It Is Time For Judicial Delays And Interventions To Stop

Legislative column from Assembly Minority Leader Brian M. Kolb (R,I,C-Canandaigua)
June 10, 2011

On Wednesday, June 8, State Supreme Court Justice Donna Siwek lifted the temporary restraining order she originally imposed back on Tuesday, May 10, that had prevented the State Department of Taxation and Finance from moving forward with collecting taxes on cigarettes sold on Native American lands to non-Native American Indians. The Judge’s action was a victory for the rule of law. In short, it meant that after almost 17 years of endless legal maneuvering and costly courtroom battles this issue was finally nearing conclusion. And not a moment too soon!

Judge Siwek’s decision to lift her temporary restraining order sidetracked what appeared to be a legal strategy to stall, delay and deny New York State from moving forward with enforcing the law, collecting the tax and leveling the playing field. The fact that the plaintiffs (the Seneca Indian Nation) were no longer arguing on the substance of the matter – whether the taxes could legally be collected – and instead focused on the Department of Taxation and Finance’s procedure for collecting the taxes – showed this legal gambit had reached the end of the line.


The record is clear: the plaintiffs had their day in federal and state court. In fact, they had multiple days over multiple years, stretching all the way back to 1994 when the United States Supreme Court ruled in its Attea decision that New York State had the legal authority to collect sales taxes on cigarettes sold on Native American lands to non-Native American Indians.

It has been 17 years since that landmark court decision. Since then, local governments and taxpayers have borne literally millions in legal costs, countless mom-and-pop convenience stores were forced to close because their competitors were not following the law, and New York State lost billions in revenue. Money that could have been collected and used to help fund education, deliver real property tax relief, improve health care, or repair critical infrastructure is gone forever because of unnecessary legal delays. That is a shame.


Unfortunately, the good news from Judge Siwek’s action was short lived. On Thursday, June 9, less than 24 hours after Judge Siwek’s ruling, State Appeals Court Judge Jerome Gorski delayed the state’s enforcement of tax collections until Monday, June 20.

It was troubling, but not unexpected, that yet another appeal was granted. Much like the plaintiffs’ previous legal maneuvering, this latest appeal is without merit and should be dismissed.

Our legal system affords the right to an appeal, but there are reasonable, common sense limits. The appeals process was designed to ensure justice, not to indefinitely avoid justice. Keep in mind that the United States Supreme Court, Federal Court of Appeals, U.S. District Court, New York State Supreme Court, and New York State Court of Appeals all have ruled in favor of the state’s legal authority to collect sales taxes on cigarettes sold on Native American lands to non-Native American Indians.


Our legal process is not a game. It must not be treated as such. Fortunately, the decision to go forward with enforcing the law and collecting the taxes rests with Governor Cuomo and State Department of Taxation and Finance Commissioner Mattox. They should know that their actions are 100 percent supported by Legislative Leaders like me, along with taxpayers, businesses and an overwhelming majority of New Yorkers who still believe in the rule of law.


As the only Legislative Leader in state government speaking out on this issue – and the sole Leader representing upstate – I have been honored to be at the forefront of a growing coalition of upstate taxpayers, businesses, labor groups and local officials who strongly support enforcing the law, collecting the taxes, and leveling the playing field. No matter how long it takes, I will not stop fighting until the rule of law carries the day and the interests of upstate are protected. That is my promise to you.

As always, constituents wishing to discuss this topic or any other state-related matter should contact my district office at (315) 781-2030, or e-mail me at