Summons & Complaint

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  • 8/7/2019 Summons & Complaint


  • 8/7/2019 Summons & Complaint




    DECLARATORYANDREW M. CUOMO, as Governor of the JUDGMENTState ofNew York,Index No.: 72311Defendant.


    DATE FILED: 1/31/11Plaintiff complaining of Defendant by his attorneys Featherstonhaugh, Wiley &

    Clyne, LLP alleges as fo llows:INTRODUCTORY STATEMENT

    1. This is an action for declaratory and injunctive relief pursuant to CPLR3001 and 3017(b).

    2. Plaintiff seeks a declaration tha t the Tribal-State Gaming Compactbetween the Stockbridge-Munsee Community Band of Mohican Indians (Nation orTribe ) and the State of New York (S tate ) dated November 22, 2010 (Compact) isillegal and unconstitutional for reasons se t for th later in th is Com plaint.

    3. Plaintiff seeks an injunction agains t the expenditures of taxpayer moneyand the implementation of the Compact unless and un til the Compact has been (a ) ratifiedas required by Executive Law 12(b); (b) completed in accordance with its terms; (c)amended so that it can be properly certified pursuant to Executive Law 12(b); and (d)amended in an manner to comply with Article 1 Sect ion 16 of the New York StateConstitution.


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    PARTIES AND STANDING4. Plaint iff, Steven M. Boggess is a res ident of the Town of East Greenbush,

    County of Rensselaer and a citizen and taxpayer of the State of New York. Plaintiffpersonally oppo ses the location of a gaming ca sino in the County of Sullivan and theillegal and unconstitut ional expenditure of taxpaye rs funds in support of such a cas ino.

    5. Andrew M. Cuomo is the duly elected Governor of the State ofNew York.6. Unless the relief requested in this Complaint is granted, a wrongful

    misapp rop riation, and an illegal and unconstitutiona l expendi ture of state funds pursuantto the Compact will be made.

    7. Plaintiff has standing to bring this action und er State Finance Law 123-b.BACKGROUND OF THE CONTROVERSY

    8. The Federal Indian Gaming Regula tory Act (IGRA) was codified at 25USC Sections 2701-2721 and 18 USC Sections 1166 1168.

    9. IGRA declares that Indian tribes have the exclusive right to regulategaming activity on Indian lands if the gaming ac tivity is not specifically prohibited byFederal Law and is conducted within a State which does not, as a matter of criminal lawand public policy, prohibit such gaming activity.

    10. IGRA provides State authorization for the establishment of Indian cas inos,attempts to regulate gaming so as to avoid corrupting influences and seeks to ensurethat the Indian tribes are the primary beneficiaries of the gaming.

    11. IGRA requires a compac t between the tribe and a state before the tribewill be perm itted to conduct C lass III gaming, which includes the Las Vegas-stylegaming at issue in this case.


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    12. When a tribe requests that a compact be negotiated , the State is required todo so in good faith and the compact should resolve such matters as the applicability ofstate laws at the cas inos, state taxation of gambling revenues, remedies for breach ofcontract, and any other subjects that are direc tly related to the operation of gamingactivities.

    13. IGRA authorizes compacts only in states that permit such gaming for anypurpose by any person, organization or entity.

    14. On or about the 22K day of November. 2010, then Governor David A.Paterson, on behalf of the State of New York, and Kimberly Vele, President of theStockbridge-Munsee Community Band of Mohican Indians (T ribe ) purported toexecu te the Compact.

    15. Upon information and belief, the Compact in the form executed, isattached hereto as Exhibit A.

    16. Upon information and belief, shortly thereaf ter, the Compact, in the formattached as Exhibit A was filed with the Department of the Interior, Bureau of IndianAffairs.

