*1 GALLAS, Glenn & Richard McGrew Terry Mayfield, ALEXANDER, Chairman, Commission; Cecil Arkansas Racing Club, Inc.; Arkansas Horsemen Benevolent Jockey Assoc., Inc.;
& Protective
& Southland Racing Corp.
06-956
Supreme 27, 2007 delivered Opinion September *3 Adcock; Cox, Estes, PPPLC, Martha M. Cox & S. Lance Cox by: Pratchard, and Lauren E. for appellants. Gen., G.
Timothy Gauger, and Matthew Deputy Att’y McCoy, Gen., Ass’t Alexander, for Chairman, Cecil Att’y appellee Arkansas Commission. Racing Clark, LLP, & Friday, M. Eldredge Walter M. by: Simpson, James III,
Ebel, Kasten; and Wood, Martin A. Smith, Don Schnipper&Clay, by: M. Club, for Inc. Schnipper, appellee Jockey Lax, M. for
Gary Horsemen’s Benevolent and appellee Protec- Association, tive Inc. LLP, Lancaster; &
Wright, Lindsey R. Jennings, by: Stephen Rieves, Rubens, Rubens & Kent Mayton, by: Southland appellee J. Racing Corporation. Danielson, Gallas, Glenn Appellants Terry Jus t t ice. ice.
Paul McGrew Mayfield, from the circuit appeal court’s order granting summary judgment Cecil Alex- appellees ander, Chairman of the Arkansas Commission Commis- Racing (the Club, Inc.; sion); Oaklawn Jockey Arkansas Horsemen Benevo- Association, lent & Protective Inc. (AHBPA) and dismissing 2005, which that Act appellants’ complaint, 1151 of alleged permit- authorization of on ting public’s of skill unconstitutional.1 was Appel- horse and greyhound racing parks, at erred in the circuit court three on that (1) lants raise points appeal: an that Act 1151 unlawful delegation power was finding venues; erred in the circuit court (2) that racing legislature from Act not an power 1151 was unlawful delegation finding Commission; the circuit court erred (3) legislature or local was not unconstitutional Act 1151 finding affirm. We legislation. 2005, 22, March Act 1151 of 2005 became law without
On The Huckabee. Act of then-Governor Mike pro- signature vided, in that: part, are citiesor countieswhere horse racing greyhound racingparks have to addressthese located Arkansasshould the opportunity tourism, issues economic promote development, agribusi- the voters in or counties to have the ness these cities by allowing election to horse or grey- local authorize opportunity by on hound in their communities to offer wagering racing parks additional of electronic of skill. forms codified Ark. Ann. Act 1151 at Code 23-113- (now § The Act amended Title 23 the Arkansas 101(c) 2005)). (Supp. Electronic Code and established entitled Chapter Wagering Horse Fran- Games Skill Conducted and Greyhound Racing Racing chisees, at Local Election. See Act 1151 of Subject Approval Option *4 2005, 1. The Act the basis for set forth legislative findings explaining § 23-113-101, Ann. and the the see Ark. Code named legislation, § Horse and “Local Greyhound Racing legislation Option Racing Ann. Electronic Games of Act.” See Ark. Code 23-113-102 Skill 2005). (Supp. filed a and
On December appellants complaint In challenging legislation.2 petition declaratory judgment, it, it the Act in that claimed that was invalid unlawfully appellants entities, to two legislature’s authority namely delegated private Racing matter, Southland in this to the decision intervened subsequent Corporation rendering circuit it too an court, of the appellee. lodged against following The was defendants: Senator complaint initially Jim Argue, Stovall, Pro Bill of the Senate; President Speaker Tempore Representative Bush, Bob Mike of Hot House; Senator Johnson; Representative Phillip Jackson; Mayor Racing Arkansas the Garland Springs; Chairman, Commission; Cecil and Alexander, added Board of Commissioners. first amended Gallas Election a petition, County Southland a racetrack in West Racing Corporation, greyhound Arkansas, Club, and a Oaklawn horse racetrack
Memphis, in Jockey Arkansas,
Hot to determine whether Springs, county-wide election should be held on city-wide 3 It of skill. further that the Act constituted an alleged Commission, unlawful to the in delegation power conferring to decide Commission what constitutes an upon power of skill. asserted that the game constituted Finally, complaint In a first-amended legislation special legislation. peti tion, added additional claims. appellants Specifically, appellants claim, claim, an and alleged equal-protection monopolies peti tioned for a preliminary permanent injunction. 1, 2006,
On Oaklawn moved for sum- February appellee motion, In its Oaklawn asserted that mary judgment. appellants’ dismissed, claims were flawed and must be on the fatally following bases: (1) the were from plaintiffs consti- estopped contesting Act 1151 because failed to tutionality they filing challenge by election; suit before the Act 1151 was not (2) local not (3) Act 1151 did legislation; delegate improperly legislative there was no (4) there power; (5) was no improper monopoly; violation; Arkansas (6) Constitutional Amend- equal-protection ment 46 such horse in permitted Hot regulation promote failed to exhaust their Springs; (7) plaintiffs administrative rem- edies; lacked (8) failed to standing; (9) state plaintiffs complaint facts which relief could be failed upon granted; (10) plaintiffs follow election-contest statutory (11) Arkansas law procedure; of an election-contest prohibited venue amending (12) complaint; was to all the circuit court proper parties; (13) lacked subject-matter jurisdiction. Appellants responded. 13, 2006,
