California | Litigation

California tribes convince court to depublish immunity decision

Thursday, September 24, 2015

A view of the Pechanga Resort Casino in Temecula, California. Photo from Flickr

A ruling that opened gaming regulators for the Pechanga Band of Luiseno Indians to a lawsuit was unceremoniously dumped by California's highest court on Wednesday.

Heeding to a flood of requests from Indian Country, the California Supreme Court without comment ordered the depublication of the controversial decision. The move doesn't overturn the ruling -- it merely prevents it from being cited as precedent and being used against other tribes.

But depublication represents a preliminary victory for the gaming commissioners who are being sued by a former employee of the Pechanga Resort & Casino. They plan to explain why they revoked the license of Bernard Cosentino, who was a table games dealer at the facility, when the case returns to a lower court for further proceedings.

"Plaintiff's criminal record, prior adverse licensing determinations by other regulatory entities, financial irresponsibility and instability, failure to abide by the terms of his license, and refusal to provide information lawfully required by the commission will more than support the commission's license revocation," the attorney for the commissioners wrote.

If they follow through on the threat, the commissioners will be making a big shift in their long-running dispute with Cosentino. They pointed out that they declined to address his allegations in earlier stages of the case because they thought they would win dismissal based on the doctrine of sovereign immunity.

That changed when the 4th District Court of Appeal on May 28 said the regulators could be sued for allegedly acting outside of their authority. Although the decision acknowledged that the gaming commission has the right to revoke a person's license, Judge Richard M. Aronson said the defendants failed to explain why they took action against Cosentino.

The holding stoked fears among tribes across the state. In a slew of requests for depublication, they argued that the opinion opened the doors for lawsuits against individual tribal officials that would otherwise not be allowed against tribes themselves due to sovereign immunity.

"With 109 federally recognized tribes in California, each with governmental agencies rendering decisions in areas as diverse as housing, education, health care, public safety, senior and youth programs, and enrollment -- not to mention approximately 70 tribal gaming commissions -- the opinion invites a tidal wave of litigation in California's already overburdened courts," attorneys for 13 tribes wrote in one request.

Similar arguments were made by four other tribes that filed their own requests, as well as the Tribal Alliance of Sovereign Indian Nations, an organization that represents nine tribes, including the Pechanga Band. Depublication means they won't be punished by the decision in the event their officials are named in lawsuits.

Cosentino's license was revoked in 2011 after Pechanga Band leaders found out he was providing information to the California Department of Justice about alleged criminal activity at the casino. Without a license, he was unable to work at the facility so he was fired.

The tribe eventually apologized to Cosentino and rescinded the decision to revoke his license, The Riverside Press-Enterprise reported in June. But he was not granted a new license so he must tell potential employers of the blemish on his record.

"He’s left in a position where he is effectively tainted," Cosentino's attorney, Andrew Twietmeyer, told the paper. Twietmeyer fought the multitude of requests for depublication.

Turtle Talk has posted documents from the case, Cosentino v. Fuller.

4th District Court of Appeal Decision:
Cosentino v. Fuller (May 28, 2015)