Reversed and dismissed

The Court Room, the round glass-enclosed wing of the Arkansas Justice Building in Little Rock, houses the Arkansas Supreme Court Chamber

It’s been just under three years since voters in Arkansas approved a constitutional amendment¹  that required the Arkansas Racing Commission issue licenses for casino gaming at Las Vegas style casinos in each of four counties. Three of those casinos are in operation with revenue streaming to their communities from the casino gaming revenue tax as well as sales and property taxes.  While a license for a casino has been issued for the fourth casino, which is to be in Pope County, disputes—including political—and litigation have prevented breaking ground and construction.

A ruling on a critical Pope County casino court case² was handed down today³ by the Arkansas Supreme Court, overturning Judge Tim Fox’s order⁴ of May 21, 2021, which, for the second time, ruled a portion of an Arkansas casino gaming rule and a portion of a state law were unconstitutional. Both required,

A letter of support from the county judge or a resolution of support from the quorum court, and from the mayor, if appropriate…, shall be dated and signed by the county judge, quorum court, or mayor holding office at the time of the submission of an application for a casino license.⁵

Several Racing Commission meetings were held after Fox’s ruling to determine which applicant would get the license.  Gulfside Casino Partnership had submitted a one-line letter of support with their application from former County Judge Jim Ed Gibson written just ten days before he retired at the end of December 2018. Legends Resort and Casino, Arkansas, Inc.—a subsidiary of Cherokee Nation Businesses (CNB)⁶—submitted a letter of support from County Judge Ben Cross, Gibson’s successor and current county judge.

The immediate impact of the ruling is that it invalidates the casino gaming license issued by the Arkansas Racing Commission on July 31, 2020⁷ to Gulfside.

There is nothing in the constitution or the Racing Commission’s Casino Gaming rules⁸ that specifically addresses a situation where the holder of a  casino license is disqualified through a court ruling.  However, Arkansas’ constitution states, “The Arkansas Racing Commission shall award a casino license to a casino applicant for a casino to be located in Pope County…”

• Legends versus Arkansas Racing Commission.⁹
• County Judge Ben Cross and Legends versus Arkansas Racing Commission.¹⁰
• Citizens for a Better Pope County (CFABPC) and James Knight versus Arkansas Racing Commission.¹¹

The first two cases were filed after the Racing Commission issued a casino license to Gulfside following a series of controversial meetings.  With Legends the only qualified candidate, the bases for those cases are moot and both cases should be dismissed.

In the third case,  the last docket activity was on July 30^th, 2020. Judge Griffen granted CNB’s motion to intervene on January 6^th, 2020 “for good cause shown”  and, on the same day, denied Gulfside’s motion to intervene.  On May 18^th, Gulfside again filed a motion to intervene.  This is the same case where Judge Griffen issued a Temporary Restraining Order (TRO) on January 3^rd, 2020, prohibiting the Racing Commission from meeting on January 6, 2020 and/or awarding a casino gaming license and enjoining them from considering applications or issuing a license based on applications invited, submitted and/or awarded during the second application period. That TRO eventually lapsed, after being extended once for 30 days, without any further relevant orders from the court.

CFABPC continued to seek a new TRO as well as a preliminary injunction, and permanent injunction—all to prevent the Racing Commission from acting on any applications.

In an April 10^th, 2020, letter to the Racing Commission (defendant) counsel, CNB’s attorney, Dustin McDaniel, wrote,

At the (January 3^rd) hearing, Judge Griffin made quite clear that no part of his TRO extended to the ARC’s ability to consider any application submitted pursuant to the “good cause” provision. My partner, Mr. Richardson, asked the Court if it would be permissible to proceed pursuant not to the Second Application period but upon a showing of good cause for submitting an application. Judge Griffen articulately made his point, as Judge Griffen often does, so that it would not take an attorney to decipher when he said: “I double, triple dog dare anyone to point to a single word in my order that applies to the ‘good cause’ provisions in the Rules.”

