CITIZENS FOR a BETTER POPE COUNTY, a LOCAL OPTION BALLOT QUESTION COMMITTEE; AND JAMES KNIGHT, IN HIS Individual CAPACITY v. BEN CROSS, IN HIS OFFICIAL CAPACITY AS COUNTY JUDGE OF POPE COUNTY, ARKANSAS; PHILLIP HANEY, CALEB MOORE, TIM WHITTENBURG, REUBEN BROWN, JACKIE HEFLIN, JAMIE JACKSON, BLAKE TARPLEY, DOUG SKELTON, BILL SPARKS, JAMES KUSTURIN, RAY BLACK, JOSEPH PEARSON, AND ERNIE ENCHELMAYER, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE QUORUM COURT OF POPE COUNTY, ARKANSAS

2020 Ark. 279

• Court: Supreme Court of Arkansas
• Decided: September 17, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 279 SUPREME COURT OF ARKANSAS No. CV-20-145

Opinion Delivered: September 17, 2020

CITIZENS FOR A BETTER POPE COUNTY, A LOCAL OPTION BALLOT APPEAL FROM THE POPE QUESTION COMMITTEE; AND JAMES COUNTY CIRCUIT COURT KNIGHT, IN HIS INDIVIDUAL [NO. 58CV-19-439] CAPACITY APPELLANTS HONORABLE BILL PEARSON, JUDGE

V. APPEAL DISMISSED AS MOOT.

BEN CROSS, IN HIS OFFICIAL CAPACITY AS COUNTY JUDGE OF POPE COUNTY, ARKANSAS; PHILLIP HANEY, CALEB MOORE, TIM WHITTENBURG, REUBEN BROWN, JACKIE HEFLIN, JAMIE JACKSON, BLAKE TARPLEY, DOUG SKELTON, BILL SPARKS, JAMES KUSTURIN, RAY BLACK, JOSEPH PEARSON, AND ERNIE ENCHELMAYER, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE QUORUM COURT OF POPE COUNTY, ARKANSAS APPELLEES

CHEROKEE NATION BUSINESSES, LLC

INTERVENOR

PER CURIAM Intervenor Cherokee Nation Businesses, LLC, and appellees have filed a joint

motion to dismiss the appeal by Citizens for a Better Pope County (Citizens), a local option

ballot question committee, and James Knight, in his individual capacity. In their motion,

appellees argue the claims set forth in Citizens’ appeal are moot. We agree and dismiss

Citizens’ appeal as moot.

In November 2018, voters adopted amendment 100 of the Arkansas Constitution,

which authorized casinos and casino gambling. Section 4 of amendment 100 designated

the Arkansas Racing Commission (ARC) to administer the licensing process for a casino to

be located in Pope County. Among the requirements set forth in amendment 100, casino

applicants in Pope County must submit either a letter of support from the county judge or

a resolution of support from the quorum court. During the same November 2018 general

election, Pope County residents approved Ordinance 2018-O-42. Pope Cnty., Ark.,

Ordinance 2018-O-42 (Nov. 14, 2018). This ordinance required that an election be held in

Pope County before either the county judge or the quorum court could issue their support

for an applicant.

On August 13, 2019, the Pope County Quorum Court adopted Resolution 2019-R-

014, a resolution in support of intervenor’s casino license application. As a result of the

quorum court’s resolution, Citizens sought declaratory and injunctive relief in the Pope

County Circuit Court. Specifically, Citizens requested an order prohibiting the county

judge and the quorum court from taking any official action to express approval of a casino

applicant without first presenting the issue to voters in an election, as required by

2 Ordinance 2018-O-42. In its amended petition filed on September 4, Citizens further

sought an order declaring that amendment 100 unconstitutionally conflicts with

amendment 14 of the Arkansas Constitution, and an order declaring that Pope County

officials violated the Arkansas Freedom of Information Act (FOIA) by meeting secretly to

consider Resolution 2019-R-014.

On October 9, intervenor and appellees joined to file a motion to dismiss pursuant

to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. The circuit court scheduled a

hearing on the motion to dismiss for October 29. The day before the hearing, the quorum

court adopted an emergency ordinance that repealed Ordinance 2018-O-42. At the

hearing, Citizens moved to supplement its pleadings, pursuant to Rule 15 of the Arkansas

Rules of Civil Procedure, based on the emergency ordinance. The circuit court denied the

motion to supplement. After hearing arguments from both parties, the circuit court denied

declaratory relief, concluding that Ordinance 2018-O-42 unconstitutionally conflicted with

amendment 100. In addition, the court held the request for a writ of mandamus was moot

and dismissed Citizens’ FOIA claim under Rule 12(b)(6).

