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STATE OF NEW YORK
COUNTY OF ALBANY
SUPREME COURT
SARATOGA COUNTY CHAMBER OF
COMMERCE, INC., JOSEPH DALTON;
NEW YORKERS FOR CONSTITUTIONAL
FREEDOMS, LTD.; LEE KARR, Individually
and as Chairman of The COALITION AGAINST
CASINO GAMBLING, an Unincorporated
Association; G. STANFORD BRATTON, Individually
and as Coalition Coordinator for the WESTERN
NEW YORK COALITION AGAINST CASINO
GAMBLING, an Unincorporated Association; the
HON. FRANK PADAVAN, a Duly Elected and 
Serving Member of the New York State Senate;and
the HON. WILLIAM PARMENT, a Duly Elected and
Serving Member of the New York State Assembly,

Plaintiffs

- against -

DECISION and ORDER
INDEX NO. 5507-99
RJI NO. 0199059775

GEORGE PATAKI, as Governor of the
State of New York, JUDITH HARD, Deputy
Counsel to the Governor; and the NEW YORK
STATE RACING AND WAGERING BOARD,

ACTION NO. 1

Defendants

KEITH L. WRIGHT, as Member of the New York
State Assembly, and LARRY B. SEABROOK, as member of the New York State Senate,

Plaintiffs,

- against -

INDEX NO. 11971-99

GEORGE E. PATAKI, as Governor of the State of New York, and THE STATE OF NEW YORK,

ACTION NO. 2

Defendants

Supreme Court Albany County All Purpose Term, March 6, 2020
Assigned to Justice Joseph C. Teresi

APPEARANCES:

Cornelius D. Murray, Esq.
O'Connell and Aronowitz
Attorneys for Plaintiffs in Action No. 1
100 State Street
Albany, NY  12207

Hon. Eliot Spitzer
Attorney General of the State of New York
Attorneys for Defendants (Actions No. 1 and No. 2)
(Edward M. Scher, Esq., A.A.G., of Counsel)
The Capitol
Albany, NY  12224

