complex cases today that i think this white of face value looks like one of them but frankly i think that the that arlington and i are of the in this case of attempting to make this into a somewhat more complicated case  actually gives it's a straightforward case of statutory construction and we're not talking about a particularly complex statute in addition to the of the court or he's ever going to fit a well reasoned opinion of this that the that the opinion that the argument here follows the construction of this court of what happened in that case and some of the language that opinions particularly telling with respect to  the opinion recognized that forty percent of the newly created or cerise equity trust fund was quote intended for improvement maintenance and marketing of basic facilities and therefore should be distributed to the specific purpose of those who get operating percent so the remaining eighty nine percent of the forty percent was to be divided among the remaining eligible recipients not all first racing organizations but just those that have operating control over racetracks because only those who are in his ations were in a position to assure that the equity trust fund money would be used for improvement maintenance and marketing research so if so this court needed to determine who the general assembly had in m so as the ira the ira be concluded and as everyone else seems to agree including this court in the early to case those two criteria ownership of the track or operating control over a track two thousand true and valid and and while you're a little ahead of me let me let me go right to that point i told you this was a case of statutory construction that there is an absolute provision in the  in the in the section that addresses it with a call a point to the second of the three criteria the first criteria being your help license and i think you operate fro over a racetrack in two thousand and two and the other has to do with  clear it defines those persons who are eligible recipients it's clear that their language is there and it's clear that they can't live with it and the reason they can't live with it is touched on in in this court's opinion  legislation was test but by the time distribution two thousand and nine the current year it had lost its license and was no longer eligible clearly the court focused not only on the fact that n j c had had operating control over respect to two thousand to it specifically focused on the fact that it was eligible for distribution in two thousand and six when they have statute was enacted and the reason for that is because you've got to identify what the legislature was looking the legislature if they have a point was looking at a viable entity in two thousand and six it could become and who could potentially be a recipient of funds and then entity among others to prorated distribution is hopeful and this court recognized that in the previous decision because your career qual in the previous decision the issue was what should happen with suburban and associates what should happen with the handle jemma generated by those two racing organizations that had never had operating control over a race back in two thousand and two or at any time but if they didn't have in two thousand and two they were absolutely exact with about exactly right they were not said the money that was at the share that would have been generated it was generated by the suburban handle would go to off work and the horsham that was generated by associates handle money goes is distributed pro rata among the remaining eligible recipients this way say it's not that complicated of a case it's laid out in the statute but more importantly it's laid out by this court in its opinion in the  so what do we have here the national jockey club in two thousand and six was eligible there's no question about it now they were eligible because they held a license and they were eligible because they operated respect in two thousand and two in two thousand and eight identical language is used but it's the application of the water to that language this if it thinks it's an operation here because it does set up the mechanism that they were dealing with in their case national jackie club was not eligible  took the position your take on this is the previous decision but it lost because there was no license to be held in two thousand to which means that both or neither required could be met but here the first requirement wasn't and it's only the second requirement that determines how which it goes for a day is is applicable only if you were first eligible well only if only if the parties were unequal position that is each ballot alpha licensed in two thousand of the things in terms of determining legislator and here is to point out their position the court would have to conclude that the general assembly intended as one of the eligible recipients a company that at eligible if not but in practical terms you're asking for a share of the terms we're saying simply this if you were never eligible and therefore did not become eligible you are just like suburban associates was one of the tightest in that part but it isn't in the law consistency is important in the law and this court made that very clear in its original opinion and said you've got to be consistent you're going to construe these statutes eight to two thousand and eight statute and obviously been adopted by that and it systems by them don't if you had a license and you became ineligible if you later became an eligible then the prorated distribution mechanism applies however if you were never an eligible became an eligible licensee then they were never entitle to any share of this of this fund under those circumstances you look at what happened to associate the suburban in the previous opinion and you say generate rose to the track where they ran in the reason because the whole purpose of giving forty percent of the traps in sixty percent of the horse of the equity trust fund the whole purpose of giving them forty percent of the tracks was to improve the backstretch the tracks the marketing the facilities for those tracks so if the horses ran at me would or if the horses ran it off or the running goes where the horses ran existence becomes ineligible all then there's a probate distribution