Town of Verona v. Cuomo
| Decision Date | 27 June 2014 |
| Docket Number | No. 4624–13.,4624–13. |
| Citation | 997 N.Y.S.2d 670 (Table) |
| Parties | In the Matter of the Application of TOWN OF VERONA (Oneida County), the Town of Vernon (Oneida County), Michael McDonough, Daniel Deal, James Anderson and Melvin Phillips, Petitioners-, Plaintiffs, v. Hon. Andrew CUOMO, as Governor of the State of New York, Madison County, John M. Becker, as Chairman of the Board of Supervisors of Madison County, Oneida County, Anthony J. Picente, Jr., as Oneida County Executive, the New York State Gaming Commission, Sheldon Silver, as Speaker of the New York State Assembly, Dean Skelos, as Co–Majority Leader of the New York State Senate, and Jeffrey Klein, as Co–Majority Leader of the New York State Senate,, Respondents-, Defendants. |
| Court | New York Supreme Court |
O'Connell & Aronowitz, Albany, NY, (Cornelius D. Murray, Esq., of Counsel), Eric T. Schneiderman, Attorney General, State of New York, for Petitioners–Plaintiffs.
Andrew Cuomo, New York State Gaming, Commission, Sheldon Silver, Dean Skelosand Jeffrey Klein, The Capitol, Albany, (James B. McGowan, Assistant Attorney General of Counsel), Nixon, Peabody LLP, for Respondents–Defendants.
Madison County, John M. Becker, Oneida, County, and Anthony J. Picente, Jr., Rochester, (David H. Tennant, Esq., of Counsel), for Respondents–Defendants.
DECISION/ORDER/JUDGMENT
Up until January 1, 2014 the New York State Constitution prohibited casino gambling within the state (see former N.Y. Const art I, § 9). In 2012 and 2013, successive sessions of the New York State Legislature approved, by concurrent resolution, a proposed amendment to the New York State Constitution to authorize casino gambling. The 2013 bills, entitled “Upstate New York Gaming Economic Development Act of 2013” (“UNYGEDA”), were signed into law by the Governor as Chapters 174 and 175 of the Laws of 2013. Thereafter, a ballot proposition to amend Article I § 9 of the Constitution was approved in the November 5, 2013 general election. Prior to that date, on August 19, 2013, petitioners-plaintiffs (hereinafter “plaintiffs”), commenced the above-captioned hybrid action/proceeding to challenge various actions taken by the respondents which, they claim, violated their constitutional rights. They request both injunctive and declaratory relief.
The Oneida Indian Nation (“Oneida Nation”) has operated Turning Stone Casino in Oneida County in central New York since 1993. Operation of the casino had been authorized by then-Governor Mario Cuomo in 1993 pursuant to a Tribal–State Compact which, however, had never been ratified by the State Legislature. On May 16, 2013 Governor Andrew Cuomo entered into a Tribal Compact with the Oneida Nation (hereinafter the “Settlement Agreement”), which purported to resolve a number of longstanding disputes between the Oneida Nation on the one side, and state and local governments on the other. Of particular relevance here, the Settlement Agreement contained a covenant that the Oneida Nation would support a public referendum to authorize casino gambling in the State, and would not fund a media campaign to oppose it (see Settlement Agreement § VI [C][7] ). According to the plaintiffs, the Governor's purpose in including this particular provision in the Settlement Agreement was to preempt and neutralize any opposition the Oneida Nation might otherwise mount in an effort to defeat the public referendum (in order to preserve its existing monopoly over casino gambling in central New York). It is alleged that, in exchange for the Oneidas' support of the constitutional amendment the Oneida Nation received the following:
An agreement that the State Legislature would incorporate the terms of the Settlement Agreement into state legislation; and that portions of Oneida and Madison Counties, originally part of the Oneida's 300,000 acre historic reservation, as recognized by the 1794 Treaty of Canandaigua, would be considered a reservation regardless of who now owned fee title to the property.
