S238544
IN THE SUPREME COURT OF CALIFORNIA
August 31, 2020
Third Appellate District C075126; Sacramento County Superior Court 34-2013-80001412CUWMGDS
Justice Cuéllar authored the opinion of the Court, in which Justices Chin, Corrigan, Kruger, and Fybel* concurred.
Chief Justice Cantil-Sakauye filed a dissenting opinion, in which Justice Liu concurred.
Opinion of the Court by Cuéllar, J.
This is a case about how California law applies to the delicate juncture of executive power, federalism, and tribal sovereignty. Under the federal
What we hold is that California law empowers the Governor to concur. As amended in 2000, the
These markers of the legal terrain help us map a zone of twilight between the powers of the Governor and the Legislature. But they also convey why legislative changes can, by bringing any implicit gubernatorial power to “its lowest ebb” in this domain, restrict or eliminate the Governor’s concurrence power. (Youngstown Co. v. Sawyer (1952) 343 U.S. 579, 637 (conc. opn. of Jackson, J.) (Youngstown).) Because the Legislature has imposed no such restriction, however, we conclude the Governor acted lаwfully when he concurred in the Interior Secretary’s determination. The Court of Appeal reached the same conclusion, so we affirm.
I.
The
A.
Long before this country’s founding, Indian tribes already existed as “self-governing sovereign political communities,” each with their own distinct lands. (United States v. Wheeler (1978) 435 U.S. 313, 322–323.) Tribes haven’t “possessed [] the full attributes of sovereignty” since the federal Constitution was signed, but they remain a “separate people, with the power of regulating their internal and social relations.” (United States v. Kagama (1886) 118 U.S. 375, 381–382.) Yet that power is bounded, too: Under the Indian commerce clause of the
Yet from the start, federal and state governments sought to curtail gaming on Indian land. (See Indian Gaming Regulatory Act, Hearing before House Com. on Interior and Insular Affairs on H.R. No. 964 and H.R. No. 2507, 100th Cong., 1st Sess., at p. 158 (1987), written testimony of Sen. Reid [unless Indian gaming is regulated, “the hope for controlling organized crime in this country will be lost forever“].) To prevent the perverse consequences some legislators believed would arise from such activities, Congress enacted legislation such as the Johnson Act of 1951 (
Because of Congress’s plenary power over Indian affairs, states initially lacked the authority to regulate tribal gaming. But in 1953, Congress enacted
B.
Congress responded to Cabazon’s new strictures on state regulation of Indian gaming by enacting IGRA. (
This dispute concerns class III gaming. All forms of gaming that aren’t covered by class I or class II gaming come within the ambit of class III — including casino-style games such as slot machines, roulette, and blackjack. (
IGRA also imposes additional requirements for Indian tribes wishing to conduct class III gaming on certain types of land. The federal government
C.
In 2002, the Enterprise Rancheria of Maidu Indians (the Enterprise Tribe) made a request culminating in the gubernatorial concurrence at the heart of this case. The tribe sought for the Interior Secretary to acquire land in Yuba County in trust on the tribe’s behalf so the Enterprise Tribe could build a casino featuring class III gaming. Before taking the land into trust, the Interior Secretary determined that the proposed venue was in the best interest of the tribe and wasn’t detrimental to the surrounding community. In accordance with IGRA’s requirements, the Interior Secretary notified the Governor in 2011 and sought his concurrence in the determination.
Nearly a decade after the Enterprise Tribe’s initial request, in 2012, the Governor concurred. He explained that conducting class III gaming on that land would “directly benefit” a “large tribal population” of “more than 800 native Californians who face serious economic hardship.” (Governor Edmund G. Brown, Jr., letter to Interior Secretary Kenneth L. Salazar, Aug. 30, 2012.) The casino would “create jobs and generate revenue for Yuba County,” which had “a 16% unemployment rate” at the time. (Ibid.) On the same day he sent his concurrence letter, the Governor executed a tribal-state gaming compact between the state and the Enterprise Tribe. A few months later, the Interior Secretary took the land into trust for the Enterprise Tribe.
United Auburn Indian Community owns and operates the Thunder Valley Casino Resort, located about 20 miles
that the Governor’s concurrence was unlawful under state law, United Auburn filed a petition for a writ of mandate and complaint for injunctive relief. The Governor demurred to the complaint, arguing that the
The Court of Appeal affirmed. It rejected each of United Auburn’s contentions: that the Governor lacked the power to concur under California law, that the Governor’s concurrence was a legislative act that violated the separation of powers, and that the Governor exceeded his authority by entering into compact negotiations for land that hadn’t yet been taken into trust by the Interior Secretary. (United Auburn Indian Community of the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, 54.) Shortly after that decision, a different appellate court held that the Governor lacked the authority to concur in the Interior Secretary’s determination. (Stand Up for California! v. State of California (2016) 6 Cal.App.5th 686, 705.) We granted review to resolve the split.
II.
Under IGRA, the Interior Secretary may allow class III gaming on land the federal government takes into trust for an Indian tribe after IGRA was enacted if she determines that gaming would be in the best interest of the tribe and would not be detrimental to the surrounding community. But it is only with the concurrence of the Governor from the state where gaming would occur that IGRA allows the Interior Secretary’s decision to take effect. (
The power of the Governor is rooted in our state Constitution and further structured by statutes that must themselves conform to constitutional constraints. (See generally
The
legalization in California of casino gambling.” (Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 589; see
That prohibition lasted until 2000. That year, California voters enacted Proposition 1A, which amended the Constitution to give the Governor
The parties agree that Proposition 1A provides the starting point for our analysis. They also agree that Proposition 1A doesn’t expressly grant the Governor the power to concur — it only authorizes him “to negotiate and conclude compacts . . . for the operation of slot machines and [other class III gaming].” (
B.