because the statute has a provision for that but otherwise that's not what happens in if it was any other way this court would not have decided to lay asked appeal in the same way with respect to associates you thank you very much and thank you for the opportunity to present today answering a question that was presented a few different ways that the reason that i'm here on behalf of arlington is that it does have a very specific practical effect well over a dollars would suddenly go from a situation where there is a statutory scheme that has the same language with the same identical language with the only difference being that this equity trust fund created in two thousand and six was extended the sunset provision was extended for three more years didn't create a new fund it simply extended for that period of time and hard drawn is arguing that that reenactment that resulted in the three year extension of the identical language should suddenly thousand and nine the arguments that were being made that he was making then prior to the july two thousand and nine date not get to that subject matter jurisdiction issue in a minute but the argument they were making is that you base it on a race track and that decision and there is certainly logic to that is no if the purpose of the act was to enhance the race track experience and they're going to do that by giving the money to the racetrack owners then all those individuals will share equal oh it's one it's not involving a share track a racetrack owner it is involving another entity that runs at a racetrack going to receive money that they don't for consequences on site it's like a racetrack itself that those funds that were meant to improve the racetrack experience at that race track you should go to the and time again to say we have this provision we have the national jockey club provision as it's called the two thousand and two date then we have a final sentence of b two b in both iterations of the statute and that does not say you handed over to the race track it says you distributed pro rata so the only provision in this statute that addresses what you do with the handle of an ineligible licensee very specifically could have said you give it to a racetracks and it does and really that that that is the room for disagreement but but there's no reason why why program applies in this situation based on language and there's no room for disagreement that there is nothing in the statute that says that any one take can take one hundred per cent of another licensees handle and just credit to themselves and keep it that's entirely opposite of what the statute says and we also know well how does a day say it doesn't it stated based on those two provisions regarding holding a license in two thousand and three women be eligible at the time well that answers the question that if it says two thousand and two and it continues to say two thousand and two that's the national hockey club provision and you understand the sportsman's part closed prior to two thousand and six in between two thousand and two and two thousand and six so the reason that the l a legislature was placing the two thousand and two start date is judge ronald called into this statute was because of a desire that national jockey club should be able to contend for a distribution in their own right national jockey club therefore it will never be like suburban downs or so shoots the narrow question in the case that  filed that that went forward was based on that with the board said this is very important we look to the written decision of the board they started on page two issue one who is eligible to receive money from the find first sentence says the language in the statute is clear only certain organization licensees not racetracks are eligible to receive money from the fund then they go on to analyze this global argument other words the general argument that it's based on a race track they rejected it applying principles of statutory construction then they got it when to go through it i mean it says very clearly the statute does not state that the splits are determined based on the aggregate total of zero four or five handle from all indications licensees that operated at a race track then they frame the next issue as very narrowly what to do with suburban dallas and associates and they contrasted it because this iteration of the statute and by the way this was the dialogue that was part of that july two thousand and nine hearing it was argued two thousand eight was argued we argued about two thousand and eight and during that dialogue between chairman snob and hawthorns counsel they explained that wrong because the two thousand and eight ad continues to have that two thousand and two da everybody familiar with the industry knows what that date means it is the national jockey club date so when you read that provision and when the final sentence of the to be talks about the persons referred to above which has to include national tracking club they sent out suburban thousand associates they felt it was silent as to that but clearly it contains the national jockey club provision and both iterations of the statute and then we look to the final sentence of it to be the only provision which discusses what to do with the handle  eligible licensees and what that says is you distributed pro rata to everyone they don't just get to keep the money and this race track argument they've been peddling for three years was rejected then and it should still be rejected now nothing changes it with respect to the decision in the arlington case because it was a narrow issue presented and we even point out that in that case as you can imagine everybody was arguing deference to the four work against arlington and talking about how the board knows best the board interprets their own a racing act on a regular basis the board knows what they're talking about and when it comes to this national jockey club question they were stating it in very specific terms that everyone on that board and everyone in that room when we argued the issue knew that the two thousand and two date referred to national jockey club when they talked about suburban towns in the so end we want to reiterate that the board wasn't he goes through the language and says it is clear and the board of mit's at the