Turtle Talk

Despite what this article states, this case is far from “novel” — there are numerous opinions all holding that tribes retain immunity, except a lone outlier — Oklahoma — which can be (perhaps) distinguished on the basis that that state’s gaming compacts purportedly waive immunity.

Another thing not emphasized by this opinion — the plaintiff has remedies in tribal court (!).

From Law.com:

In what could become a first-in-the-nation test, a young Waterford, Conn., woman injured by a drunk driver is challenging the sovereignty of Connecticut’s Mohegan American Indian tribe. She is arguing the tribe should be liable in state courts if it lets patrons get so dangerously drunk that they then injure or kill other people.

Currently, the Mohegan and Mashantucket Pequot tribes are immune from being sued in state court for ordinary negligence matters, including so-called “dram shop act” violations. Those violations can cost a bar up to $250,000 if patrons are permitted to get too intoxicated and harm others.

Special tribal courts handle basic civil matters arising on lands controlled by the Mohegan and the Mashantucket Pequot tribes, both of which operate large casinos in southeastern Connecticut. The tribes claim immunity from negligence suits in state courts as a feature of their status as federally recognized sovereign Indian nations.

New London, Conn., tort lawyer Robert I. Reardon is representing the Waterford woman who was hit by a drunk driver, in October 2007. A Cadillac Escalade SUV driven by Glenn R. LaVigne struck and injured 16-year old Emily Vanstaen-Holland, fracturing her pelvis, puncturing her bladder and causing brain injuries that include loss of her senses of taste and smell.

LaVigne, a former Mohegan tribal official and employee of the Montville public works department, was convicted in the hit-and-run and began serving a two-year prison sentence Sept. 14. Videotapes of LaVigne being served in, and staggering out of, the Mohegan Sun casino-owned Sachem Lounge helped convict him.

Attorney General Richard Blumenthal has filed an amicus curiae brief vigorously supporting Reardon’s appeal. Blumenthal contends the tribe has no sovereign interest in liquor regulation, or immunity from lawsuits that have the effect of enforcing Connecticut liquor laws.

At the trial level, New London Superior Court Judge Robert Martin considered the tribe’s motion to dismiss dram shop and reckless service of alcohol counts against the managers and employees of the tribe. He noted in a February ruling that no Connecticut appellate court had considered whether dram shop liability applied to Indian casinos.

In 1998, New London Judge Trial Referee D. Michael Hurley upheld those counts in Schram v. Ohar, and a 2008 Oklahoma trial case also went against the tribe on a dram shop claim. However, in 2000, Judge Joseph Q. Koletsky, on the complex litigation docket in New London, dismissed a reckless service claim, refusing to “leap to the conclusion” that the tribe’s agreement to some state regulation of its sale of alcohol open it up to lawsuits over “any use or consumption of alcohol.”

Nationally, Martin found, most state trial courts have not applied dram shop act liability to tribes. The U.S. Supreme Court also has held that without express direction from Congress, tribal sovereignty is not eliminated just by implication.

Rome McGuigan partner Andrew Houlding is representing the Mohegans in the lawsuit. In the tribe’s motion to dismiss, he argued that even when the tribe agreed in its 1994 gaming compact with Connecticut to be subject to state laws “applicable to the sale or distribution of alcoholic beverages,” it was no blanket waiver of sovereign immunity.

Martin completely agreed. He also dismissed the individual claims against bartender James Maloney and three part owners of the bar, holding that Maloney’s conduct in serving LaVigne “was not disobedient or unfaithful to Sachem’s Lounge.” Thus, the bartender deserved the shield of tribal sovereign immunity, Martin concluded.

FREE DRINKS Reardon, a former president of the Connecticut Trial Lawyers Association, argued in his appellate brief that tribal immunity is a 1919 federal court concept adopted “almost by accident” and not a reasoned statement of doctrine.

Its purpose, according to a recent Oklahoma case, is to allow tribes to retain “their inherent power to punish tribal offenders, determine tribal membership, regulate domestic relations among members, and prescribe rules of inheritance [but] does not reach beyond what is necessary to protect tribal self-governance or to control internal relations.”

In this case, Reardon emphasizes, his client was miles away from the casino property, unconnected to it in any way. He also notes that girlfriend of the LaVigne, the drunk driver, acknowledged to police that they had been drinking in the Sachem Lounge.

“The video shows him drinking and leaving the bar without even being able to stand without holding on to something,” said Reardon.

An independent Mohegan news blog, called Feather News, states in a Sept. 15 report about the case: “It is believed that unlimited drinks are available for free to former [tribal] councilors and their guests in parts of the casino.”

Reardon and associate Amanda L. Sisley argue in the appellate brief that bartender Maloney was motivated to serve LaVigne excessively to earn tips, contrary to Mohegan policy and state law, and that he and the bar owners do not deserve the shield of sovereign immunity.

In addition, Reardon said that the nature of the plaintiff’s injuries are not adequately compensated by tribal laws limiting plaintiffs to 200 percent of economic damages. A student, Vanstaen-Holland had no loss of income and her parents’ insurance covered her medical bills. However, losing her sense of smell and suffering other lifelong injuries are precisely the losses covered as non-economic damages in state court, Reardon said.

The 18-year old art major experienced a substantial weight loss after the accident, and continues to suffer from a loss of the ability to enjoy food, he said. Her non-economic damages are considerable, and “just doubling her medical bills wouldn’t come close” to compensating her.

UGLY STATISTICS

Attorney General Blumenthal, in his amicus brief, argued that Martin was wrong to focus on waiver of the tribe’s sovereign immunity, or Congressional abrogation of tribal immunity. In this area, he wrote, the tribe actually has no immunity to waive or abrogate. Federal and tribal interests in this area, he asserted, are entitled to little if any weight. The bulk of his public policy-focused brief is a thick appendix of statistics showing that southeastern Connecticut leads the state in traffic injuries and deaths, at levels that surprise state police. Blumenthal attributes the statistical rise to the lure of the casinos and their bars. He quotes a 1957 Connecticut Supreme court case that says, in matters involving liquor, the state’s police power to regulate “runs broad and deep, much more so than to curb ordinary business activity.” Enforcing dram shop laws is a valid exercise of that power, Blumenthal argued.

Nine days after Martin issued his opinion, Blumenthal adds, 20-year-old Connecticut College student Elizabeth Durante, headed in a van to Boston’s Logan Airport to help “orphans and AIDS patients overseas,” was killed after a collision with an intoxicated 24-year-old sailor who had been drinking at a Mohegan Sun bar.