Attorney General Supports TRLF in Efforts to Hold Tribes Liable for Casino Alcohol

Blumenthal: Tribes should be liable for casino alcohol

By Michael Naughton

Publication: The Day

Published 09/15/2009

Brief argues against immunity in crashes

Attorney General Richard Blumenthal says the state's two federally recognized tribes should be held liable in state court when a person who has been drinking at the tribally owned casinos gets into a crash.

Blumenthal filed an amicus brief in the state's appellate court, arguing that, despite precedent in trial courts, the tribal casinos are not immune from the state's Dram Shop Act and other laws that bar reckless dispensing of alcohol.

The dram shop law, which dates back to the 19th century in this state, imposes monetary penalties - currently up to $250,000 - for those who give alcohol to individuals who later cause damage or death.

However, cases filed in an attempt to penalize the casinos for serving patrons involved in crashes have been dismissed on the grounds that tribal sovereignty confers immunity from suit in state courts.

Both the Mohegan Tribe, which owns Mohegan Sun, and the Mashantucket Pequot Tribe, owner of Foxwoods Resort Casino and MGM Grand at Foxwoods, agree to hear permit claims about alcohol-related offenses against them, but only in their respective tribal courts.

Blumenthal is arguing that sovereignty does not shield the tribal governments from liability when drunken drivers are shown to have been over-served at casino bars.

"An innocent victim whose life is irreparably and often brutally altered by a drunk driving crash should have rights in state court where a jury can assess the facts and a judge can decide the law," Blumenthal said. "That innocent victim should not be denied rights simply because the drunk driver became intoxicated at a tribal casino rather than the bar around the corner."

The brief was filed in support of an appeal by the family of Emily Vanstaen-Holland. Vanstaen-Holland was 16 years old when she was seriously injured by a drunken driver while she was walking along a Quaker Hill road in 2007.

The driver fled the scene, but police later charged Glenn R. Lavigne with the crime.

Lavigne, a former member of the Mohegan Tribal Council, is scheduled to be sentenced today in New London Superior Court to two years in prison and three years' probation for evading responsibility in connection with the hit-and-run incident. Officials said Lavigne and his girlfriend were drinking in a tribally owned bar at Mohegan Sun in October 2007 before hitting the victim. Lavigne accepted a plea offer from the state in his criminal case.

In civil court, the victim's family is seeking monetary compensation under the dram law as well as under laws forbidding reckless distribution of alcohol. The reckless distribution laws have no cap on the amount of the penalty.

In February, a New London Superior Court judge upheld a motion to dismiss claims of reckless service of alcohol brought by Vanstaen-Holland's family against the Mohegan Tribal Gaming Authority and some of its officials and employees who worked at the bar. The family is now appealing that decision.

Robert I. Reardon Jr., the New London attorney representing Vanstaen-Holland's family, said the appeal is the first to question the sovereignty of the tribe's liability regarding service of alcohol.

"We feel those lines of [dismissed] cases fail to do a full analysis [of] why the state court should have jurisdiction," Reardon said. "Since tribes have to obtain and apply for liquor permits, our position is they submit to the jurisdiction of the state courts."

The Mohegan Tribe is working on its response to Reardon's and Blumenthal's arguments before the appeal moves forward with oral arguments.

Chuck Bunnell, the Mohegan Tribe's chief of staff, said the tribe's sovereign status as a separate government should continue to be recognized, but the tribe has taken steps to allow for suits to be brought against itself in tribal court.

"The Mohegan Tribe has adopted a torts ordinance and waived its sovereign immunity, including common-law actions for reckless service of alcohol," Bunnell said, adding that officials were still reading through the argument Monday afternoon. "The safety of our patrons and the members of the surrounding community are especially important to us."

Blumenthal said waiving immunity was not enough and that victims could be afforded better protections in state courts.

"Generally there are limits in tribal courts as to how much can be recovered and the rights are different procedurally and rules of evidence and other legal procedures are different," he said. "The rights of innocent victims can be vindicated in state court under more effective protections provided by state law."

The Mashantuckets said they have similar statutes in their tribal court.

"The Mashantucket Pequot Tribal Nation has enacted a dram shop statute which is almost identical to that of the State of Connecticut and many other jurisdictions. The Tribal Court is the court with jurisdiction over such matters," Jackson King, the Mashantucket Pequot Tribal Nation's general counsel, said in a statement.

The outcome of the appeal may not be known for months. Blumenthal said his argument was spurred in part by a rash of fatal crashes involving drunken drivers who admitted to drinking at casino bars.

In March, 24-year-old Navy sailor Daniel Musser was driving the wrong way on Interstate 395 and was allegedly under the influence of alcohol when he slammed head-on into a van, killing Elizabeth Durante, a Connecticut College junior. Musser told police he was drinking at Ultra 88 at Mohegan Sun.

Because the club Musser was drinking at is privately owned, the nontribal owner and permittee could face lawsuits in state and tribal court.

In April, Christopher Brulotte, a 25-year-old construction worker, was also allegedly driving under the influence of alcohol when he caused a crash on I-395 in Lisbon. The crash killed Iris Soto, 59, of Willimantic. Brulotte's lawyer said his client was drinking at Mohegan Sun before the crash.