board's interpretation of the phrase has no direct support in the language of the statute and concludes it is impossible to glean from the instruction how exactly to program a distribution the was going to be redistributed to everybody now the supposition that that suddenly was intended to change we all agree that the legislative history says that the only purpose of the two thousand and eight act was to extend that the sunset provision for final sentence which says you can you distribute pro rata to everybody that it ignores the man behind the curtain and really get to keep all the cash it should suddenly be this will fall in two thousand and eight that doesn't make any sense and they try to say that it's based on track wear and tear back in two thousand and four and two thousand and five let's think about that for a moment that would mean that i think what i heard was in two thousand and six in two thousand and seven closer in time in proximity to the time the national  the legislature said no no national jockey club money gets spread among everybody but in two thousand and eight a few years later long after national jockey club wasn't running at halakhah on long after those racing days had been redistributed both between arlington hawthorne that suddenly what the legislature really intended was for a windfall of cash to fall hawthorne's way to the detriment of arlington they would embalm world remaining folks in industry i don't think that makes any logical sense i don't think that's a reasonable construction of the statutory language and i don't think anyone can defensively say that the legislature could possibly have intended that type of result the other point i want to point out in terms of that middle paragraph a fee to be the talks about what you're supposed to do with the money i mean yes your one question sure would you agree that the statute has got does have some ambiguities i think it takes a long time to get through so for anyone to say that there's anything straightforward about this  it would be incorrect i think it takes a lot of time to parse and sort through i think if you if anyone wishes to take the time to review the briefing that we submitted in connection with the other case we thought it was one of the first times we saw somebody beat their against the wall and throw their hands and say it's impossible to understand what this means we don't find any support for the statute we're going to let the racing board do what they want with superman doesn't associates we think that what what happened was a mistake in that regard so yes  i think that this is a challenging statute to get through and i do think that there are ambiguities in certain aspects of it but what then j c i think at the end of the day we have a clear provision that is known as the national jockey club provision they can't deny that they've never been able to explain they couldn't control like two thousand and nine and they can't today at that date isn't there plainly evidence is the idea that in and j c was supposed to contend for distribution at some point under the current year meaning your distribution they became  track wear and tear it talks about marketing it talks about general operations it is a very broad provision so anyone suggesting that this is all tied to fixing up the track i don't think that the evidence would show that's what hoffer on did with the money and i certainly don't think it was limited in their regard so i don't think that's consistent and i don't think it legislative intent argument can be made in that regard when we can all see the legislative intent was simply to extend it for three years under the identical find the final point it's kind of in reverse order as i expected to go we did raise the issue of subject matter jurisdiction we do think it is a threshold issue it is undisputed that hawthorne did not file an appeal within thirty five days of the july fourteenth two thousand and nine session of the only recent board thorne attempted to argue that subsequent distributions of the actual money in accordance with the decision that was rendered previously by the on my recent board should constitute a new and separately appealable decision both the board in arlington moved to dismiss that argument in the underlying proceedings on the basis that an appeal was not found within thirty five days of the july two thousand and nine decision when it was first raised by hawthorn chairman sanaa but we immediately wrote hawthorn and said we are already decided this ten years ten months ago  was rejected the quote is in our papers in terms of the exact quote from the only recent board but i don't think there's any dispute that they responded this was already decided and you didn't appeal the issue we understand that hawthorne is arguing today that because the actual money that were certified it and july two thousand and nine where the monies that had been deposited into the equity trust fund under the two thousand and six act that therefore that would restart the period in connection with monies that are in the two thousand and eight act and the distinction we think is important here is that there are other cases and we've cited them to the  or pension benefit cases and there was a decision that interpreted the statute first and foremost and then after that distributions were made on an ongoing basis based on the stage for a construction decision that had been made and we believe cases are analogous here because if you read the transcript if you look at the decision i don't know racing for what they said the two thousand and eight act four times in the decision i don't think there's any dispute that we all sat in that room believing and knowing that the decision as to statutory construction was being made on july fourteenth two thousand and nine in accordance with the written opinion and on a date when the two thousand and eight act or better already been in effect for a year that we all understood that that decision was going to control for all future distributions and how thorn either made many of the same arguments they were making today which they didn't appeal the decision within thirty five days or this idea that there's a distinction between zero six and zero eight wasn't made at that time and we believe that argument is untimely especially