High court rejects call to step into casino case
Tuesday 31st December 2019
The Arkansas Supreme Court will not bar the Racing Commission from issuing a Pope County casino license, nor will it force a Pulaski County circuit judge to expedite a case brought by a Mississippi gaming operator that says it has the only valid claim to the license, according to a ruling issued Monday.
Gulfside Casino Partnership of Mississippi sought the state Supreme Court's intervention after judges in Pulaski and Pope counties volleyed the company's lawsuit against the Racing Commission in an argument over venue.
The Supreme Court ruling came a week before a Jan. 6 commission meeting at which the regulators will consider whether to issue a license for a casino in Pope County or delay the decision further.
Messages left for Casey Castleberry, Gulfside's attorney, were not returned as of late Monday.
"The Jan. 6 meeting will proceed as planned as no court has issued an injunction that would affect this event," said Scott Hardin, a spokesman for the state Department of Finance and Administration, which oversees the commission.
Gulfside originally sued the commission on Aug. 15 in Pulaski County Circuit Court, the same day the commission denied its appeal over the rejected license.
The commission in June had rejected all five applicants -- Gulfside, Cherokee Nation Businesses of Oklahoma, Kehl Management of Iowa, Warner Gaming of Nevada and Choctaw Nation Division of Commerce of Oklahoma -- because none had endorsements by current local officials.
[RELATED: See complete Democrat-Gazette coverage of casinos in Arkansas at arkansasonline.com/casinos]
The Racing Commission earlier this year created a rule, and the Legislature passed a law, to require that the endorsing officials be in office at the time an application is made.
Gulfside argues that its application met the constitutional requirements because, unlike the others, it included letters of endorsement from local officials issued right before those officials left office in December 2018.
A second application window was opened after the Pope County Quorum Court issued a surprise endorsement on Aug. 13 for Cherokee Nation Businesses. That window closed Nov. 18.
Gulfside originally filed its petition in Pulaski County, but Circuit Judge Tim Fox kicked it back to Pope County. Fifth Judicial Circuit Judge Bill Pearson then sent it back to Fox.
Gulfside asked Fox for a one-hour hearing, saying the company could not ethically follow another ruling that would return the case to Pope County. Fox told Gulfside that he would assume jurisdiction of the case, but it would stand in line behind 650 pending cases older than Gulfside's appeal.
In its plea to the Supreme Court, Gulfside said that Fox's threat to put the case on the back burner "would result in a gross miscarriage of justice, and deny Gulfside due process."
Pulaski County is the proper jurisdiction, Gulfside argued, because Arkansas Code Annotated 15-15-207(b) requires the case to be heard in Pulaski County. Previous state law required administrative appeals to be heard only in Pulaski County Circuit Court.
"Gulfside has no other remedy, let alone an adequate remedy," Castleberry said in a Dec. 23 court filing. "If Judge Fox carries out his intentions stated on November 25 -- refusing to issue any orders in this case until all his older cases have been resolved -- then it will be well into 2021 or 2022 before Gulfside receives any rulings on its pending motions. This delay could seriously undercut Gulfside's legal claims and deny Gulfside due process."
In a Dec. 19 letter to Fox, Gulfside said Racing Commission Chairman Alex Lieblong "welcomed an order from this court enjoining the Commission or otherwise resolving the litigation" prior to its Jan. 6 meeting. Likewise, Gulfside said in the letter that it waives any request for the hearing should the court determine that it has enough information to make a decision.
Fox has not responded to any letters or filings in the case, nor has he scheduled a hearing.
Monday's Supreme Court ruling denied Gulfside's requests to order Fox to accept the case in his court and to rule on its pending motions in a timely manner.
The high court's decision comes on the heels of a new lawsuit filed last week by the anti-casino group Citizens for a Better Pope County asking that the Racing Commission be barred from issuing a Pope County casino license.
A second application window goes against the commission's own gaming rules, the group said in the court filing.
The new legal challenge comes after the group's voluntary dismissal of a previous civil suit asking that no casino license be issued until the question is brought before voters.
Amendment 100, which was approved by state voters last year, allows new casinos in Pope and Jefferson counties if they have the support of local officials. The amendment also allows Oaklawn Racing Casino Resort in Hot Springs and Southland Casino Racing in West Memphis to expand their operations into full-fledged casinos, but they aren't required to have local endorsements.
Earlier this year, the Racing Commission issued a gaming license to Quapaw Nation to build an 80,000-square-foot casino resort in Pine Bluff. That Jefferson County project is scheduled to be open for business in June.
Pope County residents voted against the amendment and also approved an initiated county ordinance that said an election must be called to allow voters to decide if they want officials to back a casino applicant.
That ordinance was repealed by the Pope County Quorum Court after the body endorsed Cherokee Nation Businesses for the casino license there.
In its latest lawsuit, filed in Pulaski County Circuit Court and assigned to Circuit Judge Chip Welch, Citizens for a Better Pope County argues that the Racing Commission's rules allow for a second window of applications only if no applications were received in the first round.
Ben Cross, county judge of Pope County, said Monday that he will continue to honor and respect the "legal system as the merits of each case are litigated."
Cross issued his own endorsement for the Cherokees shortly after the initiated county ordinance was repealed.
"In regards to this latest action by Citizens for a Better Pope County against the Racing Commission, I have full confidence that appropriate legal rulings will ultimately provide appropriate resolution in accordance with the law," Cross said.
"I respect the Supreme Court's decision to relegate their involvement back to the circuit court and deny the temporary restraining order sought by Gulfside. I hope this action expedites the overall process to a quicker resolution."
A Section on 12/31/2019