On the AHBPA moved to intervene in February matter, in appellants responded motion. opposition 6, 2006, On March the circuit court held a on the motion hearing Club, Inc., as a However, defendant. orders the circuit court, Jockey separate Gallas dismissed Bush, the Garland Commissioners, Election voluntarily Mayor County Argue, Senator Stovall, Senator Both Representative Johnson, Representative Jackson. Racing the AHBPA and Southland were intervene Corporation permitted subsequently *5 the matter the circuit court. by 3 Both and Oaklawn Southland are considered holders” “franchise under the AAct. “franchise holding racing holder” a franchise to conduct horse under the “any Arkansas person Racing greyhound Law, Horse 23-110-101 et the under Arkansas § seq., Greyhound Racing 23-113-103(6) (Supp. 2005). 23-111-101 et Law, Ark. Code Ann. § seq.” 16, Then, on March intervene, court the circuit granted. which to 2006, motion, the In moved for summary judgment. appellants for the unconstitutional 1151 was that Act asserted appellants au- delegated Act 1151 (1) unconstitutionally reasons: following Oaklawn; delegated 1151 unconstitutionally Act (2) thority Commission; Act was legislation (3) to the special power because of Garland the residents disenfranchised it arbitrarily it because only 1151 was gave Act (4) legislation County; and, to Oaklawn more to racetracks specifically, gambling rights and Southland the State of or businesses in and no other persons Arkansas; of the laws of 1151 violated Act (5) equal protection Arkansas; On March created an and Act 1151 (6) illegal monopoly. 30, 2006, filed its motion summary judgment. the Commission in its the reasons set forth Oaklawn summary- In addition to motion, the Act was the asserted that Commission judgment the holder for two additional reasons: franchise (1) constitutional law; the and the (2) not the to make had been delegated power the and sufficient Commission oversight by legislature provided holder’s to audit franchise reasonably guidance comprehensive With limited discretionary authority. respect determining skill, constituted an electronic whether game game maintained that Act was constitutional because Commission measured sufficient direction to Commission when conveyed common and the Commission understanding practice. Finally, Act did not claimed that the did not constitute special legislation, did and not authorize a violate equal protection, monopoly the exclusive because Oaklawn Southland were given 6, On to conduct skill. April right 2006, the moved to in the AHBPA adopt join summary- motions filed and the Commission. judgment 14, 2006, the filed a to undis- On stipulation April parties facts, on the circuit court held a hearing April puted At the conclusion of cross-motions for summary judgment. circuit took matter under advisement. court hearing, 2, 2006, the court filed memorandum circuit its May opinion. On it, court first found that the matter could not circuit contest, have characterized as an election which should been then that an before the election. It ruled brought exception administrative remedies since there rule of exhausting applied, and the no facts for the analysis were parties present disputed law to the undisputed consisted solely applying required Next, the circuit court dismissed decision. facts rendering and an claims an alleging monopoly equal- appellants’ improper *6 violation, that lacked to protection finding appellants standing said, make both That the circuit court found that challenges. being did have appellants standing challenge constitutionality the Act as voters have suffered harm county may venue, election. With the circuit court citywide-only respect found that venue was as each of remaining proper litigants to that. stipulated Next, the circuit court found that the General did law, its to make the extent to which the delegate power despite
statute franchise holders to determine the venue of the permitted election, itas did not allow the franchise holder or the local voters discretion in what the law was or would be determining with addition, of skill. respect wagering games circuit court found that conditions the General put place by election, which be must with Assembly, dem- complied after onstrated the franchise holder did not have sole discretion the forum. As to picking Act appellants’ allegation Commission, impermissibly delegated legislative authority the circuit court found that a factual determination toas making whether a has particular an element of skill or not game was an clearly function. The circuit court administrative-agency also found that the definition of “electronic legislative skill” sufficient direction conveyed to the Commission when such determination. the circuit court making concluded Finally, that Act 1151 was constitutional because the rational-basis test was satisfied and it further found that the General Assembly’s reasoning was rational with racetracks should be the respect why place where electronic of skill should In conclu- permitted. sion, the circuit court denied the motion for appellants’ summary and found that the judgment were entitled appellees to summary 12, 2006, In a filed judgment. the circuit judgment court May its memorandum incorporated and dismissed the opinion appel- lants’ with complaint now prejudice. Appellants appeal.
Failureto ExhaustAdministrativeRemedies
aside,
As an
we first address whether the appellants
failed to exhaust their administrative remedies. This issue was not
raised
court,
but was decided
parties,
circuit
said,
often
a concern. That
it is of no
poses
moment in the
being
instant case. The doctrine of exhaustion of administrative remedies
that no one is entitled to
relief
provides
judicial
supposed
threatened
until the
administrative
injury
has
prescribed
remedy
Howard, Ark.
HumanServs.
been exhausted. See Departmentof
held that in order
haveWe
1 (2006).
repeatedly
S.W.3d
*7
from an
in an
agency
appeal
a constitutional argument
preserve
decision,
must first be raised
developed
issue
the constitutional
StateBd.
See,
Teston Arkansas
level.
e.g.,
at the administrative
of
Exam’rs,
More-
(2005).