The Governor’s initial argument is a sweeping one: He contends that, although Proposition 1A doesn’t expressly grant the Governor the power to concur, it nevertheless “presupposes that the Governor possesses [that] power.” Because Proposition 1A allows casino-style gaming “in accordance with federal law,” and because federal law — IGRA — is designed on the premise that state governors may concur in the Interior Secretary’s determination to allow gaming on that land, the Governor argues that the
That Proposition 1A, by itself, falls short of granting the Governor the power to concur does not resolve the question before us. Even in the
United Auburn contends that even if inherent and implied powers are within the ambit of the Governor’s authority, the power to concur in the Interior Secretary’s determination isn’t among them. Its argument is rooted in
That argument, however, overlooks the pivotal role Proposition 1A plays in the story of how California has regulated gaming. That ballot initiative amended the
That assertion clashes with the meaning of Indian land under federal law. IGRA defines “Indian lands” to include “any lands title to which is [] held in trust by the United States for the benefit of any Indian tribe or individual.” (
United Auburn then seeks to buttress its argument by offering a somewhat different definition of “tribal lands” and “Indian lands“: land recognized as Indian land when IGRA was enacted, but not after. This proposed interpretation of the terms pivots not on whether casino-style gaming would require the Governor’s concurrence, but instead on whether the Indian land was acquired after IGRA was enacted — irrespective of whether that land has become “Indian” or “tribal” land “under federal law” in the decades since IGRA’s effective date.
We are not persuaded. United Auburn’s contention lacks support in the language of Proposition 1A, which explicitly empowers the Governor to negotiate and conclude compacts for class III gaming on “Indian lands . . . in accordance with federal law” and “permit[s]” class III gaming “on tribal lands subject to those compacts.” (
What we find more persuasive is the most reasonable inference from Proposition 1A’s text and context: The terms
“Indian” and “tribal” lands — which appear in close proximity to the phrase “in accordance with federal law” — are best understood, as they are under federal law, to include Indian reservation land and all land the federal government has acquired in trust for
That Indian land encompasses reservation land as well as land taken into trust for Indian tribes bears on another of United Auburn‘s arguments. It points our attention to the fact that Proposition 1A empowers the Governor only “to negotiate and conclude compacts” for gaming on Indian land — not to concur in the Interior Secretary‘s determination. (
We agree that the power to negotiate compacts with Indian tribes does not, by itself, imply the power to concur. But neither does Proposition 1A‘s failure to expressly mention the power to concur imply any sort of limitation on the Governor‘s inherent powers — including his power to concur. The ballot initiative amended the Constitution to bestow the Governor with the power “to negotiate and conclude compacts for the operation of [casino-style gaming] . . . on Indian lands in California.” (
Suppose voters had limited the Governor‘s compacting power to land on which casino-stylе gaming could occur without his concurrence. One might then reasonably expect that the Proposition would have limited the Governor‘s power to negotiate compacts only where the land in question was “reservation land,” land designated as “Indian land” before IGRA was enacted, or “Indian land not requiring a concurrence.” Yet nothing close to this limitation appears in the language of Proposition 1A. (Cf. City of Port Hueneme v. City of Oxnard (1959) 52 Cal.2d 385, 395 [a statute‘s omission of a term used elsewhere ” ‘is significant to show’ ” a different intended purpose].) What Proposition 1A‘s language conveys instead is that the Governor‘s power to negotiate and conclude compacts for class III gaming extends to all land that counts as “Indian” or “tribal” under federal
Unable to ground its argument in the four corners of the ballot proposition, United Auburn seeks firmer footing in Proposition 1A‘s ballot materials. It explains that Proposition 1A‘s proponents advocated for passage of the ballot proposition “so we can keep the gaming we have on our reservations.” (Voter Information Guide, Primary Elec. (Mar. 7, 2000) argument in favor of Prop. 1A, p. 6.) United Auburn also contends that the primary motivation for Proposition 1A appears to have been to ratify 57 compacts that California had negotiated before 2000 — compacts for land on which gaming could occur without the Governor‘s concurrence. (Id., analysis of Prop. 1A by Legis. Analyst, pp. 4–5.) And it calls our attention to a back-and-forth exchange between supporters and opponents of the initiative included in the ballot materials, in which proponents of Proposition 1A wrote: ” ‘Proposition 1A and federal law strictly limit Indian gaming to tribal land. The [opponents‘] claim that casinos cоuld be built anywhere [if Proposition 1A is enacted] is totally false.’ ” (Id., rebuttal to argument against Prop. 1A, p. 7.)
