STATE EX REL. DEWBERRY v. Kulongoski

210 P.3d 884, 346 Or. 260, 2009 Ore. LEXIS 28
CourtOregon Supreme Court
DecidedJune 18, 2009
DocketCC 16-03-23044; CA A124001; SC S056410
StatusPublished
Cited by16 cases

This text of 210 P.3d 884 (STATE EX REL. DEWBERRY v. Kulongoski) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE EX REL. DEWBERRY v. Kulongoski, 210 P.3d 884, 346 Or. 260, 2009 Ore. LEXIS 28 (Or. 2009).

Opinion

*263 DE MUNIZ, C. J.

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

In 2002, the Governor negotiated an amended gaming compact with the Tribes, pursuant to ORS 190.110 2 and the Indian Gaming Regulatory Act, 25 USC §§ 2701-2721, to operate a casino near Florence. That gaming compact was finalized in early 2003. Relators, who reside in or near Florence, first challenged that compact by filing a petition for a writ of mandamus in this court in September 2003. This court denied that petition.

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

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

Relators immediately appealed, but moved to hold the appeal in abeyance in order to pursue a declaratory judgment action. Relators then filed a declaratory judgment *265 action against the state and the Tribes in Lane County Circuit Court in March 2004. The state removed the case to federal court. The federal district court dismissed the declaratory judgment action in December 2005, after concluding that relators lacked standing and that the Tribes enjoyed sovereign immunity. Dewberry v. Kulongoski, 406 F Supp 2d 1136 (2005). Following that dismissal, relators reactivated their appeal.

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

The Court of Appeals disposed of relators’ first argument by concluding that any error committed by a trial court in failing to follow the precise procedure set forth in ORS 34.130 was harmless. State ex rel Dewberry v. Kulongoski, 220 Or App 345, 350, 187 P3d 220 (2008).

As to relators’ other arguments, the Court of Appeals first analyzed whether ORCP 29 applies to the circuit court mandamus proceeding. Id. at 351. That court concluded that ORCP 29 A does not apply to a mandamus proceeding, because the statute governing mandamus actions specifies a different procedure as to parties. Id. at 353-54. ORCP 1 A, the court noted, states that the Oregon Rules of Civil Procedure apply in “all civil actions and special proceedings * * * except where a different procedure is specified by statute or rule.” Id. at 351 (emphasis added by Court of Appeals). After reviewing the procedures governing joinder of parties outlined in ORCP 29 A and the procedures governing parties outlined in the mandamus statute, the court concluded that the mandamus provisions “differ[ed] in substance from the provisions of *266 ORCP 29[.]” Id. at 353. ORCP 29 A, the court explained, governs the joinder of a “broad class of persons — including persons ‘claiming] an interest relating to the subject of the action’ whose ‘ability to protect that interest’ may be ‘impair[ed] or impede[d]’ by a disposition in their absence.” Id. (quoting ORCP 29 A). The court contrasted ORCP 29 A with the mandamus statute, which provides that the only required parties to a mandamus proceeding are a “relator” and a “defendant.” Id. The court also noted that the mandamus statute provided that “adverse parties” may participate in mandamus proceedings by way of intervention, but did not require that they do so. Id. at 354. Based on those differences, the court concluded that ORCP 29 does not apply in mandamus proceedings. Id.

The Court of Appeals then addressed whether the trial court erred in dismissing relators’ mandamus petition because relators have a “ ‘plain, speedy and adequate’ ” alternate remedy, in the form of a declaratory judgment action under the Uniform Declaratory Judgments Act. Id. at 355 (quoting ORS 34.110). In answering the question in the affirmative, the Court of Appeals explained that two circumstances led to its conclusion: (1) the Tribes’ participation in the declaratory judgment action was a jurisdictional prerequisite to the availability of an adjudication on the merits of that action, and (2) the satisfaction of that prerequisite was a matter entirely within the Tribes’ — and not relators’— control. Id. at 358-59.

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Cite This Page — Counsel Stack

Bluebook (online)
210 P.3d 884, 346 Or. 260, 2009 Ore. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dewberry-v-kulongoski-or-2009.