dissenting. I am in with the majority decision, to the effect that 2005 Ark. Acts No. 1151 does not constitute a constitutionally impermissible delegation of legislative authority to “make law,” but would note that Act 1151’s granting of the power to call and at the same time determine the boundaries of the venue for a local option election to a private for-profit concern, and no one else, is troubling1 as observed by the Arkansas Attorney General in his review of Act 1151. “Identifying the local electorate would seem to be a matter for the legislature, given that authority to conduct the additional wagering is contingent upon this vote.” Op. Att’y Gen. # 2005-093.
I respectfully dissent from that part of the majority opinion that upholds Act 1151 in the face of our Constitution’s prohibition against local and special legislation. Ark. Const, amend. 14, provides: “The General Assembly shall not pass any local or special act.”
This straightforward blanket prohibition on local and special acts was recently employed by this court to invalidate another enactment of the legislature in Wilson v. Weiss, 368 Ark. 300, 245 S.W.3d 144 (2006). The Weiss court reviewed the previous applications of amendment 14 to a piece of legislation in some detail as follows:
We have “differentiated that ‘special’ legislation arbitrarily separates some person, place, or thing, while ‘local’ legislation arbitrarily applies to one geographic division of the state to the exclusion of the rest of the state.” McCutchen v. Huckabee, 328 Ark. 202, 208, 943 S.W.2d 225, 227 (citing Fayetteville Sch. Dist. No. 1 v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993)).
With regard to a challenge under Amendment 14, this court has also said:
[T]his court has repeatedly held that merely because a statute ultimately affects less than all of the state’s territory does not necessarily render it local or special legislation. Fayetteville, supra; City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990). Instead, we have consistently held that an act of the General Assembly that applies to only a portion of this state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act. Fayetteville, supra; Owen, supra; Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Of particular interest, is Phillips v. Giddings, 278 Ark. 368, 646 S.W.2d 1 (1983), where we clarified that although there may be a legitimate purpose for passing the act, it is the classification, or the decision to apply that act to only one area of the state, that must be rational.
McCutchen, 328 Ark. at 208-09, 943 S.W.2d at 227-28.
In McCutchen, supra, we further said that when making a decision as to whether there is a rational reason for applying an act to only one county in this state,“this court may look outside the act and consider any fact of which judicial notice may be taken to determine if the operation and effect of the law is local, regardless of its form.” 328 Ark. at 209, 943 S.W.2d at 228. We noted in that case that the purpose of Act 739 of 1995 was to provide funds for the construction of a multipurpose civic center (Alltel Arena in North Little Rock) that would increase tourism, recreation, and economic development throughout the state. We further recognized that in order to achieve those purposes, Pulaski County could well have been selected as the regional location for the center because of judicially noticed facts, such as the fact that Pulaski County is the most populous county in the state, because it is centrally located, and because it is the seat of state government. This court found that these reasons were not arbitrary or capricious. Because we acknowledged that it is not this court’s role to second-guess the legislature, we concluded that the decision to construct the civic center in Pulaski County was rationally related to the intended purposes of Act 739 of 1995.
Weiss, 368 Ark. at 307-08, 245 S.W.3d at 150-51. Also of considerable importance to the Weiss Court was the history of and reasons for the adoption of Amendment 14 which it reviewed as follows:
[OJne commentator on Amendment 14’s history has said that prior to the overwhelming approval of Amendment 14 by the people of Arkansas in 1926, our State, had employed piecemeal limitations through the legislature on local and special legislation, which, over time, “proved inadequate to slow the pace of special and local legislation.” Robert M. Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113, 114 (1949). In fact, editorials and articles published about the time of the passage of Amendment 14 showed that “proponents of the Amendment were chiefly concerned with the rapid growth of special and local legislation and the diminishing amount of time devoted to the consideration of general laws.” Id. at 114 n.6, 943 S.W.2d 225. Initially, the enforcement of preAmendment 14 limitations on the passage of special and local acts was left largely to the legislature, which led to statements like that of Chief Justice Hart of the Arkansas Supreme Court, who said, “[i]f the judgment of the Legislature must control in all cases, the amendment (Amendment 14) could serve no purpose, and the people might just as well not have initiated and adopted it.” Id. at 115, 943 S.W.2d 225 (quoting Simpson v. Matthews, 184 Ark. 213, 216, 40 S.W.2d 991, 992 (1931). Certainly, our case law supports that conclusion. See, e.g., Weiss v. Geisbauer, 363 Ark. 508, 215 S.W.3d 628 (2005) (no rational basis existed for giving only Mississippi River border cities preferential tax treatment); Humphrey v. Thompson, 222 Ark. 884, 763 S.W.2d 716 (1954) (no justification or special need existed for appropriating funds to establish a vocational-technical school in only one county).
Weiss, 368 Ark. at 310, 245 S.W.3d at 152.