It‘s true that ballot materials sometimes illuminate how we interpret voter initiatives. (See People v. Valencia (2017) 3 Cal.5th 347, 364.) But these materials don‘t support the weight United Auburn hoists onto them, and they don‘t override our understanding of Proposition 1A‘s language: that class III gaming may occur on Indian land. (See California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 934 (California Cannabis Coalition) [“we may consider extrinsic sources, such as an initiative‘s ballot materials” only if “the provision[‘s] intended purpose [] remains opaque” after analysis of its text].) The Governor‘s interpretation, too, fits with the maxim of Proposition 1A‘s proponents: That the proposed ballot initiative ” ‘strictly limit[s] Indian gaming to tribal land,’ ” and that ” ‘the claim[s] that casinos could be built anywhere is totally false.’ ” (Voter Information Guide, Primary Elec. (Mar. 7, 2000) rebuttal to argument against Prop. 1A, p. 7.) Class III gaming, after all, may occur only on reservation land or land the federal government has converted to Indian land by taking it into trust for an Indian tribe. We acknowledge that the language included in these materials arguably supports the conclusion that the predominant rationale behind Proposition 1A was to allow Indian tribes to conduct class III gaming on land for which the Governor‘s concurrence wasn‘t required — including on land for which California had negotiated 57 compacts before 2000. What the materials do not suggest, however, is that the
In response to this line of argument, the dissent invokes a private website, www.yeson1A.net, that Proposition 1A‘s proponents cited in their rebuttal to arguments against the ballot proposition. Because that website “equated ‘Indian lands’ and ‘tribal lands’ with ‘reservation lands,’ and indicated that tribal casinos would be limited to these lands,” the dissent contends, voters would have construed Proposition 1A to authorize casinos only on Indian reservations. (Dis. opn., post, at p. 22, fn. 4.) Not even United Auburn advances such a narrow construction of Proposition 1A — as we‘ve explained, both definitions of “Indian” and “tribal” lands offered by United Auburn encompass some kinds of Indian trust land in addition to Indian reservations. Taking account of a private website that showed up as a link in one of the ballot statements — even if there‘s no particular evidence that many voters examined its contents — could conceivably make sense in light of how we consider appropriate extrinsic sources when the initiatives we interpret are unclear. (See California Cannabis Coalition, supra, 3 Cal.5th at p. 934.) What makes less sense is to give outsized importance to its peculiar interpretation when there‘s no particular logic or argument persuasively supporting its theory, and it goes beyond what the ballot materials themselves imply. In any event, we parse the website differently. The website‘s homepage explained that “Prop 1A . . . simply allows federally-recognized California tribes to continue to have gaming on federally-designated tribal land, as provided by federal law” — and the very next sentence identified IGRA as the relevant federal law. (Yes on 1A, Proposition 1A . . . The California Indian Self-Reliance Amendment on the March 2000 State Ballot (Mar. 6, 2000) <http://digital.library.ucla.edu/websites/2000_999_028/> [as of Aug. 28, 2020].) The dissent cites a different portion of the website, but the point it conveys is the same: It stated that “federal law strictly limits tribal gaming to Indian lands only” before explaining that Congress enacted “[t]he Indian Gaming Regulatory Act . . . in 1988.” (Yes on 1A, Proposition 1A: Answers to Common Questions (Mar. 6, 2000) <http://digital.library.ucla.edu/websites/2000_999_028/> [as of Aug. 28, 2020].)
Elsewhere the dissent suggests that Proposition 1A may have used “Indian lands” as a term of art — one referring to “reservation lands and after-acquired trust lands for which no concurrence is required.” (Dis. opn., post, at p. 19.) Like United Auburn, however, the dissent fails to persuasively explain why the “Indian lands” term of art would happen to encompass only those trust lands on which gaming may occur without the Governor‘s concurrence, but not other trust lands which require the Governor‘s concurrence for class III gaming. That federal law draws a line to distinguish “Indian lands” from other lands is not in dispute. What that line fails to do is draw any distinction
Nor have we any reason to conclude that our interpretation would “put[] gambling casinos right in everyone‘s backyard,” as opponents of Proposition 1A warned. (Voter Information Guide, Primary Elec. (Mar. 7, 2000) argument against Prop. 1A, p. 7.) Amicus curiae North Fork Rancheria observes that the Interior Secretary has requested gubernatorial concurrences only 16 times nationwide in the 31 years since IGRA was enacted, and state governors have concurred in only 10 of those determinations. So in the subset of instances where the Interior Secretary agrees that land held in trust for a tribe may be used for gaming, the required gubernatorial concurrence further narrows where gaming may occur.7
We find no reason to conclude from these ballot materials, from Proposition 1A‘s language, or from any other provision of the California Constitution that the Governor is barred from concurring in the Interior Secretary‘s determination to allow class III gaming on land taken into trust for an Indian tribe after IGRA was enacted. What we find instead is that
C.
United Auburn also argues that separation of powers concerns cut against recognition of a concurrence power here. Even if the California Constitution — as amended by Proposition 1A — doesn‘t prohibit the Governor from concurring in the Interior Secretary‘s determination, United Auburn posits, the Governor lacks that power because concurring is a legislative function, not an executive one. To find otherwise, claims United Auburn, infringes on the Legislature‘s prerogatives. That the language enshrined in the Constitution by Proposition 1A appears in article IV of the Constitution — a section that contains other legislative powers — underscores for United Auburn that concurrence is a legislative function.
Although we endeavor to read constitutional provisions in context, the placement of a provision isn‘t dispositive to our analysis. Consider the constitutional provision authorizing this court to recommend (or decline to recommend) that an application for executive pardon or clemency be granted to a defendant who has been “twice convicted of a felony.” (
Nor can we assume, as United Auburn‘s argument presumes, that we can in every instance neatly disaggregate executive, legislative, and judicial power. Treating these domains as entirely separate and independent spheres contrasts with the more nuanced treatment of these powers — and their frequent overlap — under our state constitutional system. (See Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52 [“California decisions long have recognized that, in reality, the separation of powers doctrine ’ “does not mean that the three departments of our government are not in many respects mutually dependent” ’ “].) Indeed, our Constitution‘s history “strongly supports a flexible, nonformalist understanding of separation of powers in which the functions of the offices are fluid.” (Zasloff, Taking Politics Seriously: A Theory of California‘s Separation of Powers (2004) 51 UCLA L.Rev. 1079, 1106; cf. Seila Law LLC v. Consumer Financial Protection Bureau (2020) 140 S.Ct. 2183, 2226 (dis. opn. of Kagan, J.) [“[T]he separation of powers is, by design, neither rigid nor complete“].) Rather than attempt to characterize the Governor‘s concurrence power as a wholly legislative or executive one, we construe the power as containing features that сut across both categories.