    THE FAILURE TO RATIFY17. The Compac t requires legislative approval or ra tifica tion in order to be

    effec tive under the Constitution and laws of the State ofNew York.18. Executive Law 12(b) addresses ratif icat ion of certain compac ts .19. Executive Law 12(b) provides, in part, as follows:Notw ithstanding any other law, the state, through the governor,may execute tribal-state compacts pursuant to the Indian GamingRegulatory Act of 1988 (P.L. 100-497; 25 U.S.C. 2701-2721and 18 U.S.C. 1166 1168) autho rizing up to th ree Class IIIgaming facilities in the counties of Sullivan and Ulster. Suchtr ibal-state compact shall be deemed ratified by the leg islature


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    upon the governors certification to the temporary president of thesenate, the speaker of the assem bly and the secretary of state, thatsuch compact, through its terms, by a memorandum ofunders tand ing or other ag reement be tween the sta te and Nation , bya Nations ordinance or resolution , by statute, by executive order,or by the terms of any other ag reement en tered into by or on behalfof the Nation , provides: (i) assurances that the Nation will provide(1) reasonable access to the gaming and re lated facilities to laborunion organizers for purposes of a campa ign to solicit employeesuppor t for labor un ion organizers for purposes of a campaign tosolicit employee suppo rt for labor un ion represen tat ion; (2)permission for labor un ion organizers to distribute labor unionauthorization cards on site for the purpose of soliciting employeesuppor t for labor union representation ; (3) provision of employeesnames and addresses to labor union represen tatives andtribal/employe r/managem en t neu tra lity in labor un ion organizingcampaigns; (4) recogni tion of labor un ions as the exclusiveco llective bargaining representatives of employees in appropriateba rga ining units based upon a demonstration of majority employeesuppo rt of such labor un ions by union authorization card check asverified, if necessary, by an ind ependent arb itra tor appoin ted bythe Public Employee Relations Board in consu ltation with theNation and the labor union; and (5) final and binding arbitration oforganized labor matte rs or disputes including nego tiation s forco llec tive bargaining ag reements with arbitrators aw ardsen forceable in a state or federal court of compe ten t jurisdiction; (ii)assurances that the Nation has an adequate civil recovery systemwhich guarantees fundamental due process to visito rs and guests ofthe facility and re lated facili ties; and (iii) assurances that theNation will maintain during the term of the compact sufficientliability insurance to assure that visitors and guests will becompensated for their injuries .

    20. The 233 Session of the New York State Legislature commenced onJanuary 6, 2010, and ended on or before December 31, 2010.

    21. Hon. Malcolm Smith was the temporary president of the Sena te during the233 Session of the Legislature .

    22. Hon. Sheldon Silver was the Speaker of the Assembly during the 233Session of the Legislature.

    23. Gove rno r David A. Paterson s term of office as Governor of the State ofNew York ended on December 31, 2010.WD031318.I

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    24. Hon. Dean Ske los was elected as Temporary President of the Senate on orabout January 6, 2010.

    25. Hon. Sheldon Silver was re-elected as Speaker of the Assembly on orabout January 6, 2010.

    26. The certification pursuan t to Executive Law 12(b) was not made to theSpeaker of the Assembly during the term of Governor David A. Paterson or the 233wSession of the Assembly.

    27. The certification pursuant to Executive Law 12(b) was not made to theTemporary President of the Senate during the term of Governor David A. Paterson or the233 Session of the Senate.

    28. The certification pursuant to Executive Law 12(b) was not made to theSecretary of State du ring the term of Governor David A. Paterson or the 233 Session ofthe Senate and Assembly.

    29. Upon information and belief, a letter pu rporting to constitute ace rtification pu rsuant to Executive Law 12(b) was received by the New York City of ficeof the Speaker of the New York State Assembly on or about January 12, 2011.

    30. Upon information and belief, a letter purporting to constitute acertifica tion pursuant to Executive Law 12(b) was received by the Secretary of State ofthe State ofNew York on or about January 4, 2011.

    31. A copy of the certif ication provided to the Secre tary of State is attachedhereto as Exhib it B.

    32. Upon information and belief, as of the date hereof, no certification ha sbeen delivered to the Temporary President of the New York State Senate.


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    33. Pursuant to IGRA and 25 CFR 293.8, a compac t must con tain acertification from the Governo r or other representa tive of the State that he is au thor izedunder State law to enter into the compact.

