of joint regulation of Class II gaming by tribes and the federal government and a system for compacts between tribes and states for regulation of Class III gaming. See id. at 13. The IGRA establishes a National Indian Gaming Commission as an independent agency with a regulatory role for Class II gaming and an oversight role with respect to Class III gaming.
Litigation under the IGRA has resulted in a number of published opinions. These cases have arisen most frequently in federal court on suits brought by Indian tribes to compel negotiation. See, e.g., Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422 (10th Cir.) (Indian tribes in New Mexico, Oklahoma, and Kansas sought injunctions requiring negotiation), petition for cert. filed, 63 U.S.L.W. 3477 (U.S. Dec. 9,1994) (Nos. 94-1029 & 94-1030). In these cases, one issue has been the effect of the Tenth and Eleventh Amendments of the United States Constitution.
In Ponca Tribe, the Tenth Circuit affirmed district court decisions dismissing the tribes’ suits against the Governors of Oklahoma and New Mexico. The Court of Appeals concluded that neither the Tenth nor the Eleventh Amendment barred the tribes’ actions against the states, but determined that injunctive relief against the governors themselves was barred.
In light of our Tenth Amendment analysis, IGRA does not require the states to regulate Class III gaming by entering into tribal-state compacts. Instead, the only obligation on the state is to negotiate in good faith. The act of negotiating, however, is the epitome of a discretionary act. How the state negotiates; what it per-, ceives to be its interests that must be preserved; where, if anywhere, that it can compromise its interests — these all involve acts of discretion. Thus, injunctive relief against the governors is barred under Ex parte Young [, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)]....
Additionally, .the tribes’ suits against the Governors are in reality suits against the respective states and thus not authorized-under the doctrine of Ex parte Young.
Id. at 1436 (citations omitted).
In November 1994, Respondent was elected Governor of New Mexico and formally assumed office on January 1, 1995. As part of his transition team, he appointed a negotiator to meet with various Indian tribal representatives to develop compacts and revenue-sharing agreements. The negotiations were successful. An affidavit by the Governor of San Felipe Pueblo, attached to the response of the Governor of New Mexico, indicates that the compact he signed was circulated in draft form to the media and members of the state legislature. The earliest of the compacts is dated February 13; the latest is dated March 1. The Governor of New Mexico’s response to the petition also indicates that the Secretary of the Interior approved eleven of the compacts on March 22, 1995. The petition was filed on April 20. Two additional compacts were approved effective May 15, 1995.
The compact with Pojoaque Pueblo is titled “A Compact Between the Pojoaque Pueblo and the State of New Mexico Providing for the Conduct of Class III Gaming.” The Governor of New Mexico does not dispute that the compact and revenue sharing agreement with Pojoaque Pueblo are representative of the other compacts and agreements he signed. Because they are the only documents in the record, we will discuss them specifically, but also as illustrative of all the other compacts and agreements the Governor of New Mexico has signed.
The Recitals in the Compact include the following:
WHEREAS, the State permits charitable organizations to conduct all forms of gaming wherein, for consideration, the participants are given an opportunity to win a prize, the award of which is determined by chance, including but not limited to all forms of casino-style games, and others, pursuant to§ 30-19-6, NMSA 1978 (1994 Repl.Pamp.); and
WHEREAS, the State also permits video pull-tabs and video bingo pursuant to §§ 60-2B-1 to -14, NMSA 1978’ (1991 Repl.Pamp.), Infinity Group, Inc. v. Manzagol, 118 N.M. 632, 884 P.2d 523 (1994); and
WHEREAS, the State permits pari-mutuel wagering pursuant to § 60-1-1 to -26, NMSA 1978 (1991 Repl.Pamp.) and §§ 60-2D-1 to -18, NMSA 1978 (1991 Repl. Pamp.); and
WHEREAS, such forms of Class III Gaming are, therefore, permitted in the State within the meaning of the IGRA,25 U.S.C. § 2710(d)(1)(B) ; and
WHEREAS, a Compact between the Tribe and the State for the conduct of Class III Gaming on Indian Lands will satisfy the State’s obligation to comply with federal law and fulfill the IGRA requirement for the lawful operation of Class III Gaming on the Indian Lands in New Mexico____
The compact further provides as follows:
The Tribe may conduct, only on Indian Lands, subject to all of the terms and conditions of this Compact, any or all Class III Gaming, that, as of the date this Compact is signed by the Governor of the State is permitted within the State for any purpose by any person, organization or entity, such as is set forth in the Recitals to this Compact[.]