That fact isn‘t fatal to the Governor‘s exercise of the concurrence power, for nothing in our separation of powers jurisprudence demands ” ‘a hermetic sealing off of the three branches of Government from one another.’ ” (Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338.) We‘ve instead recognized “that the three branches of government are interdependent,” and so government officials frequently perform — and are permitted to perform — actions that “may ‘significantly affect those of another branch.’ ” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 298.) What the doctrine prohibits is “one branch of government [] exercising the complete power constitutionally vested in another” (Younger v. Superior Court (1978) 21 Cal.3d 102, 117), or exercising power in a way ” ’ “that undermine[s] the authority and independence of one or another coordinate [b]ranch” ’ ” (Carmel Valley, supra, 25 Cal.4th at p. 297). So the question before us is whether concurring in the Interior Secretary‘s determination unduly limits the role and function of the legislative branch.
We begin our analysis, once again, with Proposition 1A. Although the constitutional amendment doesn‘t expressly authorize the Governor to concur, it does allow casino-style gaming to occur on Indian land in accordance with federal law. Proposition 1A was significant because it amended the Constitution to signal a policy of greater openness toward casino-style gaming — which California had previously prohibited. (See
That the Governor has historically been tasked with concurring — or declining to concur — under a variety of federal statutes also supports our conclusion that the concurrence power is an executive one. (See In re Battelle (1929) 207 Cal. 227, 242.) Since 1958, federal law has required gubernatorial consent before the secretary of a military department may order Army or Air National reservists to active duty. (
The concurrence power isn‘t a hollow one — the Governor has exercised it throughout our state‘s history. (E.g. California Society of Anesthesiologists v. Brown (2012) 204 Cal.App.4th 390, 395 [“Governor Arnold Schwarzenegger . . . exercised his discretion under federal law [42 C.F.R. § 482.52(c)(1) (2020)] [to opt] California out of the federal physician supervision Medicare reimbursement requirement“]; Fort Ord Reuse Authority, Media Release: Major Event in Completion of Early Transfer of Former Fort Ord Property (Aug. 12, 2008) <https://dtsc.ca.gov/wp-content/uploads/sites/31/2019/04/FORA_MediaRelease.pdf> [as of Aug. 28, 2020] [Governor Schwarzenegger‘s concurrence in the transfer of 3,337 acres of land for economic reuse “provide[d] approval to begin a $100 million privatized munitions and explosives cleanup program” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),
And although the Legislature has expressly authorized the Governor to concur under some of these schemes (see, e.g.,
United Auburn seeks to distinguish the Governor‘s concurrence here by asserting that it “has massive land-use and tax-base consequences.” The Governor‘s concurrence causes the land taken into trust for an Indian tribe to no longer “be subject to California‘s civil, criminal, and tax jurisdiction.” According to United Auburn, the pivotal role a concurrence plays in the Interior Secretary‘s determination — and how that determination triggers these significant results — makes it unlawful for the Governor to exercise that power.
United Auburn‘s acute concern about the consequences of a gubernatorial decision is misplaced. United Auburn is correct that taking land into trust for an Indian tribe causes that land to no longer be subject to state or local taxes. (
The concurrence power is also consistent with the Governor‘s historic role as the state‘s representative — a role he has held since before the California Constitution was enacted. At the 1849 constitutional convention, delegates agreed that “it is a well[-]established principle” that the Governor ought to communicate directly with, and represent the state to, the federal executive branch. (Browne, Report of the Debates in the Convention of California on the Formation of the State Constitution in September and October, 1849 (1850) p. 277.) The Legislature later codified the Governor‘s station as “the sole official organ of communication between the government of this State and the government of . . . the United States” when it enacted
Indeed, finding the Governor unable to concur in the Interior Secretary‘s determination under IGRA would be in tension with his legislatively enacted authority under
The resulting constitutional and statutory picture in this case reveals not only nuances about how California has chosen to conduct relations between the state and the federal government, but also the subtle shades depicting the precise limits of the respective powers of the Governor and the Legislature here. Recall that the California Constitution and other state law once prohibited casino-style gaming. (See
What the newly amended Constitution didn‘t address, at least not expressly, was whether the Governor has the power to concur in the Interior Secretary‘s determination to allow class III gaming on certain land taken into trust for an Indian tribe after IGRA was enacted, or the division of authority
In the absence of an express grant or denial of authority, we conclude that the Governor‘s concurrence falls within a “zone of twilight in which he and [the Legislature] may have concurrent authority” and where legislative “inertia, indifference or quiescence” invites the exercise of executive power. (Youngstown, supra, 343 U.S. at p. 637 (conc. opn. of Jackson, J.).) By opening the door for class III gaming on “Indian” and “tribal” lands — some of which require a gubernatorial concurrence before class III gaming may occur — Proposition 1A put an end to California‘s “flat prohibition of Nevada and New Jersey-style casinos” (dis. opn., post, at p. 25), thereby opening the door for the Governor to concur in the Interior Secretary‘s determination allowing gaming on those lands. (
That power, however, isn‘t an indefeasible one. Although our analysis of Proposition 1A and other state law supports the finding that the Governor has the power to concur, it also demonstrates that the legislative branch is capable of enacting legislation that would reduce the Governor‘s concurrence power to “its lowest ebb.” (Youngstown, supra, 343 U.S. at p. 637 (conc. opn. of Jackson, J.).) The Legislature may, for example, require the Governor to obtain legislative authorization before concurring in the Interior
III.
