Attorney General: Honorable Thomas D. Ritter , House of Representatives , 1994-003 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

February 4, 1994

Honorable Thomas D. Ritter
Speaker of the House
House of Representatives
State Capitol
Hartford, CT 06106

Dear Representative Ritter:

At the close of the last Legislative session, you posed a number of questions about the Memorandum of Understanding executed by Governor Weicker and the Mashantucket Pequot Tribe relating to the operation of video facsimile machines at the Foxwoods Casino on the Tribe's reservation in Ledyard. These questions were rendered moot by virtue of the ending of said Session. You now inform us that these questions will once again be raised with the opening of the new Session of the Legislature and accordingly, you have renewed your request. Each of the issues raised relates to an essential inquiry: if the General Assembly passes legislation (which eventually becomes law) authorizing the operation of video facsimiles in the State, will the Tribe continue to be obligated to render "contributions" under the terms of the Memorandum of Understanding? The short answer to your question is that a valid statutory enactment which authorizes the use of video facsimiles in the State will result in the cessation of contributions by the Tribe. As you are aware, this office, on February 11, 1993, issued an advice concluding that the Governor had the authority to execute an agreement with the Tribe dealing with the use of video facsimiles at the Casino which essentially obligated the Tribe to contribute to the State twenty-five percent (25%) of the gross revenue derived from the operation of such machines. Central to our analysis in this opinion was the finding that the Governor was implementing the executive function as provided in Section 15(a) of the Final Mashantucket Pequot Gaming Procedures:1 According to Section 15(a) of the Procedures, there are thus three ways that video facsimile games may be made permissible at the casino: by an agreement between the State and the Tribe; by a court order; or by a change in State law to allow video facsimiles in the State. In effect, the Procedures provide for three separate and distinct means of resolving the video facsimile dispute between the State and the Tribe. The first is within the power of the executive. The second is a resolution by judicial decision. The third is a legislative prerogative to determine the issue. --- Conn.Op.Atty.Gen. ---- (1993). Letter to Thomas D. Ritter and Edward C. Krawiecki, Jr., February 11, 1993, p. 3. Thus, we concluded that the Governor could execute the Memorandum of Understanding with the Tribe. While it may appear that the Memorandum of Understanding is the pivotal document which permits the Tribe to operate the video facsimile games, in reality it is the Procedures which govern such operation. Section 3 of the Procedures permits the operation of video facsimiles, and it is only because Section 15(a) imposed a moratorium on such operation that the Tribe was disabled from presenting video facsimile gambling. The Memorandum of Understanding is designed to "suspend" the moratorium contained in Section 15(a) of the Procedures. The Memorandum of Understanding simply provides that as long as video facsimile gambling occurs under the authority of the Memorandum of Understanding then the Tribe will contribute a percentage of the revenue generated therefrom to the State.

In some respects, the question which you now pose has already been addressed in our prior opinion:

Finally, we should note that the Memorandum of Understanding in no way bars the legislature from enacting laws to allow others in the state to operate video facsimile games under the Procedures. The legislature remains free to amend the statutes to that end. According to the Memorandum of Understanding, if such legislation is enacted, the Tribe will no longer be bound by the Memorandum. In other words, the Tribe would not be obligated to make its monetary contributions to the State, and could not, in turn, claim the right to operate the games by virtue of the Memorandum. If such legislation is enacted, however, the Tribe could continue to conduct video facsimile games. Pursuant to Section 15(a) of the Procedures, one of the express conditions for lifting the moratorium on video facsimile games is an amendment of State law to authorize the operation of video facsimile games by any person. Thus, under the Procedures themselves, such a change in State law would enable the Tribe to operate such games, notwithstanding the Memorandum of Understanding. (Footnote omitted.)

--- Conn.Op.Atty.Gen. ---- (1993). Letter to Thomas D. Ritter and Edward C. Krawiecki, Jr., February 11, 1993, pp. 6-7.

Your request focuses upon the following language in the Memorandum of Understanding:

The Tribe agrees that, so long as no change in State law is enacted to permit the operation of video facsimiles by any other person and no other person within the State lawfully operates video facsimiles, the Tribe will contribute to the State a sum [the "Contribution"] equal to twenty-five percent (25%) of gross operating revenues of such games operated by the Tribe. (Emphasis added.)

Memorandum of Understanding Between the State of Connecticut and Mashantucket Pequot Tribe dated January 13, 1993, pp. 1-2. Virtually identical language can be found at page 7 of the Memorandum of Understanding:

The Tribe agrees that so long as no change in State law is enacted to permit the operation of video facsimiles by any other person and no other person within the State lawfully operates video facsimile games, the Tribe shall not assert the right to operate such devices except in accordance with this Memorandum of Understanding. (Emphasis added.)

Memorandum of Understanding Between the State of Connecticut and Mashantucket Pequot Tribe dated January 13, 1993, p. 7.