Other recitals describe the Governor’s power to enter into the compact under the IGRA. They are:
WHEREAS, the Joint Powers Agreements Act, §§ 11-1-1 to -7, NMSA 1978 (1994 Repl.Pamp.), authorizes any two or more public agencies by agreement to jointly exercise any power common to the contracting parties (§ 11-1-3), and defined “public agency” to include Indian tribes and the State of New Mexico or any department or agency thereof (§ 11 — 1—2(A)); and
WHEREAS, the Mutual Aid Act, §§ 29-8-1 to -3, NMSA 1978 (1994 Repl.Pamp.), authorizes the State and any Indian tribe to enter into mutual aid agreements with respect to law enforcement; and
WHEREAS, Article V, § 4 of the Constitution of the State of New Mexico provides that “The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.”
These recitals indicate that in entering the compact, both the State and Tribal Governors believed that the Governor of New Mexico was authorized to bind the State of New Mexico with his signature. In challenging the Governor’s actions, Petitioners have relied on the Kansas Supreme Court per curiam decision in Finney I. There the Kansas Supreme Court held that:
[M]any of the provisions in the compact would operate as the enactment of new laws and the amendment of existing laws. The Kansas Constitution grants such power exclusively to the legislative branch of government . . . we conclude 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 has no power to bind the State to the terms thereof.
Id., 836 P.2d at 1185. For the reasons that follow, we conclude that New Mexico law is similar.
MANDAMUS
We initially consider whether, in light of the procedural posture of this case, a writ of mandamus is an appropriate remedy. Specifically, we examine three subissues: (1) whether Petitioners have standing to bring this action; (2) whether this action is properly before this Court in an original proceeding; and (3) whether a prohibitive writ of mandamus will issue to enjoin a state official from acting or whether it will only issue to compel an official to act.
In the case of State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974), a state senator sought a writ of mandamus to compel the Governor and other officials to treat as void certain partial vetoes. In considering the petitioner’s standing to bring that action, we said:
[I]t has been clearly and firmly established that even though a private party may not have standing to invoke the power of thisCourt to resolve constitutional questions and enforce constitutional compliance, this Court, in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.
Id. at 363, 524 P.2d at 979. Accordingly, we did not need to consider whether the petitioner’s status as a legislator, taxpayer, or citizen conferred standing in that case. In the present proceeding, two of the Petitioners are state legislators, and all three are voters and taxpayers. However, as in Sego, we need not consider whether those factors independently confer standing to bring this action because, as in Sego, the issues presented are of “great public interest and importance.” Id. Petitioners assert in the present proceeding that the Governor has exercised ■ the state legislature’s authority. Their assertion presents issues of constitutional and fundamental importance; in resolving those issues, we will contribute to this State’s definition of itself as sovereign. “We simply elect to confer standing on the basis of the importance of the public issues involved.” Id. More limited notions of standing are not acceptable. See id.; Hutcheson v. Gonzales, 41 N.M. 474, 491-94, 71 P.2d 140, 151-52 (1937); see generally Charles T. DuMars & Michael B. Browde, Mandamus in New Mexico, 4 N.M.L.Rev. 155, 170-72 (1974). We conclude that Petitioners have standing.
We next consider whether this case should more properly be brought in district court or whether it is properly before this Court in an original proceeding. Our state Constitution provides that this Court will “have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions.”
has never given rise to difficulty since the supreme court, irrespective of the statute, has regularly exercised original jurisdiction . . . [and SCRA 12-504(B)(l)(b) ] has given force and effect to the policy behind the statute, by requiring that an original petition which could have been brought in a lower court must set forth “the circumstances necessary or proper to seek the writ in the supreme court.”
DuMars & Browde, supra, at 157 (quoting the predecessor to SCRA 1986,12-504) (footnotes omitted). Such “circumstances” which justify bringing an original mandamus proceeding in this Court include “the possible inadequacy of other remedies and the necessity of an early decision on this question of ’ great public importance.” Thompson v. Legislative Audit Comm’n, 79 N.M. 693, 694-95, 448 P.2d 799, 800-01 (1968).