when what the board did is actually very helpful thing they handed out the decision ahead of time allowed us to comment on it and we argued based on the board basically saying here's a step memorandum here's what we're going to be ruling i think tell us how you disagree with it we all knew what was being decided it was a two thousand and eight x sided throughout and we believe the claim is far as untimely and the other questions may answer thank you general representing the board our position is that we have no position on the subject matter jurisdiction of the circuit court we have taken the position that this court has appellate jurisdiction to review the circuit court's decision including matter jurisdiction and that is not the board's position before this court this the the board has no position on that issue before this court but the circuit court i believe concluded that the application of the two thousand six act distributions could have changed to based upon future events and it was not possible then for the determination made by the board with respect to those those distributions to govern a future distributions under the two thousand and eight act when you know so one of the licensees could have gone out of business or something else but changed it was a future bundle of facts or set of circumstances that couldn't have been preordained or decided in that case nonetheless we think that there are dramatic similarities between the two statutes the meaning of the two statutes and the application to two statutes as i as i would like to address on the merits of you should before the court he briefly by way of of introduction my distinguished opposing counsel for hawthorn has indicated that this is a straightforward a matter of statutory interpretation but i would liked to  this as this dispute is one where the board has consistently maintained the same straightforward interpretation of the statute under both things and drawing a distinction between the right to receive  that you have to satisfy before you can be coming in eligible to receive a distribution under the redistribution was are not identical to the quite ceria under which you have a right to receive a distribution under the preceeding seven graphs depending upon whether your fairmount sup there after a or the other five entities that were you know blocked and frozen in terms of a permanent identification of who might receive  distribution the worst position has been consistent and i want to point out that hawthorne's position has been inconsistent they argued first that there had to be an identity between those two provisions that the redistribution cause was applicable or could apply only for somebody who met all the criteria in the preceding paragraph entitling them to receive the distribution and with that with their position before the board the july fourteenth two thousand and nine hearing being current year for that provision meant europe distribution then in their letter to the board with respect to the two thousand and eight act and in their opening brief in this court they said no no no the board must of manton said that the right to receive the distribution under the prior provision means the year an act not the year of distribution and here they appear to have again departed from even that second this new criterion which is you had to be entitled to receive the distribution at least when the statute was enacted before the pro rata provision can apply now they don't point anything the statute that says that they allude to non existent legislative history because the legislative history goes the opposite way but they have now shifted position three times the british position has been consistent that the statute doesn't say these are the criteria for being a person who can be and those criteria are the right to receive a distribution the statute says a person identified in this paragraph to be comes you know as will well the only way you can become ineligible everybody agrees is by not having a license at the time of just you and so the only sensible interpretation of that phrase a person identified in this paragraph to it is somebody who meets the  prior litigation arlington vs the racing board current year has been adopted it's the one that makes sense from the policy perspective we don't want distributions actually going into the hands of persons who would otherwise  might receive a distribution but on an operation so current year means current year and you can't have it both ways you can't say that the criteria you have to set up satisfy before you can become ineligible and that's either same criteria that mean that you have to receive the distribution this was pointed out of the tri fourteenth hearing and hawthorn has never come to grips squarely with this proposition they finally in their reply brief writers for retreat and say well current year can mean current year wark subdirectory air p but then if you lose the license during that year then you don't get the distribution but this is playing this is playing jimi rigging the statute to change the language that the legislature used to try and reach a result we've got all sorts of legal theories in search of a single outcome but none of those legal theories are grounded in the text of the stairs two or the legislative history and they're inconsistent with this court's prior rul i want to emphasize one key point here which relates to the fact that the qualifying position is not grounded in the text of the stash but the parts from the the text of the statute it in multiple ways but the most significant way as they use the word eligible repeated likely to describe the right to receive a distribution well there's a semantic ambiguity there that they se they're treating eligible in the sense not of just being among the group that could get a distribution if you meet additional criteria they're using eligible in the sense of you've already met all those criteria and so you get a distribution and i think the best comparison is in like a lot of the statute regulations where they say you're eligible to win a prize only if you're eighteen years old and not an employee of the of the law before ok well i back in and i say i meet those elderly criteria give me the prox and they said no no no wait you're confused eligibility doesn't