The Honorable Dannel P. Malloy
AGO 2017-2
No. 2017-02
Connecticut Attorney General Opinions
Office of the Attorney General State of Connecticut
March 14, 2017
The
Honorable Dannel P. Malloy
Governor
State
Capitol
210
Capitol Avenue
Hartford,
CT 06106
Dear
Governor Malloy:
You
have requested an opinion, in light of the enactment of
Special Act 15-7 and the subsequent developments pursuant to
it, of the risks associated with moving forward with the
process for authorizing a casino gaming facility operated by
an entity jointly owned by the Mashantucket Pequot Tribal
Nation (MPTN) and the Mohegan Tribe of Indians of Connecticut
(Mohegan) (collectively, Tribes). Specifically, you request
an opinion about (1) the potential for success of
constitutional challenges to the grant of an exclusive right
to the Tribes to operate a casino; (2) the risks to the
State's current revenue sharing arrangements with the
MPTN and Mohegan if the Mashantucket Pequot Gaming Procedures
and Mohegan Gaming Compact are amended to facilitate the
operation of such a facility; and (3) the impact on future
tribal gaming in Connecticut.
By way
of initial background, Special Act 15-7 established a process
under which a tribal business entity, registered with the
Secretary of the State and owned exclusively by the MPTN and
Mohegan, could issue requests for proposals to municipalities
for the possible establishment of a casino gaming facility.
The Special Act expressly provided that the tribal business
entity was prohibited from establishing a casino gaming
facility until subsequent legislation was enacted to permit
the operation of such a facility. This process has since
progressed such that the Tribes' evaluation of potential
sites for a facility is concluding and the General Assembly
is considering legislation to authorize gaming at such a
facility.
As you
indicate, on April 15, 2015, prior to the enactment of
Special Act 15-7, we provided a letter to the legislative
leadership about various legal issues raised by the possible
enactment of legislation authorizing MPTN and Mohegan to
jointly operate a gaming facility off of reservation land
(2015 Letter). The 2015 Letter summarized the nature of the
existing gaming arrangements between the State and the MPTN
and Mohegan, and discussed each of the legal issues that you
raise. A copy of the 2015 Letter is attached.
Our
2015 letter identified certain legal risks to the State's
interests. We must exercise caution in providing a full legal
analysis in a public letter given our responsibility to
defend the State's interests in any existing, and perhaps
future, litigation or other proceedings relating to these
topics. We note two additional and important caveats. First,
clear legal guidance in this area is sparse, and the factual
and historical backdrop to our analysis is unique. Second,
your questions call for predictions as to how a federal
government agency within a new presidential administration
will, as a matter of policy, choose to exercise its
authority. As a result, forecasting likely legal or
administrative outcomes is unusually difficult. However, for
the reasons discussed below, we reiterate that we remain
concerned about the risks associated with each of the
identified issues. Moreover, we cannot say with any degree of
reasonable certainty that those risks are negligible or that
they have been or can be substantially mitigated.
Potential
for Success of Constitutional Challenges
As to
the first issue you raise, the 2015 Letter indicated that
third parties could claim that granting an exclusive right to
conduct gaming to the Tribes off of reservation land violates
the equal protection clause of the U.S. Constitution. 2015
Letter, at 2 n.l (citing KG Urban Enterprise, LLC v.
Patrick, 693 F.3d 1 (1st Cir. 2012)). In KG
Urban, the court raised serious questions about whether
a state law that provided a preference to an Indian tribe in
granting gaming licenses would be subject to strict judicial
scrutiny as a racial, rather than a political,
classification, and thus presumptively unconstitutional.
KG Urban, 693 F.3d at 18-20. The 2015 Letter also
noted that a third party could assert a claim under the
commerce clause of the United States Constitution that the
granting of an exclusive right to the Tribes for the purpose
of protecting in-state economic interests was
unconstitutional discrimination against interstate commerce.
2105 Letter, at 2 n.2 (citing United Haulers Ass'n...