As we have said, this proceeding implicates fundamental constitutional questions of great public importance. Moreover, an early resolution of this dispute is desirable. The Governor asserts, and it has not been disputed, that several of the compacting tribes are in the process of establishing and building gambling resorts and casinos. These projects entail the investment of large sums of tribal money. Capital financing for these projects may well depend upon resolution of the issue presented in this case. Moreover, the relevant facts are virtually undisputed, we perceive no additional, factual questions that could be or should be answered in the district court, and the purely legal issues presented would have come eventually to this Court even if proceedings had been initiated in the district court. Accordingly, we conclude that the exercise of our original constitutional jurisdiction is appropriate in this cáse.
The final procedural issue is whether mandamus, which normally lies to compel a government official to perform a non-discretionary act, is a proper remedy by which to enjoin the Governor from acting unconstitutionally. This Court has never “insisted upon . . . a technical approach [to the application of mandamus] where there is involved a question of great public import,” Thompson, 79 N.M. at 694, 448 P.2d at 800, and where other remedies might be inadequate to address that question.
Prohibitory mandamus may well have been a part of New Mexico jurisprudence even before statehood. One nineteenth century
As the United States Supreme Court has observed, “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 2781, 77 L.Ed.2d 317 (1983). Although it is not within the province of this Court to evaluate the wisdom of an act of either the legislature or the Governor, it certainly is our role to determine whether that act goes beyond the bounds established by our state Constitution. As we said in State ex rel. Hovey Concrete Products Co. v. Mechem, 63 N.M. 250, 252, 316 P.2d 1069, 1070 (1957), overruled on other grounds by Wylie Corp. v. Mowrer, 104 N.M. 751, 726 P.2d 1381 (1986):
[D]eeply rooted in American Jurisprudence is the doctrine that state constitutions are not grants of power to the legislative, to the executive and to the judiciary, but are limitations on the powers of each. No branch of the state may add to, nor detract from its clear mandate. It is a function of the judiciary when its jurisdiction is properly invoked to measure the acts of the executive and the legislative branch solely by the yardstick of the constitution.
We conclude that Petitioners’ arguments raise allegations that support the use of prohibitory mandamus.
INDISPENSABLE PARTIES
The Governor has argued that the Tribes and Pueblos with whom he signed the compacts and agreements are indispensable parties to this proceeding. We disagree. In a mandamus case, a party is indispensable if the “performance of an act [to be compelled by the writ of mandamus is] dependent on the will of a third party, not before the court.” Chavez v. Baca, 47 N.M. 471, 482, 144 P.2d 175, 182 (1943). That is not the case here. Petitioners seek a writ of mandamus against the Governor of New Mexico, not against any of the tribal officials. Resolution of this case requires only that we evaluate the Governor’s authority under New Mexico law to enter into the compacts and agreements absent legislative authorization or ratification. Such authority cannot derive from the compact and agreement; it must derive from state law. This is not an action based on breach of contract, and its resolution does not require us to adjudicate the rights and obligations of the respective parties to the compact.
As an alternative to their argument that the Governor lacked authority to enter into the compact, Petitioners assert that the disputed compact violates limitations in the IGRA on the permissible scope of any gaming compact. We address this argument first because an analysis of New Mexico’s gambling laws, and the public policies expressed therein, is relevant to the question of whether the Governor has infringed legislative authority in signing the compacts.
Under the IGRA, Class III gaming activities are lawful on Indian lands only if such activities are conducted pursuant to a tribal-state compact and are “located in a State that permits such gaming for any purpose by any person, organization, or entity.”
Petitioners argue that
The question raised by Petitioners’ argument is what forms of Class III gaming New Mexico “permits” within the meaning of
We do not agree with the Governor’s broad assertion that any and all forms of “casino-style” gaming, such as the ones we have described, would be allowed under
It is true, as the Governor has asserted, that the statutory definition of a “lottery” in Article 19, Section 30 of the Criminal Code is extremely broad. “Lottery” is defined in the Criminal Code as “an enterprise wherein, for a consideration, the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill.”