On appeal, Citizens requests that this court reverse the circuit court’s finding

regarding the constitutionality of Ordinance 2018-O-42 and the dismissal of its FOIA

claim. Additionally, Citizens argues the court erred in denying its motion to supplement

the pleadings. In response, intervenor and appellees filed a joint motion to dismiss

asserting that every claim in Citizens’ appeal is moot following the repeal of Ordinance

2018-O-42.

3 As a general rule, this court will not review issues that are moot. Shipp v. Franklin,

370 Ark. 262, 258 S.W.3d 744 (2007). To do so would be to render advisory opinions,

which this court will not do. Id. A case becomes moot when any judgment rendered would

have no practical legal effect upon a then-existing legal controversy. Id. There are two

exceptions to the mootness doctrine: (1) cases that are capable of repetition yet evade

review; and (2) issues that raise considerations of substantial public interest which, if

addressed, might prevent future litigation. Bank of Am., N.A. v. Brown, 2011 Ark. 446.

The Pope County Quorum Court passed Emergency Ordinance 2019-O-061 on

October 28, 2019, which, pursuant to Ark. Code Ann. § 14-14-908, repealed Ordinance

2018-O-42 effective immediately. As required by the constitution, the emergency ordinance

was approved by a vote exceeding two-thirds of the quorum court. See Ark. Const. art. 5, §

1 (providing that voter-approved measures may only be repealed by a two-thirds vote of the

appropriate legislative body). Following the repeal of the election ordinance and the circuit

court’s dismissal of Citizens’ petition, the Pope County judge reaffirmed the support for

intervenor’s casino application in a letter dated November 12, 2019. Citizens now seeks to

restrain the county judge and the quorum court from offering their support for

intervenor’s application based on Ordinance 2018-O-42 being in effect and constitutional.

However, even if this court were to rule on the ordinance’s constitutionality, it would have

no practical legal effect because the ordinance has been repealed.

Likewise, Citizens’ FOIA claim presents no justiciable issue for this court to

determine. Martin Farm Enters. v. Hayes, 320 Ark. 205, 895 S.W.2d 535 (1995). In its

4 petition, Citizens requested only that the quorum court’s resolution of support be declared

legally invalid. Consequently, this court’s ruling on the resolution would have no practical

legal effect because the county judge’s letter of support still satisfies the requirements of

amendment 100.

In its final point on appeal, Citizens argues the circuit court erred in denying its

Rule 15 motion to supplement the pleadings. Based on this error, Citizens requests that we

reverse the circuit court’s decision to proceed with the hearing without amending or

supplementing the pleadings. Citizens’ underlying claims are based on the effectiveness of

Ordinance 2018-O-42. Because these claims are now moot, ruling on the Rule 15 issue

would have no effect on the outcome.

Citizens also asserts this case meets both exceptions to the mootness doctrine.

Citizens argues that by repealing Ordinance 2018-O-42, the constitutionality of the

ordinance evades review by this court. Further, Citizens claims the extent and reach of the

local control language in amendment 100 is a matter of substantial public interest. This

court has previously held that neither exception to the mootness doctrine applies when the

ordinance at issue has been repealed. See City of Clinton v. S. Paramedic Servs., 2012 Ark. 88,

at 10, 387 S.W.3d 137, 142 (“We are convinced that any opinion handed down by this

court based on repealed ordinances . . . would simply be an advisory opinion. Although the

parties stipulated that the issue could be repeated, the fact remains that the ordinances

have been repealed . . . .”). It is simply too speculative to assume the county will adopt an

5 ordinance in the future that resembles the one that was just repealed. Accordingly, we find

that neither exception to the mootness doctrine applies in this case.

Due to the Pope County Quorum Court’s repeal of Ordinance 2018-O-42, our

judgment on Citizens’ claims would have no practical effect on an existing legal

controversy. We will not address moot issues or issue advisory, academic opinions. Ark.

Voters First v. Thurston, 2020 Ark. 265.

Appeal dismissed as moot.

Special Justice JIM SPEARS concurs.

KEMP, C.J., and HART, J., not participating.

Jerry L. Malone, for appellants.

Daily & Woods, PLLC, by: Colby T. Roe, for appellees.

McDaniel, Wolff & Benca, PLLC, by: Bart W. Calhoun, Scott Richardson, and Dustin

McDaniel, for intervenor.