Saratoga County v. Pataki

• Decision Date: 24 August 2000
• Citation: 712 N.Y.S.2d 687,275 A.D.2d 145
• Parties: SARATOGA COUNTY CHAMBER OF COMMERCE, INC., et al., Appellants,<BR>v.<BR>GEORGE PATAKI, as Governor of the State of New York, et al., Respondents, et al., Defendant. (Action No. 1.)<BR>KEITH L. WRIGHT, as Member of the New York State Assembly, et al., Appellants,<BR>v.<BR>GEORGE E. PATAKI, as Governor of the State of New York, et al., Respondents, et al., Defendant. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

275 A.D.2d 145

712 N.Y.S.2d 687

SARATOGA COUNTY CHAMBER OF COMMERCE, INC., et al., Appellants,

v.GEORGE PATAKI, as Governor of the State of New York, et al., Respondents, et al., Defendant. (Action No. 1.)

KEITH L. WRIGHT, as Member of the New York State Assembly, et al., Appellants,

v.GEORGE E. PATAKI, as Governor of the State of New York, et al., Respondents, et al., Defendant. (Action No. 2.)

MERCURE, J.

August 24, 2000.

O'Connell & Aronowitz, Albany (Cornelius D. Murray of counsel), for Saratoga County Chamber of Commerce, Inc. and others, appellants.

Jay Goldberg, New York City, for Keith L. Wright and another, appellants.

Eliot Spitzer, Attorney General, Albany (Andrew D. Bing of counsel), for respondents.

CARDONA, P.J., CREW III, SPAIN and LAHTINEN, JJ., concur.

OPINION OF THE COURT

MERCURE, J.

I

The Indian Gaming Regulatory Act (25 USC § 2701 et seq. [hereinafter IGRA]) was enacted in 1988 for the declared purpose of "provid[ing] a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments" (25 USC § 2702 [1]), while at the same time "provid[ing] a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players" (25 USC § 2702 [2]). Under IGRA, gaming is divided into three categories. Class III gaming, which is at issue here, is statutorily defined as "all forms of gaming that are not class I gaming or class II gaming" (25 USC § 2703 [8]) and includes pari-mutuel horse race wagering, lotteries, banking card games such as baccarat, chemin de fer and blackjack, and electronic or electromechanical facsimiles of any game of chance or slot machines of any kind (25 USC § 2703 [7] [B]; see, Hotel Empls. & Rest. Empls. Intl. Union v Davis, 21 Cal 4th 585, 596, 981 P2d 990, 999).

Class III gaming activities are permitted on Indian lands only if "located in a State that permits such gaming for any purpose by any person, organization, or entity, and * * * conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State" (25 USC § 2710 [d] [1] [B], [C]; see, Rumsey Indian Rancheria of Wintun Indians v Wilson, 64 F3d 1250, 1256, cert denied sub nom. Sycuan Band of Mission Indians v Wilson, 521 US 1118). The term "Indian lands" encompasses not only lands within the limits of an Indian reservation but also those held in trust by the United States for the benefit of an Indian tribe (25 USC § 2703 [4] [A], [B]), including lands acquired in trust by the Secretary of the Interior after October 17, 1988 upon a determination "that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination" (25 USC § 2719 [b] [1] [A]).

In 1993, then-Governor Mario Cuomo entered into a Tribal-State compact with the St. Regis Mohawk Tribe (hereinafter the Tribe) which allowed the Tribe to operate gambling casinos. The Tribe opened the Akwesasne Mohawk Casino on its reservation near Hogansburg in Franklin County on April 10, 1999. On May 27, 1999, defendant Governor George Pataki and the Tribe entered into an amendment to the compact to permit the operation of electronic gaming devices, and the Tribe began the operation of these devices the following day. In addition, on October 29, 1999, the Tribe sought review by the Department of the Interior of the Tribe's application to acquire the property of the former Monticello Raceway in the Village of Monticello, Sullivan County, for the purpose of establishing a class III gaming establishment there. Following such review, the Secretary of the Interior determined that a gaming establishment on the parcel would be in the best interest of the Tribe and its members and would not be detrimental to the surrounding community. The application now awaits action of the Governor pursuant to 25 USC § 2719 (b) (1) (A).