mean winning the prize eligibility doesn't mean you get the money eligibility the poor has said although that's not the phrase used in the statute it person identified in this paragraph to the board said means meeting the fixed quite serious in the statute which if you were also have a license in the current year then you have the right to receive a think on this point is unambiguous there's no reasonable interpretation pursuant to which you can do what they do and read the redistribution was out of the statute which is what the reading would do but in addition the years that i used to determine the shares of the various recipients from the find two thousand and four two thousand and five i years in which national jockey club and ha front were sharing operating control under a joint venture of cloth or ins track so often wasn't exclusive operator and contributor to those expenses and when the two thousand and eight act was reenacted if national jockey club was out of business why does it make any sense to give offshore in the entire share of national jockey clades handle equivalent if you will when it's no longer running anyway says where under an arrangement with national jockey club n g c was no longer running any race when the two thousand and act was pas i'd like to just answer some of the passions that were follow up on some of the questions that the that the court raised from other  nowhere sads that a criterion for receiving a distribution or that you have to satisfy before you can become ineligible to receive a distribution is having a license in the year of an accident of the  understand that in the court's prior decision there is reference to the fact that national jockey club did have a license in two thousand and six when that statute was passed and i think walker seizes upon that because the rest of the decision entirely but i think the reasoning of the court in my in my eye servatius about its significance focus on a slightly different point which is the president wasn't saying that to establish some new weak point in the statute that nowhere appears in it in order to  render the pro rata was applicable it was simply saying that national jockey club had previously been eligible to receive a distribution and it lost that eligibility and it shows as an example of the point in time of prior eligibility two thousand and six so in the language of logic that was a sufficient condition to trigger application of the redistribution was but the court never said it was a necessary condition that being a licensee in the year when enactment is a necessary condition for application of the redistribution was under the two thousand and six act or the two thousand and eight act and of course the statute never says that board's ruling offer didn't appeal to the extent collateral stop applies it applies to the worst decision to the extent it wasn't over were overruled even on points that this court didn't specifically address and decide and that would include that of the fundamental aspects of the board's ruling in the prior decision that negate the position that hawthorne has taken until finally it appears in its reply brief where without any any other place to stand that retreat to the notion that there is something new thing that should be read in the statute it doesn't appear anywhere it's now the new criterion before which the pro rata was can apply their argument is this circular in the beginning because it the just a bit in answer to a couple of questions that weren't absurd the difference in this case is not whether national jockey club gets any money or doesn't everybody agrees that it will never get any good of the money that's ensued in this case the question is simply whether thousand and eight act it's critical that the legislature saying we centrally want to do this the same way we did before and hawthorn said it's going to apply in the same way although they've now departed from their position they used again the two thousand to yours hawkins reply brief doesn't address the significance of that because they can't the only reason that the two thousand and eight act continued to use the two thousand two year was as everybody agrees that was to ensure that national jockey club would be main within the entities who were i use the the board's phrase you know among those to whom a distribution could have been made if any of those people also had a license in the current year that's the only possible purpose for doing that now the practical effect of doing that may not have been because national jacket club was out of business to intense to have the distribution go to it but it clearly shows that that allocation among the other players who still had licenses was going to be the same and that the redistribution clause was going to continue to apply in the same fashion that it did in less the court has new digital questions we urge the port to affirm the board's decision if the court can close that there isn't any ambiguity that we were to the court to defer to the board's position and to affirm the circuit statue item four of the board meetings identified minutes identified as quote the request submitted by staff to calculate in the distribution of the moneys horseracing trust fund section fifty four point five of the horse racing certification only includes funds generated by way of the active hospital nine hundred eighty only with any further we certainly covered for if there was there is no issue here about filing a notice of appeal following  search for there are no in the in the staff memo that relates to this case that the staffs that the language of the statute is clear only certain organizational licensees that restricts are eligible to receive money from the fund to be eligible for a split of the fund two conditions must be met a person must have had majority operating control recent so in two thousand  the law it put a line through it doesn't exist but that's not what they were saying you know earlier places in this in earlier instances during these proceedings that's what they were saying in the circuit court this this is a made up a whole lot argument the less they do there they cannot deal with the eligible becoming eligible problem the only time that redistribution provision kicks in is when you're first eligible you become you know