United Auburn argues that even if the Governor generally has the power to concur, he lacks that power in this particular case. Its argument relies on the Governor‘s order of operations. According to United Auburn, the California Constitution limits any gubernatorial power to negotiate and conclude compacts for class III gaming, and to concur in the Interior Secretary‘s determination permitting gaming, to land designated as “Indian land” at the time of the compact negotiations. Because the land at issue in this case hadn‘t yet been taken into trust for the Enterprise Tribe when the Governor negotiated and concluded the compact to allow gaming, United Auburn contends that the Governor‘s compact and concurrence were invalid.
The language of our constitutional charter belies this argument. By amending the Constitution to add article IV, section 19, subdivision (f), Proposition 1A empowered the Governor to negotiate and conclude compacts “for the operation . . . and for the conduct of [class III gaming] by federally recognized Indian tribes on Indian lands in California.” Those requirements were satisfied here — when the Enterprise Tribe engaged in class III gaming, it did so on land the federal government had, by that point, designated as Indian land by holding it in trust for the Enterprise Tribe.
Nothing in the Constitution restricts the Governor‘s power to negotiate and conclude compacts to parcels designated “Indian land” at the time the negotiation happеns. That there‘s no such constraint makes sense in light of
IV.
For decades, California imposed on itself a categorical prohibition on casino-style gaming that surely restricted not only legislative authority, but gubernatorial power. Yet as the wheel of time spun, voters placed their bets on a Constitution
that regulated — rather than prohibited — casino-style (class III) gaming and empowered the Governor to negotiate and conclude compacts for casino-style gaming on Indian land in California. In doing so, voters enacted Proposition 1A and changed the situation materially. They amended state law to allow class III gaming on all “Indian” and “tribal” lands “in accordance with federal law.” (
The Legislature nonetheless plays a robust role in responding to the use, and defining the scope, of executive power. Nearly seven decades have passed since Justice Jackson emphasized that constitutions of separated powers “enjoin[] upon its branches separateness but interdependence” — “autonomy but reciprocity.” (Youngstown, supra, 343 U.S. at p. 635 (conc. opn. of Jackson, J.).) And while the materials befоre us are not quite as “enigmatic as the dreams Joseph was called upon to interpret for Pharaoh” (id. at p. 634), they nonetheless require nuanced interpretation for us to discern how California‘s Constitution allows executive and legislative prerogatives to coexist in the continuing story of its calibrated approach to tribal gaming. Although lawmakers haven‘t done so yet, they remain free to restrict or eliminate the Governor‘s authority to concur. That the Legislature has enacted no such law means the power to concur remains in the Governor‘s hands. As
CUÉLLAR, J.
We Concur:
CHIN, J.
CORRIGAN, J.
KRUGER, J.
FYBEL, J.*
__________________________
* Associate Justice of the Court of Appeal, Fourth Appellate District, Division Three, assigned by the Chief Justice pursuant to
UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN RANCHERIA v. NEWSOM
S238544
Dissenting Opinion by Chief Justice Cantil-Sakauye
I respectfully dissent. “In the case of a voters’ initiative statute . . . we may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.” (Hodges v. Superior Court (1999) 21 Cal.4th 109, 114.) This same principle applies when we interpret a legislative constitutional amendment approved by the voters.
The outcome here turns on the interpretation of Proposition 1A, a ballot measure through which the electorate amended the state Constitution in 2000 to carve out a limited exception to the prevailing state policy against “casinos of the type currently operating in Nevada and New Jersey.” (
I would hold that the Governor lacks such a power. The voters who approved Proposition 1A endorsed gaming compacts, and only compacts. The measure is not properly read as authorizing concurrences as well. An average voter would not have understood such a consequential power as implied or otherwise envisioned by Proposition 1A‘s authorization of gaming compacts, for reasons including the fact that the power to concur is not invariably or even normally necessary to effectuate the compacting power. That Proposition 1A did not entail a power to concur becomes even more apparent when its provisions are read in legal and historical context and in the light cast by the relevant ballot materials. These resources clarify why voters might have authorized tribal gaming at locations that do not require a concurrence but not
For these reasons, as elaborated below, it is my view that the court‘s decision today recognizing a power to concur gives the voters who approved Proposition 1A quite a bit more — or depending on one‘s perspective, less — than they bargained for. I would reverse the judgment of the Court of Appeal and remand for further proceedings.
I. BACKGROUND
My understanding of what the state Constitution, as amended by Proposition 1A, does and does not allow derives from a review of federal and state law applicable to tribal gaming and how this body of law developed over time. A summary of these principles and events follows.
Our state has long forbidden, limited, or regulated different forms of gambling. (See Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 591-594 (Hotel Employees).) Well along in this history, in 1984 the electorate approved Proposition 37, which authorized a state lottery (
A. The Indian Gaming Regulatory Act
Four years later, after the decision of the United States Supreme Court in California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202 upended state constraints on tribal gaming, Congress enacted the Indian Gaming Regulatory Act, or IGRA. (Pub.L. No. 100-497 (Oct. 17, 1988) 102 Stat. 2467, as amended & codified at
IGRA recognizes three different tiers, or “classes” of gaming that may occur on Indian lands if the necessary prerequisites are satisfied. ” ’ “Class I” consists of social games for minimal prizes and traditional Indian games; “Class II” includes Bingo and similar games of chance such as pull tabs and lotto; “Class III” includes all games not included in Classes I or II.’ ” (Rumsey Indian Rancheria of Wintun Ind. v. Wilson (9th Cir. 1994) 64 F.3d 1250, 1255-1256 (Rumsey Indian Rancheria).)
