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Knight v. Martin

Supreme Court of Arkansas

October 11, 2018

JIM KNIGHT, IN HIS INDIVIDUAL CAPACITY AND ON BEHALF OF CITIZENS FOR LOCAL CHOICE PETITIONER
v.
MARK MARTIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF ARKANSAS RESPONDENTDON TILTON, INDIVIDUALLY AND ON BEHALF OF ARKANSAS JOBS COALITION INTERVENOR

         ORIGINAL ACTION

          Sanford Law Firm, PLLC, by: Chris Burks, for petitioner.

          AJ Kelly, General Counsel and Deputy Secretary of State; and Michael Fincher, Associate General Counsel, for respondent.

          Wright Lindsey & Jennings LLP, by: Stephen R. Lancaster and Gary D. Marts; and Steel, Wright & Gray, PLLC, by: Alex T. Gray and Nate Steel, for intervenor.

          COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE

         The petitioner, Jim Knight, individually and on behalf of Citizens for Local Choice (CLC), brings this original action to challenge the sufficiency of the ballot title with regard to Issue No. 4, which provides for the issuance of four casino licenses in the state. By the complaint, petitioner seeks to enjoin respondent Arkansas Secretary of State Mark Martin from certifying any ballots cast for the proposed amendment at the November 6, 2018 general election. The initiated measure is sponsored by intervenor Don Tilton, both individually and on behalf of Arkansas Jobs Coalition, a ballot question committee. Our jurisdiction to determine this matter is conferred by amendment 7, as codified in article 5, section 1 of the Arkansas Constitution, section 2(D)(4) of amendment 80, and Arkansas Supreme Court Rule 6-5(a). We deny the petition.

         Knight is a resident of Pope County and a registered Arkansas voter. Knight is also a member of CLC. CLC is a ballot question committee as defined in Arkansas Code Annotated § 7-9-402(2) (Repl. 2018). The Attorney General certified the popular name and ballot title for Issue No. 4 on May 23, 2018. The next day the Attorney General issued another opinion recertifying the same popular name and ballot title, with the distinction being for typographical and scrivener's errors. On September 5, 2018, Secretary of State and Respondent Mark Martin declared that the proposed initiated measure met the requirements set forth in article 5, section 1 of the Arkansas Constitution and placed the proposed amendment on the November 6, 2018 ballot. The popular name and ballot title of the proposed amendment, as certified by the Attorney General, reads as follows:

(Popular Name)
AN AMENDMENT TO REQUIRE FOUR LICENSES TO BE ISSUED FOR CASINO GAMING AT CASINOS, ONE EACH IN CRITTENDEN (TO SOUTHLAND RACING CORPORATION), GARLAND (TO OAKLAWN JOCKEY CLUB, INC.), POPE, AND JEFFERSON COUNTIES
(Ballot Title)
An amendment to the Arkansas Constitution to require that the Arkansas Racing Commission issue licenses for casino gaming to be conducted at four casinos in Arkansas, being subject to laws enacted by the General Assembly in accord with this amendment and regulations issued by the Arkansas Racing Commission ("Commission"); defining "casino 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; providing that individuals under 21 are prohibited from engaging in casino gaming; providing that the Commission shall issue four casino licenses, one to Southland Racing Corporation ("Southland") for casino gaming at a casino to be located at or adjacent to Southland's greyhound track and gaming facility in Crittenden County, one to Oaklawn Jockey Club, Inc. ("Oaklawn") to require casino gaming at a casino to be located at or adjacent to Oaklawn's horse track and gaming facility in Garland County, one to an applicant to require casino gaming at a casino to be located in Pope County within two miles of Russellville, and one to an applicant to require casino gaming at a casino to be located in Jefferson County within two miles of Pine Bluff; providing that upon receiving a casino license, licensees will be required to conduct casino gaming for as long as they have a casino license providing that Southland and Oaklawn do not have to apply for a license and will automatically receive a casino license upon the Commission adopting rules and regulations to govern casino gaming; providing that the Commission shall require all applicants for the two remaining casino licensees, one in Pope County and one in Jefferson County to pay an application fee, demonstrate experience in conducting casino gaming, and submit either a letter of support from the county judge or a resolution from the county quorum court in the county where the casino would be located and, if the proposed casino is to be located within a city, a letter of support from the mayor of that city; providing that the Commission shall regulate all casino licensees; defining "net casino gaming receipts" as casino gaming receipts less amounts paid out or reserved as winnings to casino patrons; providing that for each fiscal year, a casino licensee's net casino gaming receipts are subject to a net casino gaming receipts tax of 13% on the first $150, 000, 000 of net casino gaming receipts or any part thereof, and 20% on net casino gaming receipts exceeding $150, 000, 001 or any part thereof; providing that no other tax, other than the net casino gaming receipts tax, may be imposed on gaming receipts or net casino gaming receipts; providing that the net casino gaming receipts tax shall be distributed 55% to the State of Arkansas General Revenue Fund, 17.5% to the Commission for deposit into the Arkansas Racing Commission Purse and Awards Fund to be used only for purses for live horse racing and greyhound racing by Oaklawn and Southland, as the case may be, 8% to the county in which the casino is located, and 19.5% to the city in which the casino is located, provided that if the casino is not located within a city, then the county in which the casino is located shall receive the 19.5%; permitting casino licensees to conduct casino gaming on any day for any portion of all of any day; permitting casino licensees to sell liquor or provide complimentary servings of liquor during all hours in which the casino licensees conduct casino gaming only for on-premises consumption at the casinos and permitting casino licensees to sell liquor or provide complimentary servings of liquor without allowing the residents of a dry county or city to vote to approve the sale of liquor; providing that casino licensees shall purchase liquor from a licensed Arkansas wholesaler; permitting shipments of gambling devices that are duly registered, recorded, and labeled in accordance with federal law into any county in which casino gaming is authorized; declaring that all constitutional provisions, statutes, and common law of the state that conflict with this amendment are not to be applied to this Amendment.

         On September 12, 2018, petitioner filed a complaint alleging that the popular name and ballot title for Issue No. 4 are materially misleading in five respects: (1) that voters are not informed in the ballot title that perpetual monopolies are given to private corporations over which local citizens have no control; (2) that voters are misled as to whether licenses are merely "issued" or if gambling is "required;" (3) that voters are misled as to whether local officials can approve casinos; (4) that voters are misled as to whether citizens lose oversight of corporations; and (5) that voters are misled as to whether local citizens lose oversight of unlimited free alcohol. Petitioner has briefed all five points raised in the original-action complaint.

         In connection with the complaint, the petitioner filed motions for expedited consideration and for consecutive briefing. Tilton moved to intervene, and he and the respondent filed responses to the complaint. This court granted the motion to intervene, set an expedited briefing schedule, and ordered consecutive briefing.[1] Knight v. Martin, 2018 Ark. 258 (per curiam). With the briefing complete, we now decide the merits of the complaint.

         I. Sufficiency of ...


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