The pertinent query in the circumstances of this case is whether there is a rational basis for limiting wagering on “electronic games of skill” to persons running a dog or horse track as done by Act 1151.2
These “electronic games of skill” are defined by Act 1151 to be “games played through any electronic device or machine that afford an opportunity for the exercise of skill or judgment where the outcome is not completely controlled by chance alone,” Ark. Code Ann. § 23-113-103(5)(A), and, notably, “do not include pari-mutuel wagering on horse racing and greyhound racing . . . whether . . . live racing, simulcast racing, or races conducted in the past and rebroadcast by electronic means,” Ark. Code Ann. § 23-113-103(5)(B) (emphasis supplied). It is, therefore, abundantly clear that these “electronic games of skill” are in no way dependent for their operation on the running of a dog or horse race at the same facility in which they are housed and utilized.
Indeed, these electronic games of skill can obviously be used at a hotel, a restaurant, a tavern, a truck stop, and so on, without a dog or a horse being within a hundred miles, and certainly there are citizens in Arkansas that (together with any employees and the communities in which they are situated) would economically prosper just as much as any dog/horse track from being able to offer electronic games of skill, assuming, of course, that the legislature’s findings set forth in Act 1151 about these machines creating economic prosperity are, in fact, true.3 It is noteworthy in this regard that our sister state of Louisiana does not limit these machines to dog or horse tracks. See La. Rev. Stat. Ann. § 27:311.
I harken back to this court’s language in Weiss in holding the act there involved violated amendment 14’s prohibition against local and special legislation, viz: “Any community located in' some proximity to a park or tourist attraction could claim comparable needs” to the City of Bigelow for $400,000 in State funds to fix their streets, sewer, etc. 368 Ark. at 309, 245 S.W.3d at 151 (emphasis supplied). Indeed, in the context of the present case cannot it be said that there are many citizens across Arkansas that have comparable needs for economic prosperity that could be addressed by revenue from electronic games of skill (assuming, again, the legislature is right in its finding that these machines generate such an economic benefit)? Rational thought or logic would also indicate that the State itself would derive greater tax and fee revenues from a wide, as opposed to concentrated, disbursement of these machines.
Why, then, limit the use of these machines to citizens whose only qualification is that they run a dog or horse track, and thereby exclude all other citizens of the State from legal use of same?4 Appellee Oaklawn urges that the purpose behind the granting of a special privilege to dog and horse tracks to operate these gambling machines is to protect the business of horse (and presumably dog) racing, Appellee’s Brief at Arg. 22-23, and certainly this is a reasonable construction of the legislative findings made in support of passage of Act 1151. However, is it a proper purpose to protect, and thereby promote the for-profit enterprises of a select few,5 actually two, citizens to the exclusion of all others in the State of Arkansas? More pointedly, does amendment 14 to our Constitution permit the legislature to play favorites in handing out special privileges that these two, and no one else, can use to make money?
There must, of course, be a rational basis under amendment 14 for the granting of such a special privilege to such a select few Arkansas citizens. Although not addressed by the legislature in its findings, nor by the parties in their briefs, it has occurred to this writer that a possible reason for limiting the use of these machines to dog and horse tracks in Arkansas is because it is only at those places of business that one can legally make a wager or gamble in Arkansas subject to a limited exception for charitable bingo/raffles under Ark. Code Ann. § 23-114-101 etseq. Certainly it is the duty of this court to consider such a possible explanation for the granting of such a special privilege to a select two favorites. Streight v. Ragland, 280 Ark. 206, 214, 655 S.W.2d 459, 464 (1983).
Having noted the above, the clear terms of Act 1151 state that the running of a dog/horse track is irrelevant to the operation of these electronic games of skill6 and, consequently, one is unable to discern any special expertise on the part of these dog/horse track operators that would make them specially or uniquely qualified to operate the subject machines and, furthermore, there is no reason to believe these dog/horse track people possess any special skill or expertise in running electronic games of skill machines.
There are those, however, who may still argue that what this is all about is gambling and handling the gambling activities of gamblers, and that the owners of dog/horse tracks know how to handle that sort of thing better than other folks in Arkansas because they have had considerable practice in the area of gambling on dog/horse races. If that be the criteria to hold that there is a rational basis under amendment 14 for limiting electronic games of skill machines to dog/horse tracks, then this writer cannot discern any limit on the special gambling legislation7 that can be legitimately passed by the legislature notwithstanding amendment 14 for these dog/horse tracks to the exclusion of all others in Arkansas who might like to participate in the economic prosperity the legislature says comes from such things.
We are now at the heart of the conflict between amendment 14 and Act 1151 and at a core reason for the adoption of amendment 14 to our Constitution — a deep abiding concern about powerful special interests being able to legally get special favors from the legislature. It is this “playing of favorites” by the legislature that amendment 14 was specifically designed to stop, and so it should in this instance.
Simply put, there is no special skill or qualification held by a dog/horse track to run these electronic games of skill machines and, consequently, any law, including Act 1151, allowing only them to skirt the anti-gambling criminal laws of general application throughout our State would be unconstitutional under amendment 14 as prohibited “special” legislation as there is no rational basis for granting them, and only them, the exclusive right to use these electronic games of skill.
