Pope County Ordinance 2018-O-42; repealed by the Quorum Court and declared unconstitutional by a circuit judge.

A Pope County “local control” issue over a casino lingers on in an appeal lodged before the Arkansas Supreme Court and in the opinions of many anti-casino pope county residents. These opinions probably had an impact on the results of the JP races in the March primary election.

The ordinance was supposed to give local voters a say in any eventual casino that would come to Pope County.  However, with “The Arkansas Casino Gaming Amendment of 2018,” Amendment 100, being voted on in the same election, the local control measure was null and void as soon as it was approved by the voters in November 2018. Nearly a year later, Fifth Circuit Judge Bill Pierson ruled that Ordinance 18-O-42 is in direct conflict with Amendment 100 to the Arkansas Constitution and is unconstitutional and void.

Many voters have since said that they were confused by the ballot wording or that the ordinance that they got was not what they thought they were voting for.  The ballot wording and the enacted ordinance wording actually differed significantly.

The 2018 “local vote” initiative was never a yes or no vote on having a casino in Pope County.

It was a vote for a county ordinance to place restrictions on the judge and quorum court, prohibiting them from providing support documents without authorization by the voters. According to the ordinance passed by Pope County voters,

The County Judge shall be prohibited from issuing a Letter of Support or substantially giving similar approval or support for a Casino Applicant who is applying to the Arkansas Racing Commission, or other governing authority, for a license to conduct Casino Gaming at a Casino to be located in Pope County, Arkansas without first referring the question as to the issuance of support of a Casino or Casino Applicant to a local election, at either a general election or special election, where in order for the County Judge to issue any such support letter or similar, a majority of the registered voters of Pope County, Arkansas must approve and authorize the County Judge to take such action.

A similar requirement was placed on the quorum court.

Before the ruling by Judge Pierson, it was apparent that there were a number of problems associated with the ordinance including that it was likely contrary to Amendment 100 and, if so, was effectively repealed by Article 5 of the Arkansas Constitution:

Local for Municipalities and Counties.

The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.

Ballot wording

Pope County Ordinance No. 2018-O-42

An Amendment to prohibit the County Judge from submitting a letter in support or the Quorum Court from passing a resolution on behalf of a casino applicant applying to the Arkansas Racing Commission for a license to conduct casino gaming at a casino to be located within Pope County, Arkansas without first holding a local election at either a general election or a special election to determine by popular vote the will of the people of Pope County whether to grant the authority to their elected officials to submit such a letter or resolution.

Differences between ballot wording and ordinance wording

Prohibition on issuing support documents.

Ordinance: “…issuing a Letter of Support or substantially giving similar approval or support for a Casino Applicant who is applying to the Arkansas Racing Commission, or other governing authority, for a license to conduct Casino Gaming at a Casino to be located in Pope County, Arkansas without first referring the question as to the issuance of support of a Casino or Casino Applicant to a local election…”

Ballot: “…a local election… to determine… the will of the people of Pope County whether to grant the authority to their elected officials to submit such a letter or resolution.”

The public and the county officials learned at a quorum court meeting on June 11 that the intent of the ordinance  “was for the Quorum Court to vet and choose an operator and then put that operator up for a vote. No one on the Court or the County Judge had ever heard that explanation. If that truly was the intent of the ordinance then we knew that was impossible for us to comply with. In no way is that option legal or even remotely a good answer to how to conduct this issue.”  (JP Caleb Moore on Travis Story’s explanation of the purpose of 2018-O-42, from Moore’s August 13, 2019, statements)

Knowing that intent, one can see how the ordinance might be read that way.  However, that’s not so easy to see with the ballot wording.  Almost certainly, most voters did not vote on the issue understanding it the way Mr. Story said it was intended.

The Required Vote

Ordinance: “…a majority of the registered voters of Pope County, Arkansas must approve and authorize the County Judge to take such action.”

Ballot: “…a general election or a special election to determine by popular vote the will of the people of Pope County…”

Those are obviously two very different things.  Literally taken Ordinance 2018-O-42 would have required that just over half of registered voters approve the submitted measure. Seldom in any election does much more than half of the registered voters actually vote.  In the 2010 General Election, 15,588 people voted, 49.75% of the registered voters. In that instance, even if they all voted for such a measure, that would not have satisfied the requirement of “a majority of the registered voters.”

While the intent of Mr. Story, author of the ordinance, may have been the majority of a “popular vote” as stated on the ballot, a plain reading of the ordinance stipulates an unattainable result.

Appeal of Citizens for a Better Pope County and James Knight vs Ben Cross et. al. (Case No.58CV-19-439)

After losing their case in the 5th Judicial District Court, the plaintiffs filed a notice of intent to appeal and, recently, have lodged that appeal with the Arkansas Supreme Court.  Since 4 of the 7 items ruled on in that case dealt with Ordinance 2018-O-42, the ordinance is not completely dead and buried.

While Pope County languishes waiting for litigation to play out without any visible signs of a new resort and casino other than the local Legends office on Commerce Street, it’s been full steam ahead in Jefferson County since well before the Racing Commission open the May 2019 application period.  Geotechnical drilling was already underway in January at the planned site at the south-east corner of the Martha Mitchell Expressway and U.S. 63-79 — east of The Pines Mall .

In January, local boosters were already cheering the jobs that the Quapaw tribe’s $350 million Saracen Casino Resort would bring, seeing it as a chance to “reset the county’s ailing economy.”

Quoted in a THV11, January 28, 2019, article, the Jefferson County director of economic development said he couldn’t be happier.

He said the new casino is the equivalent of 1,000 new jobs falling from the sky. That’ll be enough to put the casino among the county’s top five employers — a list the includes Jefferson Regional Medical Center, Tyson Foods and the state Department of Correction.

The casino would be a shot in the arm to a county that’s seen population declines and economic stagnation.

The THV11 article also had another interesting tidbit. While part of Gulfside’s case is that the outgoing Jefferson County and Pine Bluff officials had signed letters of support, they also had letters of support from the new officials, the January 2019 article says, “…Pine Bluff Mayor Shirley Washington and Jefferson County Judge Gerald Robinson signed letters of support for the casino in Pine Bluff.”

Funny thing, Gulfside doesn’t mention that in any of their filings.

John Oates with The Good Road Band — “Arkansas” Official Video

NW Arkansas Democrat-Gazette on Supreme Court declining to step in on Gulfside’s case, Excerpts:

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…

“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.

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.”

“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.”

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.

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.”

“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.”

At the Arkansas Racing Commission meeting on December 19th, there were some interesting comments near the end of the part of the meeting relating to Pope County:

Chairman Alex Lieblong, after expressing appreciation for the interested people of Pope County, both sides: We’re trying to do what is right and do it legally…

Commission attorney Byron Freeland: We’re trying to follow the law, it’s the Commission’s goal.

A few moments later, Chairman Lieblong: It’s quite the quagmire. It is what it is and we’ll figure it out. Maybe we can get some help from the judiciary and maybe put that on your Santy Claus list.

An unidentified man in the audience: It’s on my list!

This is from the Racing Commission meeting on December 19th. A sentence in the Gulfside attorney’s letter to Judge Fox didn’t match what I heard on Debbie’s and Kelly’s videos, so I went back and looked again. The attorney made more out of what Alex Lieblong said than what I heard him say.