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COA: No preliminary injunction against casinos

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A panel of Indiana Court of Appeals judges agreed a city isn't entitled to a preliminary injunction to order riverboat casinos to make payments to the city, but the judges disagreed as to why the city didn't meet its burden to prove an injunction was necessary.

In City of Gary, Ind. v. The Majestic Star Casino, et al., No. 49A02-0807-CV-625, Gary appealed an order denying its motion to transfer venue and an order denying the city's motion for a preliminary injunction to compel Majestic Star I and II casinos to make payments from adjusted gross receipts to the city.

In addition to the city's agreement with the casinos, the city entered into an agreement with Gary New Century to redevelop property; several years later, GNC's rights to a portion of the redevelopment property were assigned to Majestic Star I.

In 2005, the city, GNC, and the casinos amended their original agreements. A dispute arose about the validity and meaning of the 2005 amendment, and the casinos stopped paying a portion of their adjusted gross receipts to the city as in the original agreement and deposited it into a separate bank account to be distributed in accordance with an arbitration award.

The casinos and GNC filed a complaint in Marion County against the city and the Indiana Gaming Commission alleging the city failed to fulfill its obligations under the GNC agreement and the 2005 amendment. Gary filed a motion to transfer venue to Lake County and for a preliminary injunction to make the casinos resume payments to the city, arguing the lack of money hurt the general public because it affects the city's ability to pay overtime for public workers and repair infrastructure. The trial court denied both motions.

The Court of Appeals unanimously agreed it didn't have jurisdiction over Gary's appeal of its motion to transfer venue because the city filed its appeal after the 30-day deadline had passed under Ind. App. R. 14(A).

The judges also affirmed the trial court's denial of Gary's motion for a preliminary injunction, although their reasons for doing so differed. Judge Elaine Brown wrote there are other options for Gary to continue with its city services, such as issuing bonds, instead of cutting essential services. Because the casinos are depositing payments into a segregated bank account and Gary has the capacity to issue general obligation bonds, Judge Brown wrote the city failed to show an inadequate remedy at law, thus causing irreparable harm pending resolution of the substantive action.

Judge Terry Crone, in a separate concurring-in-result opinion, believed the appellate court shouldn't consider the city's ability to issue bonds in assessing the nature and extent of its alleged damages and the availability of alternative remedies.

"Only rarely should the judiciary intervene in such matters, and I believe that we should refrain from serving as the City's de facto budget director in this case," he wrote.

Although the judge believes the casinos' withholding of payments to the city to be clearly against the public interest, the city has an alternate remedy through an arbitration clause in the agreement, so a preliminary injunction isn't necessary. Judge Cale Bradford, concurring in result in a separate opinion, agreed with Judge Crone to the extent the arbitration clause provides Gary an alternate remedy at law.

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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