We think that most of the forms of “casino-style” games we have described could just as easily fall within the definition and prohibition against “betting” as within the broad definition of “lottery.” The question, as we see it, would be whether that form of gaming or gambling is more like “making a bet” or conducting or participating in a “lottery.” If it was the former, the activity would still be illegal in all circumstances despite the effect of the permissive lottery statute. 1
Moreover, we think the term “lottery” as used in
We have no doubt that the compact and agreement authorizes more forms of gaming than New Mexico law permits under any set of circumstances. We need not decide which forms New Mexico permits. The legislature of this State has unequivocally expressed a public policy against unrestricted gaming, and the Governor has taken a course contrary to that expressed policy. That fact is relevant in evaluating his authority to enter into the compacts and revenue-sharing agreements. Further, even if our laws allowed under some circumstances what the compact terms “casino-style” gaming, we conclude that the Governor of New Mexico negotiated and executed a tribal-state compact that exceeded his authority as chief executive officer. To reach this conclusion, we first consider the separation of powers doctrine and then consider the general nature of the Pojoaque compact as representative of all of the compacts the Governor of New Mexico signed.
The New Mexico Constitution vests the legislative power in the legislature,
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted____
Despite the strict language of Article III, Section 1, this Court has previously said that “[t]he constitutional doctrine of separation of powers allows some overlap in the exercise of governmental function.” Momrer v. Rusk, 95 N.M. 48, 53, 618 P.2d 886, 891 (1980). This common sense approach recognizes that the absolute separation of governmental functions is neither desirable nor realistic. As one state court has said, separation of powers doctrine “does not mean an absolute separation of functions; for, if it did, it would really mean that we are to have no government.” Sabre v. Rutland R. Co., 86 Vt. 347, 85 A. 693, 699 (1913). Recognizing, as a practical matter, that there cannot be absolute compartmentalization of the legislative, executive, and judicial functions among the respective branches, we must nevertheless give effect to Article III, Section 1. Accordingly, we have not been reluctant to intervene when one branch of government unduly “interfere[d] with or encroach[ed] on the authority or within the province of’ a coordinate branch of government. Mowrer, 95 N.M. at 54, 618 P.2d at 892 (quoting Smith v. Miller, 153 Colo. 35, 384 P.2d 738, 741 (1963)).
This Court has previously held that Article III, Section 1 mandates that it is the Legislature that creates the law, and the Governor’s proper role is the execution of the laws. State v. Fifth Judicial Dist. Court, 36 N.M. 151, 153, 9 P.2d 691, 692 (1932); see also State v. Armstrong, 31 N.M. 220, 255, 243 P. 333, 347 (1924) (recognizing that the Legislature has “the sole power of enacting law”). Our task, then, is to classify the Governor’s actions in entering into the gaming compacts. Although the executive, legislative, and judicial powers are not “‘hermetically’ sealed,” they are nonetheless “functionally identifiable” one from another. Chadha, 462 U.S. at 951, 103 S.Ct. at 2784. If the entry into the compacts reasonably can be viewed as the execution of law, we would have no difficulty recognizing the attempt as within the Governor’s authority as the State’s chief executive officer. If, on the other hand, his actions in fact conflict with or infringe upon what is the essence of legislative authority — the making of law — then the Governor has exceeded his authority.
APPLICATION OF THE DOCTRINE OF SEPARATION OF POWERS TO THE COMPACT WITH POJOAQUE PUEBLO
The Governor may not exercise power that as a matter of state constitutional law infringes on the power properly belonging to the legislature. We have no doubt that the compact with Pojoaque Pueblo does not execute existing New Mexico statutory or ease law, but that it is instead an attempt to create new law. Cf. Texas v. New Mexico, 462 U.S. 554, 564, 103 S.Ct. 2558, 2565, 77 L.Ed.2d 1 (1983) (holding that, upon approval by Congress, a compact between states becomes federal law that binds the states); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560-561, 95 L.Ed. 713 (1951) (characterizing an interstate compact as a “legislative means” by which states resolve interstate dispute). However, that in itself is not dispositive. The test is whether the Governor’s action disrupts the proper balance between the executive and legislative branches. See Board of Educ. v. Harrell, 118 N.M. 470, 484, 882 P.2d 511, 525 (1994). In Nixon v. Administrator of General Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977), the United States Supreme Court said:
[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which [the action by one branch prevents another branch] from accomplishing its constitutionally assigned functions. United States v. Nixon, 418 U.S. at 711-12 [94 S.Ct. at 3109-10]. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. Ibid.