Appellee responds of what will a occur after on plete plan referendum on wagering skill, electronic of no room for of games the leaving any appellees It that the Act “legislate.” urges allows a vote on the simply i.e., matter the a condition by which the people, upon law will become operative. The law well is settled that is be summary judgment a trial court
granted
when it is clear that
by
only
there are no
issues of material fact to be
genuine
is
litigated,
the party
entitled to
Smith,
as a matter of law. See
judgment
City Farmington
of
In this we first must consider whether Act unconstitutionally franchise hold- delegates legislative authority ers, Southland, currently when it the fran- permits limits, elect the holder, is located within city chise whose park shall skill on electronic election on games whether the wagering town, At issue or the county. the the either city, be submitted which 2005), pro- 23-113-201 (a)(2) (Supp. is Ark. Ann. Code vides: on not wagering holder conduct may The franchise (2)(A)(i) of the unless the question skillunder this chapter electronic games under this has been chapter of skill on electronic games wagering town, the which county the of the or city, submitted to electors the site is located where park franchise holder’s racetrack conducted, is to at of skill on election, electors voting and a or majority general at the election wagering have approved question under of skill this chapter. or limits a city racetrack is locatedwithin (ii) corporate park If town, town, eitherthe city, shall besubmittedto the electors question located,as in whichtheracetrack is county park requested or franchise holder, is located within corporate and if the racetrack park town, then the shall be submitted limits of city question in which the racetrack located. county park electors of the town, city, county, The (B)(i) governing body be, to the electors question case shall ordinance submit may if the franchise holder. requested election, an If holder makes a
(ii) request the franchise *9 of body evidence governing franchise holder shall present creation, tour- benefits economic development, job to anticipated result, ism, from may indirectly, which or directly agribusiness at the skill the authorization wagering under if holder’s racetrack site park chapter, approved franchise at the local voters the election. by or (1) make on one The holder (iii) may requests franchise occasions, to so from time time by
more and elections requested or calendar (1) held one more may during any franchise holder be holder, not the franchise but by as from time time years requested be held for such (1) than one election shall special purposes more town, calendar any particular year. same or city, county during town, in or involved county The cost incurred (iv) city, election to the franchise holder’s each conducting pursuant shall be request franchise holder. The election be paid shall state, held conducted under the general election laws of except as otherwise in this section. provided Ark. Code Ann. (2) 23-113-201 (a) (A) 2005) (Supp. (emphasis We must observe that added). Arkansas statutes are be presumed constitutional, burden is on the placed party attacking Weiss, 684, statute. See v. 333 Ark. Boyd S.W.2d 237 (1998). Thus, it was incumbent Act appellants prove amounted to an improper delegation legislative power.
We have
held that where the
previously
General Assembly
decided to allow the
a
voters
voice on the
of Hot
question
Springs
did
it
not constitute
a
Sunday racing,
of legislative
delegation
Tart,
a
304,
enact
law. See
authority
300 Ark.
Swanberg
S.W.2d 931
In
(1989).
we
that on
recognized
Swanberg,
prior
occasions, we
held
had
that the General
can
enact a law
under it to
provide
a
operation
depend upon
contingency
condition,
such as a favorable vote of the electors.
id.
See
Indeed,
&
Road
Capps
Steprock
Improvement
v.Judsonia
District,
46,
154 Ark.
Eugene 4.10 Municipal (3d ed. Corporations § of 2007) (footnote omitted). found, case, in part: court the circuit pertinent the instant In whole, well with as a consistent Act one considers this When construction, con- it is reasonable statutory rules of established The law. statute substantive a well defined it sets out clude that the election trigger the right a holder franchise clearlyallows venue, it does not allow such but determine its to some extent what the in determining discretion the local voters any holder or of games to wagering be with respect law is or will “unlawful not violate the it does those circumstances skill. Under doctrine____ delegation” an that Act 1151 constitutes impermissible and cannot We say agree foremost, First and on this basis. of authority legislative delegation Arkansas, Inc., Rice case differs from Leathers supra, significantly Gulf Leathers,the theorized the as relied upon by appellees appellants. rice with the sole 344 of 1995 that because Act empowered producers an assessment rice without buyers, giving discretion against levying assessment, vote, it constituted a or review on the the buyers hearing, We holding an unlawful of legislative authority. agreed, delegation notice, the rice that Act 344 failed afford buyers any hearing, Moreover, we before on them. review the assessment was imposed the rice found that unlawful given producers empowerment private as was offensive when affected other such private persons, especially adverse to those of the rice who had interests buyers, opposing not before us. That is the situation producers.
Here, the that Oaklawn was it was stipulated by parties limits of Hot “located within the city corporate racing park statute, Thus, on Arkansas.” question Springs, pursuant on was to be submitted to the electronic of skill town, in which the racetrack electors of either or county city, located, Ark. Code Ann. was Oaklawn. See requested statute, it Based on 23-113-201(a)(2)(A)(ii). language is the General city, clear Assembly contemplated town, the racetrack was located would have which county similar interests in or reject wagering voting approve Thus, of skill in its area. irrespective respective citizenry which electorate franchise holder requests, Moreover, is its will be there area and well-represented. opinions — was something present vote by citizenry in the While a involved process Leathers. private entity a vote franchise holder the matter to submitting people, *11 burden on without notice. For imposing any people reasons, these we find be Leathersto inapposite. addition, neither Oaklawn nor Southland has been with
vested the General ac lawmaking authority by Assembly’s Instead, tions. the franchise holder must with the merely comply law established the General that which Assembly, requires of of skill be to a vote question games put town, of the be it More city, county. people, importantly, note, are should there no when matter is guarantees brought here, before the the franchise holder is for the people; responsible election, cost of the no matter what the outcome.4 SeeArk. Code Thus, Ann. 23-113-201(a)(2)(B)(iv). we cannot that it is say § unreasonable that the franchise holder be should able to choose which electorate shall vote on the measure. And a vote of again, — same, vote is a interest is the people people public no matter whether it is the or the We find city no voting county. basis on which to hold that the Act constitutes an unlawful or unreasonable of to the delegation legislative authority racing park and, reason, franchise holders for that we affirm the circuit court on this point.
II. Delegation the Commission LegislativeAuthority Unlawful next that the General
Appellants
argue
Assembly unlawfully
its
to the
delegated
legislative
Commission when it
authority
Commission,
directed the
in Ark. Code Ann.
