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Blumenthal files amicus brief

NEW LONDON, Conn. – Connecticut Attorney General Richard Blumenthal has filed an amicus brief in the state’s Appellate Court, urging the court to overturn a lower court ruling that the Mohegan Tribe’s sovereign immunity exempts it from prosecution under the state’s Dram Shop Act and other laws that bar reckless dispensing of alcohol.

The case involves plaintiff Emily Vanstaen-Holland in connection with an accident that occurred in October 2007.

Vanstaen-Holland, a pedestrian, was struck by a driver who was allegedly intoxicated after drinking at a bar in the Mohegan Sun Casino. She was 15 at the time and suffered life-altering injuries.

She sued the driver and passenger of the car that struck her, the Mohegan Tribal Gaming Authority and, collectively, several named individuals involved in the tribal casino, including Tribal Council Chairman Bruce “Two Dogs” Bozsum. The lawsuit alleges that the casino recklessly served alcohol to the driver of the car, and seeks damages under the state’s Dram Shop Act and common-law liability.

Superior Court Justice Robert A. Martin dismissed the case last February on a motion from Mohegan that claimed the court lacked jurisdiction because of the doctrine of tribal sovereign immunity. The plaintiffs have appealed to the state Appellate Court.

In a press release announcing his amicus brief, Blumenthal said tribal sovereignty “must yield to public health and safety laws – particularly liquor laws – intended to save lives. We must hold tribal casinos to their moral and legal duty to respect these laws.”

He said the tribes agreed to obey public laws and the Supreme Court ordered them to do so. He also asserted that Congress has given the state concurrent jurisdiction over the issue.

“This case carries profound consequences for victims of drunk driving crashes involving casino patrons. Lives have been lost or damaged by intoxicated drivers leaving tribal casinos. Intoxicated drivers must be held accountable – but tribal casinos must also accept responsibility for illegal and irresponsible alcohol sales just like other bars,” Blumenthal said.

He said tribal sovereign immunity flows from tribal sovereignty, and the Supreme Court has held that tribal sovereignty is limited and, specifically, that the tribes have no sovereignty in the area of liquor.

“Congress has granted the state concurrent jurisdiction in this area and federal law does nothing to preclude Connecticut’s courts from exercising jurisdiction to enforce the state’s laws intended to limit the devastation resulting from DUI in Connecticut,” Blumenthal said.

But Mohegan spokesman Chuck Bunnell, and a number of court decisions, refute those claims.

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“The Connecticut Superior Court rightly determined that the state’s authority to regulate the sale and distribution of alcohol is not tantamount to an authorization by Congress to waive tribal sovereign immunity for dram shop actions or common-law recklessness actions brought by private individuals. Our Connecticut courts and the majority of appellate courts in other states have reached the same conclusion.”

In his ruling, Martin quoted often from a 2007 case, Beecher v. Mohegan Tribe, a precedent setting case in which the state Supreme Court upheld the argument that a federally recognized tribe’s sovereign immunity shields it from being sued in state court without its consent.

“A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court,” Martin quoted from the Beecher case. The burden to prove that the court has jurisdiction over the matter rests with the plaintiff, Martin said, and Vanstaen-Holland did not meet that burden.

Martin also examined the plaintiff’s and Blumenthal’s assertion in his amicus brief that Mohegan’s sovereign immunity was waived because the state police have the authority to govern the distribution of alcohol on the reservation.

The Mohegan defendants countered that the state’s ability to regulate alcohol sales does not constitute a waiver of sovereign immunity to all alcohol-related actions brought by individuals.

Martin cited numerous court rulings on both sides of the sovereign immunity issue and observed that “the majority of appellate courts in other states have found that private individuals cannot bring an action against a tribe pursuant to either the Dram Shop Act or common law theories of liability.”

“This court joins the latter group of decisions in finding that the state’s police power to regulate the sale and distribution of alcohol is not tantamount to an authorization by Congress to waive tribal sovereign immunity or dram shops actions or common-law recklessness actions brought by private individuals,” Martin wrote.

Bunnell said the nation learned about Blumenthal’s brief from the attorney general’s press conference and will have “a more formal response after we obtain a copy.”

But he stressed the tribe’s concern with safety.

“Please know that the

Mohegan Tribe takes very seriously the safety of our patrons and that of those in the surrounding community. We have a multi-tiered and aggressive approach to handling the safe service of alcohol which we believe is second to none.”

On other legal matters raised by the case, Bunnell said the proper jurisdiction for the lawsuit is in tribal court.

“The Mohegan Tribe adopted a Torts Ordinance and waived its sovereign immunity to permit private individuals to bring tort actions against the Mohegan Tribe, including common law action for reckless service of alcohol. The plaintiff’s attorney in this case refused to bring his client’s claim in the Mohegan Tribe Gaming Disputes Court, which is the proper court to hear the case.”