James Knight, in an affidavit filed July 30^th, 2020, says, “Now that two (2) of the seven (7) Commissioners have either been declared to be biased in favor on one of the applicants or recused to avoid the appearance of bias and impropriety… the Casino Gaming Rules must be declared to be null and void (invalid and inapplicable) with respect to the applications before the Racing Commission for the casino license in Pope County.” and, “Because the Casino Gaming Rules should now been deemed to be null and void… the Racing Commission is in violation of Amendment 100 and can not be allowed to proceed to award the casino license in Pope County to any applicant unless and until the Racing Commission’s non-compliance with Amendment 100 is cured.”

Gulfside’s license was issued the next day.  There was no action from Judge Griffen.

Essentially, the attorneys for CFABPC and James Knight were trying to find some way to stop the Racing Commission from issuing a license.

Their efforts failed.  Gulfside was awarded a license.

There is no reason to expect that the attorneys for CFABPC and James Knight will fare any better in their litigation attempt now that the Supreme Court ruling has invalidated Gulfside’s license.

• CFABPC and Knight
  • haven’t shown immediate and irreparable harm,
  • don’t have standing in the case,
  • haven’t presented any issues or controversies that can be resolved in court,
  • as part of their pleading, are attempting to relitigate a FOIA case that has already been dismissed with prejudice by the circuit court and, on appeal, denied by the Supreme Court.
• Judge Griffen doesn’t have jurisdiction and
• the Racing Commission has sovereign immunity (except under limited conditions, the State can’t be sued).

Time will tell.

… and it will take time, but there is some light down the tunnel now.

1. “Amendment 100.” Accessed October 14, 2021. 2018 Casino Amendment.
2. Arkansas Supreme Court, CV-21-289, Cherokee Nation Businesses, L.L.C. and Arkansas Racing Commission v. Gulfside Casino Partnership, appeal of May 21, 2021, Circuit Court Order reversing the Arkansas Racing Commission’s (“ARC’s) decision rejecting Appellee Gulfside Casino Partnership’s (“Gulfside’s”) application for a casino license.
3. Anticipating the ruling and when it would be issued, this blog post was written in advance.
4. Pulaski County Sixth Division Circuit Court, 60CV-19-5832, Gulfside Casino Partnership vs. Arkansas Racing Commission; Cherokee Nation Businesses, LLC —Intervenor (Pursuant to mandate of the Arkansas Supreme Court), filed August 15, 2019.
5. “Arkansas Code Title 23. Public Utilities and Regulated Industries § 23-117-101.” Findlaw. Accessed October 14, 2021. https://codes.findlaw.com/ar/….
6. “About Legends.” Legends Resort & Casino. Accessed October 12, 2021. https://legendsarkansas.com/about/.
   • “Legends is a strategic consultant to Cherokee Nation Businesses with renowned expertise in creating unforgettable entertainment and hospitality experiences. Founded by the Dallas Cowboys and New York Yankees, Legends is the driver behind the success of marquee entertainment, sports and leisure brands worldwide.”
7. Brawner , Steve. “Pope County Casino Case Hinges on Meaning of ‘the’.” Talk Business & Politics, August 10, 2021. Accessed October 14, 2021. https://talkbusiness.net/….
8. Arkansas Racing Commission. “State of Arkansas Rules on Casino Gaming,” February 21, 2019. https://www.dfa.arkansas.gov/….
9. Legends Resort and Casino, LLC v. Arkansas Racing Commission and the individual commissioners in their official capacities, Administrative Appeal,  Judge Wendell Griffen, Pulaski County, 6th Circuit Court, 60CV-21-1217, filed February 16, 2021
10. Ben Cross in his official capacity as County Judge and on behalf of Pope County, Arkansas; and Legends Resort and Casino, LLC v. Arkansas Racing Commission and the individual commissioners in their official capacities, several judicial recusals ended in Judge Randy Wright of the 8th North Judicial Circuit being assigned to the 5th Judicial Circuit to hear this case.=, Pope County, 5th Circuit Court, 58CV-20-429, filed October 13, 2020
11. Citizens for a Better Pope County and James Knight v. Arkansas Racing Commission and the individual commissioners in their official capacities, Judge Wendell Griffen, Pulaski County, 6th Circuit Court, 60CV-19-9172, filed December 27, 2019.