Connecticut Attorney General George Jepsen on Monday issued a legal opinion warning of financial and legal risks associated with the state authorizing a third casino gaming facility operated by an entity jointly owned by Connecticut’s two tribal nations that manage Foxwoods and Mohegan Sun. The opinion could impact legislative approval for a proposed East Windsor casino on non-tribal property to counter MGM Resorts nearly $1 billion casino under construction in Springfield, Massachusetts while bolstering support for an open, competitive casino that could put Bridgeport in play. See full opinion here.
At issue are constitutional concerns with breaking the state’s exclusive compact with the tribal nations, that provide 25 percent of the slot take, if they are granted a joint venture for a third casino on non-tribal land.
MGM Resorts and proponents of a competitive bidding process argue the exclusive compact is limited to tribal land. The legislature is weighing two bills, one for approving the tribal nation joint entity and one for an open, competitive process.
Thus, there is an increased likelihood that a court would reach the merits of equal protection or commerce clause challenges.
As noted, we must be circumspect in our comments in light of our responsibility to defend such claims if, as is foreseeable, they are asserted and their merits litigated. To be sure, legislation currently pending to approve a joint tribal casino does not explicitly reference or rely upon the process that was previously established in Special Act 15-7 and that is currently being challenged in litigation. However, it is foreseeable that any legislation resulting in approval of the joint tribal entity’s operation of a casino will be challenged as effectuating and furthering an allegedly discriminatory intent first manifested in Special Act 15-7 in violation of the commerce and equal protection clauses of the United States Constitution.
We do believe that there are potentially meritorious defenses that we would be able to raise against these constitutional claims, including that the special nature of state-tribal relationships permit special legislative treatment and require judicial deference. However, the relative novelty of the legal issues such claims would present makes it difficult to predict their outcome with confidence. We caution that the potential of equal protection or commerce clause challenges succeeding in this context is not at all insubstantial.
MGM official Uri Clinton who asserts a third casino in southwestern Connecticut would far outweigh the economic benefits of the East Windsor location declared in response to Jepsen’s opinion:
“Attorney General Jepsen’s legal analysis reiterates and underscores what he stated so effectively two years ago. Once again, the conclusion is clear and unmistakable: Connecticut risks hundreds of millions in annual revenue if it proceeds with a commercial casino–even if that casino is to be operated jointly by the two federally recognized tribes.
“Connecticut cannot afford to take this and the other risks identified by Attorney General Jepsen, especially in the midst of budgetary shortfalls and economic uncertainty. There is a better, no-risk option. Connecticut can generate more revenue, create more jobs, and drive greater economic development for the state as a whole by establishing a competitive bidding process.”
More from the CT Mirror here.