5/9/18
Cosentino v. Fuller
u Court’s Ruling: q The Gaming Commissioners overstepped their
authority by revoking the employee’s gaming license in retaliation and without cause q Sovereign immunity will not protect the Gaming Commissioners unless they can show that the license was revoked based on criteria identified in IGRA, Compact, or gaming ordinance q Nothing in the record shows that the Commissioners had the authority to revoke his license without cause or in retaliation q “Sovereign immunity . . . does not prevent inquiry into whether [they] exceeded their authority by using their official position to intentionally harm Cosentino.”
Cosentino v. Fuller
u Breakdown of the Court’s (Mis)Reasoning: q The court looked beyond the Commissioners’ “scope of authority” to consider the circumstances under which the Commissioners exercised that authority q The court focused on the lack of evidence/record to support the revocation decision – i.e., the Commissioners’ failure to provide evidence regarding plaintiff’s unsuitability for licensure q Without such evidence, the court simply accepted the plaintiff’s allegation that the revocation was without cause and in retaliation q Since the Commissioners did not have the authority to revoke licenses without cause or in retaliation, their conduct was outside the scope of their authority and not protected by the tribe’s sovereign immunity
q In other words, the Commissioners’ act of revocation was lawful, but their motives were not, so therefore the act was outside the scope of their authority
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