Tribe's Lawyer Blames State for Legal Tussle

By James P. Sweeney, Copley News Service
January 9, 2003

SACRAMENTO – The attorney for a Palm Springs tribe facing $7.5 million in fines for campaign reporting violations suggested yesterday it was the state that provoked a legal showdown that is drawing national attention.

The remarks by Art Bunce, an Escondido attorney for the Agua Caliente band, prompted a heated exchange with the chairwoman of the state’s political reform commission after an otherwise inconclusive court hearing.

Bunce said Agua Caliente always has been willing to negotiate an agreement and comply with the state’s political disclosure rules.

“We wouldn’t be here if the Fair Political Practices Commission would have negotiated an agreement with the tribe,” he told Superior Court Judge Loren McMaster. “The tribe has been willing to do that all along. The FPPC will not accept anything except absolute compliance with every provision of the (political reform) act.”

“It would have been helpful to have heard that six months ago,” snapped FPPC Chairwoman Karen Getman.

She said the FPPC offered to open negotiations, but Agua Caliente refused at the last minute to extend a looming statute of limitations.

The judge listened to more than an hour of argument, but declined to issue an immediate ruling on the tribe’s motion to dismiss the state’s lawsuit, which appears to be the first of its kind in the nation.

McMaster suggested he is struggling with federal case law that appears to support the tribe’s position and language in the U.S. Constitution that gives states broad discretion to regulate and govern within their borders.

“Wouldn’t you agree that the power to govern the internal activity of a state is controlled by the 10th Amendment (to the Constitution)?” the judge asked Bunce at one point.

Attorneys for the state have portrayed the case as a landmark test of whether courts will allow tribal sovereignty to trump a state’s right to protect the integrity of its elections.

The FPPC sued Agua Caliente when the tribe declined to settle a series of alleged violations out of court. The tribe, the only one in California with two casinos, has become one of the state’s biggest political contributors, doling out more than $13.6 million over the past five years, according to state officials.

The tribe faces penalties of more than $7.5 million for allegedly failing to report numerous campaign contributions and required information about lobbying activities.

Agua Caliente Chairman Richard Milanovich and the tribe’s attorneys say it has disclosed everything required by the state, although not always by the time lines or in the formats required. The tribe details its political activity on its Web site.

“The tribe has been providing the substance of all the information the FPPC has ever wanted. It’s all there,” Bunce told the judge yesterday. “The dispute is about using the FPPC’s forms. It’s about the timing of when the documents have to go in.”

“The timing,” the judge interjected, “is critical.”

The state claims Agua Caliente failed to disclose late contributions to Proposition 5, a 1998 Indian gambling initiative, and a $125,000 contribution in 2002 to the unsuccessful Proposition 51. The latter measure would have provided $120 million for a Los Angeles-to-Palm Springs rail line with a terminal near one of the tribe’s casinos.

While Agua Caliente has voluntarily disclosed most, if not all, of the information at issue, state officials say that did not happen until after the state opened an investigation.

No other tribe has refused to comply with California’s political reporting laws. Earlier in the day, the FPPC announced that the Morongo band had agreed to pay a $25,000 fine to settle allegations of reporting violations.