Polito & Harrington associate attorney James Harrington has expressed that he was encouraged by the questions that the Justices were asking during oral arguments at the United States Supreme Court early this year.
The Day quoted Harrington as saying that “the level of questioning, the tone of the questioning seemed favorable to us.”
The issue before the court in Lewis v. Clarke is whether a person who is employed by an Indian tribe can be sued as an individual for negligence that occurred within the scope of his employment when that negligence occurred outside the Indian reservation. The way the case is decided could have implications for Indian tribes around Connecticut and throughout the rest of the country.
The case arose when Brian and Michelle Lewis of Bethlehem, Pennsylvania were rear-ended by a limousine owned and operated by the Mohegan Sun casino. Two other couples in the limousine were injured in the accident, but they have since settled with Mohegan Sun. The Lewises were unable to recover due to the fact that a court of appeals sided with the limousine driver when he made the argument that the tribe’s sovereign immunity should apply to him as an employee.
Eric Miller, who is an attorney at Perkins Coie’s Seattle office, argued for the plaintiffs before the Supreme Court. He was joined by Ann O’Donnell, assistant to the United States Solicitor General, the attorney who is appointed to represent the government’s interests before the Supreme Court.
On the other side was Neal Katyal of Hogan Lovells, a Washington D.C. firm, who is a former acting Solicitor General.
Miller began his argument by stating that “In an individual-capacity action against a government employee, the plaintiff seeks relief from the employee personally.” He went on to state that “The judgment is not enforceable against the government. For that reason, such an action does not implicate sovereign immunity."
Justice Ginsburg asked Miller what would happen had the driver been an employee of a foreign embassy rather than the employee of an Indian tribe. In response, Miller stated that such a case would not be barred by sovereign immunity as a foreign government could be sued directly.
Katyal responded that the Mohegan Tribe is asking for the same protections from suit that every other sovereign enjoys,” and that “If Clarke were a federal employee, a foreign employee or a Connecticut state one, this suit would be barred. There's no reason the rule should be different for tribes."
According to Harrington, the Justices have the option of sending the case back to the Connecticut Supreme Court or even back to the trial court, in which case they would need to start from scratch. Because of this question regarding the application of sovereign immunity, the merits of the claim have not yet been addressed by a court.
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