Could a Pope County judge sign a casino-support letter despite a county ordinance limiting that authority, and could a successor revoke it?

Plain-English summary

In November 2018 Arkansas voters adopted Amendment 100, authorizing four casinos in specified counties, including Pope County. The amendment required casino applicants to attach a letter of support from the county judge (and the city mayor, if applicable) to their license application. Pope County voters had also adopted, in the same election cycle, a local ordinance called the "Pope County Local Control for Casino Gaming Amendment of 2018," which restricted the county judge's authority to issue such letters unilaterally.

Senator Breanne Davis asked the Attorney General four questions about how all of that fit together: did the outgoing county judge have authority to issue a casino letter despite the ordinance; could a successor revoke an issued letter; could the Racing Commission require letters be "current" or "valid" by adding rules requiring un-revoked letters; and could the General Assembly pass a statute requiring the same thing without conflicting with Amendment 100.

Attorney General Leslie Rutledge declined to answer all four questions. Knight v. Gibson, No. 58CV-18-768, was already pending in Pope County Circuit Court at the time, and the litigation could directly affect every issue Senator Davis had raised. Under longstanding office policy, the Attorney General does not issue opinions on matters that are before the courts.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Amendment 100, the "Arkansas Casino Gaming Amendment of 2018," authorizes four casino licenses, with one allocated specifically to Pope County. The amendment requires that a casino applicant submit a letter of support from the county judge of the county in which the casino is to be located, and from the city mayor if the proposed location is within a city. Without that letter, the application cannot proceed.

The "Pope County Local Control for Casino Gaming Amendment of 2018" was a local initiated ordinance adopted by Pope County voters in November 2018. The ordinance constrained the Pope County judge's ability to issue casino-support letters without a vote of the people or the quorum court.

Knight v. Gibson, the litigation referenced in the opinion, presented the question whether a county judge's letter, issued in late December 2018 just before leaving office, was valid notwithstanding the local ordinance.

Why the AG declined

The opinion is short and rests on a single principle: the Attorney General, as a member of the executive branch, does not issue opinions on matters that are pending before the courts. The opinion cited a series of prior decisions making the same call, including Ops. Att'y Gen. 2016-027, 2015-005, 2010-047, and 2009-112. The reasoning is institutional: the courts have the authority to decide live disputes, and an AG opinion that anticipates the answer either prejudges or competes with that judicial role.

All four of Senator Davis's questions touched on issues that the Knight v. Gibson plaintiffs had put squarely before the Pope County Circuit Court: whether the outgoing judge could issue the letter, what the local ordinance did, how revocation worked. Because the litigation was active, the AG closed the file without further analysis.

Common questions

Why didn't the AG answer this?

There was a parallel lawsuit, Knight v. Gibson, already pending in Pope County Circuit Court that raised the same questions. The Attorney General's office, as a matter of longstanding policy, does not opine on matters that are before the courts.

Did this opinion say anything about Amendment 100 or the local ordinance?

No. It described the questions and noted the litigation, then declined to engage. The opinion did not interpret Amendment 100, the local ordinance, or any related rule.

Where would someone find the actual answer to the questions?

In the trial court ruling and subsequent appellate decisions in the Pope County casino litigation. The opinion identified the lower-court case as Knight v. Gibson, No. 58CV-18-768 (Pope Cir., 4th Div., December 27, 2018). Subsequent appellate proceedings in the Arkansas Supreme Court worked through the issues over the next several years.

Is there a written record of the Attorney General's policy on declining pending-litigation questions?

The opinion cites Ops. Att'y Gen. 2016-027, 2015-005, 2010-047, and 2009-112 as examples of the same practice. The policy is institutional rather than statutory.

Citations

Arkansas Constitution Amendment 100; Knight v. Gibson, No. 58CV-18-768 (Pope Cir., 4th Div., December 27, 2018); prior AG opinions 2016-027, 2015-005, 2010-047, and 2009-112.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2018-146
January 3, 2019
The Honorable Breanne Davis
State Senator
P. O. Box 10088
Russellville, AR 72812
Dear Senator Davis:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for my opinion "regarding the power of the voters of Pope County to, by initiated ordinance, restrict the authority of the County Judge to act unilaterally with regard to approving a casino applicant under Amendment 100 to the Arkansas Constitution." You have asked the following questions in this regard:

1) Does the County Judge of Pope County have authority to execute such a letter in violation of the above Ordinance, which was adopted by the citizens and became law on November 14, 2018?

2) Amendment 100 places no restrictions on the power of a mayor or county judge to rescind, amend or otherwise revoke any letter he or she issues. Nor does Amendment 100 expressly prohibit a mayor or county judge from rescinding, amending or otherwise revoking any such letter signed by his or her predecessor in office, prior to the Gaming Commission acting upon that letter and otherwise valid application. If the outgoing incumbent Pope County Judge executes such a letter before vacating his office, will his successor have the authority to rescind, amend or otherwise revoke it upon taking office?

3) Yesterday, the Racing Commission approved the following rule for public comment: "Letters of support and resolutions by the Quorum County required by these rules and the Amendment shall be dated after the effective date of the Amendment." With that language in mind, can the Arkansas Gaming Commission amend that Rule, and remain compliant with Amendment 100, to require that any application for a casino license must be accompanied by a "current" or "valid" letter from a county judge (and city mayor if applicable), meaning a letter that has not been rescinded, amended or otherwise revoked by the incumbent county judge (or mayor, if applicable) between the time of said letter's issuance and the time of submission of an application for license to be considered by the Commission?

4) Would an Act of the General Assembly requiring that the Gaming Commission only consider an application that is supported by a letter or letters that have not been rescinded, amended or otherwise revoked by the incumbent County Judge (and city mayor, if applicable) be in anyway inconsistent with the plain language of Amendment 100?

RESPONSE

I must respectfully decline to render an opinion in response to your questions because of current litigation, the outcome of which could directly affect the issues you have raised. See James Knight v. Jim Ed Gibson, No. 58CV-18-768 (Pope Cir., 4th Div., December 27, 2018). It is the longstanding policy of the Attorney General's office, as a member of the executive branch, to decline to issue opinions on matters that are pending before the courts.

I regret that I cannot be of assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

LESLIE RUTLEDGE
Attorney General