23-113-
201 (f)(2)(A)
to make a
(i)
whether a
finding
game
electronic device or machine constitutes an electronic
game
skill.
that the General
Specifically,
appellants urge
did not
sufficient standards to determine what
provide
should or will be
the Commission.
contend that
approved by
They
should have
legislature
more
provided
complete plan
that,
instructions as to what
were
permissible
failing
so,
to do
has made
Commission a
legislature
lawmaker.
argument
With
that the franchise holders have a
respect
appellants’
pecuniary,
self-serving
interest
the outcome
the election,
that
the franchise holder
true;
may
must hold
matter will
we have
However, as
there are no
observed,
hope
pass.
already
guarantees in elections. No evidence has been
that the matter would have failed
presented
had been
electors Garland
do not
put
County. Certainly,
appellants
expect
the franchise holder can see into the future.
the definition
the Commission responds
Appellee
it conveys
because
is constitutional
of skill”
“electronic games
com-
measured by
when
the Commission
direction to
sufficient
Commission additionally
The
mon understanding
practice.
*12
this consti-
to raise
do not have standing
that the appellants
urges
not made a
injury
have
showing
because they
tutional challenge
impact.
prejudicial
de-
that Act 1151 sufficiently
Oaklawn responds
Appellee
the role of the-
Commission,
to
which is
regulate,
fines
the Com-
in Act 1151
It submits that nothing
provides
legislate.
Further, it
to make the law.
suggests
with the
mission
authority
determinations
make factual
that administrative
routinely
agencies
an
of law and that making
that do not constitute
making
improper
is
on whether an electronic game
initial
determination
regulatory
an
defined
the Act is
of skill as
purely
game
permissible
avers that the General
function.
administrative
Finally,
that the
sufficient
games
has
guidance by stating
given
exercise of skill or
an
for the
judgment
must afford
opportunity
alone.
controlled
chance
outcomes are not
where
completely
that Act 1151
and AHBPA
merely
Southland
respond
Appellees
facts about
the
for
proposed
determining
delegates
responsibility
to the
of skill
Commission.
we must first
the merits of this
Before reaching
argument,
that the
lack standing
address the
allegation
appellants
appellees’
we have said:
the instant
With
standing,
challenge.
respect
bring
cases, haveheld that a
has
litigant
standing
In numerous
of a statuteif the law is unconstitu
constitutionality
challenge
328
to that
Morrisonv.
litigant.
Jennings,
tionalasapplied
particular
Hamilton,
278,
v.
317Ark.
(1997);
Ark.
943 S.W.2d559
Hamilton
572, 879
Medlockv.
SmithServ.Fin.
(1994);
Corp.,
S.W.2d416
Fort
652, 803
The
rule is that one
(1991).
general
304Ark.
S.W.2d930
must have
to a classthat is
injury belong
prejudiced
suffered
Morrison,
of a law.
validity
order to have
standing challenge
Medlock,
Stated
must show
differently,
supra.
plaintiffs
supra;
State,
on them. Tauberv.
acthasa
impact
questioned
prejudicial
State,
Arkansas Control 9, 14-15, Weiss, 550, 338 Ark. 554 (2004) (quoting Ghegan Here, found the circuit court 539 (1999)). specifically S.W.2d the Act: had to challenge standing appellants Plaintiffs that Act 1151 them of their allege right to stripped vote or local through special legislation improper delegation they Since are residents of Garland legislative power. County election, have could voted in a have countywide they may suffered if their harm constitutional on issuesis correct. argument those On those points, Court finds have they standing challenge Act. A of the record reveals no notice of review cross-appeal by Thus, was not them on appellees. finding challenged by is not our See, review. Lawson v.
appeal
preserved
e.g.,
City
Mammoth
287 Ark.
That true that had Oaklawn elected to being of skill present question would been have to vote in county, appellants permitted *13 election, as were found to be they residents of Garland County by Thus, court. circuit because the have been appellants may their to vote when prejudiced by the issue was inability presented alone, to the we hold that do have in the city they standing instant case.
With on we respect find appellants’ argument appeal, it merit. without With to this the circuit court respect argument, found:
The General Assembly has the legalize electronic power so gambling games as the do not long constitute lotteries. And making factual determination as to whether a particular electronic has an skill element of or not an game clearly is administrative function. agency This Court convinced that the defi- legislative nition “electronic of skill” conveys sufficient direction to it Commission as to how should when measured proceed by addition, common In understanding practice. legislature has the Commission with sufficient provided oversight powers reasonably guidance to audit Oaklawn’s comprehensive limited discretionary authority. Indeed, with
We the circuit court. agree Code Ann. 23-113-201 (f)(2) (A) (i) clearly Commission to de- requires § termine whether a an constitutes electronic game skill: game
(f)(2)(A) Within calendar sixty (60) after the submission days section, information subdivision this required by (f)(1) of commission shall make a as to whether: finding an constitutes or machine and electronic device The (1) game by chapter[.] authorized of skill game electronic However, contrary 23-113-201(f)(2)(A)(i). Ann. Ark. Code § claim, what the General Assembly provided, what appellants whether be, game for determining clear consider very guidelines foremost, skill. First electronic constitutes an game or device of skill:” the term “electronic game defined the General Assembly through games played of skill”means (5)(A) “Electronic games for the that afford an opportunity device or machine electronic is not completely when the outcome exercise of skill or judgment controlled chance alone. by include pari-mutuel “Electronic of skill” does not
(B) racing governed by on horse greyhound wagering Law, et or the Arkansas Horse 23-110-101 Racing seq., Arkansas § Law, et whether seq., pari- Greyhound Racing §23-111-101 live simulcast or races conducted racing, mutuel racing, in the and rebroadcast by past means[.] addition, In it 2005). Ark. Code Ann. 23-113-103(5) spe- (Supp. to be a set forth what considered guideline determining cifically controlled chance alone:” whether a is “not game completely under an electronic of skill (d)(1) game order to constitute must not be controlled chance this chapter, game completely alone. A is not controlled chance alone if
(2) game completely *14 attain the exercise of skill or may through judgment betting public the than could be a better measure of success in playing game luck, is, the that on the on basis of mathematically expected pure random chance alone. basis pure
Ark. Code Ann. 23-113-201 (d) 2005). (Supp. cite to our decision in Leathers Rice Appellants Gulf Inc., United Su
Arkansas, wherein we the States quoted supra, Court, for the when determining following proposition preme is constitutional: whether delegation enactment must be considered to determine whether [E]ach and the the which the seeks to Congress accomplish
states purpose standards which that is to be worked with out sufficient purpose exactness to enable those affected to understand these limits. Within these tests needs so far Congress only as is specify reasonablypracticable. 429, at
