My name is Clay McCall. I’m the attorney for Pope County.
County officials, of no fault of their own, inherited both the Constitutional Amendment 100 and local ordinance 18-0-42.
Amendment 100 is a brand new law, the likes of which the state of Arkansas has not seen before.
Some of the provisions of the law that are pertinent to our County are issues of first impression, if they were to be litigated, meaning that these specific issues have not been interpreted by the courts in the state of Arkansas.
Before we dive into the law, I would like to address some confusion that I think I’ve heard from some of the people here today, specifically with regards to what they voted on…, what they voted on in 2…, in the November 2018 election.
Local Ordinance 18-0-42, known as the local option ordinance, was an attempt to restrict the Pope County Judge and the Pope County Court.., Quorum Court, from issuing a letter of support or a resolution of support without first submitting the issue to a vote to the citizens of Pope County.
The confusion lies that a vote for or against Amendment 100 was not the same vote contemplated under local ordinance 18-0-42. The local ordinance provides for a completely separate election, in which that question, the question of whether the voters want the county judge or quorum court to issue a letter and resolutions of support, would be submitted to the Pope County voters first.
In layman’s terms, if you voted against the casino in November, you did not exercise local option control saying you didn’t want a casino under the local ordinance. You have to have another vote to do that under the ordinance.
I’d like to go into a overview of Amendment 100 and local ordinance 0-42 so everyone understands and is on the same page.
During the Pope County Quorum Court’s last special called meeting on June 11, the possibility of enacting the voting mechanism set out in local ordinance 18-0-42 was discussed. The job tasked to me was to look at Amendment 100 along with any implications that the local ordinance may have and determine this governing body’s available courses of action.
First, I want to briefly go over the relevant provisions of Amendment 100.
Amendment provides the Arkansas Racing Commission shall issue four casino licenses — not can, but shall.
It provides, further, that the racing commission shall.., shall award a casino license to a casino applicant for a casino to be located in Pope County.
Mr. Travis Story stated, in our last meeting, that there was no timing requirement. That is correct.
However, our situation has been muddied by the issuance of a prior letter of support from former lame duck Judge Jim Ed Gibson.
The amendment requires each applicant to have a letter of support or resolution of support were issued by the county judge court or quorum court, respectively.
This is a constitutional power afforded to the county judge and quorum court and cannot be restricted by legislature or local ordinance.
The Arkansas Constitution is the preeminent law of the land. With regards to any conflict between the Constitution and state and local legislation, the Constitution prevails.
The language of the ordinance attempted to prevent the Pope County Judge or Quorum Court from issuing their support.
However, the ordinance was enacted by a voter initiative action pursuant to Article 5, Section 1, of the Arkansas Constitution.
The constitutional provision allows voters to propose local, special, and municipal legislation of every character in and for their respective municipalities and counties.
However, 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.
So, if the ordinance is, in fact, in conflict with the Constitution, the Constitution, by effect, repeals the ordinance.
On a plain reading of the ordinance, the ordinance violates two sections. It violates Amendment 100 along with Article 5, Section 1, of the Constitution.
First, the ordinance requires a super-majority of voters, being a majority of the whole registered voters in Pope County, to approve the county judge and quorum court issuing such a letter of resolution. This is a higher standard than set by Article 5 of the Constitution, which provides that only a majority of the votes cast is required for the passage and enactment of the law.
Second, as I’ve already stated, the local ordinance is in conflict with Arkansas Constitution Amendment 100, which expressly grants the county judge and Pope County Quorum Court the authority to issue a letter or resolution of support.
So, one of the first questions that was provided at our special meeting on June 11th was, “What are the options that we have?”
The first option was, potentially, enacting some sort of mechanism for the voters to be able to vote on it.
The issue is, pursuant to Arkansas law, any issue presented to the voters must be in a form in which the voters can actually vote for or against the measure.
So the ultimate question the quorum court wants to know, specifically, “How many people want a casino in Pope County as opposed to how many people do not want a casino,” cannot be asked directly.
This requires the question to mutate into some other form.
The simplest form would be to propose a measure that requires the Pope County Judge to issue a letter of support for a casino by a fixed date.
However, such a course of action may be…, may be alleged to constitute an illegal exaction.
An illegal exaction, which is authorized (covered) by Article 16 of the Constitution, is any exaction that is not authorized by law or is contrary to the law. It may be alleged that presenting the question of “for or against” some letter or resolution of support, as contemplated by the local ordinance, is a misuse of public funds if the ordinance is unconstitutional as I opined earlier.
The quorum court could refer a measure to the voters in some other form. It could be a measure to repeal the local ordinance or to create some percentage allocation of moneys procured from a prospective operator amongst the surrounding municipalities.
However, these questions do not directly answer the question of whether or not the voters support a casino.
I specifically want to point out that referring the question to voters in the form I’ve mentioned, mandating the county judge to issue a letter, would likely be met by a class action suit alleging Illegal exaction claim.
The court.., the second option. The quorum court could choose to do nothing.
This places us in a position of waiting to see how a court would rule on Gulfside’s lawsuit.
This might potentially result in a license being issued to an operator picked by former Judge Jim Ed Gibson and the county being forced to accept an operator it did not pick. That’s a possibility.
Given the statements made in the powder keg issue this has become, I anticipate that, even this course of action, will result in some legal challenge and definitely continue having political discourse.
The final option would be for the quorum court to make a decision with regard to the consideration of a resolution of support for prospective operators that the county has properly vetted and negotiated with. This would require a resolution of support being submitted by the court and voted on by this court.
If the quorum court chooses this route and passes such a resolution, it’s likely to result in a lawsuit. In fact, here is a lawsuit that has been filed today by Mr. Knight against the county judge and justices of the peace.
Unfortunately, no matter which course of action the quorum court takes, I feel that there is significant risk that some sort of lawsuit will be pursued, as evidenced by Mr. Knight’s suit.
This is not to say the challenger will prevail, but a lawsuit is very likely.
In my determination, there is no legal mechanism in which the Pope County Quorum Court can refer to the voters of Pope County the specific question of whether or not they wish to have a casino.
As Mr. Petty just referenced earlier, you can’t have a “yes or no” vote on a casino. You just can’t say that.
Every other attempt would be sidestepping the question to try to comply with the rules.
It is my opinion that Arkansas Constitution Amendment 100 has repealed, by effect, local ordinance 18-0-42 and the power to issue a letter or a resolution of support rests, unfettered and unabridged, with this quorum court.
This is just my opinion. Obviously Mr. Story disagrees with me as will some others.
I have researched this issue extensively and conferred with other experienced and competent attorneys who also agree with my conclusions, as well.