California court delays Prop 5

Thursday, Dec. 3, 1998 | 11:07 a.m.

A month after 63 percent of state voters approved Proposition 5, following the most expensive initiative campaign in U.S. history, the court blocked its implementation Wednesday while it reviews lawsuits raising constitutional challenges.

Without the court order, some of the 44 tribes that have filed plans for expanded casino gambling under the measure would have received automatic state approval as early as Friday, and could have begun operations 45 days later unless U.S. Interior Secretary Bruce Babbitt objected.

The justices have ordered written arguments quickly, by the end of January, and could hear the case by springtime. Every justice signed the order except Marvin Baxter, who did not participate for unstated reasons.

Proposition 5 would legalize video-gambling devices and card games that now operate on dozens of California reservations without the state approval required by current law.

Tribes with few other economic resources have become increasingly dependent on casinos for financial sustenance, but they have been thwarted by Gov. Pete Wilson in attempts to expand their operations. Wilson has negotiated agreements with a few tribes to use a particular video machine but has refused to allow the lucrative Nevada-style devices that most tribes want.

Wilson said in a statement he was pleased the court had blocked "this deceptively written and promoted proposition" that would transform California into "a Nevada-by-the-sea, populated with dozens and dozens of new Las Vegas-style casinos."

He called the initiative a "power grab ... by the rich tribes" and said it would strip future governors of "the right to negotiate any environmental, consumer, and employee protections" for tribal casinos.

Jerome Levine, a lawyer who helped draft Proposition 5 for a large group of tribes, described the legal battle as one between Nevada interests and California voters.

"Nevada's made it clear that they were going to fight with everything, without regard for what the people of California wanted," Levine said. He said the election was "an overwhelming vote of confidence" for the tribes' programs, and should move Wilson or his successor, Gray Davis, to negotiate new gambling agreements with the tribes regardless of the court case.

The suits were filed by a group of homeowners, who live near casinos slated for expansion, and by the Hotel Employees and Restaurant Employees International Union (HERE), which disliked the initiative's lack of provisions for casino workers. In Las Vegas, HERE is known as the Culinary Union and represents casino workers at many big Strip hotel-casinos.

The homeowners were supported financially by Nevada casinos, who also bankrolled the campaign against the initiative. Campaign spending totaled nearly $100 million, a national record, about two-thirds of it from tribes favoring the measure.

The chief claim in the suits is that Proposition 5 violates a state constitutional amendment, approved by voters as part of the 1984 state lottery law, that prohibits "casinos of the type currently operating in Nevada and New Jersey."

The suits note that both states allow slot machines, as well as blackjack and other types of games not now allowed on California reservations, and say Proposition 5 would violate the amendment by legalizing all those games.

The drafters of the initiative tried to counter that argument by inserting language declaring that Nevada and New Jersey casinos were "materially different" from the facilities authorized by Proposition 5. For example, the machines allowed by the initiative, called "tribal gaming terminals," cannot dispense coins or tokens or be operated by handles.

No matter what they're called, they're still slot machines, argued Wayne Smith, a lawyer for the homeowners who filed one of the suits. He said a slot was "a mechanical gaming device that determines winners and losers at random based upon games that are programmed into it."

"Courts in other states have found that large buildings containing blackjack and slot machines and traditional house-banked games that you find in Nevada are called a casino," Smith said.

Another argument is that Proposition 5 violates a federal law requiring each state to allow Indian gambling only to the extent that gambling is legal elsewhere in that state. The initiative gives tribes special treatment and is therefore invalid, the suits contend.

Levine, the tribes' lawyer, countered that federal law doesn't limit a state's ability to allow additional types of gambling on reservations.