On September 23, 1999, plaintiffs in action No. 1 (hereinafter the Saratoga plaintiffs) commenced an action in Supreme Court, Albany County, against the Governor, the State Racing and Wagering Board, and defendant Judith Hard, a former Counsel to the Governor who signed the May 27, 1999 amendment on behalf of the State. The amended complaint alleges that the Governor lacked authority to execute the compact or the amendment and that the types of gambling contemplated by both of them are prohibited by the New York Constitution, criminal statutes and public policy as enunciated by the Legislature. Plaintiffs therefore seek to nullify the compact and the amendment and to enjoin defendants from further implementing either document, including the expansion of the gambling activity onto other sites. The next day, plaintiffs in action No. 2 (hereinafter the Wright plaintiffs) commenced an action in Supreme Court, New York County, against the Governor and the State seeking similar declaratory and injunctive relief. Defendant Village of Monticello moved in action No. 1 to intervene as a defendant and to consolidate the two actions. On November 18, 1999, Supreme Court granted Monticello's motion to intervene and consolidated the actions, with venue in Albany County.

Defendants^[1] moved to dismiss both actions upon the grounds that plaintiffs failed to join an indispensable party, i.e., the Tribe, plaintiffs or certain of them lacked standing or legal capacity to sue, the complaints state a claim for relief which is subject to complete Federal preemption, the complaints are barred by the four-month Statute of Limitations of CPLR 217 and by the doctrine of laches, and certain of plaintiffs' claims are not ripe for judicial review. Monticello asserted a counterclaim against the Wright plaintiffs seeking a declaration that the compact and amendment are valid and enforceable. The Wright plaintiffs moved to dismiss the counterclaim. Monticello cross-moved for summary judgment on its counterclaim. Supreme Court granted defendants' motion to dismiss based upon the failure to join the Tribe, which it concluded was an indispensable party. It did not address any of the other grounds asserted for dismissal or Monticello's cross motion for judgment on its counterclaim. Plaintiffs in both actions appeal.

II

We are faced with the question of whether the Tribe's sovereign immunity from suit can be invoked by a non-Indian party to foreclose judicial review of the authority of the Governor, acting without legislative approval, to enter into a compact with the Tribe. We conclude that Supreme Court abused its discretion in dismissing the actions based on plaintiffs' inability to join the Tribe as a defendant. The general rule is that "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants" (CPLR 1001 [a]). A different rule applies, however, in cases such as this one^[2] where jurisdiction cannot be obtained over the nonjoined party without the consent of that party. In such a case, the court may allow the action to proceed in the absence of a necessary party if justice so requires, based on a consideration of (1) whether the plaintiffs have another effective remedy if the action is dismissed for nonjoinder, (2) prejudice to the defendants or the person not joined, (3) whether and by whom prejudice might have been avoided, (4) feasibility of protective orders by the court, and (5) whether an effective judgment may be rendered in the absence of the person not joined (see, CPLR 1001 [b]). In our view, a balanced consideration of these factors militates against the invocation of the harsh and rarely used remedy of dismissing the complaint for nonjoinder of an indispensable party (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:34, at 47-48).

First, there is no question that plaintiffs have no other effective remedy if the action is dismissed for nonjoinder. As already noted, the Tribe is immune from suit in both State and Federal courts. In addition, the State is immune from suit in Federal court pursuant to the 11th Amendment of the US Constitution (see, Seminole Tribe v Florida, 517 US 44; Ahern v State of New York, 244 AD2d 7, 9). Therefore, dismissal of the action based upon plaintiffs' inability to obtain jurisdiction over the Tribe would have the effect of absolutely barring resolution of the important and far-reaching issues raised in the complaints.

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 F3d 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 v State, 667 A2d 280, 282 [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...