Circuit Judge Wendell Griffen this morning issued a temporary restraining order to prevent the state Racing Commission from making a decision Monday on an application by the Cherokee tribe to open a casino in Pope County.
His decision came in a lawsuit filed by a casino opposition group, Citizens for a Better Pope County. They argued that the Racing Commission had broken its own rules by allowing a second application period for a permit in Pope County, authorized by Amendment 100 approved by state voters in 2018.
The lawsuit says the rules allow a second application period only if no applications were received in the first application period. Five applications were submitted. All were rejected. In the second period, only the Cherokees submitted an application that included endorsement by current local elected officials, as required by state Racing Commission rules.
Griffen’s order says the Racing Commission rules are silent on a second application period. And he noted the application period was 120 days, four times the 30 days provided for the first application period.
The judge noted that the rules could be amended to provide for a second application period and for a period longer than 30 days, but that this must be done according to the state administrative procedures act. This would include notice and public comment.
The judge said the opposition group would likely succeed in their lawsuit challenging application of the rules and that they’d be irreparably harmed if the Commission acted to approve a permit for a 10-year license. The rules don’t provide, or even hint, the judge said, that there can be a second application period. Because the plaintiffs can’t sue the state for money damages, the Commission would harm plaintiffs by taking illegal action. The only remedy is injunctive relief, Griffen wrote.
The order enjoins the Racing Commission from acting on the second round of applications and directs parties to schedule a hearing on a preliminary injunction.
Anna Stiritz, a Russellville lawyer who’s been active in the Citizens opposition group, said:
Today’s ruling adds some breathing space to a process which up to this point has completely ignored the voices of the people most affected by Amendment 100–Pope County citizens. Regrettably, the initiated amendment process allowed out-of-state money to game the system against our county. We’re grateful for a careful judicial eye on the players.
Circuit Judge Tim Fox had reached a similar conclusion about the invalidity of a second application period yesterday in the course of refusing a request by the Cherokees to intervene in a separate lawsuit by a Mississippi casino operation. Gulfside Casino Partnership is attempting to make a case that it filed an acceptable permit application in the first application period by including the endorsement of the Pope County judge in 2018, who left office at the beginning of 2019. Though reaching that conclusion to deny the intervention, Fox didn’t rule on the main case and issued no order respecting Racing Commission action. He has said it will likely be months before he can get to the Gulfside case.
The opposition group won approval from county voters in 2018 of an ordinance that required a local election before local officials could support a casino application. That ordinance has been declared unconstitutional, but the decision is being appealed.
The Cherokees had asked to intervene in the case in which Griffen ruled this morning, but he hasn’t ruled on their request.
I’m seeking comment from the Cherokee casino group because they had some hope of receiving approval of their permit application at Monday’s meeting. Their legal theory is that they didn’t submit a second application, merely an amended version of what was submitted in the first period and that the Commission had the discretionary power to accept it after the end of the 30-day application period. They have objected to the Racing Commission referring to the new 120-day application period as a “second” application period.
UPDATE: I received a prepared statement from Chuck Garrett, CEO of Cherokee Nation Businesses.
“We are disappointed by the recent turn of events and continued delay. As the only qualified applicant pursuant to Amendment 100, our team was prepared to deliver a formal presentation on Monday per the invitation of the Arkansas State Racing Commission. We look forward to receiving that opportunity in the very near future and subsequently being awarded the casino gaming license.”
Scott Hardin, a spokesman for the state Finance and Administration Department, said the state is reviewing the order and will announce by the end of the day whether the Racing Commission will meet Monday.
UPDATE FROM HARDIN:
Due to the Order issued today by Judge Griffen, the meeting of the Racing Commission scheduled for Monday (January 6th) has been canceled.