Justice Sullivan: Conn. AG contradicting himself

John O'Brien Feb. 6, 2007, 6:05pm



HARTFORD, Conn. - Former Chief Justice William Sullivan is admittedly confused with Attorney General Richard Blumenthal's stance on smoking in the state's casinos.

A 4-1 vote on Monday by the Supreme Court upheld a three-year-old law that bans smoking in public bars, restaurants and cafes but not in casinos and private clubs.

The majority wrote that the casinos, located on Indian territory, can claim sovereign immunity from the ban. Blumenthal argued the point for the state's Public Health Commission.

The lone dissenter, Sullivan cited a 2003 opinion released by Blumenthal to Sen. Louis DeLuca, who had requested clarification on the matter of smoking in casinos.

Blumenthal wrote to DeLuca that the tribes who operate the Mohegan Sun and Foxwood casinos, by signing into gaming compacts with the state, agreed to implement health and safety standards as strict as those outlined for state businesses.

Blumenthal wrote that Section 14 of the compacts provides:

"Tribal ordinances and regulations governing health and safety standards applicable to the gaming facilities shall be no less rigorous than standards generally imposed by the laws and regulations of the State relating to public facilities with regard to building, sanitary, and health standards and fire safety."

Sullivan, now a retired senior status justice, wrote, "The attorney general concluded, however, that, because the legislature had not included the special liquor permits for casinos in the list of permits covered by P.A. 03-45, the state had not banned smoking in the casinos and, accordingly, the compacts did not require the tribes to ban smoking
in the casinos.

"It is perfectly clear, therefore, that the legislature has the power to include casinos in the smoking ban. Moreover, I am not persuaded by the defendants' argument that, because the attorney general did not render this opinion until after P.A. 03-45 had been enacted, the legislature could not have known that it had such power. Even if it were plausible that the legislature was not aware of the legal import of the gaming compacts, the defendants cite no authority for the proposition that the legislature's claimed ignorance of its own clear legal authority can form a constitutional basis for an otherwise unconstitutional classification."

Sullivan also wrote that the Legislature sort of side-stepped the issue.

"As I have indicated, far from being a rational basis for a legislative classification, legislative maneuvering to avoid the political fallout of imposing burdensome legislation on a politically powerful group is precisely what the equal protection clauses of the state and federal constitutions were designed to prevent," he wrote.

Recently, the Mashantucket Pequot Tribal Nation and the Atlantic City Coin and Slot Service Co. filed a federal lawsuit asking that the town of Ledyard be prohibited from taking property tax on the slot machines.

Blumenthal says that the slot machines, because they are leased by a non-Indian entity to the tribe, can not claim sovereign immunity for the purpose of not paying the state's taxes.

Sullivan and Blumenthal are currently engaged in a legal battle where Blumenthal has appealed to the Supreme Court a lower court ruling that Sullivan did not have to obey a subpoena from the Legislature, which is investigating allegations that Sullivan delayed the release of a controversial decision so it would not disrupt the appointment of Justice Peter Zarella to Chief Justice. Zarella is considered Sullivan's protege by many.

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