In his claim filed on February 2, 2006, Mr. Gill alleges that Defendant prevented him from attending Wednesday evening Jehovah's Witness religious services, thereby violating his rights under Article 1, Section 3 of the New York State ("NYS") Constitution, Section 610 of the New York State Correction Law and the Federal Religious Land Use and Institutionalized Persons Act of 2000. Defendant now moves to dismiss Claimant's case in its entirety.

Claimant seeks money damages for an alleged violation of his State constitutional right to freedom of religious expression. I agree with Judge Judith A. Hard of the Court of Claims that a cause of action based on a violation of Article 1, Section 3 does not constitute a claim on which relief can be granted by the Court of Claims. "Where the injured party can take advantage of declaratory or injunctive relief, or remedies obtainable by way of an Article 78 proceeding, a viable alternative exists and obviates the need to recognize a constitutional tort in those situations (citations omitted)" (Van Duyne v State of New York, Ct Cl, August 4, 2003 [Claim No. 103802], Hard, J, UID No.2003-032-518). Claimant had other remedies available to him making it unnecessary to establish a constitutional tort to "ensure the full realization of [his right to freedom of religious expression]" (Brown v State of New York, 89 NY2d 172, 189).

Claimant also maintains that Defendant has violated Correction Law Section 610 which states, in part: [*2]

All persons who may have been or may hereafter be committed to or taken charge of by any of the institutions mentioned in this section, are hereby declared to be and entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference. Subdiv. 1

An aggrieved inmate who claims his statutory right to freely exercise his religion has been violated may initiate proceedings in the Supreme Court, the specific court that the legislature "authorized and empowered to enforce the provisions of" Section 610 (Subdiv. 3).^[FN1] Claimant chose to initiate his action in the Court of Claims. He chose the incorrect court, therefore, his cause of action based on Section 610 must be dismissed.

RLUIPA provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person - - (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000 cc - 1(a).

This section applies in any case in which - - (1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or (2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes. 42 U.S.C. 2000 cc - 1(b).

Claimant is correct when he states in his responding papers that RLUIPA provides a "stronger tool" for inmates to challenge infringements on the free exercise of their religious

freedom; even more so now that the US Supreme Court has ruled RLUIPA constitutional (see Cutter v Wilkinson, 544 US 709).^[FN2] Claimant believes that this court is the correct venue to bring [*3]RLUIPA claims because State prisons are covered by the RLUIPA and the Court of Claims hears cases involving the State prisons.^[FN3] Unfortunately for Claimant, his analysis is flawed.

There is a presumption that State courts have concurrent jurisdiction with Federal courts over Federal claims. The presumption can be rebutted under one or more of the following three circumstances: "(a) an explicit statutory directive (b) unmistakable implication from legislative history or (c) clear incompatibility between State court jurisdiction and Federal interests (citations omitted)" (Simpson Elec. Corp. v Leucadia, Inc., 72 NY2d 450, 455).

Section 2000 cc-2 of the RLUIPA states that a cause of action may be asserted "in a judicial proceeding" against "a government"(42 USC 2000 cc-2[a]), and adjudication of such a cause of action will be given full faith and credit provided the "claimant had a full and fair adjudication of that claim in the non-Federal forum" (id. 2[c]).

I interpret the language of Section 2000 cc-2 to infer that Congress meant for state courts to hear such causes of action based on RLUIPA violations, otherwise Congress would not include the standard full faith and credit clause in the statute. By way of comparison, the New York Court of Appeals determined that state courts had concurrent jurisdiction in federal Racketeer Influenced and Corrupt Organizations Act cases, even where the federal statute went as far as to designate that those cases be brought in any United States district court - - even that language was not enough to give the federal courts exclusive jurisdiction over a cause of action arising out of a federal statute (Simpson Elec. Corp. v Leucadia, Inc., supra).

Further, a review of RLUIPA's legislative history fails to provide an "unmistakable implication" that Congress intended to grant federal courts exclusive jurisdiction.

The final factor, the existence of a clear incompatibility between State and Federal jurisdiction "requires consideration of the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims' (citing Gulf Offshore Co. v Mobil Oil Corp., 453 US 473, 483-484)" (id. at 460). While uniformity in interpretation and application of any statute is desirable, like any other federal statute, the final word on interpretation and application will be spoken by the U.S. [*4]Supreme Court. New York state courts grapple with religious freedom claims under NYS Correction Law Section 610, as well as under the New York State Constitution; there is nothing so peculiar about a religious freedom claim brought by an institutionalized person that warrants a

conclusion that only the federal courts should entertain them under RLUIPA. Thus, the presumption that state courts have concurrent jurisdiction over RLUIPA claims has not been rebutted.

There are instances where the Court of Claims appropriately exercised jurisdiction to hear a claim brought pursuant to a federal statute (Brewer v State of New York, 176 Misc 2d 337, 343 [Federal Bankruptcy statute]; Rye Psychiatric Hosp. v State of New York, 145 Misc 2d 706, 713 [Federal Medicaid statute]; Muller v State of New York, 179 Misc 2d 980 [Federal Social Security statute through State Mental Hygiene Law]). In such instances, the cause of action pled fell under one of the types of cases enumerated by the New York State Legislature in the Court of Claims Act § 9. They are:

1.the appropriation of any real or personal property or any interest therein;

2.breach of contract, express or implied;

3.tort committed by its officers or employees; and

4.unjust conviction and imprisonment.

The jurisdiction and powers of the Court of Claims are explicitly enumerated by the Court of Claims Act. A claim that an institutionalized person's right to religious freedom was violated by the State falls under none of the above-stated types of cases. Therefore, while Claimant could have pled his case in a state court ^[FN4], he has improperly pled his case in the Court of Claims.

Based upon the foregoing, it is hereby

ORDERED, that claim number 111941 is dismissed in its entirety.

Rochester, New York

August 28, 2006

RENéE FORGENSI MINARIK

Judge of the Court of Claims