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story.lead_photo.caption FILE — A roulette wheel spins at Cherokee Casino & Hotel in West Siloam Springs, Okla.

RUSSELLVILLE -- A circuit judge declared unconstitutional an initiated Pope County ordinance that requires voter approval before a casino license candidate can be endorsed by local officials.

Fifth Judicial Circuit Judge Bill Pearson of Clarksville also dismissed claims that Ben Cross, county judge of Pope County, and Quorum Court members violated the state Freedom of Information Act by meeting in secret before they issued a resolution of support for Cherokee Nation Businesses to obtain the casino license in that county.

The action comes the morning after the Quorum Court repealed the ordinance in an effort to rid the county of mounting legal fees.

"I believe the court's ruling today clearly vindicates and clears any misconceptions that were alleged against members of the Quorum Court and ultimately gives those on each side of this issue, the resolution they sought as to the constitutionality of the local option ordinance," Cross said. "The desire all along was to have a judicial court rule on all counts brought by the plaintiff's suit in regards to the constitutionality of 2018-O-42, and allegations of FOIA violations, and the court clearly decided all those points in today's decision."

[RELATED: See complete Democrat-Gazette coverage of casinos in Arkansas at arkansasonline.com/casinos]

The case, filed by James Knight on behalf of anti-casino group Citizens for a Better Pope County, sought to invalidate the Aug. 13 endorsement by the justices of the peace of Cherokee Nation Businesses because the officials did not first take the issue to the polls, and instead held private meetings to make the choice outside of the public eye. Cherokee Nation Businesses was one of five applicants for the license, and the recipient will be decided by the state Racing Commission.

In November 2018, voters statewide approved Amendment 100, which allows new casinos in Pope and Jefferson counties, and allows the expansion of casino gambling at the racetracks in Hot Springs and West Memphis.

Pope County voters soundly rejected the amendment, which requires new casinos to have the backing of local officials, and passed Ordinance 2018-O-42 by about 70% of county voters.

Before issuing his ruling, Pearson told the seven attorneys seated in front of him that the Quorum Court's revocation of the ordinance the night before had no bearing on his decision.

The initiated ordinance is unconstitutional because it takes away powers granted by Amendment 100 to county and city officials, Pearson said.

Ordinances cannot add additional qualifications to constitutional amendments, Pearson said.

"It creates an obvious conflict," he said.

The circuit judge also ruled against Citizens for a Better Pope County's claim that Cross and the Quorum Court members violated the Freedom of Information Act, which the group alleged they did when they met secretly, including with representatives of prospective casino applicants.

Pearson said members of a governing body can meet privately as long as they are not coming to a decision on a public issue.

"I think it's a real fine line. I think we've got to be real careful when you're an elected official in local government when you do such things," Pearson said. "Still, to not allow them to have a little bit of, you know, talking among each other, I don't think that's what the courts mean."

John Tull, an expert on the state's open meetings and records law and general counsel for the Arkansas Press Association, said the purpose of the state Freedom of Information Act is so that the public has full disclosure of discussion on an issue.

"If there's a, what I call, a meeting at church or at a school function for one of your children or something and you happen to run into someone and have a casual discussion, that's one thing," Tull said. "But if there are secret meetings that are intended to avoid an open meeting as required by the Freedom of Information Act, well I certainly think it's in violation of the law. And when you have a situation when you have an executive of an organization or of an entity meeting specifically one-on-one with a Quorum Court, city board or whatever, I think that's clearly been found in violation of Arkansas law by the Arkansas Supreme Court and the Court of Appeals. If the intent is always the difficult thing. But when you do have polling, which is going around and trying to discuss and convince some people how to vote, then that clearly violates the act."

Anna Stiritz, a member of the Citizens for a Better Pope County, said after the hearing that she was "disappointed and distraught" that Pearson seemed to take it so lightly that the Quorum Court members may have met illegally.

"Judge Pearson seems to think it's no big deal that the Quorum Court was meeting behind closed doors and talking to casino operators," Stiritz said. "That makes you wonder how much faith you can have in the court system to protect the interest of the voters who, again, voted against this by 70%."

Pearson's ruling will be appealed, Stiritz said.

Stiritz, along with Pope County Justice of the Peace Joseph Pearson and several other residents, filed a complaint with the Pope County prosecutor alleging that county officials held meetings that violated the Freedom of Information Act to discuss casinos.

The Office of the Prosecutor Coordinator appointed Little Rock lawyer Jason Barrett as a special prosecutor to review the complaint to determine if charges will be filed.

Knight also filed a civil suit in Pulaski County Circuit Court against the state Racing Commission saying that an election must be called to allow voters to decide if they want officials to back a casino applicant. A hearing in that case has not yet been scheduled.

Kelly Jett, the founder of the pro-casino group Pope County Majority, said she was excited by Pearson's ruling.

"I have never believed the allegations that were made against the JPs or the judge were accurate or valid in no shape or form. I also believed from the beginning that the ordinance was in conflict with Amendment 100 and that repealing it was a good idea," Jett said. "That showed that the Quorum Court and the county judge were aware of the conflict and took proper action. I'm also excited that the court followed up behind that and basically cemented that the proper decision was made by the county judge and the Quorum Court."

The Racing Commission decided Oct. 17 to wait until all pending lawsuits run their course before once again considering applicants for a casino license in Pope County.

The commission opened a second window for applications after the Quorum Court endorsed the Cherokees.

In June, the Racing Commission rejected all five applicants for the Pope County casino -- Gulfside Casino Partnership of Mississippi, Cherokee Nation Businesses of Oklahoma, Kehl Management of Iowa, Warner Gaming of Nevada and Choctaw Nation Division of Commerce of Oklahoma -- because none contained endorsements by local officials, which is required by Amendment 100.

Gulfside's application contained letters of endorsement from previous local officials who had issued their support in December right before leaving office.

The Racing Commission denied the application because it had adopted a rule and the Legislature passed a law to require that the endorsing officials be in office at the time the license application is submitted to the commission.

Gulfside sued the Racing Commission, contending that it was the only applicant in the initial period that contained the endorsements required by Amendment 100.

A hearing in that case is set for 9 a.m. Nov. 25 in Pulaski County Circuit Court in Little Rock.

The courts aren't the only place where complaints have been filed regarding casinos in Pope County.

Jacksonville lawyer William J. Ogles filed a complaint Aug. 22 with the state Ethics Commission against three justices of the peace: Caleb Moore, Doug Skelton and Ernie Enchelmayer.

Before Monday's revocation of the ordinance by the Pope County Quorum Court, Ogles sent a letter to Cross and the Quorum Court members saying that the Ethics Commission found "probable cause to investigate" the allegations further. He asked that the justices named in the complaint recuse themselves from voting on the issue.

The Ethics Commission does not acknowledge nor comment on pending complaints until they are resolved.

Photo by Arkansas Secretary of State
Fifth Judicial Circuit Judge Bill Pearson of Clarksville
Photo by Democrat-Gazette file photo
Ben Cross, Pope County Judge, is shown in this file photo.

A Section on 10/30/2019

Print Headline: Statute on casino declared unlawful

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