Id. (citation omitted). One mark of undue disruption would be an attempt to foreclose legislative action in areas where legislative authority is undisputed. The Governor’s present authority could not preclude fixture legislative action, and he could not execute an agreement that foreclosed inconsistent legislative action or precluded the application of such legislation to the agreement. The compact with Pojoaque Pueblo and those of which it is representative cannot be said to be consistent with these principles.
The terms of the compact with Pojoaque Pueblo give the Tribe a virtually irrevocable and seemingly perpetual right to conduct any form of Class III gaming permitted in New Mexico on the date the Governor signed the agreement. See Compact Between the Pojoaque Pueblo and the State of New Mexico, at 4. Arguably, even legislative change could not affect the Tribe’s ability to conduct Class III gaming authorized under the original compact. The compact is binding on the State of New Mexico for fifteen years, and it is automatically renewed for additional five-year periods unless it has been terminated by mutual agreement. Id. at 27. Any action by the State to amend or repeal its laws that had the effect of restricting the scope of Indian gaming, or even the attempt to directly or indirectly restrict the scope of such gaming, terminates the Tribe’s obligation to make payments to the State of New Mexico under the revenue-sharing agreement separately entered into between the Governor and Pojoaque Pueblo. See Tribal-State Revenue Sharing Agreement, ¶ 5(A). 2
We also find the Governor’s action to be disruptive of legislative authority because the compact strikes a detailed and specific balance between the respective roles of the State and the Tribe in such important matters as the regulation of Class III gaming activities, the licensing of its operators, and the respective civil and criminal jurisdictions of the State and the Tribe necessary for the enforcement of state or tribal laws or regulations. All of this has occurred in the absence of any action on the part of the legislature. While negotiations between states and Indian tribes to address these matters is expressly contemplated under the IGRA, see
Moreover, it is undisputed that New Mexico’s legislature possesses the authority to prohibit or regulate all aspects of gambling on non-Indian lands. Pursuant to this authority, our legislature has, with narrow exceptions, made for-profit gambling a felony,
Our conclusion that the Governor lacks authority to enter into the disputed compacts gains support from Justice Robert H. Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-55, 72 S.Ct. 863, 869-80, 96 L.Ed. 1153 (1952). In that case, the Supreme Court faced the issue of whether President Truman had exceeded his constitutional authority by issuing an executive order directing the Secretary of Commerce to assume control of a number of steel mills. The President issued this order during the Korean War when the mills became incapacitated by a labor dispute. President Truman justified the seizure on the grounds that (1) he was the commander in chief of the armed forces, and (2) various statutes gave the President special emergency war powers. The Court struck down the President’s action, holding that it was beyond the scope of Presidential authority. Id. at 589, 72 S.Ct. at 867-68. Noting that the seizure was contrary to the will of Congress, Justice Jackson wrote in a famous concurring opinion:
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting on the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Id. at 637-38, 72 S.Ct. at 871 (Jackson, J., concurring) (footnote omitted).
Since 1923, the State of New Mexico has entered into at least twenty-two different compacts with other sovereign entities, including the United States and other states.
3
These agreements encompass such widely diverse governmental purposes as interstate water usage and cooperation on higher education. In every ease, New Mexico entered into the compact with the enactment of a statute by the legislature. Apart-from non-discretionary ministerial duties,
4
the Governor’s role in the compact approval process has heretofore been limited to approving or vetoing
5
the legislation that approves the compact. This is the Governor’s role with respect to all legislation passed by the legislature. See
Residual governmental authority should rest with the legislative branch rather than the executive branch. The state legislature, directly representative of the people, has broad plenary powers. If a state constitution is silent on a particular issue, the legislature should be the body of government to address the issue. See Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923, 926 (1991). Cf. Fair Sch. Fin. Council v. State, 746 P.2d 1135, 1149 (Okla.1987) (under state constitution, a legislature may generally do “all but that which it is prohibited from doing”); State ex inf. Danforth v. Merrell, 530 S.W.2d 209, 213 (Mo.1975) (en banc) (state legislature “has the power to enact any law not prohibited by the constitution”); House Speaker v. Governor, 195 Mich.App. 376, 491 N.W.2d 832, 839 (1992) (“Any legislative power that the Governor possesses must be expressly granted to him by the constitution.”). We conclude that the Governor lacked authority under the state Constitution to bind the State by unilaterally entering into the compacts and revenue-sharing agreements in question.
