Arkansas Racing Commission’s Reply Brief

(click on the image to open pdf)Here is the Arkansas Racing Commission‘s Reply Brief in the case I like to call Gulfside 2.0.

Note: This is the last brief that needed to be filed. Now we wait to see what the Supreme Court does.

Major points from their perspective:

• Neither a statute about horse racing, the Racing Commission’s actions, nor vague notions of due process requires notice and hearing for APA review
• The Appellees do not have an independent cause of action, though they must have one to seek declaratory relief, and invoking the words “ultra vires” and “unconstitutional” are not enough
• The Racing Commission did not act illegally or unconstitutionally, so sovereign immunity bars this action
• Neither the Choctaw Nation’s unavoidable speculative injury nor Gulfside’s wish that it had the Pope County license confers standing
• The Racing Commission properly awarded the license to an applicant that demonstrated casino-gaming experience

ARGUMENT (from the brief)

This case should be decided in favor of the Arkansas Racing Commission; Cherokee Nation Businesses, LLC (CNB); and Legends Resort and Casino LLC for four reasons: (1) there is no subject-matter jurisdiction under the Arkansas Administrative Procedures Act (APA), (2) there is no subject-matter jurisdiction under the declaratory-judgment statute, (3) Gulfside Casino Partnership and the Choctaw Nation do not have standing, and (4) the Racing Commission properly awarded the Pope County casino license.

First, for subject-matter jurisdiction to exist under the APA, the law must require notice and hearing before the agency’s decision. Neither the Appellees nor the Appellants have found any such requirement here.

Second, to bring a declaratory judgment, the party must have an independent cause of action. The Appellees have never identified one.

Third, to have standing, a party must point to a specific action that caused it a specific injury. The Appellees have not identified such an act or injury because they can never be a qualified applicant for the Pope County casino license and would have the same so-called “injury” no matter who is awarded the license.

Fourth, Amendment 100 gives the Racing Commission discretion to craft how an applicant can demonstrate casino-gaming experience. That discretion includes the ability to peek behind the curtain to see who is running the show. The Appellees do not dispute this.

CONCLUSION (from the brief)

For these reasons, and all those in the Appellants’ opening briefs, the Racing Commission asks the Court to vacate the order below and dismiss the case for lack of subject-matter jurisdiction. Alternatively, the Racing Commission asks the Court to reverse the circuit court’s order granting summary judgment and affirm the Racing Commission’s finding that CNB and Legends demonstrated casino-gaming experience

Summary (in a comment on Facebook)