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

State Senator Breanne Davis asked whether Pope County's voter-adopted ordinance could restrict the county judge's authority to support a casino applicant under Arkansas Constitution Amendment 100. Her four questions covered an outgoing judge's support letter, a successor's power to revoke it, possible Gaming Commission rules requiring a current letter, and a possible state statute with a similar requirement.

Attorney General Leslie Rutledge answered none of those questions. She cited pending litigation, James Knight v. Jim Ed Gibson, whose outcome "could directly affect the issues you have raised." She said her office's longstanding policy, as part of the executive branch, is to decline opinions on matters pending before the courts. A footnote cites prior AG opinions 2016-027, 2015-005, 2010-047, and 2009-112 as examples of that policy.

The opinion does not decide whether the county judge could issue or revoke a letter, whether the ordinance was valid, or whether the Commission or legislature could adopt the suggested requirements. Some descriptions of Amendment 100 and of the proposed rule appear inside Senator Davis's questions. They are the premises she asked the AG to evaluate, not findings made in the response.

Currency note

Issued January 3, 2019. This opinion records a refusal to address legal questions while related litigation was pending. Consult the applicable law and court decisions for any answer to those questions.

What the senator asked

The first question concerned a county judge's authority to sign a support letter despite an ordinance that county voters adopted. The second asked whether a successor could rescind, amend, or revoke a predecessor's letter before the Gaming Commission acted. The third asked whether the Commission could require a "current" or "valid" letter through its rules. The fourth asked whether the General Assembly could impose a similar requirement by statute without conflicting with Amendment 100.

The AG did not analyze those provisions or proposed actions. She identified the pending Pope County Circuit Court case by name and docket number and declined under office policy. The cited prior opinions appear in footnote 1, but this opinion supplies no independent analysis of their facts.

Common questions

Did the AG decide whether the local ordinance bound the judge?

No. The senator asked that question, but the AG declined to answer because related litigation was pending.

Did the AG approve a successor's revocation of a support letter?

No. The possible revocation appears only in the senator's question. The response states no view on its legality or effect.

Did the AG cite prior opinions for the pending-litigation policy?

Yes. Footnote 1 cites Opinions 2016-027, 2015-005, 2010-047, and 2009-112. The body states the policy and cites the pending Knight case.

Does this opinion resolve who would receive a Pope County casino license?

No. It contains no ruling on the license application or on the court case's result.

Citations

Ark. Const. amend. 100; James Knight v. Jim Ed Gibson, No. 58CV-18-768 (Pope Cir., 4th Div., December 27, 2018); Ops. Att'y Gen. 2016-027, 2015-005, 2010-047, 2009-112.

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STAT E OF ARKAN SAS
ATTO RNEY GEN ERAL
LES LIE RUTLED G E

Opinion No. 2018-146

January 3, 2019

The Honorable Breanne Davis
State Senator
P. 0. Box 10088
Russellville, AR 72812

Dear Senator Davis:

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

323 CENTER STREET. SU ITE 200 · LITTLE RO C K. ARKAN SAS 7220 1 TELE PHONE (50 1) 682 -2007 ·FAX (50 1) 682-8084 ARKAN SASAG.GOV

The Honorable Breanne Davis
State Senator
Opinion No. 2018-146
Page 2

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 I 00, 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 requmng 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 I 00?

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 1 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 RUTLE~
Attorney General

1
See, e.g. , Ops. Att' y Gen. 2016-027, 2015-005 , 2010-047, 2009-112 (and opinions cited therein).