338 Ark.
III. or Local Special Legislation For their final on that point Act appellants appeal, argue 2005 is because it allows special legislation arbitrarily franchise holders Oaklawn Southland to electronic operate machines their on while it a gambling criminal properties making offense for all other in the state to same. persons operate They there is no rational basis for allege limiting wagering to a skill horse or racetrack greyhound Amendment 46 to the Arkansas Constitution is inapplicable does not such basis. contend provides Finally, appellants of the Act makes it local or practical operation special legisla- tion. the Commission that the does
Appellee Act not responds constitute or local because fran- special legislation legislation any chise holder the legislature’s conduct following complete may plan of skill. It further reasserts that the lack to raise standing because have appellants argument they not suffered nor do to a any class that was injury, they belong prejudiced. that Act 1151
Appellee is not responds local as it contains that are legislation provisions presently holder, current franchise but could be applicable applied
123 that other entities out It further franchise holders.5 points future the the statute can under localities requirements qualify short, contends, the it based on it is In because open-ended. limits the Act its appli- framework nothing statutory place, to county to franchise holder or any particular cation any particular or locality.6 1151’s that Act Southland legislative responds Appellee conclusions, which facts and numerous legislative
findings provide It further submits that the Act a of rational legislation. make piece to of skill the Act does limit wagering Southland, can such franchise holder operate Oaklawn any thus, an other than those two should electronic gaming; entity the such must with wish games, comply operate simply for a franchise. statutes obtaining set AHBPA that the responds legislative findings
Appellee the the rational for Act forth General basis Assembly provide addition, In it maintains that the Act is not local 1151. legislation because in that it has statewide other Arkansas clearly application does not limit horse statutory authority racing greyhound to Hot and West Arkansas. Finally, Springs Memphis, their contends the not met burden of AHBPA have appellants Act 1151. unconstitutionality proving constitutional,
State statutes are be presumed the statute has the burden of that the attacking showing party Geisbauer, statute unconstitutional. See Weiss is clearly challenged 628 The Fourteenth Amend- S.W.3d (2005). ment Arkansas Constitution General provides “[t]he act.” shall not local or Ark. Const. pass that the out Act situation in which a Specifically, points provides in the neither of are racetrack is located when the current racetracks so located. county, challenging contends that the are from addition, Oaklawn appellants estopped challenge under Act 1151 because had the Act they ample procedures opportunity prior challenging but did not. circuit court found that the were not election, The appellants recognized and that if the Act was constitutional, election process appellants valid in all the circuit the lawsuit not be Thus, held, election was court could respects. brought characterized as an election contest which should have been before the election. standing, seeking was the case file a notice of As with did not appellees cross-appeal, challenge finding reviewing Accordingly, the circuit court. we are from precluded court argument Nonetheless, cannot that the circuit erred. appeal. say Appellants challenged the not the election statute, Therefore, constitutionality process. appellees’ argument would without merit. estoppel
amend.
We have
local
14.
defined
that is
legislation
legislation
state,
to
one
area
while
arbitrarily applied
only
geographic
from the
of an act
special legislation arbitrarily separates
operation
Tucker,
some
from
another. See Hall
place,
person,
thing
With local or the circuit respect special legislation, court made the following findings: bar,
In the case at of Act 1151 is to purpose promote live and the racing agribusiness, associated tourism related eco- nomic creation activity job and economic including development, and to the flow of out of state stop money might which otherwise be state, in Arkansas. In addition residents spent of the entire including can benefit the tax from from the plaintiffs, generated authorized In the Court’s games. judgment, General has devised a comprehensive these plan reasonably addresses in a goals rational manner.
Oaklawn became a racetrack franchise holder Arkansasmany ago has the years only sanctioned horse presently racetrack in law, the state. But under horse future existing fran- racing chises can be awarded in all of the remaining counties to who the same anyone through jumps hoops jumped Ann., through obtain its franchise. See Ark. Code Sec. 23-110- holder, 301 et seq. a franchise Upon becoming can recipient conduct electronic of skill if necessary conditions set out in Act 1151 are met.