Jay Goldberg, P.C.
Attorneys for Keith Wright, a member of the New York
State Assembly and Larry B. Seabrook, a member of the New
York State Senate
250 Park Avenue, Suite 2020
New York, NY  10177
TERESI, J.:
    Plaintiffs in Action No. 1 and Action No. 2 as well as defendants all move separately for summary judgment pursuant to CPLR3212.  Plaintiffs in Action No. 1 seek an order:
Declaring illegal the so-called "Tribal State Compact between the St. Regis Mohawk Tribe and the State of New York" (the "Compact"), purportedly entered into in 1993 pursuant to the federal Indian Gaming Regulatory Act ("IGRA") by then-Governor Mario Cuomo, on behalf of the State of New York, to authorize the St. Regis Mohawk Tribe (the "Tribe") to operate a Las Vegas-style gambling casino on the Tribe's Akewesasne Reservation located in upstate New York;
Declaring illegal an amendment to that Compact, dated May 27, 1999, which expired on May 27, 200 (the "Amendment"), purportedly entered into on behalf of the State of Governor Pataki through his agent, Judith Hard, then Deputy Counsel to the Governor, which purports to allow the Tribe to expand its gaming operation to include the use of "electronic video gaming devices," not permitted under the original Compact; and
Enjoining Governor Pataki and the New York State Racing and Wagering Board (which maintains a presence at the casino on the Reservation on a 24-hour basis in order to oversee its operation and to ensure compliance with the Compact as amended) from taking any further action, including the expenditure of State funds, to expand the operation to include the use of electronic gaming devices on the Reservation pursuant to the Amendment.
Plaintiffs in Action No. 2 similarly seek an order:
(1)  Declaring that any Tribal-State Gaming Compact signed by the Governor is void and
      unenforceable absent legislative concurrence;
(2)  Declaring that the 1993 Tribal-State Compact signed by the Governor with the St. Regis
      Mohawk Tribe is void and unenforceable;
(3)  Permanently enjoining defendants from entering into, or attempting to enter into, or amending
      any gaming compacts with any Indian tribe without prior legislative concurrence;
(4)  Enjoining defendants from any conduct which would expand Indian gambling activity within the
      State of New York without prior legislative concurrence;
(5)  Awarding plaintiffs their costs, attorney's fees; and
(6)  Granting such other and further relief as this Court deems just and proper.
     Defendants move for summary judgment in favor of all of the defendants and against all of the plaintiffs upon the grounds that plaintiffs' causes of action are not ripe for judicial review; that there are no triable issues of fact and there is no merit to the causes of action asserted in the complaints and amended complaints.
     The history of this case is fully outlined in this Court's previous decision, (Saratoga County Chambers of Commerce Inc. v. Pataki, Index No. 5507-99, 11971-99, Alb. Sup. Ct., decided March 8, 2020) and the Appellate Division decision of June 9, 2000.  (Saratoga County Chamber of Commerce Inc. v. Pataki, ___AD2d___, 712 NYS 2d 687, [3rd Dept., 2000]).
     Initially, the Court will deny the defendants' motion for dismissal on the grounds that the actions are not ripe for judicial review.  Defendants maintain that the 1999 Amendment which permitted the Tribe to conduct electronic gaming has expired and absent a new amendment the Court should decline to rule on the Governor's authority to enter the original 1993 compact prior to a new amendment.  The Court is mindful that the Appellate Division's decision (Saratoga County Chamber of Commerce Inc. v. Pataki, ___AD2d___, 712 NYS 2d 687, [3rd Dept., 2000]) held that "the public interest would be best served by a determination of this litigation on the merits."  That Court disposed of all additional issues (standing claims, preemption under Federal Law, statute of limitations and laches) raised on motions to expedite a determination of the actions on the merits.  The Court notes although the "Amendment" has expired the activity plaintiff seeks to enjoin continues.  After a full review of this record and the previous Appellate Division's decision this Court declines to dismiss this matter on the grounds of ripeness.
     Therefore, the next issue before this Court is whether the Governor of the State of New York is empowered to enter into a Tribal State Gaming Compact absent legislative concurrence.  This Court, with guidance and authority from the Appellate Division and a full review of the record here determines the Governor does not have such authority.  As previously stated by the Appellate Division, id., and heavily relied upon by plaintiffs:
"It is noteworthy, we believe, that a number of other jurisdictions have considered the question of whether a governor has the authority to bind a state to an Indian gaming compact, and in every state whose constitution does not grant residual powers to the executive, the litigation resulted in a declaration that the compact is void and unenforceable absent legislative concurrence (see, Jicarilla Apache Tribe v. Kelly, 129 F3d 535, 537; Kickapoo Tribe of Indians v. Babbitt, 827 F Supp 37, 46, revd on other grounds 43 F2d 1491; McCartney v. Attorney General, 231 Mich App 722, 727-728, 587 NW2d 824, 827, lv denied 460 Mich 873, 601 NW2d 101; Narragansett Indian Tribe of R.I. v. Rhode Is., 667 A2d 280, 292 [RI]; State ex rel. Clark v. Johnson, 120 NM 562, 574, 904, P2d 11, 23; State ex rel. Stephan v. Finney, 251 Kan 559, 582-583, 836 P2d 1169, 1185).  Further, the Court of Appeals has stated that the fundamental and critical policy decisions of this State are the exclusive prerogative of the Legislature (see. e.g., Bourquin v. Cuomo, 85 NY2d 781, 784; Matter of New York State Health Facilities Assn. v. Axelrod, 77 NY2d 340, 349)."
     As demonstrated, the tribal gambling compacts in Kansas, Michigan, Rhode Island and New Mexico were invalidated (by the highest court of each State) absent legislative concurrence or approval.  In those states, as in New York, the state's Constitution does not grant residual powers to the executive to bind the State to an Indian Gaming Compact.
     The cases cited by the Appellate Division all have a common and clear theme:  that the Governor did not have the authority to bind their states with Indian Gambling Compacts absent legislative concurrence or approval.  As stated in Clark v. Johnson, 120 N.M. 562 (Supreme Court, New Mexico 1995):
"Under federal law as expressed in the IGRA, Class III gaming activities are lawful on Indian land only if the State permits such gaming "for any purpose by any person, organization, or entity."  The compacts negotiated and signed by the Governor authorize gaming that New Mexico law does not permit.  For example, New Mexico law does not permit "all forms of casino-style games" as stated in the recitals in the compact with Pojoaque Pueblo.

