614 S.W.3d 811
Ark.2021Background
- Amendment 100 (2018) authorized four casino licenses in Arkansas; one license is allotted to Pope County and the Arkansas Racing Commission administers applications.
- During the initial May 2019 application period five applicants (including Gulfside and Cherokee) applied; applications were denied as incomplete for lack of a letter/resolution from the sitting county judge/quorum court.
- Gulfside’s May 2019 application was denied because its letter of support came from a former county judge; Gulfside filed suit on Aug. 15, 2019 seeking reversal and an injunction preventing the Commission from considering other applicants.
- Cherokee later obtained support from the sitting Pope County judge and quorum court, executed an economic-development agreement promising to invest over $40 million, and applied after the Commission reopened the application period; Cherokee moved to intervene to protect its interest.
- The circuit court denied Cherokee’s motion to intervene, concluding (incorrectly as to a factual point) that Cherokee had not applied in May 2019 and that the reopened application period was unlawful; the court also found Cherokee’s interests adequately represented by the defendants.
- The Arkansas Supreme Court held Cherokee was entitled to intervene as of right under Ark. R. Civ. P. 24(a)(2), reversed the denial, and vacated orders issued after the erroneous denial of intervention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal | Cherokee is still an applicant; subsequent Commission orders and this Court's writ establish practical effect | Gulfside: Cherokee ceased to be an applicant after the Commission abandoned the second period | Court: Not moot; judicial review can have practical effect and Cherokee remains an applicant for purposes of appeal |
| Recognized interest to intervene | Cherokee: has a direct, substantial, legally protectable interest in the single Pope County license and in its economic-development contract with the county | Gulfside: intervention requires a present enforceable interest (argues stricter standard) | Court: Cherokee has a recognized interest in the license and its contract; Medical Park’s stricter “present enforceable interest” standard not controlling here |
| Disposition will impair interest | Cherokee: Gulfside’s requested relief (award license; bar other applications) would foreclose Cherokee’s opportunity and impair its contract | Gulfside: generally contested (but withdrew opposition below) | Court: A judgment awarding Gulfside would practically impair Cherokee’s interests; this factor satisfied |
| Adequacy of representation | Cherokee: defendants do not protect Cherokee’s contractual or exclusive-support interests; only Cherokee can fully protect those interests | Defendants: they vigorously defend the Commission’s denial and thus adequately represent Cherokee | Court: Existing defendants do not adequately represent Cherokee’s unique contractual interests; burden on opponent to prove adequacy not met |
Key Cases Cited
- Certain Underwriters at Lloyd’s, London v. Bass, 461 S.W.3d 317 (2015 Ark. 178) (articulates Rule 24(a)(2) elements and Arkansas interpretation of "recognized interest")
- UHS of Arkansas, Inc. v. City of Sherwood, 752 S.W.2d 36 (296 Ark. 97) (economic harm from governmental regulation supports intervention)
- United States v. Union Elec. Co., 64 F.3d 1152 (8th Cir. 1995) (defines a "recognized interest" as direct, substantial, legally protectable)
- Medical Park Hospital v. Bancorp South Bank of Hope, 166 S.W.3d 19 (357 Ark. 316) (discusses the "present enforceable interest" concept in trust/estate context)
- Matson, Inc. v. Lamb & Associates Packaging, Inc., 947 S.W.2d 324 (328 Ark. 705) (explains when a proposed intervenor's interest is adequately represented)