Class I gaming on Indian lands is within the exclusive jurisdiction of tribes. (
Class III gaming, which includes slot machines and banked card games, is by far the most lucrative of the three gaming categories and “is subject to a greater degree of federal state regulation than either class I or class II gaming.” (In re Indian Gaming Related Cases (9th Cir. 2003) 331 F.3d 1094, 1097.) Section 11 of IGRA provides that “Class III gaming activities shall be lawful on Indian lands only if such activities are” duly authorized by a tribe, “located in a State that permits such gaming for any purpose by any person, organization, or entity,” and “conducted in conformance with a Tribаl-State compact entered into by the Indian tribe and the State.” (
A compact between a tribe and a state may contain the parties’ agreement on matters such as the kinds of class III gaming that will occur, how this gaming will be regulated, and various other matters relevant to these operations. (
believes the state has failed to satisfy this responsibility, IGRA provides for a cause of action in federal court, enforceable against a state that has waived its immunity under the Eleventh Amendment to the United States Constitution. (
2. The concurrence requirement for gaming on certain after-acquired lands
IGRA authorizes tribal gaming on “Indian lands,” defined as “(A) all lands within the limits of any Indian reservation; and [¶] (B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.” (
The statute provides for several exceptions that moderate the general rule prohibiting class II and class III gaming on “after-acquired” trust lands. Among them, the prohibition does
not apply to trust lands that are “located within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988” (
This additional exception involving the power to concur appears at section 20(b)(1)(A) of IGRA, which provides that tribal gaming may occur on land taken into trust by the federal government for a tribe after IGRA‘s date of enactment if “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 [the] newly acquired lands would be in the best interest of the Indian tribe and its members, and wоuld 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.” (
Although IGRA is the source of the concurrence procedure, whether an individual state governor has the power to concur is a matter of state law. (Confederated Tribes, supra, 110 F.3d at p. 697.) And in contrast with IGRA‘s provision of a cause of action when a state does not engage in good faith compact negotiations, nothing within the statute allows a tribe to seek judicial review of a Governor‘s refusal to issue a concurrence. Thus, the concurrence requirement “essentially provides veto power to the Governor of the State in which the land [proposed as a site for gaming operations] is located.” (Sheppard, Taking Indian Land into Trust (1999) 44 S.D. L.Rev. 681, 687.)
B. Proposition 5
The enactment of IGRA did not quell the debates in this state over tribal gaming. “Despite IGRA‘s negotiation and compact framework, several unresolved conflicts . . . developed between the State of California and Indian tribes surrounding class III gaming and, especially, gaming devices in casinos.” (Hotel Employees, supra, 21 Cal.4th at p. 596.)
Proposition 5, an initiative measure appearing on the November 1998 ballot, was designed to better define the parameters for tribal gaming within the state. This measure included a model gaming compact that, if requested by a tribe, was to be promptly approved by the Governor as a ministerial matter. (
C. Proposition 1A
Within weeks of our decision in Hotel Employees, overwhelming majorities in both the Senate and the Assembly voted to place Proposition 1A before the electorate at the March 2000 primary election. Through Proposition 1A, voters were asked to decide whether to add a new subdivision (f) to
Coincident with Proposition 1A‘s placement on the ballot, then-Governor Gray Davis negotiated gaming compacts with 57 tribes. (In re Indian Gaming Related Cases, supra, 331 F.3d at pp. 1105-1106.) None of these compacts required a concurrence. The Legislature promptly ratified the compacts (Stats. 1999, ch. 874, § 1, pp. 6257-6260), which authorized forms of class III gaming (e.g., banked card games) that were not permitted under the model compact found within Proposition 5.
Because of the constitutional prohibition on gaming, however, these negotiated compacts would become effective only if Proposition 1A passed. Which it did: Proposition 1A was approved by voters at the March 2000 primary election.
D. Factual and Procedural Background
The Enterprise Rancheria of Maidu Indians (the Enterprise Tribe) was federally recognized as a sovereign Indian tribe in 1915. In June 2002, the Enterprise Tribe asked the federal government to take approximately 40 acres
In September 2011, the Secretary issued a favorable two-part determination pursuant to section 20(b)(1)(A) of IGRA. The Secretary concluded that gaming on the parcel would be in the best interest of the Enterprise Tribe and would not be detrimental to the surrounding community or to neighboring tribes. The Secretary also fоund that the Enterprise Tribe had a “significant historical connection” to the site.
The Secretary requested that then-Governor Jerry Brown concur in this determination. The Governor issued his concurrence in August 2012. In 2013, the Secretary took the land into trust for the tribe for the purpose of gaming.
On behalf of the state, the Governor negotiated a compact for class III gaming with the Enterprise Tribe. The proposed compact was submitted to the Legislature for approval. The Legislature failed to ratify the agreement, however, and it died by its own terms in 2014. The Enterprise Tribe invoked IGRA‘s judicial failsafe, arguing that the Legislature‘s inaction amounted to a failure by the state to proceed in good faith. The federal district court rejected the state‘s assertion of sovereign immunity under the Eleventh Amendment as inconsistent with the waiver appearing at
Neither this order nor subsequent mediation led to a compact. In August 2016, the Secretary issued secretarial procedures for the conduct of class III gaming on the parcel. The Enterprise Tribe‘s casino property — the Hard Rock Hotel & Casino Sacramento at Fire Mountain — has since opened at the Olivehurst site.
