PHOENIX — Gov. Doug Ducey and Attorney General Mark Brnovich are active participants in trying to block a West Valley casino and should be held accountable in court, an attorney for the Tohono O’odham Nation is charging.
In new filings in federal court, Danielle Spinelli told Judge David Campbell to reject arguments by Ducey and Brnovich that they were merely offering advice to state Gaming Director Daniel Bergin about how he should deal with the tribe’s pending application for licensing. She said the evidence shows that Bergin and his agency were ready to allow the casino to operate until the two top state officials interceded.
Spinelli said it’s legally irrelevant that the tribe’s lawsuit seeks a court order allowing the casino to open on schedule later this year and that neither Ducey nor Brnovich have the power to make that happen. She said the pair need to be told to butt out.
“The nation seeks to prevent these officials from interfering (as they already have done) with Arizona Department of Gaming’s issuance of those approvals,” she wrote.
Spinelli also is asking Campbell to block Bergin from using claims that the tribe committed fraud on voters in 2002 as a basis for denying it the right to operate the new casino.
That is based on Bergin’s contention the Tohono O’odham Nation hid the fact that it was weighing a Maricopa County site even as voters, asked in 2002 to give tribes the exclusive right to operate casinos, were told that gaming would be limited to existing reservations. It was not until seven years later the tribe revealed its ownership of the site on the edge of Glendale and its plans to build a casino there.
But Spinelli told Campbell he needs to do more than tell Bergin what to do. She said Bergin would not have blocked the plans had he not effectively been ordered to do so by the governor and attorney general.
Central to the question is whether what Ducey and Brnovich did was improper.
Spinelli said Bergin wrote to the tribe in February assuring officials that the Department of Gaming would “proceed in the normal course of business” to process the application “unless applicable laws change or a court orders otherwise.”
On April 2, however, the Attorney General’s Office wrote to Bergin, telling him he was “compelled to carefully weigh and evaluate certain facts and claims” that the tribe had engaged in fraud. The letter also said that, absent gubernatorial reconsideration, Bergin was “bound to the conclusion” that the nation “did commit actionable malfeasance.”
Six days later, Ducey wrote his own letter to Bergin to “reaffirm” the state’s position that the casino is “contrary to the public interest and ... the product of fraud, fraudulent concealment and misrepresentation.”
Those claims had been previously presented to Campbell in an earlier lawsuit.
In that case, the judge ruled the tribe did not violate the terms of the 2002 voter-approved agreement. He did conclude, though, he could not address the fraud claims because of tribal sovereignty.
All that remains on appeal. But in the interim, Campbell’s order stands.
The tribe says the state — with Ducey and Brnovich driving the issue — is now seeking a way around Campbell’s earlier order.
Spinelli said just that two days after Ducey’s letter to him, Bergin reversed course.
He wrote to the tribe that, based on the advice of the governor and the attorney general, he “lacks statutory authority” to approve the Glendale casino. And Bergin said it doesn’t matter that the tribe won the earlier lawsuit.
The tribe subsequently filed this suit.
Attorneys for the governor and attorney general, in their own legal arguments, told Campbell the pair’s letters don’t matter and cannot be the basis to sue either of them.
“The letters merely provide information and options to Arizona Department of Gaming,” the lawyers said. “They did not require ADG take any specific action.”
Spinelli, however, said Bergin would not have reversed course had the pair not intervened.
“Ducey and Brnovich instructed ADG to deny the Nation regulatory certifications and approvals,” she wrote. And Spinelli questioned Bergin’s ability to ignore the governor, given that Ducey can fire him at any time.
Campbell will hear arguments next month on the state’s efforts to throw out the tribe’s lawsuit.
