Clute v. Office of the Director of Regulation

10 Am. Tribal Law 147
CourtMohegan Gaming Disputes Trial Court
DecidedSeptember 2, 2009
DocketNo. GDTC-AA-07-130-PMG
StatusPublished

This text of 10 Am. Tribal Law 147 (Clute v. Office of the Director of Regulation) is published on Counsel Stack Legal Research, covering Mohegan Gaming Disputes Trial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clute v. Office of the Director of Regulation, 10 Am. Tribal Law 147 (Mo. 2009).

Opinion

MEMORANDUM OF DECISION

GUERNSEY, C.J.

The history of this Appeal taken from the revocation of Plaintiffs gaming license is set forth in this Court’s Memorandum of Decision on Plaintiffs Request for Leave to Present Additional Evidence, 3 G.D.R. 122, 7 Am. Tribal Law 471 (2008), reinstated after hearing, 3 G.D.R. 139, 7 Am. Tribal Law 474 (2008), and will not be repeated here, except to note that the decision to revoke the Plaintiffs gaming license followed a hearing in which the only evidence as to what the Plaintiff did wrong came from a rambling apology from the Plaintiff himself,1 much of it in the subjunctive,2 relative to the Plaintiffs revealing information concerning a patron of Mohegan Sun to his counterpart at Fox-woods. The Commission3 presented no evidence as to whether or not any disclosure of information was in fact authorized by the patron, or whether the interests of the MTGA or the Mohegan Sun, or the [149]*149effective regulation of gaming, were compromised by what was revealed. Unlike virtually every other appeal from the action of the Director of Regulation revoking a gaming license, there is no evidence in the record as to how this situation came to the attention of the Director in the first place.

Against this background, the Plaintiff filed an Application for Leave to Present Additional Evidence, which was granted, with the express provision that the remand was stayed for fourteen days so that the Commission, in fairness, would have the opportunity to file its own motion for leave to present additional evidence.4 No such application was filed by the Commission, and the remand was conducted to receive the additional evidence set forth in Plaintiffs application.

At the hearing following remand, virtually the only significant addition to the evidence presented at the original hearing5 came from the Plaintiffs testimony, over objection, that he recognized the voice of the patron talking in the background during the Foxwood Host’s request for information:

JC: Okay, uh, I had just come into the office, I believe I was checking my voice-mail, uh, and I got a call from John Sanders from Foxwoods uh, that said that he was with Christine Hicks. Uh, I could clearly, I knew that she was’in the background and I could hear her, you know she must have been standing right obviously next to him. Uh, you know she was you know saying hi and whatever and you know telling (inaudible) all the time and that’s when I said, uh, I don’t know about all the time but maybe quite frequently, I don’t remember, I don’t recall him asking anything specific about play but generally the guidelines that we would release to another host, un, I would have released information had he needed additional information but I don’t recall anything specific uh, information that he requested anything other than limos.

Transcript at 6.

Following the hearing on remand, the Defendant’s Hearing Officer took an extremely narrow view of the purpose of the remand, finding in each of the five categories of additional evidence that the Plaintiff sought to introduce that, either the “Plaintiff failed to have the witness appear or take steps necessary to issuing process to compel his attendance” or, in the case of the testimony of the Plaintiff, that “insufficient evidence has been presented on this issue to overturn or assist in overturning the original Decision from the Gaming Commission.” As a result, the Hearing Officer concluded:

I find there is insufficient additional evidence to warrant overturning the origi[150]*150nal Notice of Decision. The higher court was specifically concerned about the Plaintiffs ability to present evidence at the first hearing and by the Order dated October 1, 2008 outlined the evidence that should be considered in remand. The evidence presented provided no significant additional value and in several cases no evidence was presented al all to address specific issues.

As for the Plaintiffs testimony concerning his recognition of the voice of the patron, who said “hi” during the telephone call from the Foxwoods host, the decision of the Hearing Officer is completely silent, so it cannot be determined whether this was found not to be credible or that it made no difference.6

At the outset, it must, be noted that it is unclear whether the Hearing Officer, in determining whether the additional evidence warranted “overturning” the original Notice of Decision, followed the standard set forth in MTC § 3—224(h):

The Agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications [,] new findings, or decisions with the reviewing Court.

The effect of the granting of a motion to offer additional evidence pursuant to Conn. Gen.Stat. § 4—183(h), virtually identical to MTC § 3—224(h) in all relevant aspects, has been described as follows:

When a party moves to offer additional evidence before the agency pursuant to § 4—183(h), it is not requesting a new hearing, but rather an opportunity to supplement the record with evidence that originally was unavailable. Furthermore, a court order granting such a motion does not vitiate the department’s original decision, but instead permits the department to consider new evidence and to modify its decision as necessary. Thus, a remand under § 4—183(h) does not offer the parties an opportunity to relitigate the ease ab initio, but rather represents a continuation of the original agency proceeding.

Salmon v. Department of Public Health and Addiction Services, 259 Conn. 288, 319, 788 A.2d 1199 (2002). That the Hearing Officer may, in fact, have considered all the evidence is a distinct possibility, given the repeated statement by the Hearing Officer that “the evidence presented no significant additional value”, and that “no evidence was presented at all to address specific issues.”7 The most significant issue to be decided, whether the Plaintiff took sufficient steps to ascertain the authority of the Foxwoods host to speak on behalf of the patron, was in fact the subject of Plaintiffs testimony but, as noted, it is impossible to know whether this was not found to be credible8 or, even if worthy of belief, did not satisfy the requirements of the Confidentiality Policy, even as the same is implemented and described by Mr. Athey.9 For purposes of this ap[151]*151peal, however, this issue need not be resolved; setting aside the additional evidence, or lack of evidence, produced at the hearing on remand, and looking to the original hearing, the Hearing Officer’s conclusion that the Plaintiff revealed “what the average theoretical win would be”10 is not based on substantial evidence in the record, nor was there any evidence introduced as to the relationship between the furnishing, apparently in good faith,11 of information concerning complimentary non-gaming limousines and the effective regulation of gaming.

This Court has repeatedly recognized the deference to be accorded the findings and conclusions of the Hearing Officer before whom the original hearing is conducted.

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Related

Gervasoni v. McGrath
418 A.2d 952 (Connecticut Superior Court, 1980)
Salmon v. Department of Public Health & Addiction Services
788 A.2d 1199 (Supreme Court of Connecticut, 2002)
Bialowas v. Commissioner of Motor Vehicles
692 A.2d 834 (Connecticut Appellate Court, 1997)
Kochachy v. Office of the Director of Regulations
4 Am. Tribal Law 522 (Mohegan Gaming Disputes Trial Court, 2003)
Clute v. Office of the Director of Regulation
7 Am. Tribal Law 471 (Mohegan Gaming Disputes Trial Court, 2008)
Clute v. Office of the Director of Regulation
7 Am. Tribal Law 474 (Mohegan Gaming Disputes Trial Court, 2008)
Flexer v. Office of the Director of Regulation
7 Am. Tribal Law 488 (Mohegan Gaming Disputes Trial Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
10 Am. Tribal Law 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clute-v-office-of-the-director-of-regulation-mohegangct-2009.