Chamber of Commerce v. Pataki

• Citation: 766 N.Y.S.2d 654,798 N.E.2d 1047,100 N.Y.2d 801
• Decision Date: 12 June 2003
• Docket Number: Action No. 1.
• Parties: SARATOGA COUNTY CHAMBER OF COMMERCE, INC., et al., Respondents, v. GEORGE PATAKI, as Governor of the State of New York, et al., Appellants. KEITH L. WRIGHT, as Member of the New York State Assembly, et al., Respondents, v. GEORGE E. PATAKI, as Governor of the State of New York, et al., Appellants.
• Court: New York Court of Appeals

100 N.Y.2d 801

798 N.E.2d 1047

766 N.Y.S.2d 654

SARATOGA COUNTY CHAMBER OF COMMERCE, INC., et al., Respondents, v. GEORGE PATAKI, as Governor of the State of New York, et al., Appellants. (Action No. 1.)

KEITH L. WRIGHT, as Member of the New York State Assembly, et al., Respondents, v. GEORGE E. PATAKI, as Governor of the State of New York, et al., Appellants. (Action No. 2.)

Court of Appeals of the State of New York.

Argued March 26, 2003.

Decided June 12, 2003.

Eliot Spitzer, Attorney General, Albany (Andrew D. Bing, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for appellants in the first and second above-entitled actions.

O'Connell and Aronowitz, Albany (Cornelius D. Murray, Jeffrey J. Sherrin, James A. Shannon and Robert T. Fullem of counsel), for respondents in the first above-entitled action.

Jay Goldberg, P.C., New York City (Jay Goldberg and Debra A. Karlstein of counsel), for respondents in the second above-entitled action.

Zuckerman Spaeder LLP, Washington, D.C. (William W. Taylor, III, Elizabeth G. Taylor and Michael R. Smith of counsel), for Oneida Indian Nation, amicus curiae.

Chief Judge KAYE and Judge CIPARICK concur with Judge ROSENBLATT; Judge SMITH concurs in part and dissents in part

[100 N.Y.2d 846]

in a separate opinion, dissenting as to part VIII of Judge ROSENBLATT'S opinion; Judge READ dissents and votes to dismiss the actions in another opinion in which Judges WESLEY and GRAFFEO concur.

OPINION OF THE COURT

ROSENBLATT, J.

On this appeal we address the authority of the Governor to enter into agreements with Indian tribes to permit casino gaming on Indian reservations. Plaintiffs are legislators, organizations and individuals opposed to casino gambling. In challenging the Governor's authority, they contend that by negotiating and signing the agreements without legislative authorization or approval, Governor Mario M. Cuomo in 1993 and Governor George E. Pataki in 1999 violated the principle of separation of powers under the State Constitution (see NY Const, art III, ? 1; art IV, ? 1).¹ In response, the Governor and the other defendants (collectively, the State) argue that plaintiffs may not bring this action for a variety of procedural reasons and that in any event the agreements were consistent with the separation of powers. After setting forth the background of the case, we address the procedural issues and then turn to the merits.

I. Factual and Statutory Background

On October 15, 1993, then-Governor Cuomo entered into the "Tribal-State Compact Between the St. Regis Mohawk Tribe and the State of New York." The compact, which underlies this appeal, is an outgrowth of the Federal Indian Gaming Regulatory Act (IGRA) (25 USC ?? 2701-2721; 18 USC ?? 1166-1168), and allows the Tribe to conduct gambling, including baccarat, blackjack, craps and roulette, on the Akwesasne Reservation in Franklin County.

In response to the United States Supreme Court's decision in California v Cabazon Band of Mission Indians (480 US 202 [1987]), Congress passed IGRA, which declares that "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity" (25 USC ? 2701 [5]). IGRA provides statutory authorization for the establishment of Indian casinos, attempts to regulate the gaming so as to avoid "corrupting influences" and seeks to ensure that the Indian tribes are the primary beneficiaries of the gaming (see 25 USC ? 2702).

IGRA requires a compact between a tribe and the state before the tribe will be permitted to conduct "Class III" gaming, which includes the Las Vegas-style gaming at issue here.² When a tribe requests that a compact be negotiated, a state is required to do so in good faith (see 25 USC ? 2710 [d] [3] [A]). The compact should resolve such matters as the applicability of state laws at the casinos, state taxation of gambling revenues, remedies for breach of contract and "any other subjects that are directly related to the operation of gaming activities" (25 USC ? 2710 [d] [3] [C] [i]-[vii]). IGRA authorizes compacts only in "State[s] that permit[] such gaming for any purpose by any person, organization, or entity" (25 USC ? 2710 [d] [1] [B]).

