Instant Racing Article 9-2010a

September 2010

Eight race tracks, two state agencies ask court to expand gambling; TFF intervenes

The Family Foundation’s lone attorney is taking on 13 attorneys represented by government and the gambling industry.

201009a GLike David, The Family Foundation attorney Stan Cave must have felt in need of a good sling when he had to face the work of not one, not two, not three, but 13 attorneys in a Sept. 20 hearing before a Franklin Circuit Court judge in the legal fight over a form of expanded gambling called “Instant Racing.” Cave stood toe-to-toe with some of the highest priced and prestigious lawyers to be had, most of whom had been hired by eight of the state’s horse racing tracks—the same ones that have been pleading poverty in recent years.

The Kentucky Horse Racing Commission, the Kentucky Department of Revenue, and eight of the state’s horse racing tracks petitioned the court for a “declaratory judgment” asking for a determination by the court that Instant Racing was legal. But The Family Foundation protested that the action essentially constituted a one-sided legal case, since the only parties to the case were those in favor of Instant Racing. The Foundation made a motion to allow it to enter the case, which the judge allowed.

At issue is a form of gambling that two state agencies and the state’s horse racing tracks portray as “pari-mutuel” wagering, a legal form of gambling that includes betting on horse races. But Cave argued that Instant Racing machines are nothing like pari-mutuel wagering and that the Beshear administration and the horse tracks have to completely re-define words in order to argue that they do.

In Instant Racing, bettors wager on videos of one of thousands of previously run horse races, each bettor betting on whatever race happens to come up on his machine. According to Cave, state law defines “pari-mutuel” wagering as involving a live, future event. But since the races happened in the past, they cannot be considered pari-mutuel wagering.

Lawyers from the Department of Revenue who were drafting the regulations to allow Instant Racing even went so far as to redefine the term “live racing” to include videos of past races on the grounds that the race would “seem like live racing” to the bettors.  “With a stable of accomplished lawyers, the vast resources of state government and eight race tracks,” said Cave, “proponents of video slot machines, which some refer to as Instant Racing, are to be given credit for creativity. Fortunately, inventiveness is not the standard.”

“Through betting on a video of a previously run horse race, a single wagerer could bet on a movie of the Seabiscuit-War Admiral match-up in 1938 at the Pimlico Race Course,” said Cave, “even though the race occurred 72 years ago and Seabiscuit died in 1947 and War Admiral in 1959. The wager is on a movie. The outcome is known. The race occurred in the past. Both horses are dead. There is no mutuel pool of wagers or wagerers. The wager is not made on a device before or during the race. The chance of winning is pre-determined.”

“They’re essentially arguing that we can have live racing with dead horses,” quipped The Family Foundation’s senior policy analyst Martin Cothran, “brought to you by the Beshear administration.”

Despite the expensive, high-caliber legal talent the horse tracks brought to bear on the case, Cave left the courtroom on Sept. 20 with the army of lawyers huddled together, trying to figure out what to do next.

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