State Supreme Court Justice Kenneth R. Fisher promised Friday to issue decisions Monday or Tuesday on two legal disputes between the Cayuga Indian Nation and Seneca and Cayuga counties.
Fisher told lawyers for the Cayugas they had “chutzpah,’’ a Yiddish word meaning “audacity, effrontery or utter nerve,’’ for reopening their two stores and again selling cigarettes.
The first issue argued was whether the counties should be required to return 17,500 cartons of cigarettes seized in a Nov. 25 raid of the tribe’s convenience stores in Seneca Falls and Union Springs.
The Nation took the counties to court, asking that they be required to either return the cigarettes or post a $500,000 bond to cover their losses if they are not returned in a timely manner.
The tribe said it would stipulate or agree on the record that so many cartons were taken from the stores and that they did not contain state tax stamps.
They also asked for the return of seized computers and business records.
Attorney Karl Sleight of the Harris Beach law firm, representing the counties, disagreed.
He said the stipulation offer by the Nation is unacceptable.
Seneca County District Attorney Richard E. Swinehart and Cayuga County District Attorney Jon E. Budelmann each have presented cases to grand juries in their counties and obtained three sealed indictments in connection with the sale of untaxed cigarettes.
The indictments were handed up Dec. 11 but will not be made known or prosecuted until the Cayugas’ appeal is decided this spring.
Fisher also heard arguments on the counties’ claim that the tribe’s reopening of its two convenience stores Jan. 30 and continued selling of untaxed cigarettes to non-Indians is in contempt of Fisher’s Dec. 9 decision or a violation of state tax law.
He told Fisher that in reopening their stores Jan. 30, the Cayugas “flaunted’’ his decision and “snubbed its nose at the court as if the Appellate Court had already reached a decision in their favor.”
Fisher questioned whether the counties’ arguments met the standard for contempt.
Spellane said the pending Appellate Court decision on the Cayugas’ appeal applies only to criminal prosecution.
Alcott said the Nation has received an independent legal opinion that the tribe is within its rights to reopen the stores and sell the cigarettes until the appeal is decided.
He said he understands the frustration of the counties and their district attorneys in not being able to reap the reward of Fisher’s decision in their favor.
“My order said the sale of untaxed cigarettes to non-Indians on these properties violates Section 471-e,’’ Fisher replied. “I realize that the Appellate Court has said they can’t prosecute now, but it takes a lot of chutzpah to open up and sell these cigarettes again.”
Alcott disagreed and said the law says the district attorneys are powerless to stop them.
Swinehart and Budelmann both argued they have the right to enforce county and state laws.
After Fisher issues his rulings next week, either side can appeal.
By DAVID L. SHAW Finger Lakes Times Sunday, February 15, 2009 12:12 AM CST