Plaintiff United Auburn Indian Community of the Auburn Rancheria operates the Thunder Valley Casino Resort in Lincoln, California. This casino is located within 25 miles of the Hard Rock Hotel & Casino Sacramento at Fire Mountain. United Auburn asserts that the new casino will siphon
E. Other Litigation
While this case was pending before us, we granted review in another matter that also presents the question whether the Governor has the power to concur. In Stand Up for California! v. State of California (2016) 6 Cal.App.5th 686 (Stand Up!), the Fifth District Court of Appeal concluded that the Governor lacked such authority, at least given the specific facts as alleged in that case.
In Stand Up!, the Governor issued a concurrence in connection with an off-reservation casino proposed by the North Fork Rancheria of Mono Indians and negotiated a compact for gaming operations by the tribe. The off-reservation land where the casino would be situated was then taken into trust by the federal government. Unlike here, the Legislature ratified the compact that the Governor had negotiated. But the compact was made subject to a voter referendum (Proposition 48) at the November 2014 election, at which time it was rejected by the voters. (See Stand Up!, supra, 6 Cal.App.5th at pp. 691-694 [recounting these events].)
All three justices on the Stand Up! panel concluded that under the circumstances, the Governor lacked the authority to concur with the Secretary‘s two-part determination. Justice Smith, emphasizing that voters had rejected the gaming compact the Governor had negotiated, determined that “it would be perverse to find the Governor has an implied authority based on an express power [to compact] that the state has finally decided not to exercise, after protracted consideration by the Governor, the Legislature, and the voters.” (Stand Up!, supra, 6 Cal.App.5th at p. 700.)
Concurring and dissenting in Stand Up!, Justice Detjen focused on the fact that a concurrence had been issued and a compact had been negotiated before the federal government acquired the land in trust for the tribe. She explained, “Because the land was not held in trust at the time the Governor negotiated the announced compact, the Governor was not negotiating a compact for gaming on Indian lands and, thus, exceeded any authority granted by Proposition 1A.” (Stand Up!, supra, 6 Cal.App.5th at p. 715 (conc. & dis. opn. of Detjen, J.).) Because the concurrence related to what Justice Detjen regarded as an improper exercise of the compacting power, it too was invalid. (Id., at pp. 710, 718-719 (conc. & dis. opn. of Detjen, J.).)
II. DISCUSSION
” ‘In construing constitutional and statutory provisions, whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration.’ ” (Legislature v. Eu (1991) 54 Cal.3d 492, 505.) We construe the language of a measure approved by the electorate as it would
be understood by an average voter. (People v. Adelmann (2018) 4 Cal.5th 1071, 1080 [” ‘[t]he particularized meaning of words in complex, legislatively enacted statutes has little bearing on the interpretation of words in an initiative, which we construe according to their ordinary meanings as understood by ‘the average voter’ “]; see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 902; Wallace v. Zinman (1927) 200 Cal. 585, 592.) This general rule whereby we construe words as carrying their normal, everyday meanings is subject to an exception when it appears that voters would have understood a term as having a special or technical meaning in its specific context. (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1318; Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538.) We also presume that the average voter is aware of existing law, but this presumption is “not conclusive.” (Santos v. Brown (2015) 238 Cal.App.4th 398, 410.)
A. Article IV, Section 19(f) Does Not Confer a Power To Concur
As added by Proposition 1A, article IV, section 19(f) carves out a limited exception to the general prohibitions on lotteries and casino gaming that appear elsewhere in the same section of the state Constitution.
As Justice Franson determined in his concurring and dissenting opinion in Stand Up!, an average voter would not have understood this language as giving the Governor the power to concur.
Legislature would have silently, or at best obscurely, decided so important and controversial a public policy matter and created a significant departure from the existing law“]).)
Nor is the existence of a power to concur somehow implied by Proposition 1A‘s authorization of gaming compacts. The Governor‘s involvement with a compact is “of a qualitatively different nature from his concurrence in the Interior Secretary‘s discretionary ‘best-interests’ waiver of
In short, a voter in the March 2000 primary election would not have understood Proposition 1A‘s authorization of gaming compacts as subsuming an implied power to concur. By authorizing compacts but not concurrences, Proposition 1A struck a balance. The measure permitted a relatively broad array of class III tribal gaming (at least compared to what was previously allowed) on reservation lands and after-acquired trust lands for which no concurrence is required, but it did not open the door to the most open-ended and potentially controversial category of class III casino developments, those requiring the exercise of the concurrence power.
