It’s been two years and eight months since the voters in Arkansas approved a constitutional amendment that authorized Las Vegas style casinos in four counties. Three of those casinos are now in operation. In Pope County, however, ground has yet to be broken as issues over that county’s casino have been tied up with disputes and litigation.
One of the court cases has finally reached the Arkansas Supreme Court. This case, when decided, may make other pending litigation moot.
In May 2019, the state body assigned authority over casino gaming by the amendment—the Arkansas Racing Commission (ARC)—opened a limited period for interested parties to submit applications to operate a casino in two of the four counties, Pope and Jefferson. The other two licenses were to be issued to the Franchise holders of the existing greyhound racing track and gaming facility in Crittenden County and the horse racing track and gaming facility in Garland County. Five parties submitted applications in Pope County and one submitted an application in Jefferson County. All of the Pope County applications were denied as incomplete on June 13, 2019, while the Jefferson County application was approved.
The court case hinges on one issue, support documents from county officials.
From the amendment:
The Arkansas Racing Commission shall require all casino applicants for a casino license in Pope County and Jefferson County to submit either a letter of support from the county judge or a resolution from the quorum court in the county where the proposed casino is to be located…
Amendment 100 was adopted by voters on November 6, 2018 and became effective on November 14, 2018.
On December 26, 2018, the ARC adopted for publication several draft rules, including one that stated, “Letters of support and resolutions by the Quorum Court, required by these Rules and the Amendment, shall be dated after the effective date of the Amendment.”
On January 3, 2019, a revised draft of the Casino Gaming Rules was published for comment which said, “All letters of support or resolutions by the Quorum Court, required by these Rules and the Amendment, shall be dated and signed by the County Judge, Quorum Court members, or Mayor holding office at the time of the submission of an application for a casino gaming license.” The final rules adopted on February 21, 2019 were as published on January 3.
Act 371 of 2019 passed by the General Assembly on March 5, 2019, also requires that support documents from local officials for a casino be signed and dated by officials holding office at the time of the submission of an application for a casino license.
On December 28, 2018, Gulfside Casino Partnership provided the ARC a copy of Pope County Judge Jim Ed Gibson’s letter of December 21, 2018, which, in its entirety says, “If a license is issued for a casino in Pope County, Arkansas I give my support for Gulfside Casino Partnership.” Judge Gibson retired on December 31, 2018. Gulfside was not yet an applicant for a casino license as, indeed, the rules for casino gaming had not yet been established and approved.
In a December 31, 2018 article by River Valley Now, Jim Ed Gibson was asked, “I think that’s why there was some debate about it, because people have said, well he’s saying “if”, so it’s not the letter that’s needed. So, I just wanted to get your perspective on what the intent was. So, it wasn’t necessarily meant as THE letter of support?“
Gibson replied, “No, it wasn’t.“
On March 26, the ARC issued a public notice establishing a casino application period from May 1 to May 30, 2019.
Gulfside submitted an application on May 17 that included the one-line letter of support from then retired Judge Gibson. The other four applicants applicants had no letters of support with their application.
The ARC denied all five applications on June 13 because none had the required letters of support. Gulfside requested a hearing before the ARC which was held July 18, 2019. On August 15, 2019, the ARC denied Gulfside’s appeal. Gulfside filed a suit that same day in Pulaski County Circuit Court, appealing the decision under the Arkansas Administrative Procedures Act, challenging as unconstitutional the gaming rule and law that requires the support documents be from officials currently in office. Circuit Judge Tim Fox ruled in favor of Gulfside on March 24, 2020 and again, after the Arkansas Supreme Court sent the case back to him, on May 21, 2021.
The latter ruling has been appealed to the Arkansas Supreme Court by the Arkansas Racing Commission and Cherokee Nation Businesses (CNB) both of whom submitted appellant briefs yesterday, July 12.
CNB has standing in this case because in August of 2019 they received a resolution of support from the Pope County quorum court and, later, a letter of support from the current Pope County Judge, Ben Cross. CNB filed a motion to intervene on August 23, 2019. Judge Fox denied CNB’s motion to intervene, which was unopposed by any of the parties to the case, on January 2, 2020. CNB appealed the denial and, on February 4, 2021, the Arkansas Supreme Court reversed Fox’s denial, vacating his March 24, 2020 orders in the case because CNB’s positions were not considered in his decision.
The appellant briefs submitted by the ARC and CNB hold that Gulfside is not a qualified applicant because they never have had a supporting document from Pope County officials holding office at the time of the application, as required by state law and casino gaming rules. Judge Fox’s order declaring the law and rule unconstitutional was among those vacated in the Arkansas Supreme Court’s February 4th ruling.
Ignoring the state law and casino gaming rule on support documents from current officials, plain reading of Amendment 100 alone disqualifies Gulfside from having a license.
The amendment requires that all applicants for a casino license submit documents of support from the county judge or the quorum court. Until it submitted it’s application, Gulfside was only a prospective applicant. Gulfside became an applicant only when, on May 17, it submitted its application, including the one-line letter from Judge Jim Ed Gibson, who had been out of office for four months and seventeen days. Clearly, Judge Gibson was not the Pope County Judge when Gulfside officially became an applicant.
According to Amendment 100, “’Casino applicant’” is defined as any individual, corporation, partnership, association, trust, or other entity applying for a license to conduct casino gaming at a casino.” Prior to May 17, 2019, Gulfside was not an applicant.
Gulfside’s case depends upon Judge Gibson’s letter, whether the state law and gaming rule are constitutional and the December 26, 2018, draft rule that said “Letters of support and resolutions by the Quorum Court, required by these Rules and the Amendment, shall be dated after the effective date of the Amendment.”
I don’t see how the Supreme Court can rule in any way that favors Gulfside.
Then, again, I didn’t see any way that Gulfside could be awarded a license to build and operate a casino in Pope County. But, through a comedy of inept commission meetings and decisions where they didn’t follow their own gaming rules, a license was awarded to Gulfside and denied to CNB.
CNB’s appeal of the ARC’s license denial is one of several litigations that may be made moot by this Supreme Court case.
