BEFORE THE SUPREME COURT OF IOWA BELLE OF SIOUX CITY, L.P. Petitioner/Appellant, Supreme Court No. 14-1158 ELECTRONICALLY FILED DEC 05, 2014 CLERK OF SUPREME COURT v. Polk County Case No. CVCV04779 1 IOWA RACING AND GAMING COMISSION, SCE PARTNERS, LLC, MOTION TO AND MISSOURI RIVER CONSOLIDATE APPEALS HISTORICAL DEVELOPMENT, INC. Defendants Respondents/Appellees BELLE OF SIOUX CITY, L.P. No. 14-20 13 V. Petitioner/Appellant, IOWA RACING AND GAMING COMISSION, SCE PARTNERS, LLC, MISSOURI RIVER HISTORICAL DEVELOPMENT, INC. AND CITY OF SIOUX CITY, Defendants Respondents/Appellees Case No. CV9254 (CV9316, CV9383, CV045760) MOTION TO CONSOLIDATE APPEALS COMES NOW Petitioner/Appellant, Belle of Sioux City, L.P. ( Belle ), and hereby moves this Court to consolidate the appeals in the above-captioned matters. In support of its motion, Belle states as follows: {02028863.DOC} 1
1. Belle has pending before this Court two appeals of district court rulings on petitions for judicial review, which it seeks to consolidate. Both appeals concern the acts of the Iowa Racing and Gaming Commission (the Commission ) taken regarding casino gaming in Woodbury County and, in particular, Belle s license to operate the Argosy Casino in Sioux City. Belle is the appellant in both appeals. 2. Belle has consulted with opposing counsel for all parties (the Commission, SCE Partners, LLP, Missouri River Historical Development, Inc., and the City of Sioux City) and no party objects to consolidation of the appeals. 3. One appeal is of a judicial review action of a contested case decision of the Commission (Supreme Court No. 14-1158, collectively, the contested case appeal ). The district court issued its ruling on July 14, 2014 and Belle filed its notice of appeal on July 16, 2014. Following this Court s grant of an extension of time, Belle s proof brief and appendix are due December 12, 2014. (Belle is separately filing a request for an additional extension in light of this pending motion to consolidate.) 4. The other appeal seeks reversal of a ruling on petitions for judicial review of several other agency actions taken by the Commission (Supreme Court No. 14-2013, collectively referred to as the consolidated cases appeal, as those petitions had themselves been consolidated into one action in the district court). {02028863.DOC) 2
The district court issued its ruling on November 6, 2014 and Belle filed its notice of appeal on December 4, 2014. 5. While the underlying cases that comprise the contested case appeal and the consolidated actions appeal were not consolidated in the district court, they were routed to the same judge by order of the chief judge due to their factual and legal similarities. Because the underlying cases arose in distinct procedural contexts one in which Belle was entitled to a contested case appeal and the other where no contested case appeal was available the actions were not consolidated while pending in the district court. 6. Belle requests that these appeals be consolidated as both involve substantially overlapping factual and legal issues. Because of the substantial overlap, consolidation would result in efficiency for the parties and for this Court. Specifically, both cases concern the same fundamental acts by the Commission the legality and propriety of its decisions to decline to renew a gaming license held by Belle for the Argosy Casino and to instead award a license to SCE Partners, LLC ( SCE )fmissouri River Historical Development, Inc. ( MRHD ) to develop the Hard Rock Casino. The factual context and the evidence in both actions is almost (if not entirely) overlapping and the legal issues involve common core questions under Iowa law. (02028863.DOC} 3
7. Notably, the district court s ruling in the consolidated cases appeal reflects the position that the resolution of that matter unavoidably depends on the resolution of issues arising in the contested case appeal. At various points in its ruling, the district court ruled on Belle s arguments by expressly incorporat[ingj its ruling and its reasoning from its ruling in the other case. See, e.g., 11/6/2014 Ruling on Petitions for Judicial Review, at pp. 16-17, 18. Thus, it would promote judicial efficiency and resources to allow these appeals to be briefed and heard together. 8. Further, the parties and counsel are almost entirely overlapping in these two appeals. In both cases the appellant is Belle of Sioux City and the respondents are the Commission, SCE, and MRHD. Additionally, the City of Sioux City is a party to the consolidated actions appeal, but did not intervene in the contested case action. Because it is only a party to the later-filed appeal, it will not be prejudiced by consolidated scheduling. Moreover, as noted above, none of the parties object to consolidation. 9. Belle requests that this Court: (1) consolidate the appeals for briefing purposes, and (2) and issue a briefing schedule for the consolidated appeals. WHEREFORE, for the above-stated reasons, Belle of Sioux City, L. P. requests that this Court grant this Motion for Consolidation of Appeals for Briefing and Scheduling Purposes. {02028863.DOC} 4
WEINHARDT & LOGAN, P.C. By Mark E. Weinhardt AT0008280 Danielle M. Shelton AT0007 184 2600 Grand Avenue, Suite 450 Des Moines, Iowa 50312 (515) 244-3100 rnweinhardt~weinhardtlogan.com dshe1ton~weinhardt1ogan, corn OF COUNSEL: QIMNN EMAMJEL URQUHART & SULLIVAN, LLP Christopher Tayback Daniel Posner 865 S. Figueroa Street, 10th Floor Los Angeles, CA 90017 (213) 443-3000 christayback~quinnernanue1.com danposner~quinnernanuel.corn ATTORNEYS FOR PETITIONERJAPPELLANT BELLE OF SIOUX CITY, L.P. {02028863.DOC) 5
PROOF OF SERVICE The undersigned certifies that the foregoing instrument was served upon the parties to this action by serving a copy upon each of the attorneys listed below on D~Lc.,2014by o U.S. Mail D FAX 0 Hand Delivered 0 Electronic Mail o FedEx/ Overnight Carrier EDMS Jeffrey C. Peterzalek Douglas L. Phillips Guy Cook John R. Lundquist Ryland Deinert Adam Zenor Assistant Attorney General Klass Law Firm Grefe & Sidney, P.L.C. Hoover Building, Second 4280 Sergeant Road 500 East Court Ave., Suite Floor Mayfair Center, Suite 290 200 Des Moines, IA 50319 Sioux City, IA 51106 P. 0. Box 10434 Jeffrey.Peterzalek~iowa.go phillips~klasslaw.com Des Moines, IA 50306 v deinert@klasslawflrm.co gcook~grefesidney.com John.Lundquist~iowa.gov m azenor~grefesidney.com Nicole M. Jensen-Harris Justin R. Vondrak 405 Sixth Street, Suite 5 11 P.O. Box 447 Sioux City, IA 51102 njensen~sioux-city.org jvondrak~sioux-city.org Signat {02028863.DOC}