Motion filed to gain casino hearing access
Closed court would break law, paper’s attorney says
The Arkansas Democrat-Gazette filed a motion to intervene Thursday in an attempt to gain access to a court hearing set for this morning in Pulaski County Circuit Judge Tim Fox’s courtroom concerning applicants for a license for a casino in Pope County.
Attempts throughout the week by the Democrat-Gazette to persuade Fox to allow its reporter access to the hearing — either by electronic remote access or in person — were unsuccessful.
“The First Amendment right of access is an affirmative, enforceable public right,” Christoph Keller, a lawyer at Quattlebaum, Grooms & Tull and counsel for the Arkansas Press Association, said in the filing.
Attempts to reach Fox for comment were unsuccessful as of late Thursday.
The Democrat-Gazette was told Wednesday by Fox’s trial court administrator, Christie Greer, that Fox was barring access to the hearing — both physically and by electronic remote video access — because of a March 16, 2020, executive order from Pulaski County Judge Barry Hyde, the county executive, that restricts public access to certain county buildings because of the coronavirus pandemic.
Hyde said previously that his order does not close court proceedings and that there are cameras in every courtroom to enable public access.
“I understand in-person restrictions due to covid-19, but barring any type of access to this hearing is an affront to transparency,” said Eliza Gaines, the Democrat-Gazette’s managing editor. “Judge Hyde told our reporter that there are cameras in every courtroom to enable public access, so I question why Judge Fox is denying the press and public the ability to view this important hearing via livestream video.”
Keller cited Arkansas Code Annotated 16-10-105 to say that the court’s denial violates state law that provides that “the sittings of every court shall be public, and every person may freely attend the sittings of every court.”
Keller asked Fox in the motion to “permit access ei
ther in person or through virtual means to the proceedings in this case.”
“The Arkansas Democrat-Gazette does not dispute that protecting the safety of the Court and necessary participants in these proceedings is a compelling government interest,” Keller said in the filing. “The decision to bar any access, however, is not narrowly tailored to serve that interest.”
It was unclear in an April 1 notice from Fox to the attorneys in the case how many members of the public would be allowed to attend the May 7 hearing, Keller said in the motion. In that letter, Fox cited Hyde’s pandemic order and said that only one attorney per client will be permitted to physically attend the hearing.
“Permitting a reporter to attend the proceeding while requiring masks and social distancing could be a viable alternative to a complete ban,” Keller wrote. “Indeed, the Court has allowed reporters to attend other proceedings in this case during the pandemic.”
Fox allowed the Democrat-Gazette to physically attend a hearing in the same case on July 2, shortly after the pandemic hit the state. A mask was required and the seating was spaced for appropriate social distancing.
Other Pulaski County circuit judges have streamed hearings over video since the pandemic began. The public can access the proceedings using a link and code provided upon request by a member of a judge’s staff.
Keller wrote in the motion that he himself has participated in virtual proceedings before “multiple Judges at the Pulaski County Courthouse” during the pandemic.
“If virtual participation is impossible in this Court’s chambers, perhaps the hearing could be moved to a courtroom with that technology in place,” Keller wrote. “These are potential options that serve the interest of limiting risk of exposure to COVID-19 while also not violating the right to public access.”
Constitutional Amendment 100, approved by voters in 2018, legalized casino gambling in the state, including placing a new casino in Pope County.
Cherokee Nation Businesses and Gulfside Casino Partnership are vying for the Pope County casino license. Amendment 100 requires casino applicants to have endorsements from local officials.
Fox is set to consider at today’s hearing whether letters by past local officials endorsing Gulfside meet the constitutional requirements.
Fox previously ruled in the case — brought in 2019 by Gulfside — that a state law and a Racing Commission rule on the endorsement letters was unconstitutional.
Gulfside was eventually awarded the Pope County casino license by the Racing Commission. Cherokee Nation Businesses is challenging that decision.
The hearing comes after the Arkansas Supreme Court overturned a previous ruling by Fox in which he denied Cherokee Nation Businesses’ request to intervene in the case.
When contacted, Gulfside declined to comment.
“Our focus is on the key constitutional issue in this case, which will ultimately be decided by the Arkansas Supreme Court,” said Dustin McDaniel legal counsel for Cherokee Nation Businesses. “While we understand the Democrat Gazette’s concerns, we wish to avoid any additional delays in this matter and raise no objections to the Court’s Order.”