Instructive here are the laws pertaining to gambling at bingo. See Ark. Code Ann. § 23-114-101 et seq. They are in no way-limited to dog/horse tracks. The point is that just because one is skilled at pari-mutuel betting on dog/horse races, does not mean they have any special skills or expertise at another type of gambling such as electronic games of skill which the legislature was careful to point out are “not” related to racing a dog or horse. See Ark. Code Ann. § 23-113-103(5)OB).
In conclusion, I would observe the following language of this court in these types of cases: “[I]n determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form, and phraseology, ‘because otherwise prohibitions of the fundamental law against special legislation would be nugatory.’ ” State ex rel. Burrow v. Jolly, 207 Ark. 515, 517-18, 181 S.W.2d 479, 480 (1944); see also Laman v. Harrill, 233 Ark. 967, 349 S.W.2d 814 (1961)(quoting same language with approval).
I would reverse the trial court with directions to enter judgment finding Act 1151 unconstitutional under amendment 14 to the Arkansas Constitution.
Arkansans are generally accustomed to local option elections being called by proper petitions signed by a significant percentage of registered voters, see, e.g., Ark. Code Ann. § 3-8-502, or at the instance of the local governing body, see, e.g., Ark. Code Ann. § 26-73-111; see also Ark. Const, amend. 7 (Initiatives and Referendums).
It is noted that gambling devices are prohibited by the general criminal laws of Arkansas. See Ark. Code Ann. §§ 5-66-104, -106. Gambling devices are defined by those laws as things “adapted, devised, or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost.” Ark. Code Ann. § 5-66-104. Also covered by these anti-gambling criminal statutes is betting on “any game of hazard or skill.” Ark. Code Ann. § 5-66-113(a). Act 1151 operates to suspend the operation of these general criminal statutes of state-wide application relative to wagering on its “electronic games of skill” at authorized dog and horse tracks. Ark. Code Ann. § 23-113-602.
There are certainly those who argue with some force that these gambling machines are a detriment to the economic health of citizens of an area where permitted.
It should be noted at this juncture that this writer in no way advocates state-wide use of these machines, but only points out that what is made legal for one should be made legal for all unless there is a clear and reasonable rational basis to do otherwise.
Oaklawn argues mightily that it does not have a corner on the horse racing business as others can qualify to get a franchise and thereby become eligible to have electronic games of skill. Appellants rightly point out the extreme difficulty under existing law to qualify for and hold one of these franchises. See, eg., Ark. Code Ann. § 23-110-301 (d) (only one franchise per county); Ark. Code Ann. § 23-110-303 (state-wide as opposed to local option election required); Ark. Code Ann. §§ 23-110-306, 23-111-306, 23-110-303 & 304, 23-111-303 & 304 (franchise holders other than Oaklawn and Southland have to face subsequent elections to maintain their franchises); Ark. Code Ann. §§ 23-110-305, 23-111-305 (new horse racing franchisees must invest at least $3 million in plant and equipment, and new dog racing franchisees must invest at least $1 million in plant and equipment). Indeed, there is real cause to believe that it is unreasonable to expect other Arkansans will seek one of these difficult to obtain and hard to keep horse or dog racing franchises, and certainly none have despite the passage of several decades. In such circumstances this court has said:
Of course it may be argued that elasticity is found in the provision for reception of counties that may ‘hereafter’ fall within the circumscription. Practical operation, however, is to establish a system of road overseers by a process which excludes seventy-four other counties from the public policy so declared.
State ex rel. Burrow v. Jolly, 207 Ark. 515, 518, 181 S.W.2d 479, 481 (1944). And there is the case of Simpson v. Matthews, 184 Ark. 213, 40 S.W2d 991 (1931), where this court stated:
It is a matter of judicial knowledge that Pulaski County is the only county in the State which contains over 75,000 inhabitants or which is likely to do so for any reasonable time in the future. No ordinary increase in population will place any other county in the same class within any reasonable time. No express words could have been used by the Legislature to limit the application of the act to Pulaski county more definitely than those employed.
Id. at 219, 40 S.W.2d at 993. There is, therefore, a clear basis in the precedents of this court to disregard the “anyone can get one” argument made by Oaklawn relative to dog/horse racing franchises. Having said that, there is a much more weighty constitutional concern in the context of this case, and that is whether the legislature may properly select only dog and horse tracks as special favorites to have a special privilege enjoyed by no one else to make money (all in the name of economic development and in order to protect and thereby promote the businesses of dog/horse tracks) given the prohibitions of amendment 14.
See Ark. Code Ann. § 23-113-103(5).
What’s next? Making book on college football games? Roulette? Blackjack? Poker? Dice games? Is casino gambling already here in Arkansas? Probably so, much to the chagrin of the People of Arkansas (who probably think they get to vote on such things) as they are only another special act of the legislature away from every type of gambling a casino can offer. Indeed, one might reasonably argue that Act 1151 is an end run around the voters of Arkansas.