It is obvious that these phrases use the conjunctive "and" to join the two occurrences, i.e., authorization of the operation and actual operation. Since words and phrases are presumed to have their common and ordinary meaning, Martone v. Lensink, 207 Conn. 296, 302, 541 A.2d 488 (1988), the use of the conjunctive "and" in the foregoing provision strongly implies that both conditions must be satisfied if the corresponding duty is to be compelled. In other words, the Tribe's duty to contribute to the State, and, the agreement to restrict its assertion of authority to the Memorandum of Understanding, exist only so long as both conditions persist, i.e. the state law barring video facsimiles is not changed and no one lawfully operates video facsimiles in the state.

The very next sentence of the Memorandum of Understanding is entirely consistent with this position:

In the event that any change in State law is enacted to permit the operation of video facsimiles by any other person or any other person within the State lawfully operates video facsimile games, the Tribe shall not be bound by the provisions of the Memorandum of Understanding so long as it does not claim any right to operate video facsimile games by virtue of this Memorandum of Understanding, but the Tribe may thereupon assert any rights which it may otherwise have under the Procedures; provided, however, that in such event neither party shall be bound by any of the provisions hereof nor shall either party be barred from taking any position inconsistent with this Memorandum of Understanding. (Emphasis added.)

Memorandum of Understanding Between the State of Connecticut and Mashantucket Pequot Tribe dated January 13, 1993, p. 7. This provision says that if a law is passed which authorizes the operation of video facsimiles or if anyone lawfully operates these games then the Tribe is released from any obligations it may have under the Memorandum of Understanding so long as it does not claim the right to operate the video facsimile machines thereunder. As noted above, however, if the legislature changes the law to permit video facsimiles, the Tribe would then conduct video facsimile games under the terms of section 15(a) of the Federal Procedures.

With the foregoing in mind, we address your questions seriatim:

You first ask, "precisely what event, if any, relieves the Tribe of its obligation to continue its Contribution to the State?" The Tribe is obligated to the State if it operates the video facsimile machines on the basis of the Memorandum of Understanding. If the operation of the machines derives from the Procedures then the obligation is extinguished. Thus, if the General Assembly passes a statute which authorizes the operation of video facsimile machines then the Tribe will claim its right to operate derives not from the Memorandum of Understanding but from the Procedures.

Your second and third questions presume that a statute which legalizes the operation of video facsimile machines would contain conditions (i.e., licensing or the posting of a bond) which must be fulfilled before actual operation begins. You inquire whether the Tribe's Contribution must continue until actual operation by a third party commences. In these circumstances, we believe the Tribe will discontinue contributions on the ground that enactment of legislation authorizing video facsimiles is sufficient to lift the moratorium under Section 15(a) of the Procedures. Thus the Tribe will base its right to operate video facsimile machines on the Procedures and not on the Memorandum of Understanding.

Your fourth question presumes that the General Assembly enacts a law which authorizes the use of a video slot machine which is not the equivalent of a video facsimile as this term is defined in the Procedures. Even if we presume for the purposes of this analysis that the Memorandum of Understanding is restricted to the operation of a video facsimile as that term is defined in the Procedures, i.e., a video facsimile of a specified game of chance,2 it is reasonable to anticipate that the Tribe will claim that pursuant to Section 15(a) of the Procedures the enactment of the statute itself is sufficient since this section refers to "any video games of chance...."

In other words, the Tribe will assert that its right to operate the video facsimiles derives, in these circumstances, not from the Memorandum of Understanding, but from the Procedures, and that the enactment of a law which authorizes a video slot machine of any type is sufficient to activate the provisions of Section 15(a) of the Procedures, since it is "any video game of chance." Your final questions relate to the remedies which are available to the State if: (a) the Tribe, presuming the legislature passes no bill authorizing video facsimile or slot machine operation elsewhere in the State, nonetheless unilaterally ceases its contributions; or (b) conditional legislation as is discussed above or video slot machine (as opposed to video facsimile) legislation is passed and the Tribe ceases its contributions.

The Indian Gaming Regulatory Act does provide for a waiver3 of the Tribe's inherent immunity in specific circumstances:

The United States district courts shall have jurisdiction over--(ii) any cause of action initiated by a state ... to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact...."

25 U.S.C.  2710(d)(7)(A)(ii).

Thus, if the General Assembly does not change existing law but nonetheless the Tribe unilaterally terminates its contribution to the State, we believe that any video facsimile operation at the casino would be in violation of  15(a) of the Procedures and we would seek the prompt issuance of an injunction by the United States District Court pursuant to the above quoted portion of the United States Code. In light of our analysis and conclusions regarding the effect which a change in existing law would have upon the Tribe's duty to "contribute", we cannot express the same degree of confidence about the availability of injunctive relief should the General Assembly authorize, but delay operation of, video facsimiles by others in the State, or, legalize video slot machines which are dissimilar from video facsimiles contemplated under the Procedures. Under these latter circumstances, we must presume the Tribe will operate video facsimiles pursuant to Section 15(a) of the Procedures and that an injunction under 25 U.S.C.  2710(d)(7)(A)(ii) would not issue.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Richard M. Sheridan
Assistant Attorney General

RB/RMS/td

May 14, 1993

The Honorable Richard Blumenthal
Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106

Dear Attorney General Blumenthal:

As you are aware, the Governor executed a Memorandum of Understanding dated January 13, 1993 (the "MOU") on behalf of the State of Connecticut (the "State") with the Mashantucket Pequot Tribe (the "Tribe"). The General Assembly is considering legislation that would legalize casino gambling and may legalize the operation of "video facsimiles" as that term is used in the MOU.

