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In a decision that could thwart the expansion of casino gambling in New York State, a judge in Albany has held that the governor lacks authority to enter into tribal gaming compacts without legislative approval. Supreme Court Justice Joseph C. Teresi’s decision in Saratoga County Chamber of Commerce v. Pataki, 5507-99, invalidates a compact signed by then Gov. Mario Cuomo in 1993 and amended by Gov. Pataki in 1999. It follows rulings in other states where courts have limited the power of governors to bind their states to Indian gaming compacts, absent legislative concurrence. The ruling is a major victory for anti-casino groups, potential competitors like the Saratoga Race Track and casino operators in Atlantic City, and lawmakers who claimed that the executive branch had intruded on legislative turf. Its practical impact is that there will be no casino gambling in the Catskills or Western New York — barring a successful appeal or action by the Legislature. Both appear unlikely. Teresi’s ruling does not affect the only two Las Vegas-style casinos currently operating in New York State: the Turning Stone Casino in Central New York and a second on the St. Regis Mohawk Reservation near the Canadian border. But it would come into play should there be any future effort to amend the compacts that allow those enterprises to function. “We didn’t seek to close down the existing operations, simply because that would be a hardship on everybody, including the [tribes],” said Cornelius D. Murray, of O’Connell and Aronowitz, an Albany, N.Y., firm representing the Saratoga County Chamber of Commerce, along with various state lawmakers and organizations opposed to commercial gambling. Regardless, a spokeswoman for Pataki said Wednesday that the administration disagrees with Teresi’s holding and is leaning toward filing an immediate appeal. “We are going to move forward quickly,” said spokeswoman Suzanne Morris. “Our plan is to appeal the decision.” Pataki has expressed support for the establishment of Indian casinos in once-prosperous resort areas like Monticello and Niagara Falls. Expansion is also of major economic importance to some of the Indian nations as unemployment on the Mohawk reservation often hovers near 40 percent. However, casino expansion is opposed by some influential groups, such as the Catholic Conference. And some well-funded competitors — such as Donald J. Trump and other Atlantic City business interests — have spent millions lobbying against the proposed Monticello casino. Teresi’s decision stems from a compact entered into by Gov. Cuomo pursuant to the federal Indian Gaming Regulatory Act. In 1993, Cuomo approved a compact that allowed the St. Regis Mohawk Tribe to operate a gambling casino at the Akwesasne Reservation in Hogansburg, Franklin County. Six years later, Gov. Pataki approved a plan, without the explicit approval of the New York Legislature, that allowed the Mohawks to use 1,000 video slot machines at Akwesasne, which were not permitted in the original compact. The matter has come before Justice Teresi twice. Last March, the judge dismissed the action on indispensable party grounds, finding that the suit could not go forward unless the Mohawks were named defendants, and that jurisdiction could not be exerted over the Mohawks because of their sovereign status. In August, however, the Appellate Division, 3rd Department, unanimously reversed. Justice Thomas E. Mercure, writing for the 3rd Department panel, observed that Teresi’s decision would have precluded judicial review of “important and far reaching issues” — namely, separation of powers — and said that the need to decide the matter on the merits outweighs the indispensability of the tribe. The 3rd Department also cited six decisions from other states where Indian gaming compacts obtained without legislative concurrence were found void and unenforceable. Further, it noted that the Court of Appeals has “stated that the fundamental and critical policy decisions of this state are the exclusive prerogative of the Legislature.” Teresi said the “guidance and authority” he received from the 3rd Department leads to only one conclusion: “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 governor had claimed that he had implicit legislative authority, since the Legislature failed to pass measures that would have expressly required its consent to gaming compacts. He also pointed out that the Legislature has approved appropriation bills to cover the cost of regulating gambling, and approved a measure granting the New York State Racing and Wagering Board access to the criminal history records of prospective casino workers. But Teresi held that the Legislature did nothing that would establish its ratification of the compact. “Courts are reluctant to give any weight to legislative inaction,” Teresi said. “It would seem particularly imprudent in this case to give weight to inaction when in fact the Assembly had passed a resolution in 1996 calling for the need for legislative ratification of the gaming compact.” Teresi’s decision declares the 1993 Tribal-State Gaming Compact and the 1999 amendment void, “as is any Tribal-State Gaming Compact absent legislative concurrence.” It also permanently enjoins the expenditure of state funds to expand gaming without prior legislative approval. Jay Goldberg, an attorney in Manhattan who represented two legislators challenging the governors’ action, said the ruling is a “great victory” for the separation-of-powers doctrine. “They can appeal it to the Appellate Division, but the Appellate Division has already said the governor doesn’t have the power,” Goldberg said. “Gov. Cuomo and Gov. Pataki assumed power that wasn’t theirs.” Arguing for the governor was Assistant Attorney General Edward M. Scher.

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