The Towns of Vernon and Verona (hereinafter “Towns”), allege that the Settlement Agreement will have devastating consequences to them, including loss of a significant portion of their real property tax base, loss of tax revenue (including sales tax), and loss of their power to control and regulate use of the land.
In September 2013the respondents/defendants (hereinafter “defendants”) served and filed a notice of removal of the instant action to United States District Court Of the Northern District of New York, and made a motion to dismiss. United States District Court Judge Lawrence E. Kahn, in a decision dated October 30, 3013, determined there was no federal standing, and remanded the matter back to state court. The defendants have served an answer to the petition/complaint, together with a motion for summary judgment. They raise a number of affirmative defenses.
The defendants, relying upon the decision of U.S. District Court Judge Lawrence E. Kahn, maintain that the plaintiffs are precluded from further litigating the issue of standing under principles of res judicata and/or collateral estoppel. The plaintiffs disagree, maintaining that Judge Kahn only determined that the plaintiffs did not have standing under the rules applicable in federal court. Judge Kahn relied upon Hollingsworth v. Perry (––– U.S. ––––, ––––, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 [2013] ), in which the United States Supreme Court re-stated the federal three-part test for standing:
(id. ).
Judge Kahn determined that the plaintiffs had not established that they had suffered a concrete and particularized injury with respect to infringement of their federal right to freedom of speech (more accurately, their right to listen to such speech), their right to equal protection under the law, their right to vote and/or their allegations of voter fraud. Specifically, Judge Kahn found that the plaintiffs had failed to allege facts to demonstrate: (1) third-party standing to assert a violation of the rights of the Oneida Nation; (2) the existence of a willing speaker in connection with violation of their First Amendment right to hear protected speech; and (3) their broad allegations with regard to vote buying, the rigging of the constitutional ballot referendum, or claims of vote dilution. He concluded that the facts as alleged in the complaint did not demonstrate that the plaintiffs suffered any injury greater than that sustained by the public at large. He found that federal court did not have jurisdiction of the matter, and remanded the action back to State Supreme Court (see Town of Verona v. Cuomo, U.S. Dist. Ct., N.D. NY, Docket No. 1:13–CV1100 [LEK/DEP], Slip Op., October 30, 2013).
In the Court's view, Judge Kahn's findings with respect to violation of plaintiff's federal rights, including factual determinations incidental thereto, are indeed binding upon the parties, not however under the doctrines of res judicata or collateral estoppel, but rather under the doctrine of law of the case. “Under the law of the case doctrine, parties or their privies are preclude[d from] relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue' “ (Briggs v. Chapman, 53 A.D.3d 900, 863 N.Y.S.2d 97 [3rd Dept., 2008], at 901, quoting Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 A.D.3d 1177, 1179 [2007], and citing Webster v. Ragona, 51 A.D.3d 1128, 1131–1132 [2008] and Beneke v. Town of Santa Clara, 45 A.D.3d 1164, 1165 [2007], lv denied 10 N.Y.3d 706 [2008] ). This principle, in the Court's view, applies here, to preclude the parties from relitigating the matters determined by Judge Kahn, including the plaintiffs' lack of standing to seek review of a violation of their federal constitutional rights.
Although unnecessary to do so, Judge Kahn made clear in his Memorandum–Decision–Order that he did not make any determination with regard to standing under principles of state law (see Town of Verona v. Cuomo, U.S. Dist. Ct., N.D. NY, Docket No. 1:13–CV1100 [LEK/DEP], Slip Op., supra, footnote 7, p. 14). The general test for standing in New York State requires that a litigant demonstrate that she or he has suffered injury in fact, that is, “actual harm” which is not just conjectural (see New York State Association of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211 [2004], citing Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773 [1991] ; Matter of Colella v. Board of Assessors, 95 N.Y.2d 401, 409–410[2000] ). The injury must be more than that suffered by the...
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