A license is for individuals required engage many profes- state, and/or sions business in this activity they otherwise run afoul in the to engage practice it is Notably, illegal person of the law. a nuclear One cannot operate medicine without a license. of law or without authori- appropriate plant, hospital pharmacy power can be conducted only So the mere fact that gambling zation. does not create a constitutional prob-
licensed establishments the rational basis test Act 1151 is constitutional because lem. *17 satisfied. sufficiently of reasoning
The General set out numerous Assembly pages of skill racetracks should be the where electronic why place is rational and should not be should be allowed. That reasoning disturbed. review of the with the circuit court. Our
Again, agree set Act reveals that the General and Assembly clearly specifically the Act. forth its and Section 23-113-101 findings purpose 2005) (Supp. provides:
(a) It is found and determined the General that: and in the State of (1) Horse racing greyhound racing parks Arkansas economic and in the state agribusiness activity promote and in the local communities where the horse and especially racing located; are greyhound racing parks Arkansas horse and also
(2) racing greyhound racing parks state, often tourism and for the positive publicity including promote recent national racehorse publicity surrounding “SmartyJones,” the winner of the 2004 Arkansas and the 2004 Derby Kentucky that went on to be honored as the 2004 best Derby, three-year-old in the horse thoroughbred country; states, Oklahoma, au- Louisiana and have
(3) Many including thorized racetracks to offer on additional forms of elec- wagering same; tronic The State ofTexas is doing games. considering in (4) adjoining wager Arkansans travel to states order Many at establishments in those states. This legal gambling adversely tourism results in certain economic activity Arkansas and impacts states; Arkansas for benefit of leaving adjoining Economic and benefits derived State (5) agribusiness Arkansas, from horse and racing greyhound racing Arkansas parks Arkansas including farms and are and will breeding operations, continue to be adversely these impacted by developments adjoin- states; and other ing
(6) Although Arkansas horse and racing greyhound racing are parks presendy allowed to offer races, based on previously run horse and greyhound racetracks in adjoining other states are allowed to offer more types electronic wagering games; (7) These developments Arkansas horse place racing grey- hound at a racing parks competitive to their counter- disadvantage in other states and parts affect especially the economies of the local Arkansas communities and related agribusinesses where the horse greyhound are racing parks located in Arkansas.
(b) It is further found and determined General Assembly that:
(1) If no effort is made to address these issues: (A) Arkansans will continue to out of spend money state which Arkansas; might otherwise be in spent (B) Arkansas horse and racing greyhound will racing parks remain at a competitive disadvantage their out-of-state counter- and parts, this will not only adversely impact horse and racing Arkansas, greyhound racing in parks but also related Arkansas agri- businesses, including farms and breeding operations, and other Arkansas businesses that realize economic benefits from horse racing Arkansas; and greyhound racing activities in and (C) at Arkansas horse and racing greyhound racing parks Jobs and at related Arkansas agribusinesses, farms and including breeding operations, with at along jobs other Arkansas businesses that realize economic benefits from horse and racing greyhound activi- racing Arkansas, ties in become may in and jeopardy; If
(2) is enacted and chapter becomes law and local voters in the communities where the horse and racing greyhound racing are located parks approve wagering additional games of skill at Arkansas horse and racing greyhound racing as in parks provided this chapter: in Arkansas which might will (A) spend money Arkansans state; otherwise have been out of spent will (B) greyhound racing parks Arkansas horse and racing this will economic benefits become more and competitive, provide farms and including breeding to related Arkansas agribusinesses, businesses; well as other related Arkansas and operations, at Arkansas horse and (C) racing greyhound racing parks Jobs at businessesthat and at related with other agribusinesses,along jobs racing realize economic benefits from horse racing greyhound Arkansas, secure, will be better and more activities protected created. additional job opportunities maybe (c) (a) (b) For the reasons stated in subsections of this reasons, section and other the General finds that cities or counties where horse are located racing greyhound racing parks in Arkansas should have the to address these issuesand opportunity tourism, promote economic al- development, agribusiness voters those cities or counties to have the lowing opportunity local election to authorize horse racing greyhound racing in their communities to offer on additional forms of parks of skill. Ark. Code Ann. 23-113-101 It is evident to us that 2005). (Supp. the General clear intent in the Act was to Assembly’s enacting protect Arkansas’s economic and in the state and in the agribusiness activity communities in which horse and are located. greyhound racing parks addition, the General cited Assembly specifically states, in other which have parks’ the same competition permitted of establishments to offer more of electronic types types gaming, Arkansas’s tracks at a thereby placing competitive disadvantage.
We hold that there was irrational or nothing arbitrary about decision to authorize on elec legislature’s wagering establishments, tronic of skill at the state’s which were in which were to a already engaged pari-mutuel wagering, subject states, and, their in other competitive disadvantage by counterparts most which are considered to be vital to state and importantly, Moreover, local economies. of the Act legislature’s application Southland; instead, is not limited to Oaklawn and expressly “franchise holder” to conduct permits any skill, so as there is with the long compliance statutory
scheme. While at the current time Oaklawn and Southland are the state, two holders in the we no limitation franchise observe only which would another business from prohibit entity becoming Southland, franchise holder similar to enti- thereby Act, same for under the tling entity rights provided that the in local electorate voted favor of such. assuming case, rational, In the instant Act 1151 is not only presumed rational, it is to our review. Nor do we find that the pursuant have met their burden in Act is appellants showing clearly reasons, unconstitutional. For these affirm the circuit court’s order on this point.
Affirmed.
Special joins. Justice Jackson Jim III dissents. Special Justice Gibson, C.C. “Cliff” JJ., participating. Brown Imber, III, I am Special dissenting. Gibson, “Cliff” J decision, decision, withwith thethe to the effect that majority majority C.C. 2005 Ark. Acts No. 1151 does not constitute a constitutionally law,” to “make but impermissible delegation legislative authority would note that Act 1151’s of the to call and at the granting power same time determine the boundaries of the venue for a local option concern, else, election to a and no one is private for-profit troubling1 as observed the Arkansas General in his review of Act Attorney 1151. the local electorate would seem to be a matter for “Identifying to conduct the additional legislature, given authority wager this vote.” Gen. 2005-093. ing contingent # upon Op. Att’y
I dissent from that respectfully part majority opinion Act 1151 in the face of our Constitution’s upholds prohibition Const, local and Ark. against amend. special legislation. pro- vides: “The General shall not local or pass any special act.”