B. The Ballot Materials for Proposition 1A Do Not Support a Power To Concur
The ballot materials associated with Proposition 1A provide additional indications that the voters who approved that measure did not intend to confer the power to concur. Where, as here, a constitutional amendment has been approved by the voters, “the ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246.) Nothing within the voter pamphlet for the March 2000 primary election explained to voters that Proposition 1A would give the Governor the power to concur. To the contrary, through such silence and the affirmative representations of the measure‘s proponents, these materials suggested that Proposition 1A would not pave the way for class III casinos on after-acquired trust lands through
Beginning with the Legislative Analyst‘s analysis of the measure, this description never raised the possibility that Proposition 1A could lead to off-reservation gaming that requires a concurrence. The analysis addressed Proposition 5, our Hotel Employees decision, and the gaming compacts with 57 tribes that would become effective if Proposition 1A passed and the federal government gave its approval. (Voter Information Guide, supra, analysis of Prop. 1A by Legis. Analyst, pp. 4-5.) The analysis also explained
The arguments by proponents of Proposition 1A that appeared within the spring 2000 ballot pamphlet carried a similar message. The argument in favor of Proposition 1A advised that voter approval was necessary to preserve tribal gaming where it was currently being conducted: “We are asking you to vote YES on Proposition 1A so we can keep the gaming we have on our reservations.” (Voter Information Guide, supra, argument in favor of Prop. 1A, p. 6.) This argument also explained, “Prop 1A has been put on the March ballot to . . . establish clearly that Indian gaming on tribal lands is legal in California.” (Ibid.) In response to opponents’ arguments that “[c]asinos won‘t be limited to remote locations” (Voter Information Guide, argument against Prop. 1A, p. 7) and “Indian tribes are already buying up prime property for casinos in our towns and cities” (ibid.), proponents quoted a former field investigator for the National Indian Gaming Commission as saying, “‘Proposition 1A and federal law strictly limit Indian gaming to tribal land. The claim that casinos could be built anywhere is totally false‘” (Voter Information Guide, rebuttal to argument against Prop. 1A, p. 7), and repeated an economist‘s assertion that “‘[t]he majority of Indian Tribes are located on remote reservations and the fact is their markets will only support a limited number of machines‘” (ibid.).
At oral argument, counsel for the Governor characterized at least the first of these responses as “clever” and technically correct. But when reviewing a ballot argument for insight into voter intent, the question is not whether a party to the debate earns points for artful wordplay. What matters instead is how an argument contributed, if at all, to a voter‘s understanding of the measure to which it pertains. Here, an average voter would have understood these responses as addressing the opponents’ assertion that if Proposition 1A passed, casinos could crop up in towns and cities across the state. The responses imparted to an average voter that this claim was false, and that the casinos authorized by Proposition 1A would be situated on “‘remote reservations‘” (Voter Information Guide, supra, rebuttal to argument against Prop. 1A, p. 7), or at least where tribes were “‘located‘” (ibid.). By implication, these responses corroborated what an average voter already would have gleaned from the proposition‘s text: that the measure did not confer the power to concur. For as has been explained, if the Governor does have this
All in all, I agree with Justice Franson‘s conclusion in Stand Up! that Proposition 1A cannot properly be construed as giving the Governor the power to concur. As he recapped, after an exhaustive analysis of the issue, “First, the text of Proposition 1A plainly omits the power to concur in the Secretary‘s two-part determination. Second, an implied grant of that power is not necessary under the principles of California law that govern necessary implications. Third, the wording of Proposition 1A and the materials in the ballot pamphlet did not inform the average voter that approving Proposition 1A would grant the Governor the power to concur or, more generally, would grant the Governor the authority to either veto or approve a proposed off-reservation casino. Fourth, expanding Indian gaming to off-reservation locations was and is a controversial question of public policy with a wide range of consequences, and it is implausible that the average voter would have understood that Proposition 1A granted the Governor an implied
C. The Arguments for Recognizing a Power To Concur Are Unpersuasive
The most weighty argument in favor of the majority‘s interpretation of Proposition 1A derives from the use of the term “Indian lands” within
I find this argument unpersuasive. First, it is unclear at best that an average voter would have understood “Indian lands,” as that term is used in
The majority also claims that the Governor possesses the “inherent power to concur to allow class III gaming.” (Maj. opn., ante, at p. 20.) But this bold assertion is exactly that — mere assertion. The majority nowhere explains why the Governor possesses such inherent authority in a sphere controlled by the state Constitution‘s flat prohibition of Nevada and New Jersey-style casinos and its specification of a limited exception for tribal gaming. These provisions of article IV, section 19 establish that the Governor has no such inherent power. That which is not authorized by
To draw from Justice Franson‘s concurring and dissenting opinion in Stand Up! one final time, “The initiative process functions best when voters are (1) informed that the initiative addresses a controversial issue with a wide range of impacts for Californians and (2) told how the initiative resolves that controversial issue. When voters are so informed, courts can ‘give effect to the voters’ formally expressed intent, without speculating about how they might have felt concerning subjects on which they were not asked to vote.’ (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 930 . . . .)” (Stand Up!, supra, 6 Cal.App.5th at pp. 722-723 (conc. & dis. opn. of Franson, J.).) Today‘s decision does not advance the goal of transparency. Proposition 1A‘s text and ballot materials emphasized legislative approval for gaming compacts, they did not disclose the existence of the power to concur, and they did not portray the proposition as opening the door to off-reservation gaming to the extent that concurrences can. Under the circumstances, it is a mistake to conclude that the voters who approved the measure intended to give the Governor the power to concur.
III. CONCLUSION
Legislative constitutional amendments, like initiatives, provide concrete examples of direct democracy in action. Courts must review the electorate‘s handiwork carefully. If we give voters more or less than what they approved, our interpretations can sow cynicism and distrust of the process.
Voters clearly have the power to authorize tribal gaming on off-reservation trust lands to a greater extent than they did with Proposition 1A. But by all indications, they chose a path that steps out of the shadow of the general state policy against Nevada and New Jersey-style casinos only so far as to allow class III gaming on those lands where no gubernatorial concurrence is required. Where the majority sees twilight, I see a series of decisions by the electorate — first prohibiting certain kinds of casino operations, then relaxing this restriction to a limited degree — to which we must defer. Because I believe that today‘s decision gives voters something different from what they bargained for, I respectfully dissent.
CANTIL-SAKAUYE, C. J.
I Concur:
LIU, J.