A number of questions have arisen with regard to the interaction of the terms of the MOU and the pending legislation. The basis of the first three questions is that portion of the MOU which provides, on page 1 and 2, as follows:

"The Tribe agrees that, so long as no change in State law is enacted to permit the operation of video facsimiles by any other person and no other person within the State lawfully operates video facsimiles, the Tribe will contribute to the State a sum [the "Contribution"] equal to twenty-five per cent (25%) of gross operating revenues of such games operated by the Tribe."

I request your opinion on the following questions and, because of the short time remaining in the legislative session, respectfully request that you provide an answer within one week.

Termination of Contribution

It is critical that the members of the General Assembly be given a clear understanding of the precise event that obviates the obligation of the Tribe to continue its Contribution to the State if the operation of "video facsimiles" by others is legalized. The language appears to be susceptible to several interpretations. To illustrate the alternatives, assume that the General Assembly were to adopt legislation which legalizes the operation of the video facsimiles. Assume further that (1) the bill adopted by the General Assembly becomes law before the end of the regular session; (2) the act has an effective date of October 1, 1993; (3) the act provides that it is unlawful to operate a video facsimile unless and until a license is issued by the appropriate authority, but in practice no such license is issued until several months after the effective date of the act; (4) the license, when issued, prohibits the licensee from operating a video facsimile until a specified number of months after the license is issued; and (5) the licensee does not actually operate any video facsimile until several months after the date on which the licensee could lawfully have done so.

First, precisely what event, if any, relieves the Tribe of its obligation to continue its Contribution to the State? In your opinion, is it one of the specific events described in the preceding paragraph? If so, which one and why? If not, what fact situation would trigger the cessation of the Contribution and why?

Second, would your answer be affected by preconditions to the issuance of the license? For example, if the licensing authority were legislatively prohibited from issuing a license until an applicant met certain specified conditions and factually there was a substantial possibility that no licensee could ever meet those conditions, the practical result would be that it might never be lawful for any person to operate a video facsimile. In that event, would the Tribe remain obligated to continue its Contribution until a license was issued?

The third question relates to the effect of a legislative provision which made the operation of video facsimiles contingent on an event other than licensing. For example, the act could provide that the operation of video facsimiles would remain illegal until such time as one or more persons posted a bond to offset the State's loss of the Contribution from the Tribe. If an act with that provision became law, then state law would "permit the operation of video facsimiles by any other person" until the bond were posted. The operation of a video facsimile would still be illegal and would remain illegal until that precondition was satisfied. In that event, would the Tribe continue to be obligated to make the Contribution until the precondition was satisfied?

Scope of the term "Video Facsimiles"

The MOU imposes an obligation on the Tribe to continue its Contribution to the state "so long as no change in State law is enacted to permit the operation of video facsimiles by any other person and no other person within the State lawfully operates video facsimiles...." The term "video facsimiles" is defined in the MOU by reference to the definition of "video facsimiles" contained in section 2(cc) of the Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996 (May 31 1991) (the "Procedures"). That provision, in turn, defines "video facsimile" quite specifically.

The fourth question relates to effect of an act which legalized the operation of slot machines, but only machines which are not within the definition of "video facsimiles." Would the Tribe remain obligated to continue its Contribution to the State if the State authorized the operation of some types of slot machines, but did not permit the operation of "video facsimiles"?

Fifth, if the Tribe were to take a position contrary to your conclusions and terminate its Contribution to the State prior to the time the Tribe is entitled to do so, what remedies would the State have against the Tribe? What is the probability of success in obtaining a favorable determination? What is the probability of collecting on any judgement against the Tribe?

Sixth, if the General Assembly does not change existing law, but the Tribe unilaterally terminates its Contribution to the State, what remedies would the State have against the Tribe? Again, what would the probabilities be of success in both obtaining a judgment and collection?

I look forward to having the benefit of your views.

Very truly Yours,

Thomas D. Ritter
Speaker of the House

TDR:gh


Footnote:

1 While these provisions are found in Federal Regulations issued by the Secretary of the Interior, they have colloquially come to be known as the "Compact" and form the basis for any gaming which occurs on the Reservation.

2 See Section 3(a)(ix), Final Mashantucket Pequot Gaming Procedures.

3 Congress has the unquestioned authority to either waive or limit a Tribe's sovereign immunity since such protection derives from Congressional action. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670 (1978); United States v. Wheeler, 435 U.S. 313, 319, 323, 98 S.Ct. 1079 (1978).


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