TRLF Case on Tribal Sovereign Immunity Discussed in Connecticut Law Tribune

Monday, January 10, 2011

New London lawyer Robert I. Reardon argues that because the Mohegan tribe chooses not to have a dram shop law in tribal courts, such claims should be permitted in state courts.

Tribal Sovereignty In Question In Alcohol-Related Lawsuit

The Law Tribune previews interesting or important cases most weeks the state Appellate Court or state Supreme Court are in session.

Case: Emily Vanstaen-Holland, PPA, Susan Holland et al. v. Glenn Lavigne, et al.

Court: Connecticut Supreme Court

Date: Jan. 11

Time: Noon

Attorneys: Robert I. Reardon, C. Bryant Rogers

Summary: A girl injured in a car accident by a drunk driver who had been served alcohol at Mohegan Sun sued the casino. She is challenging a trial court's ruling that their claim in state court is barred by tribal sovereign immunity.

Background: Emily Vanstaen-Holland, 16, of Waterford was walking along the road with friends during the early morning hours when a Cadillac Escalade SUV driven by Glenn Lavigne struck the teen.

Vanstaen-Holland was rushed to the hospital and ultimately suffered a skull fracture, pelvis fracture, punctured bladder and brain injuries including a loss of her sense 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 in 2009. Videotapes that show LaVigne being served in, and staggering out of, the Mohegan Sun casino-owned Sachem Lounge helped convict him.

At the trial level, New London Superior Court Judge Robert Martin granted the Mohegan Tribal Gaming Authority's motion to dismiss dram shop and reckless service of alcohol counts against the managers and employees of the tribe. Martin also dismissed the individual claims against bartender James Maloney and three part owners of the bar, holding that tribal immunity should apply to them as well.

Martin ruled that while state statute regulates the sale and distribution of alcohol on tribal lands, the statute does not constitute a congressional waiver of tribal sovereign immunity for alcohol-related claims that are brought by private citizens.

Robert I. Reardon, lawyer for Vanstaen-Holland and her mother, appealed the ruling and the state Supreme Court took up the case to determine if the lawsuit was properly dismissed.

Reardon said he filed the suit in state court rather than in tribal court because the Mohegan's tribal court lacks a dram shop ordinance. Reardon argues that by not providing a remedy for a dram shop claim in its own court, the Mohegan tribe subjects itself to the jurisdiction of the state court.

The Connecticut lawyer representing the tribe, Andrew Houlding, of Rome McGuigan, sees it differently and said Reardon could still have filed a negligence claim in the tribal court. "It is not true that reckless service of alcohol claims are not recognized [in the Mohegan court], at least one is presently under adjudication," Houlding wrote in a court brief.

Attorney C. Bryant Rogers from New Mexico will argue pro hac vice on behalf of Mohegan Sun at the hearing this week.

Former Attorney General Richard Blumenthal filed an amicus brief in the case in support of Reardon's stance.

"The tribe has no historic sovereignty in this area and Congress here expressed no interest in preserving tribal profits from liquor sales to the detriment of individuals killed or injured by conduct in violation of state law," wrote Assistant Attorney General Susan Cobb.

"It is clear that Congress did not intend to make tribal members 'super citizens' who can engage in illegal conduct resulting in death and injury and avoid the consequences that anyone else engaging in such conduct would suffer," continued Cobb, citing case law.