NEW MEXICO STATUTORY AUTHORITY
In Willis v. Fordice, 850 F.Supp. 523 (S.D.Miss.1994), aff‘d, 55 F.3d 633 (1995) (No. 94-60299), the court upheld the governor’s authority to enter into a gaming compact. There, however, the court specifically relied on a Mississippi statute that provides the governor with authority to transact “ ‘all the business of the state . . . with any other state or territory.’ ” Id. at 532 (quoting
An analysis of the Joint Powers Agreement Act,
Likewise, the Mutual Aid Act,
APPLICABILITY OF FEDERAL LAW
The Governor argues that even if he lacked the authority under state law to enter into the compact, it is nonetheless binding upon the State of New Mexico as a matter of federal law. Along these same lines, he also argues that he possesses the authority, as a matter of federal law, to bind the State to the terms of the compact, irrespective of whether he has the authority as a matter of state law. We find the Governor’s argument on these points to be inconsistent with core principles of federalism. The Governor has only such authority as is given to him by our state Constitution and statutes enacted pursuant to it. Cf. Rapp v. Carey, 44 N.Y.2d 157, 404 N.Y.S.2d 565, 375 N.E.2d 745, 750 (1978) (holding that the governor of New York “has only those powers delegated to him by the [state] Constitution and the statutes”). We do not agree that Congress, in enacting the IGRA, sought to invest state governors with powers in excess of those that the governors, possess under state law. Moreover, we are confident that the United States Supreme Court would reject any such attempt by Congress to enlarge state gubernatorial power. Cf. Gregory, 501 U.S. at 460, 111 S.Ct. at 2400 (recognizing that “[t]hrough the structure of its government . . . a State defines itself as a sovereign”); New York v. United States, 505 U.S. 144, 176, 112 S.Ct. 2408, 2428, 120 L.Ed.2d 120 (1992) (striking down an act of Congress on the ground that principles of federalism will not permit Congress to “ ‘commandeerf ] the legislative processes of the States’ ” by directly compelling the states to act (quoting Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288, 101 S.Ct. 2352, 2366, 69 L.Ed.2d 1 (1981))); United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (striking down federal school gun ban on the ground that it is not substantially related to interstate commerce, and therefore unconstitutionally usurps state sovereignty).
We entertain no doubts that Congress could, if it so desired, enact legislation legalizing all forms of gambling on all Indian lands in whatever state they may occur. See Morton v. Mancari, 417 U.S. 535, 551-52, 94 S.Ct. 2474, 2483-84, 41 L.Ed.2d 290 (1974). That is, however, not the course that Congress chose. Rather, Congress sought to give the states a role in the process. See S.Rep. No. 446, 100th Cong., 2d Sess. 13. It did so by permitting Class III gaming only on those Indian lands where a negotiated compact is in effect between the state and the tribe.
CONCLUSION
Under federal law as expressed in the IGRA, Class III gaming activities are lawful on Indian land only if the State permits such gaming “for any purpose by any person, organization, or entity.” The compacts negotiated and signed by the Governor authorize gaming that New Mexico law does not permit. For example, New Mexico law does not permit “all forms of casino-style games” as stated in the recitals in the compact with Pojoaque Pueblo.
In addition, the New Mexico Constitution requires legislative approval or ratification of compacts that are otherwise in conflict with state gambling statutes. Under state constitutional separation of powers, the Governor may neither infringe upon legislative authority with respect to existing law nor with respect
The IGRA does not purport to expand state gubernatorial power. The Governor’s power to negotiate and sign the compacts derives from the state constitution and state statutes.
Based on our interpretation of state gambling laws as making casino-style gaming illegal, state constitutional law as limiting the authority of the executive branch, and the IGRA as not purporting to expand state gubernatorial power, we conclude that the compacts executed by the Governor are without legal effect and that no gaming compacts exist between the Tribes and Pueblos and the State of New Mexico. Thus New Mexico has not entered into any gaming compact that either the Governor or any other state official may implement.