    34. Under New York law , a compact requires the approva l of the New YorkState Senate and the New York State Assembly.

    35. Pu rsuant to Executive Law 12(b), a compact is deemed approved onlyupon ce rtificat ion to the Temporary Presiden t of the New York State Senate, the Speakerof the New York State Assembly, and the Secretary of State of the State of New York.

    36. Such certifications have not been made and therefore the Compact has notbeen ra tified by the Senate and Assembly of the State ofNew York.

    THE FAILURE TO COMPLETE THE COMPACT37. Upon information and belief, the Compact has been subm itted to the

    Department of the Interior, in the form attach ed he reto as Exhibit A.38. Plaintiff has been hampered in his attempts to obta in a copy of the

    Compact by the pos ition of Governor Paterson as ev idenced by a statemen t issued byPeter Kiernan, Gove rnor Pa terson s counsel that the Compact was nonfinal andconfiden tial. A copy of that statement is attached hereto as Exhibit C.

    39. If it has been filed in form attached as Exhibit A, the Compact has notbeen completed.

    40. The definition of the term Appendix in the Compact include s or meansappendices to the Com pac t which are incorpo rated by reference into the Compact.

    41. The missing append ices were to address major, sub stantial and significan tterms and condi tions of the Compact including the follow ing:

    Appendix A: Approved Games and Activities for Class III Gaming;WD0313181 }

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    Appendix B: Standards of Operation and Management for Class IIIGaming;

    Appendix C: Procedure for Issuance of Class III Gam ing Employees andClass III Gaming Services Enterpr ises Licenses;

    Appendix D: Procedure for Issuance of Class III Non-GamingEmployees and Class III Non-G aming EnterprisesLicenses;

    Appendix E: Chart of Accounts;Appendix F: State Assessm ent for Costs of Class III Gaming

    Regulations;Appendix G: Labor Agreement; andAppendix H: Gaming Facility Site Descrip tion.

    42. Without agreement on these basic and sign ificant terms and conditions,there is no valid Compac t as the parties have not reached agreement or had a meeting ofthe minds on the basic terms and conditions of the Compact.

    43. Upon information and belief, the appendices to the Compact have not beencompleted, the Compact has not been completely and properly reduced to a writing and isnot in form to be acted upon by the Secretary.


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    THE FAILURE OF THE CERTIFICATION TO COMPLYWITH EXECUTIVE LAW 12(b)44. The procedure for ra tificat ion set forth in Executive Law 12(b) requires

    that the Gove rnor certify to the Tempo rary President of the Senate, the Speaker of theAssembly, and the Secretary of State of the State of New York that the Compact containscertain provisions before it is to be deemed rat ified.

    45. The Compact must provide that the recognition of labor un ions as theexclusive collec tive ba rgaining representatives of employees in appropriate ba rgainingunits be based upon a demonstration of major ity employee support of such labor unionsby union au thorization card check as verified , if necessary , by an independen t arb itra torappoin ted by the Public Employment Relations Board in consulta tion with the Nation andthe labor un ion.

    46. The Compact does not prov ide for the appo intmen t of an arbitrator by thePublic Employm en t Relations Board as required by Executive Law 12(b), but, rather. atSection 10(0(4) prov ides that the arbitrator be appo in ted by the State Employm en tRelation s Board. The Compact is thus uncon stitutional under the New York StateConstitution as it fails to comply with Executive Law 12(b), has not been ratified , andcannot be deemed ratified under Executive Law 12(b).

    THE COMPACT AS EXECUTED IS UNCONSTiTUTIONAL47. Executive Law 12(b) provides , in Clause (ii) that the Nation have an

    adequate civil recovery system that guarantees fundamen tal due process to visitors andguests to the facility and related facilities .

    48. Article 1, Section 16 of the New York State Constitut ion provides that:The right of action now existing to recover damages forinjuries resulting in death, shall neve r be abroga ted; and the


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    amount recoverab le shall not be subject to any sta tutorylim itation .49. The Compac t does not prese rve the right to damages in wrong fu l death

    damages for visitors to the facilities without abrogation or limitation as requ ired byArtic le 1, Section 16 of the New York Constitution.

