Legal papers are continuing to pile up in the contest for a new casino permit in Pope County.
The latest filings indicate some legal support once existed on the part of a couple of state participants for a claim being made by a would-be casino operator from Mississippi. Then the rules changed.
New pleadings were filed today by Gulfside Casino Partnership of Mississippi, the group that landed approval from the lame-duck county judge of Pope County in the waning days of 2018. This surprise move set off a furor by other contenders.
Gulfside contends the approval satisfied the terms of Amendment 100, approved by voters in November 2018 and it should be awarded the permit in Pope County. It makes no distinction about when approval from local officials must be obtained.
Since then, both the legislature and state Racing Commission, the regulator of casinos, have adopted rules saying only casino applications with approval of current officeholders will be considered. Gulfshore obtained its letter of approval before the application process had officially opened.
Since then, only one of five contenders for a Pope County permit, a Cherokee-backed group, has filed a permit application with current politicians’ approval, from the Pope County Quorum Court. That approval followed a clandestine process with little public notice and no debate. There’s much more finagling underway, including a lawsuit over whether Pope County voters are entitled to vote before a permit is issued. And Russellville, left out of any specific financial gifts from some $40 million promised by the Cherokees, has been holding a rump review of casino proposals. Gulfshore has not participated in that currently academic exercise. The Quorum Court said it is firmly committed to the Cherokees.
But back to legal filings. Gulfshore today has asked a court for an injunction against a Racing Commission award of a permit before the courts have decided whether it had valid approval. Its in the midst of a 90-day application period. Gulfside also opposes the state’s effort to have its lawsuit dismissed.
Gulfshore’s argument boils down simply. The state has added additional requirements to a constitutional amendment with a specification of current officeholder approval. Generally, additional requirements aren’t allowed to be added to constitutional amendments. Generally, the Arkansas Supreme Court says it is bound by the plain language of a law or constitutional amendment. But that doesn’t mean the court doesn’t sometimes find wiggle room. Gulfside, at a minimum, however, seems to have a case on the plain language of the amendment. What’s more, it has, or had, agreement from interesting parties.
The first link above, the brief in support of an injunction, provides a history of events.
The brief says the Racing Commission initially indicated on three separate occasions that any letter of approval submitted after passage of the amendment would be considered valid. For example:
First, on December 20, 2018, counsel for the Racing Commission expressly said this in an email to an employee of the Governor’s office:
Question from Governor’s staffer I know…I’ll be asked if the letter of reference in the rule on county judge is restrictive to the judge at the time of application submission or is broader—any county judge during a time in which the amendment was in effect.
Answer from Racing Commission counsel [Byron Freeland] Letter is valid if written after the Amendment became effective. If ARC gets more than one letter of support, the Commission will determine which applicant is the best qualified.
Dec. 28, Gulfside submitted a letter from County Judge Jim Ed Gibson, a lame duck due to leave office in three days, in support of their proposal. Jan. 3, however, the Racing Commission proposed to change its rules and did so a few days later. In March, the legislature made the rule a matter of law.
The rule change drew attention from the Bureau of Legislative Research. Said the legal filing:
When an attorney at the Bureau of Legislative Research (“BLR”) asked the Racing Commission’s counsel why it has added what “appears to be an addition…not mentioned in the language of Amendment 100,” counsel for the Racing Commission gave a lengthy defense of this addition by referencing all the sections of Amendment 100 that authorize the Racing Commission to regulate in certain areas of Amendment 100. Then he concluded that Amendment 100 authorizes the Racing Commission to add qualifications because it “requires the ARC…to administer and regulate casino licenses, including their issuance and renewal, and to enforce the provisions of the Amendment relating to all casino licensees.”
Gulfside contends this interpretation wrongly expands the Racing Commission’s authority.
The case is pending in Pulaski Circuit Court.