This blanket on local and straightforward prohibition acts was this court to invalidate another recently employed by Weiss, enactment of the Wilson 368 Ark. legislature generally Arkansans are being accustomed to local elections called option by proper see, e.g., Ark. Code Ann. signed significant percentage registered voters, petitions see, e.g., governing or at the instance of the 3-8-502, local Ark. Code Ann. 26-73- § body, Const, seealso (Initiatives Referendums). amend. 111;
129 S.W.3d 144 The Weiss court reviewed (2006). the previous of amendment 14 to a in some applications piece legislation detail as follows:
We have “differentiated that ‘special’legislation arbitrarily separates some while ‘local’ person, place, thing, legislation arbitrarily applies one division of the state to the exclusion of geographic Huckabee, 202, 208, rest of the state.” McCutchenv. 328 Ark. 943 225, 227 S.W.2d Sch.Dist. No. 1 v. (citing Fayetteville ArkansasState 1, Bd. 313 Ark. of Educ., (1993)). S.W.2d 122 14, With to a regard under Amendment challenge this court has also said: court has held that repeatedly because a statute merely
[T]his
affects less than all of the
ultimately
state’s territory does not
render it local or
necessarily
special legislation. Fayetteville,
Ark. 363,
and consider fact of which notice judicial be taken to may local, determine if the operation effect of the law is regardless 209, 943 its form.” 328 Ark.at S.W.2dat 228. We noted in that case that the of Act 739 of purpose 1995 was to provide funds for the construction of a civic multipurpose (Alltel center Arena in North tourism, Rock) recreation, Little that would increase and economic development the state. We throughout further that in recognized order to achieve those Pulaski could purposes, County well have
130 for the center because of selected as the location regional
been facts, is the County such as the fact that Pulaski noticed judicially state, located, because it is centrally most the county populous This court found that it is the seat of state government. because Because we ac- these reasons were not arbitrary capricious. the that it is not this court’s role to second-guess knowledged concluded that the decision to construct the civic legislature, center in Pulaski was related to intended County rationally 739 of 1995. of Act purposes
Weiss,
307-08,
at 150-51. Also of consider-
Weiss,
These “electronic of skill” are defined Act 1151 to electronic device or machine that “games played through any afford an for the exercise of skill or where opportunity judgment alone,” the outcome is not controlled chance completely and, Ann. Code “do not include 23-113-103(5)(A), notably, *22 on horse pari-mutuel . . . wagering greyhound racing whether . . . live simulcast or races racing, conducted in the racing, means,” and rebroadcast Ann. past Code is, therefore, 23-113-103(5)(B) It abun- (emphasis supplied). § dantly clear that these “electronic of skill” are in no games way for their on the dependent of a or horse operation running dog race at the same in which are housed facility and utilized. they Indeed, these electronic of skill can be used games obviously hotel, restaurant, at a tavern, on, a truck and so without a stop, miles, or a horse within a dog hundred being there certainly are citizens in Arkansas that with (together and the any employees communities in which are situated) would they economically as much as prosper just track any of from able dog/horse to being skill, offer electronic course, of assuming, legislature’s set forth in Act findings 1151 about these machines are, fact, economic creating in true.3 It is prosperity noteworthy that our sister state regard of Louisiana does not limit these machines to Ann. horse tracks. SeeLa. Rev. dog Stat. 27:311. § I harken back to this court’s in Weissin language holding the act there involved violated amendment 14’s prohibition local and against viz: special legislation, “Any located community in' some to a or tourist attraction proximity park could claim 2 It is noted that gambling devices general are criminal laws of prohibited by Arkansas. See Ark. Code Ann. Gambling 5-66-104, -106. devices are defined §§ those things laws as designed devised, or for playing game “adapted, chance, purpose any or at which be won or lost.” Ark. Code Ann. money property 5-66-104. Also may § covered anti-gambling these betting criminal game statutes is of hazard or “any 5-66-113(a). skill.” Ark. Code Ann. Act 1151 § of these operates suspend operation general criminal statutes of state-wide relative to on its “electronic application dog of skill” at authorized and horse tracks. Ark. Code Ann. 23-113-602. 3 There are argue those who with some force gambling that these certainly machines are a detriment to the economic health of citizens of an area where permitted. $400,000 in State needs” to the
comparable City Bigelow sewer, streets, at etc. 368 Ark. S.W.3d funds to fix their Indeed, in the context of present at (emphasis supplied). Arkansas be said there are citizens across case cannot it many that could needs for economic that have prosperity comparable of skill (assuming, revenue from electronic games addressed by in its that these machines is finding again, legislature right or logic such an economic Rational benefit)? thought generate tax indicate the State itself would derive would also greater concentrated, wide, dis- revenues from a fee opposed bursement of these machines. then, whose the use of these machines citizens limit
Why, track, is run a or horse and thereby that they dog only qualification from use of same?4 exclude all other citizens of the State legal of a that the behind the granting Appellee urges purpose and horse tracks to these dog operate gambling special privilege (and machines is to the business of horse presumably dog) protect 22-23, and this is a Brief at Arg. certainly racing, Appellee’s made reasonable construction legislative findings support However, Act 1151. it a proper purpose protect, passage few,5 of a select thereby promote for-profit enterprises *23 4 juncture at this in no It should be noted this writer advocates state-wide use way legal legal these that what for one be made machines, of but out is made should only points for all is a clear basis to do otherwise. unless there and reasonable rational argues racing the mightily that it does have a corner on horse business games get eligible a to as others can to franchise and become have electronic thereby qualify rightly existing skill. the extreme under law to for of out point difficulty Appellants qualify See, eg., (d) (only Ark. and of these Code Ann. 23-110-301 one hold one franchises. § county); (state-wide franchise Ark. Ann. 23-110-303 to local Code § option per opposed 23- required); 23-111-306, 304, election Ark. Code Ann. 23-110-303 & 23-110-306, §§ (franchise 111-303 other than Oaklawn and Southland have to face & 304 holders subsequent (new franchises); elections maintain their Ark. Code Ann. 23-111-305 23-110-305, to §§ dog and new racing horse franchisees must invest at least million in plant $3 equipment, equipment). invest million in there is real Indeed, franchisees must at least $1 plant it is Arkansans will seek one of these cause to believe that unreasonable to other expect dog racing franchises, hard horse or none have difficult to obtain and to certainly keep of several In such this has said: passage decades. circumstances court despite in the for of argued Of course is found elasticity provision may reception fall within Practical counties that ‘hereafter’ may circumscription. operation, to of overseers which excludes