    50. Section 1 l(a)(l) of the Compact requ ires that the Tr ibe maintain liabi lityinsurance inc luding coverage of not less than $5 million per person pe r occu rrence whichshall cove r both negligent and intentional torts.

    51. Such section also requires that the policy further provide that the claim antmay institute a claim in state or federal cour t directly against the insurance companyissu ing the policy under applicable New York Law.

    52. Section 1 1(a)(2) of the Compact requires the Tribe to obtain and maintainpublic liabi lity insurance for bodily injury or property damage arising out of the serviceof alcoholic beverages at Class III gaming and re lated fac ilities with coverage of not lessthan $5 million per occurrence, and tha t the policy shall provide that the claimant mayinstitu te a claim in State or Federal Court directly against the insurance company issuingthe policy on the same grounds that such claim may be made under Section 11-101 of theNew York General Obligations Law.

    53. Section 1 1(b) of the Com pact provides that the Tribes insurance companyshall inc lude an endo rsement providing that the insurer may not invoke tribal sove reignimmuni ty up to the lim its of the policy required under subsection (a).

    54. Section 3 of the Compact provides that:Except as specifically provided herein, ne ither the State nor theTribe waives its sove reign immuni ty under State, Tribal, or federallaw, by entering into the Compact.


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    55. As a result of the foregoing, the Tribe has not waived its sovereignimmunity in actions seeking damages in excess of $5 million, and the Compact include san unconstitutional limitation of $5 million per occurrence on damages resulting fromwrongful death, which provision is a violation of Article 1, Section 16 of the New YorkState Constitution.

    WHEREFORE, Plaintiff requests an order and judgment of this Court specifyingthe rights of the parties and further or consequentia l relief as fo llows:

    1. Declaring that the Compact is invalid under the laws and constitution ofthe State of New York and Executive Law 12(b) as it has not been properly ratified bythe New York State Senate and the New York State Assembly because the certificationrequired by Executive Law 12(b) was not or has not been delivered as required; and

    2. Declaring that the Compact is invalid because it does not include ftillynegotiated appendices, which by its terms, are an integral part of the Compact; and

    3. Declaring that Compact is invalid under the laws and constitu tion of theState of New York and Executive Law 12(b) as it has not been properly ratified by theNew York State Senate and New York State Assembly because the certification does notcomply with the terms and conditions of Executive Law 12(b) with respect to theappoin tmen t of an arbitrator to determine the rights of employees; and

    4. Declaring that the Compact fails to comply with Executive Law 12(b)and is unconstitutional insofar as it establishes a limitation on damages for wrongfuldeath in the amount of $5 million in violation of the New York Constitution.

    WDO3 1318.1

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    PLAINTIFF FURTHER REQUESTS that:1. The Gove rnor be restrained and enjoined from requesting the

    appropriation or authorizing the expenditure of any sums ofmoney to perform the Statesoblig ations under the Compact.

    2. The Court grant such other and further relief as to the Court may seem justand prop er.DATED: January 31. 2011

    Featherstonhaugh, Wiley & Clyne, LLP

    By________James D. Featherston aughAttorneys for Plaintiff99 Pine StreetAlbany,NY 12207Tel (518) 436-0786Fax (518) 427-0452


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    STEVEN M. BOGGESS, be ing duly sworn, deposes and states that I have read theforego ing Ver ified Complaint and know the contents thereof ; the same is true my ownknow ledge, except as to the matters the rein stated to be alleged on informat ion and belief,and that as to those matters I be lieve them to be true.

    The grounds of be lief as to all matte rs no t stated upon my knowledge are fromconversations with officials and employees of the State of New York and reco rdsattached to or referred to in the Complaint. The foregoing statements are true, under thepena lties of per jury.

    Sworn to before me this31st day of January, 2011

    YorkSTEPHf 1. WILEYNory State of New Yorkin A:9y Coun tyCommis sion Ex pir es Octobe t 31, 20

    WD031318.l }