In addition, the New Mexico Constitution requires legislative approval or ratification of compacts that are otherwise in conflict with state gambling statutes.  Under state constitutional separation of powers, the Governor may neither infringe upon legislative authority with respect to existing law nor with respect *578 **27 to the power of the legislature to change law in the future.  Residual governmental power rests within the legislature.  The specific enabling legislation on which the Governor relies is not applicable.

The IGRA does not purport to expand state gubernatorial power.  The Governor's power to negotiate and sign the compacts derives from the state constitution and state statues." Id.
     This is strikingly similar to the present situation.
     Also, in Stephen v. Finney, 251 Kan 559. (Supreme Court, Kansas 1992).  The Court held the Governor of Kansas had power to negotiate compacts but could not bind the state to the terms, and absent "an appropriate delegation of power by the Kansas Legislature or legislature approval of the compact, the Governor had no power to bind the State to the Terms" of the compact.  In Narragansett Indian Tribe of Rhode Island v. State, 667 AD2d 280 (Supreme Court, Rhode Island 1995) while holding the governor could not bind the state to a compact that Court held:
"We also take care to note that our opinion in no way suggests that the Governor, in his capacity as Chief Executive officer of this state, lacks the authority to advocate, to initiate, and to negotiate, short of executing, a tribal-state compact.  All that we determine herein is that the Governor, *729 absent specific authorization from the General Assembly, had no express or implied constitutional right or statutory authority to finally execute and bind the state to such a compact by his execution thereof. [Id. at 282]"
     The Court in McCartney v. Attorney General, 231 Mich App 722 (Court of Appeals, Michigan 1998) also emphasized that there is no constitutional impediment to the Governor's negotiating with an Indian Tribe where the product of his negotiation has no affect without legislative approval.
     Similar to those cases, this Court finds that New York's Governors in signing the Indian Gaming Compacts have crossed the line of executive power and entered into the domain of the legislature without proper mandate or authority within the New York State Constitution.
     The Court also finds that this ruling is fully consistent with the position taken by defendant in 1992 in St. Regis Mohawk Tribe v. State of New York and Mario M. Cuomo, Case No. 91 CV-1117, SDNY.  In that case St. Regis Mohawk Indian Tribe filed a lawsuit alleging that the Governor failed to negotiate the terms of the Gaming Compact in good faith.  There in an answer filed, in that action by the State, maintained that under New York State Law, "as a matter of sound public policy," the Governor must have legislative authorization in order to conclude a Tribal/State Compact. (Exhibit J at paragraph 4 of Goldberg's Affidavit).
     This Court does not find that the Indian Gaming Regulatory Act ("IGRA") nor the level of permitted legal gambling activity in New York has in any way amended New York Law.  The 1993 Tribal State Compact denied the type of fundamental and critical policy decision of this State which is solely within the exclusive prerogative of the Legislature. (Bourquin v. Cuomo, 85 NY2d 781, 784).
     This Court does find that the Governor has no explicit or implicit authority to bind the State to a Tribal State Gaming Compact without specific legislative approval.  Therefore, the next issue is whether the compact and its amendments have been adopted by the Legislature.  Defendants claim that legislative adoption is demonstrated by the failure to pass bills requiring legislative concurrence for the State to enter a gaming compact; legislative appropriations for the regulations of gaming; and the enactment of Chapter 264 of the laws of 1993, which gives the New York State Racing and Wagering Board employees access to the criminal history records of perspective casino employees.  This Court finds that those actions either singularly or combined do not establish legislative ratification of the compact.
     Courts are reluctant to give any weight to legislative inaction (see, Matter of Boreali v. Axelrod, 71 NY2d, 1, 13 (1987).  It would seem particularly imprudent in this case to give weight to inaction when in fact the Assembly has passed a resolution in 1996 calling for the need for legislative ratification of the gaming compact.  (See, New York State Assembly Resolution No. 2413, July 12, 2020 [Exhibit E of Motion Action No. 2]).  Nor does the Court interpret Chapter 264 of the Law of 1993 as a ratification of the compact as that statute is prefaced by:  "In the event it is established that activity under Public Law 100-497 (IGRA) shall be conducted in this State."  Obviously, that language indicates the Legislature's withholding of authority until legislative approval of a valid compact, as a pre-condition of its validity.
     Lastly, the defendants argue that various appropriation bills imply legislative ratification.  As stated in Matter of National Resources Defense Counsel v. New York City Dept. of Sanitation, 83 NY2d 215 (1994):
"It is well settled that "[repeal or modification of legislation by implication is not favored in the law" (Matter of Consolidated Edison Co. v. Department of Envtl. Conservation, 71 NY2d 186, 195), and that the doctrine will "be resorted only in the clearest of cases" (Ball v. State of New York, 41 NY2d 617, 622; see also, McGivney's Cons. Laws of NY, Book 1, Statutues 391)."
The facts here do not establish any similar clear implication and this Court will not abrogate the New York Constitution on the basis of those appropriations.
     Therefore, the 1993 Tribal-State Gaming Compact and its May 27, 2020 amendment is declared and found to be void and unenforceable as is any Tribal-State Gaming Compact absent Legislative concurrence.  The defendants are permanently enjoined from taking any further actions to implement them, including the expenditure of State funds to expand the operation to include the use of electronic gaming compacts with any Indian Tribe without prior legislative concurrence or approval.
     All papers, including this Decision and Order, are being returned to the attorneys for the plaintiffs in Action No. 1.  The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220.  Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.
     SO ORDERED!
Dated:  April 10, 2001
           Albany, New York