For these reasons we now issue the peremptory writ and stay. We stay all actions to enforce, implement, or enable any and all of the gaming compacts and revenue-sharing agreements executed by the Governor, and we direct the Governor and all other state officials subject to his authority to proceed in conformity with the views of this Court expressed herein concerning (1) the legality of casino-style gaming; (2) the limitations imposed on the executive branch by Article III, Section 1 of the New Mexico Constitution; and (3) the compacts’ lack of legal effect.
IT IS SO ORDERED.
BACA, C.J., RAMSOM and FRANCHINI, JJ., and DONNELLY, J., court of appeals, sitting by designation, concur.APPENDIX A: INTERSTATE COMPACTS
1. 1923 N.M.Laws, ch. 6, § 1 (now codified at
2. 1923 N.M.Laws, ch. 7, § 1 (now codified at
APPENDIX A: INTERSTATE COMPACTS— Continued
3. 1933 N.M.Laws, ch. 166 (now codified at
4. 1937 N.M.Laws, ch. 10, § 1 (now codified at
5. 1939 N.M.Laws, ch. 33, § 1 (now codified at
6. 1945 N.M.Laws, ch. 51, § 1 (now codified at
7. 1949 N.M.Laws, ch. 5, § 1 (now codified at
8. 1951 N.M.Laws, ch. 4, § 1 (now codified at
9. 1951 N.M.Laws, ch. 138, § 3 (now codified at
10. 1959 N.M.Laws, ch. 112, § 1 (now codified at
11. 1967 N.M.Laws, ch. 201, § 2 (now codified at
12. 1969 N.M.Laws, ch. 20, § 2 (now codified at
13. 1969 N.M.Laws, ch. 40, § 1 (now codified at
14. 1969 N.M.Laws, ch. .57, § 1 (now codified at
15. 1971 N.M.Laws, ch. 270, § 1 (now codified at
16. 1972 N.M.Laws, ch. 19, § 1 (now codified at
APPENDIX A: INTERSTATE COMPACTS — Continued
17. 1978 N.M.Laws, eh.
18. 1977 N.M.Laws, ch. 151, § 2 (now codified at
19. 1982 N.M.Laws, ch. 89, § 1 (now codified at
20. 1983 N.M.Laws, ch. 20, § 2 (now codified at NMSA 1978, § 11-9A-2 (Repl. Pamp.1994)). Rocky Mountain Low-Level Radioactive Waste Compact.
21. 1985 N.M.Laws, ch. 133, § 1 (now codified at NMSA 1978, § 40-7B-1 (Repl. Pamp.1994)). Interstate Compact on Adoption and Medical Assistance.
22. 1987 N.M.Laws, ch. 239, § 1 (now codified at
Notes
. The legislature appears to have intended to make these two categories, betting versus lotteries, mutually exclusive; a lottery is specifically excluded from the definition of betting. See § 30 — 19—1(B)(3). Thus, a particular form of gaming or gambling would necessarily fall under one or the other of these definitions. In most cases involving the prosecution of illegal gambling whether the activity was considered “making a bet” or participating in a “lottery” would be unimportant; both represent criminal activity, and they are treated equally under the law. See
. Under this agreement, three to five percent of the “net win” derived from Class III gaming on the Pojoaque Pueblo would be paid to the State of New Mexico and divided between state and local government.
. Appendix A includes a listing of these compacts.
. For example, the legislation whereby New Mexico entered into an interstate compact regarding parole and probation provided: “The Governor of this state is hereby authorized and directed to execute a compact on behalf of the State of New Mexico . . . in the form substantially as follows____” 1937 N.M.Laws ch. 10, § 1.
.The Governor of New Mexico has vetoed at least one interstate compact. In 1925, the governor vetoed the Pecos River Compact after it had been approved by the legislatures of Texas and New Mexico. See Letter from A.T. Hannett, Governor, to the New Mexico Senate (March 14, 1925) (reprinted in Senate Journal of the Seventh iLegislature 423 (1925)).
. The list includes neither the Governor nor executive officers. Application of the principle of expressio unius est exclusio alterius supports the conclusion that the framers of this statute did not intend to include the Governor as a “public agency.” See Bettini v. City of Las Cruces, 82 N.M. 633, 635, 485 P.2d 967, 969 (1971).