According to the terms of the 1993 compact, the New York State Racing and Wagering Board, the New York State Police and the St. Regis Mohawk Tribal Gaming Commission were vested with gaming oversight. Law enforcement responsibilities fell under the cognizance of the State Police, with some law enforcement matters left to the Tribe. As required by IGRA, the compact was approved by the United States Department of the Interior before it took effect.

The Tribe opened its casino on April 10, 1999. On May 27, 1999, Governor Pataki³ and the Tribe executed an amendment to the 1993 compact. The Interior Department approved the amendment, which allowed the casino to operate electronic class III games, including keno. By its terms, the amendment expired on May 27, 2000, one year after it was signed. Although the Governor and the Tribe later agreed to two additional amendments, the Interior Department disapproved them. As a result, there is no authorization in effect allowing the Tribe to operate electronic gaming. Nevertheless, the parties inform us that electronic gaming continues at the casino. Shortly after the 1999 amendment took effect, plaintiffs brought suit asserting that the 1993 compact and the 1999 amendment violated the separation of powers and the constitutional gambling prohibition. They sought a declaration that the 1993 compact and the 1999 amendment were unconstitutional, and an injunction prohibiting the State from expending any money in furtherance of the agreements. They also asked the court to enjoin the Governor from taking any further unilateral action (such as signing a successor to the 1999 amendment) that would extend gambling in the state.

By judgment entered March 10, 2000, Supreme Court dismissed the action for plaintiffs' failure to join the Tribe as an indispensable party (see generally CPLR 1001). On appeal, the Appellate Division reversed, concluding that the Tribe was not an indispensable party, noting that a contrary ruling would put Indian gaming compacts beyond constitutional challenge or review (see Saratoga County Chamber of Commerce v Pataki, 275 AD2d 145, 151-154 [2000] [Saratoga I]). While the Appellate Division acknowledged that the Tribe's interests would be affected by the suit, it determined that, on balance, the Tribe's absence should not prevent the suit from going forward. The Court also rejected the State's statute of limitations, standing and laches defenses (see id. at 154-158).

On remand, by order entered April 12, 2001, Supreme Court granted plaintiffs summary judgment. The court declared the 1999 amendment and the 1993 compact void and unenforceable, and enjoined the Governor from taking any further action to reenact an electronic gaming amendment without legislative approval. The Appellate Division affirmed, holding that the Governor's unilateral action deprived the Legislature of its policymaking authority in such areas as "the location of the casino, the gaming that could be carried on there, the extent of state involvement in providing regulation * * * and the fees to be exacted for that regulation" (Saratoga County Chamber of Commerce v Pataki, 293 AD2d 20, 26 [2002] [Saratoga II]). The State appealed as of right, bringing up for review the substantial constitutional question presented.

II. Mootness

The jurisdiction of this Court extends only to live controversies (see Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608, 72 NY2d 307, 311 [1988]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]). We are thus prohibited from giving advisory opinions or ruling on "academic, hypothetical, moot, or otherwise abstract questions" (Hearst Corp.,50 NY2d at 713). Accordingly, where changed circumstances prevent us "from rendering a decision which would effectually determine an actual controversy between the parties involved," we will dismiss the appeal or reverse the lower court order and direct that court to dismiss the action (Karger, Powers of the New York Court of Appeals ? 71 [a], at 426 [3d ed]).

A. 1999 Amendment

Plaintiffs' challenges to the 1999 amendment are moot. The amendment expired in May 2000, and in the intervening three years no similar agreement has gone into effect. A declaration as to the validity or invalidity of the 1999 amendment would therefore have no practical effect on the parties. Granted, a declaration as to the Governor's ability to negotiate amendments to the compact would provide beneficial advice to future officials who will have to make decisions about this casino and other similar projects. This is true, however, of all requests for advisory opinions.

In Hearst we recognized that the mootness prohibition is subject to an exception, by which we have discretion to review a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question (see 50 NY2d at 714-715; see also Wisholek v Douglas, 97 NY2d 740, 742 [2002]). In that event, a court may reach the moot issue even though its decision has no practical effect on the parties (see Hearst, 50 NY2d at 714-715). Plaintiffs here ask us to apply the Hearst mootness exception and address the validity of the 1999 amendment, arguing that the Governor's two unsuccessful attempts to extend the amendment demonstrate a high likelihood of recurrence. They further contend that the one-year length of both the 1999 amendment and the two proposed amendments makes judicial review impracticable.

These are cogent assertions but we are unpersuaded that this controversy is so likely to evade review as to...