The Arkansas Supreme Court ruled Thursday that Cherokee Nation Businesses has the right to intervene in a lawsuit over a casino license in Pope County.
The verdict overturns a decision by Pulaski County Circuit Judge Tim Fox and sends the case back to his court.
“This case is part of an ongoing legal battle over the only casino license available in Pope County,” wrote Shawn A. Womack, Associate Justice of the Arkansas Supreme Court, in a statement issued Thursday. “The tight question before us is whether the Circuit Court wrongly refused to allow Cherokee Nation Businesses LLC to intervene in litigation by the Gulfside Casino Partnership against the Arkansas Department of Treasury and the Arkansas Racing Commission. We come to that Inferred that Cherokee was entitled to lawfully intervene and therefore reverse and remit the district court’s decision. “
The Arkansas Racing Commission, which oversees the license application and selection process, awarded the casino license to the Gulfside Casino Partnership of Mississippi.
But Gulfside has yet to gain a foothold on the casino grounds pending rulings on pending lawsuits and appeals.
“The protracted legal disputes related to the license continued in numerous lawsuits before several district courts, this court and the commission,” Womack wrote in the statement on Thursday.
[RELATED: See complete Democrat-Gazette coverage of casinos in Arkansas at arkansasonline.com/casinos]
Dustin McDaniel, Cherokee Nation Businesses’ legal adviser, said Thursday’s Supreme Court decision overturned Fox’s order to allow Gulfside to apply for a casino license.
“This means that state law and the Arkansas Racing Commission will apply again for the time being that both specifically disqualify Gulfside as applicants,” said McDaniel.
Arkansas Code Annotated Section 23-117-101 and Casino Gaming Rule 2.13.5 (b) state that a district judge’s letter of support or a decision of support from the Quorum Court is required and must be signed and dated by the district judge or Quorum Court’s official seat at Time of submitting an application “for a casino license.
The statute and rule come from Amendment 100, which was approved by Arkansas voters as Issue 4 of the vote in 2018.
Pursuant to Amendment 100, “The Arkansas Racing Commission requires all casino applicants applying for casino licenses in Pope County and Jefferson Counties to receive either a letter of support from the county judge or a resolution from the quorum court in the county where it is proposed Casino is to be located and, if the proposed casino is to be located within a city or municipality, all casino applicants must also be required to enclose a letter of support from the mayor of the city or municipality in which the applicant is located Casinos suggests. “
Law 371 of 2019 clarified that the letters must be signed by the public officials at the time of application.
Gulfside produced a letter with his motion, but the district judge who signed it was no longer in office at the time.
Lucas Rowan, Gulfside Legal Adviser, said, “The court has determined that Gulfside is a Qualified Candidate and the Racing Commission has selected Gulfside on the matter. We look forward to a resolution so we can continue building to help Keeping game money in Arkansas. ” “”
Amendment 100 to the state constitution allowed four casino licenses to be issued in different parts of the state, including one in Pope County.
Five applicants, including Gulfside and Cherokee, applied for the Pope County casino license in the first application period in May 2019.
“The commission rejected each application as incomplete because it did not include a letter of support from the district judge or an order from the Pope’s district court,” Womack wrote.
In Arkansas, “county judge” refers to the county’s chief executive officer. District judges are administrators of district property and public buildings.
As part of its motion, Gulfside had submitted a letter of support from District Judge Jim Ed Gibson.
The letter was dated prior to the end of Gibson’s tenure on December 31, 2018, but it was filed several months after he left office, Womack wrote.
The commission found that the letter was insufficient as Gibson was not the acting district judge at the time of the motion.
“As a result, Gulfside’s motion was denied and an unsuccessful administrative complaint followed,” Womack wrote.
On the day the appeal was denied on August 15, 2019, Gulfside filed a lawsuit against the commission and the Department of Finance and Administration. Gulfside wanted a review under the state’s Administrative Procedure Act and a declaratory judgment finding that the “District Judge” rule and statute violated Amendment 100.
“Gulfside asked the Circuit Court to reverse the Commission’s rejection of the motion and refer the matter back to the Commission with instructions to license it,” Womack wrote. “It has also tried to prevent the Commission from accepting or examining other applications and granting a license pending further orders from the court.”
Meanwhile, Cherokee Nation Businesses received support from the Pope County’s Quorum Court and entered into an economic development agreement with incumbent County Judge Ben Cross of Pope County.
“In return for only county officials supporting the casino application, Cherokee pledged to invest over $ 40 million in Pope County,” Womack wrote. “Cherokee informed the commission on August 15th  that it has received the necessary assistance and has requested the reopening of the application period. “
The Commission accepted the deadline and reopened it. Cherokee Nation Businesses submitted its application with the official support of the county.
On August 23, 2019, after Cherokee Nation Businesses filed his application, he intervened in Gulfside’s lawsuit to defend his right to review his application, Womack wrote.
“Although Gulfside initially opposed intervention, its opposition withdrew a letter to the court,” Womack wrote. “In its letter, Gulfside stated explicitly that it had no objection to Cherokee’s intervention. On January 2, 2020, the Circuit Court issued an order denying the intervention. It concluded that Cherokee had no objection during the licensing period in May 2019 had not submitted a casino license application. “
Fox found the second deadline to be unlawful under Casino Gaming Rule 2.13.4 (d), which states, “If the Commission does not receive an application for the Pope County casino licenses … the Commission will reopen the application process upon receipt of a written request from a casino applicant. “
“The court came to the conclusion that a reopening of the application period was prohibited until the final judicial decision on applications from the first period or until the regulation of the commission was changed under the Administrative Procedure Act,” Womack wrote. “Since Cherokee’s claim to intervene was based on his petition, which was filed during the allegedly illegal second filing period, the court ruled that Cherokee had no authority to intervene.”
“Cherokee is showing sufficient interest in the litigation because of its status as the only qualified applicant for the Pope County Casino license,” Womack wrote. “According to the records, Cherokee is the only potential casino operator with the assistance of the sitting district judge and the Quorum Court.”
Cherokee Nation Businesses also has a contractual agreement to invest more than $ 40 million in the county when the casino license is awarded.
“We conclude that Cherokee has a ‘recognized interest’ in the litigation based on its interest in the license, consideration of its license application, and contract with Pope County,” Womack wrote.
McDaniel said the most important question in the longstanding controversy was the constitutionality of the Arkansas Code Annotated Section 23-117-101 and Casino Gaming Rule 2.13.5 (b).
“Thanks to today’s ruling, the Arkansas Supreme Court will have an opportunity to hear that question,” said McDaniel. “We will consider the next steps in the other pending cases, but it would make no sense to litigate a temporary casino or any of the earlier Commission decisions while Gulfside is legally banned from filing an application.”