Malloy, 031417 CTAGO, AGO 2017-2

Docket Nº:AGO 2017-2
Case Date:March 14, 2017
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...

To continue reading