JOSEPH C. TERESI, J.S.C.
/Signed/
PAPERS CONSIDERED:
1.  Notice of Motion dated January 16, 2021 with Affirmation of Jay Goldberg, Esq. dated January
     17, 2001, with attached Exhibits A - N.
2.  Reply Affirmation of Jay Goldberg, Esq. dated May 5, 2020 with attached Exhibit 1.
3.  Affidavit in Support of Motion for Summary Judgment of Hon. Frank Padavan dated January 16,
     2001.
4.  Affidavit of Michael Gadway dated January 30, 2001.
5.  Affidavit of Assemblyman William Parment dated February 2, 2020 with attached Exhibits A - C.
6.  Affidavit of Frank J. Mauro dated February 14, 2020 with attached Exhibits A - C.
7.  Notice of Motion dated January 16, 2021 with Affirmation of Cornelius D. Murray, Esq. dated 
     January 17, 2001.
8.  Record on Appeal, Volume I - Pages 1 to 414.
9.  Record on Appeal, Volume II - Pages 415 to End.
10.  Affidavit of Robert T. Williams, Esq. dated February 13, 2020
11.  Reply Affidavit of Robert T. Williams, Esq. dated March 5, 2020
12.  Notice of Motion dated January 17, 2001.
13.  Affidavit of Edward M. Scher, A.A.G. dated January 16, 2021 with attached Exhibits A - F.
14.  State Defendants' Answer to Amended Verified Complaint dated November 16, 2000.
15.  Affidavit of Robert T. Williams, Esq. dated January 12, 2021 with attached Exhibits A - U.