however, is establish a road by process system other from the so counties declared. seventy-four public policy two, all in the State citizens to the exclusion others of actually More does to our Constitu- Arkansas? amendment 14 pointedly, tion favorites in out permit legislature play handing else, two, these and no one can use make privileges money? must, course, There be a rational basis under amendment 14 for the of such a such a select few granting special privilege Arkansas citizens. not addressed in its Although legislature briefs, nor in their it has occurred to this findings, parties writer that a reason for use these machines limiting possible horse tracks in is because it is at Arkansas those dog only can of business that one make a or places legally wager gamble Arkansas to limited for charitable subject bingo/raffles exception under Ark. Code Ann. 23-114-101 it is the etseq. Certainly duty court to consider such a for the possible explanation of such a to a select two favorites. granting special privilege Streight 206, 214, v. 280 Ark. 655 S.W.2d Ragland, (1983). above, noted the clear terms of Act 1151 state
Having
that the
of a
is
track irrelevant to the
running
dog/horse
operation
and,
of these electronic
of skill6
is
one unable
consequently,
to discern
on the
of these
any special
track
expertise
part
dog/horse
that would make them
operators
specially
uniquely qualified
and, furthermore,
machines
operate
there
no
subject
is
reason
to believe these
track
dog/horse
skill
possess
people
any special
of skill
expertise
running
machines.
State ex rel. Burrow v.
(1944).
Ark. 515,
case of (1931), Matthews, 184 213, 40 S.W2d 991 where Simpson this court stated: judicial knowledge It is a matter that Pulaski is the in the State county County only 75,000 which contains over inhabitants or which to do so reasonable time in the likely any future. No increase in will other in the class same within ordinary population any place county reasonable time. No words Legislature could have been used to limit express to Pulaski act more than those application county definitely employed. *24 Id. at 219, is, 40 S.W.2dat 993. There a clear basis in the of therefore, this court precedents disregard get argument to can dog/horse one” made to relative “anyone by Having franchises. said that, there is a much more weighty constitutional concern in the context of this and legislature that is whether dog case, select only may properly as horse tracks a privilege enjoyed favorites to have else no one to make special special (all in the name of economic and in order to money development protect thereby tracks) dog/horse given the businesses of of amendment 14. promote prohibitions 6 23-113-103(5). See Ark. Code Ann. §
134 however, that what those, still who may argue
There are activities the gambling and handling about is is all gambling how to tracks know of dog/horse and that the owners gamblers, in Arkansas because other folks better than sort of thing handle on area of in the gambling had considerable practice have they there is hold that the criteria to that be races. If dog/horse electronic for games limiting under amendment rational basis tracks, cannot discern skill then this writer to machines dog/horse that can be legiti- on the legislation7 limit special gambling amendment notwithstanding the legislature mately passed in Arkansas all others the exclusion of tracks to these dog/horse in the economic prosperity like to who might participate from such things. comes says legislature amendment between heart of the conflict are now at the We reason for adoption and at a core and Act 1151 — concern a deep abiding 14 to our Constitution amendment able legally get special interests being about special powerful of favorites” by It is this “playing from legislature. favors 14 was designed stop, that amendment specifically legislature in this instance. so it should held skill or there is no qualification special put, Simply machines of skill electronic track to run these dog/horse and, law, them Act allowing only including consequently, any criminal laws of general application to skirt anti-gambling under amend- unconstitutional would be our State throughout rational as there is no as legislation ment 14 “special” prohibited them, to use them, the exclusive right only basis for granting of skill. these at bingo. are the laws gambling Instructive here pertaining in no et are way- They Ann. 23-114-101 seq. Ark. Code See because one is is that tracks. The just point
limited dog/horse races, mean does not on dog/horse skilled at betting pari-mutuel at another gambling skills type have expertise they any special Blackjack? games? Roulette? Making college football book on What’s next? much so, here in Arkansas? gambling Is casino games? Dice Probably Poker? already things) get vote such (who think chagrin they of the ofArkansas they People probably gambling a casino can legislature from another act every type are away only the voters of 1151 is an end run around argue that Act might one Indeed, offer. reasonably Arkansas. *25 such skill careful to as electronic which was legislature out are “not” related to horse. See Code point racing dog Ann. 23-113-103(5)OB). conclusion, I would observe the following language this court in these cases: whether law types determining “[I]n local, courts will look to its public, general, special, form, title,
substance and
rather than to its
practical operation
‘because otherwise
of the fundamental
phraseology,
prohibitions
”
law
would
ex rel.
against
legislation
State
nugatory.’
515, 517-18, 181
Burrowv.
207 Ark.
S.W.2d
Jolly,
(1944);
Harrill,
see also
Laman
233 Ark.
I would reverse the trial with court directions to enter Act 1151 judgment unconstitutional under amendment finding to the Arkansas Constitution. CARROLL
Jayson Wayne v. STATE of Arkansas CR 07-941 263 S.W.3d535 Court of Arkansas
Supreme 27, 2007 delivered Opinion September Don G. Gillaspie, appellant.
No response. Carroll, Appellant Wayne Jayson
Curi am.am. has filed a motion for rule on the through attorney, Per