Waterford attorney, tribes on opposite sides of U.S. Supreme Court case

Attorney James Harrington at the Polito & Associates LLC office in Waterford on Tuesday, Jan. 3, 2017. Harrington will be arguing a court case in front of the U.S. Supreme Court. (Tim Cook/The Day)

This story corrects an earlier version

Waterford — Right from the start, James Harrington figured the case might have legs.

“It was an argument that had never been made in Connecticut,” the Waterford attorney said in an interview last week. “It had been made out West, in the 9th Circuit, but never in Connecticut.”

The argument was that an Indian tribe’s sovereign immunity from lawsuits does not extend to a tribal employee sued over actions he took within the scope of his employment if he’s sued as an individual rather than as an employee of the tribe.

Harrington pressed the point on behalf of a Pennsylvania couple injured in a 2011 car crash involving a Mohegan Sun limousine driver.

The U.S. Supreme Court will hear oral arguments in the case Monday.

As Harrington well knew, persuading the nation’s highest court to consider a case is a long way from recognizing the potentially precedent-setting nature of it.

“They receive 6,000 petitions a year and agree to hear 60 of them — 1 percent,” he said. “It’s pretty unbelievable.”

Harrington, 37, an associate member of Polito & Associates, a two-lawyer firm with offices in the Waterford Professional Complex on Vauxhall Street Extension, headed at midweek to Washington, D.C., where he was to take part in mock trial preparations and meet with members of the Office of the Solicitor General, the agency that represents the U.S. government in Supreme Court cases.

Come Monday, he'll be at the petitioners’ table with Eric Miller, a Seattle-based attorney with the firm Perkins Coie. Miller, who has experience arguing cases before the Supreme Court, will address the eight justices. 

Miller and Harrington have ceded some of their allotted time — each side has an hour to argue its case — to Acting Solicitor General Ian Gershengorn, whose office has filed a brief in the case because of its implications for state and federal governments and their employees, not just Indian tribes.

Neal Katyal, the former acting solicitor general, who has argued dozens of cases before the Supreme Court, will argue for "respondent" William Clarke of Norwich, the limousine driver. Daniel Krisch of the Hartford firm Halloran & Sage also has represented the interests of Clarke and the Mohegan Tribe, which declined to comment on the case.

“I’m just excited to be part of the gallery,” said Humbert Polito Jr., Polito & Associates' sole partner.

Polito said the case represents “the intersection” of his firm's work in tribal and civil courts. He said that while Harrington handles as many cases in the Mohegan and Mashantucket Pequot tribal courts as any attorney in the state, most of the firm’s cases are filed in state courts. Harrington joined the Polito firm six years ago.

“Because it’s a small firm, we’ve all pitched in,” Polito said, referring to the firm’s staff. “It’s all hands on deck.”

The case, Lewis v. Clarke, originally was filed in 2013 in New London Superior Court. It claimed that Clarke’s negligence caused the accident in which Brian and Michelle Lewis of Bethlehem, Pa., were seriously injured when Clarke's limousine rear-ended their vehicle on Interstate 95 in Norwalk.

Clarke was an employee of the Mohegan Tribal Gaming Authority, which operates Mohegan Sun. The authority owned the limousine and held an insurance policy on it, according to court records.

Harrington also represented two Fairfield County couples who were riding in the limousine, which was taking them home from Mohegan Sun. All of the limousine passengers were injured and all sued Mohegan Sun — not Clarke individually — in the Mohegan Gaming Disputes Court. All of them settled their claims.

All of the accident victims had been represented by other attorneys before they came to Harrington. By the time the Lewises’ original attorney consulted him, the tribal court’s one-year statute of limitations on the filing of such suits had expired.

Aside from that, there were good reasons for the Lewises to sue in state court, Harrington said.

“In the Gaming Disputes Court, there are no juries, and damages and payments on medical bills are capped, which is not the case in state court,” he said. “There’s no punitive damages, no loss of consortium claims and limits on applicable insurance coverage. ... State court is a better avenue.”

Moreover, he said, the Lewises, who were in their early 20s at the time of the accident, had never been to Mohegan Sun and “never expected to have to go before what amounts to a foreign jurisdiction.”

Attorneys for Clarke moved to have the Lewises’ complaint dismissed, arguing that the state court lacked jurisdiction because the Mohegan Tribe’s sovereign immunity protected Clarke, who was acting within the scope of his employment at the time of the accident.

In response, Harrington relied on an argument that emerged “out West” in the 9th U.S. Circuit Court of Appeals.

The argument's “essence,” Judge Leeland Cole-Chu wrote in denying Clarke’s motion to dismiss, “is that sovereign immunity does not extend to a tribal employee who is sued in his individual capacity when damages are sought from the employee, not from the tribe, and will in no legally cognizable way affect the tribe’s ability to govern itself independently.”

“Tribal sovereignty is limited,” Cole-Chu wrote.

The Connecticut Supreme Court reversed Cole-Chu on appeal last March, prompting Harrington to petition the U.S. Supreme Court.

In deciding whether to hear a case, the nation’s highest court considers whether it’s of national importance and/or whether it involves “split” decisions in lower courts, Harrington said.

Lewis v. Clarke qualifies on both counts.

Polito believes it’s the first Connecticut Supreme Court case to reach the U.S. Supreme Court since 2005’s Kelo v. City of New London, the celebrated eminent domain case that’s the basis of an upcoming feature film.

Since late September, when Harrington received the U.S. Supreme Court’s “one-sentence notification” that it had granted his petition, groups with intense interest in tribal sovereignty issues have taken sides.

Both the U.S. government and, together, the Connecticut Trial Lawyers Association and the American Association for Justice have filed “friends of the court” briefs in support of the Lewises’ position. More recently, dozens of Indian tribes have filed a series of briefs backing the respondent, Clarke. The states of Arizona, Colorado, New Mexico, Oregon and Texas have signed on with the tribes.

“If we don’t prevail, tribal sovereignty will have been demonstrated to be absolute,” Harrington said. “Otherwise, there can be limitations on it.”

He said a decision in his clients' favor would not affect the vast majority of tribal tort cases, which stem from personal injuries incurred on reservations, such as at tribal casinos like Mohegan Sun and Foxwoods Resort Casino.

Rather, he said, any fallout from the decision likely would be limited to actions that occur off reservations, as was the case with the Norwalk crash involving the Lewises and Clarke.

“We’re not seeking to eradicate tribal sovereignty, but to provide a degree of protection for people who have no reason to believe they’re subject to tribal law,” Harrington said.

b.hallenbeck@theday.com

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