Instant Racing Article 1-2011b

January 2011

“Instant Racing” case is corrupting the oversight process . . . perhaps permanently

201101b HThe Family Foundation expresses serious concerns at two levels: First, the regulations violate Kentucky law and should be deemed deficient; and secondly, that the entire judicial effort creates a dangerous precedent, placing the judiciary system over the legislature.

The “Instant Racing” court case initiated last summer has enough intrigue and story lines to become an epic novel or HBO made-for-TV movie.  The latest twist is that those pushing video terminals petitioned the Kentucky Supreme Court on Jan. 28 to bypass the Kentucky Court of Appeals and simply rule on the current case emerging from Frankfort Circuit Court. They have even asked The Family Foundation to join them in their petition, even though The Foundation entered the case because, until its entry, the Circuit Court judge was poised to allow the proponent’s uncontested petition to set a government-changing and state-changing precedent.

Delaying Tactics

All along proponents claimed the need to go to court in order to rush the decision so they could save the horse racing industry with an influx of money derived from this new type of gambling.  At the same time, they have actively postponed the legislative oversight process not for one month, or two, or even three months, but actually four months in a row.  So, in essence, they are now delaying the implementation of the “Instant Racing” machines, if, in fact, they are found legal.

Questionable Case Substance

Observers are skeptical that they will ultimately be found legal, especially in light of the fact that the statutory requirement of “live racing” cannot be met with videos of previously-run races.  Similarly, it is not possible to meet the statutory requirement of “pari-mutuel wagering” (requiring patrons to bet against each other) with a patron standing alone, betting alone, and watching alone a race of which no one else is aware on a video slot terminal.

But it is not just the substance of the arguments made by those who would expand gambling, it is also the process that they have taken.

Questionable Process

201101b IRemember, the “plaintiffs” chose to sue in a friendly lawsuit, with no opposing party, hoping that the court would simply rubber stamp their plans.  Unfortunately for them, The Family Foundation intervened in the case and quickly discovered that four of the ten affidavits that were used to swear to the activities of those creating the regulations were signed on the day before the event to which they testified occurred.  How can a witness swear that “something has happened tomorrow?”

But it gets even more bizarre – when The Family Foundation asked to do discovery on the above-mentioned affidavits and other matters, the court refused, in essence saying you can be in the case but you can’t ask any questions. Questions, of course, are what bring truth to light. The court’s restraint is tantamount to saying: “You can go swimming, but just don’t get wet.”

Balance of Powers

If these things were not enough, it has become obvious to even the novice court-watcher that this case could literally change the balance of powers outlined in the state constitution. Very simply, if the legislature cannot do its job legislating and then overseeing that which has been legislated to be sure it was properly implemented (through regulation), then it has lost its power to legislate. In this case, the Governor’s administration has gone directly to the courts seeking agreement with their interpretation of the law, with their regulations and with their process to get them implemented, thus circumventing the legislature.

What happens if the oversight committee of the General Assembly disagrees with the court and its findings?  Does that mean we enter some kind of constitutional crisis?

Given these legal questions, some small and some profound, those trying to expand gambling may wish they never went to court to sidestep their problems in the legislature.



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