Florida Supreme Court Strikes Down Seminole Compact

Florida Supreme Court Strikes Down Seminole Compact

7/9/2008
By: H. Scott Althouse On July 3, 2008, the Florida Supreme Court granted a petition for writ of quo warranto brought by the Florida House of Representatives and House Speaker Marco Rubio (R-West Miami) to challenge the authority of Florida Governor Charlie Crist to unilaterally execute a Tribal-State Gaming Compact with the Seminole Tribe of Florida ("Tribe"). The Florida Supreme Court held that "Governor [Crist] does not have the constitutional authority to bind the State to a gaming compact that clearly departs from the State's public policy by legalizing types of gaming that are illegal everywhere else in the state." Seminole Tribe's Compact Negotiations with the State The Seminole Tribe has been trying to execute a compact with the State of Florida since it initiated negotiations with former Governor Lawton Chiles in 1991, which led nowhere. That same year, the Tribe filed suit in federal court alleging that the State had refused to negotiate in good faith, but the U.S. Supreme ultimately ruled that the State could assert its sovereign immunity under the 11th Amendment to the U.S. Constitution to defeat the Tribe's suit. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996). Over the next few years, the Seminole Tribe repeatedly petitioned the U.S. Department of the Interior ("Interior") to establish gaming procedures for Class III gaming under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq. ("IGRA"). In 1999, Interior did so and called for an informal conference with the State and the Tribe, which, in 2001, resulted in Interior issuing a 20-page opinion that would have permitted the Tribe to offer a wide range of Class III games, but not black jack. The State requested clarification from Interior, but Interior delayed any response until finally, in May 2006, Interior reconvened the conference and in September 2006 warned that if the Tribe and the State did not execute a Compact within 60 days, Interior would issue Class III gaming procedures for the Seminole Tribe. Interior never issued procedures, so in March 2007 the Tribe sued Interior in federal court. See Seminole Tribe of Fla. v. United States, No. 07-60317-CIV (S.D. Fla. filed Mar. 6, 2007) (case dismissed as moot on June 20, 2008). Interior then wrote a letter to Governor Chiles that said if the State did not execute a Compact with the Seminole Nation by November 15, 2007, then Interior would issue a Compact, wherein the State would not receive any payments from the Tribe's Class III gaming operations. The Compact In the face of Interior issuing Class III gaming procedures and the threat of not receiving any payments from the Tribe, Governor Crist signed a 25-year Compact with the Seminole Tribe on November 14, 2008. The Compact went into effect on January 7, 2008, upon publication in the Federal Register of the Secretary of the Interior's approval of the Compact. Among other things, the Compact recites that the Governor "has the authority to act for the State with respect to the negotiation and execution of this Compact." The Compact provides that the Seminole Tribe may offer at each of its 7 casinos the following "covered gaming:" slot machines, any banking or banked card game, including baccarat, black jack, and chemin de fer, high stakes poker games, games and devices authorized for the state lottery, and any new game authorized by Florida law. In exchange for "partial but substantial exclusivity," the Tribe agreed to make payments to the State as follows: $50 million upon execution of the Compact, another $175 million over the first 24 months of operation, $150 million for the third 12-month cycle, and $100 million for each 12-month cycle thereafter - or $575 million over the first 5 years of the Compact. The Court's Opinion Within 5 days of Governor Crist signing the Compact, the Florida House of Representatives and House Speaker Marco Rubio sued the Governor alleging that the Florida Constitution does not authorize the Governor to unilaterally execute a Compact without the involvement, prior authorization, or approval of the Florida legislature. The issues before the court were: (1) jurisdiction and the scope of a petition for writ of quo warranto; (2) the separation of powers clause under the Florida Constitution and in the historical context of compacts that Florida has executed with other sovereigns; and, (3) public policies and state criminal laws related to gaming. The Court first determined that it had jurisdiction to hear the House's petition for writ of quo warranto reasoning that the Governor is an officer of the State and the scope of his authority is properly examined under such a petition, although a declaratory action would also likely have triggered the court's jurisdiction as well. Second, in examining the history of compacts that Florida has executed with other states on matters such as water rights and environmental issues, the Court determined that "by tradition, at least, it is the Legislature that has consistently either exercised itself or expressly authorized the exercise of the power to bind the State to compacts. We have found no instance in which the governor has signed a compact without legislative involvement." Slip. Op. at 14. The court then examined how other courts have addressed the question of unilateral execution of compacts by reviewing cases from Kansas, New York, New Mexico and Wisconsin - all of which held that a governor lacked unilateral authority to bind the state to a gaming compact without the involvement of the legislature. And examining the Florida Constitution's separation of powers clause, the court held that Governor Crist exceeded his authority by not having the Florida Legislature authorize or ratify the execution of the Compact. Third, the court examined Florida's gaming laws and determined that such laws apply to tribal land because Florida has opted in to exercise its criminal jurisdiction over Indians and Indian lands pursuant to the Act of Aug. 15, 1953, 67 Stat. 588, 590 ("Public Law 280"). The court relied on Fla. Stat. § 849.08, which prohibits playing "any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value" and citing that this is designated as a second-degree misdemeanor under Florida criminal law. In other words, Florida law prohibits all types of Class III gaming other than the state lottery and certain slot machines in Miami-Dade and Broward Counties. Florida law distinguishes between nonbanked (Class II) card games and banked (Class III) card games, the latter being the second-degree misdemeanor referenced above. While Florida law prohibits such banked card games, the Compact authorized blackjack, baccarat, and chemin de fer - all illegal banked card games under Florida law. And after examining other public polices related to gaming in Florida, the court concluded that by "authorizing the Tribe to conduct 'banked card games' that are illegal throughout Florida - and thus illegal for the Tribe - the Compact violates Florida law." Slip. Op. at 30. And further, "[n]either the Governor nor anyone else in the executive branch has the authority to execute a contract that violates state criminal law." Id. **We conclude that the Governor's execution of a compact authorizing types of gaming that are prohibited under Florida law violates the separate of powers. The Governor has no authority to change or amend state law. Such power falls exclusively to the Legislature. Therefore, we hold that the Governor lacked authority to bind the State to a compact that violates Florida law as this compact does. We need not resolve the broader issue of whether the Governor ever has the authority to execute compacts without either th
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