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Bar Pope County judge in casino case, side asks

by Jeannie Roberts | August 21, 2021 at 3:19 a.m.
A roulette wheel spins in 2018 at Cherokee Casino & Hotel in West Siloam Springs, Okla. (File Photo/NWA Democrat-Gazette/Ben Goff)

A Mississippi casino operator awarded a state license said Friday in an Arkansas Supreme Court filing that a county judge should be barred from participating in an ongoing court battle over the license.

An amicus curiae brief filed Aug. 9 by Ben Cross, county judge of Pope County, is "nothing more than a third brief on behalf of Appellant, Cherokee Nation Businesses," attorneys for Gulfside Casino Partnership said in the brief asking the Supreme Court to deny Pope County's request to interject itself into the case.

Cherokee Nation Businesses is fighting for the Pope County casino license against Mississippi casino operator Gulfside Casino Partnership, which was awarded the license last year by the Arkansas Racing Commission.

Gulfside declined to comment on the filing.

"Pope County's interests are different from CNB's," Cherokee Nation Businesses attorney Dustin McDaniel said. "It has millions of dollars at stake, and it is suing Gulfside in a separate case to stop Gulfside from building a small casino project instead of what they presented to the Racing Commission."

The Gulfside brief also took issue with a footnote on page 11 of the county's brief by attorney Clay McCall that said Cherokee Nation Businesses "made a monetary contribution to fund the preparation of this Brief."

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

"As this entire issue has developed over the past three years, the one thing I have consistently sought to accomplish was to keep the taxpayers of Pope County from having to fund litigation at the state level," Cross said Friday. "If allowing CNB to participate in that sense keeps the taxpayers of our county from such needless spending, then I have accomplished that goal."

McDaniel said the Supreme Court rules require that if a counsel for a litigant edits or assists an amicus brief's author or otherwise pays for authorship, it must be disclosed to the court.

"Their brief complied with the Supreme Court's rules. To the extent that there is confusion, attorneys representing CNB at Fuqua Campbell, PA assisted the county's attorney in the preparation of the brief, thus the footnote," McDaniel said. "But to be clear, Fuqua Campbell, PA does not represent the county, and CNB did not pay a penny to the county or to the county's attorney Mr. McCall for the brief or for any other purpose."

McCall resigned as county attorney for Pope County in January, but is working with Cross solely in the county judge's office, Cross said previously. He was paid $1 for his work on the brief, Cross said.

The lawsuit began last year after Gulfside filed suit when its license application was initially denied by the Racing Commission, which rejected Gulfside because its required letter of support was signed by then-County Judge Jim Ed Gibson just days before his term expired on Dec. 31, 2018.

Gaming Amendment 100 requires local endorsements, but it does not stipulate when the endorsements have to be dated or submitted.

A Racing Commission rule and a state law required that the endorsements come from local officials in office at the time of application for a license. But that rule and law were deemed unconstitutional and struck down twice by Pulaski County Circuit Judge Tim Fox.

Cherokee Nation appealed Fox's decision to the state Supreme Court.

Cross wrote a letter of support for Cherokee Nation Businesses after he negotiated a $38.8 million economic development agreement with the business.

"Amendment 100 gave Jefferson and Pope Counties unique authority to negotiate the terms of their support for any casino operator," McDaniel said "The [economic development agreement] is the valid and binding result of Pope County's competitive vetting process in which five operators, including Gulfside participated."

Gulfside said in its latest brief that Cross' attempt to interject the county judge's office in the Supreme Court case is an attempt to "distract from a brazen attempt to sell Pope County's letter of support to the highest bidder to the long-term detriment of both Pope County and the State of Arkansas."

"I fully expected that would be the response articulated, however, I believe our brief goes to the heart of all county government operations in Arkansas by emphasizing the constitutional authority and responsibilities afforded the office of county judge, irregardless of the casino issue," Cross said. "Furthermore, is the fact numerous county judges across the entire state also support this brief, many with no connection to the casino issue at all. They too, recognize the potential impact of an adverse interpretation of constitutional authority."

The county's amicus brief was signed by seven county judges including Garland County Judge Darryl Mahoney, Jefferson County Judge Gerald Robinson, Miller County Judge Cathy Hardin Harrison, Lincoln County Judge Buddy Lynn Earnest, Crittenden County Judge Woody Wheeless, Logan County Judge Ray Gack and Johnson County Judge Herman Houston.

Gulfside said in the brief that the Racing Commission was aware of the Cherokees' economic development agreement when it awarded the license to Gulfside, as it was part of Cherokee Nation Businesses' application.

"The ARC recognized the EDA for what it was -- an attempt to pay off Pope County at the expense of the State of Arkansas," the brief read.

Gulfside's brief was signed by Batesville attorney Casey Castleberry and Little Rock attorneys Lucas Rowan and Alec Gaines.

Gaines is an attorney for the Arkansas Democrat-Gazette and is the husband of Managing Editor Eliza Gaines.

Gulfside claims in the brief that Cross "greatly exaggerates Pope County's support of CNB" as evidenced by Pope County Quorum Court resolution passed last week stating its disapproval of Cross' involvement in the casino litigation. The resolution was withdrawn and must be resubmitted due to procedural errors.

Gulfside also argued against the assertion that Gibson's letter was invalid because he was not in office at the time the casino application was submitted.

The letter satisfies the requirement of Amendment 100, the brief said.

"Gulfside does not argue that any county judge or a former county judge can give a letter of support," the attorneys argued. "Rather, the person holding the office of county judge has the authority to give a letter of support, just as Judge Gibson did when he gave a letter of support to Gulfside."

McCall said in Cross' amicus brief that accepting Gibson's letter impacts the executive authority of county executives in all counties; not just Pope County.

"Under the circuit court's interpretation, former county judges can bind the counties they represent in perpetuity unless the statute granting them authority contains an express temporal restriction," McCall said in the brief.

County judges serve one at a time and their actions impact the terms of county judges that come after them, Gulfside argued.

Contrary to Cross' "parade-of-horribles argument," acknowledging that Gibson's letter satisfies the requirements of Amendment 100 does not have far-reaching impacts on the administration of county governments, Gulfside said.

"To the contrary, it simply recognizes that a county judge has the authority to act as the county's chief executive during the time he or she holds the office," the brief said. "That has always been the law, and there is nothing peculiar about Amendment 100 to prevent its application here."

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