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Lange v. Martin

Supreme Court of Arkansas

October 13, 2016

CHUCK LANGE AND BILL WALMSLEY INDIVIDUALLY AND ON BEHALF OF COMMITTEE TO PROTECT ARKANSAS' VALUES/STOP CASINOS NOW PETITIONERS
v.
MARK MARTIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF ARKANSAS RESPONDENTARKANSAS WINS IN 2016, LLC, AND ARKANSAS WINNING INITIATIVE, INC. INTERVENORSCYNTHIA R. STONE, JEFF CROCKETT, AND LARRY WITCHER INTERVENORS

         AN ORIGINAL ACTION

          Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray, Ellen Owens Smith, and Amanda J. Fray; Wright, Lindsey & Jennings, LLP, by: Stephen R. Lancaster, Justin T. Allen, and Jacob P. Fair, for petitioners.

          AJ Kelly, General Counsel and Deputy Secretary of State, for respondent.

          Dover Dixon Horne PLLC, by: Todd Wooten, Thomas S. Stone, Randall L. Bynum, Mark Allison, and Monte D. Estes, for intervenors Arkansas Wins In 2016, LLC, and Arkansas Winning Initiative, Inc.

          Steel, Wright & Gray & Hutchinson PLLC, by: Nate Steel, Alex T. Gray, and Jeremy Hutchinson, for intervenors Cynthia R. Stone, Jeff Crockett, and Larry Witcher.

          KAREN R. BAKER, Associate Justice

         Petitioners, Chuck Lange and Bill Walmsley, Individually, and on Behalf of Committee to Protect Arkansas' Values/Stop Casinos Now ("Lange"), bring this original action challenging the legal sufficiency of the ballot title for Issue No. 5, a proposed constitutional amendment with the popular name "An Amendment to Allow Three Casinos to Operate In Arkansas, One Each In the Following Counties: Boone County, Operated by Arkansas Gaming and Resorts, LLC; Miller County, Operated by Miller County Gaming, LLC; and Washington County Gaming, LLC, " (hereinafter "the Amendment"). On September 1, 2016, the Respondent, Secretary of State, declared the sufficiency of, and certified to place on the ballot, Issue No. 5 on the November 8, 2016 ballot. Lange contends that the Amendment is legally insufficient; thus, the Amendment should be removed from the general-election ballot, and any votes cast for the measure should not be counted or certified. On September 9, 2016, the sponsors of the Act, Arkansas Wins In 2016, LLC, Arkansas Winning Initiative, Inc. (hereinafter "Sponsor Intervenors") and Cynthia R. Stone, Jeff Crockett, and Larry Witcher, Arkansas residents and taxpayers intervened in this matter (hereinafter "Individual Intervenors"). On September 19, 2016, Arkansas Wins In 2016 filed a motion to dismiss and Lange timely responded.

         This court has original jurisdiction of this case pursuant to Ark. Sup. Ct. R. 6-5(a) (2016). Rule 6-5(a) provides that this court has original jurisdiction in "extraordinary actions required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution." Amendment 7 to the Constitution is codified in Article 5, § 1 of the Arkansas Constitution and is referred to as Amendment 7. Ark. Const. art. 5, § 1, amended by amend. 7.

         Lange presents two points in his petition: (1) The ballot title is legally insufficient; and (2) the amendment violates federal law and the United States Constitution.[1]

         We turn now to the Amendment at issue. The text of the ballot title of the Amendment is as follows:

Ballot Title
An amendment to the Arkansas Constitution authorizing three casinos to operate in Arkansas, one in Boone County, Arkansas, operated by Arkansas Gaming and Resorts, LLC, an Arkansas Limited Liability Company, one in Miller County, Arkansas, operated by Miller County Gaming, LLC, an Arkansas Limited Liability Company, and one in Washington County, Arkansas, operated by Washington County Gaming, LLC, an Arkansas Limited Liability Company, all being subject to the laws enacted by the General Assembly in accord with this amendment and regulations promulgated by the Arkansas Gaming Commission in accord with laws enacted by the General Assembly; defining casino gaming and gaming as dealing, operating, carrying on, conducting, maintaining, or exposing for play any game played with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine for money, property, checks, credit, or any representative value, as well as accepting wagers on sporting events or other events, including, without limiting the generality of the foregoing, any game, device, or type of wagering permitted at a casino operated within any one or more of the States of Louisiana, Mississippi. Missouri, Nevada, Oklahoma, Tennessee, or Texas as of November 8, 2016, or as subsequently permitted thereafter; creating the Arkansas Gaming Commission to regulate casinos in accord with laws enacted by the General Assembly, with the Arkansas Gaming Commission comprised of five (5) commissioners, each appointed by the Governor for staggered 5-year terms; providing for the General Assembly to appropriate monies to or for the use of the Arkansas Gaming Commission; requiring each casino to pay to the Arkansas State Treasury as general revenues a net casino gaming receipts tax equal to eighteen percent (18%) of its annual net casino gaming receipts; requiring each casino to pay to the county in which the casino is located a net casino gaming receipts tax equal to one-half of one percent (0.5%) of its annual net casino gaming receipts; requiring each casino to pay to the city or town in which the casino is located a net casino gaming receipts tax equal to one and one-half percent (1.5%) of its annual net casino gaming receipts; defining annual net casino gaming receipts as gross receipts for a 12-month period from casino gaming less amounts paid out or reserved as winnings to casino patrons for that 12-month period; subjecting each casino to the same income, property, sales, use, employment and other taxation as any for-profit business located in the county and city or town in which the casino is located, except that the Arkansas Gross Receipts Act of 1941 and local gross receipts taxes shall not apply to casino gaming receipts; allowing a casino to operate any day for any portion or all of any day; allowing the selling or complimentary serving of alcoholic beverages in casinos during all hours the casino operates but otherwise subject to all applicable Arkansas laws involving the distribution and sale of alcohol; permitting the shipment into Boone, Miller, and Washington counties in Arkansas of gambling devices shipped and delivered in accordance with applicable federal law (15 USC §§ 1171-1178 and amendments and replacements thereto); rendering the provisions of this amendment severable; declaring inapplicable all constitutional provisions and laws to the extent they conflict with this amendment, but not otherwise repealing, superseding, amending, or otherwise affecting Amendment 84 (bingo or raffles) or Amendment 87 (state lottery) to the Arkansas Constitution, or Arkansas Act 1151 of 2005 (Electronic Games of Skill).

         I. Ballot Title

         The first issue before the court is whether the ballot title is legally sufficient. With regard to ballot titles, we have explained,

[O]ur decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. We have recognized the impossibility of preparing a ballot title that would suit every one. Yet, on the other hand, the ballot title must be free from ...

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