Instant Racing Article 6-2012

June 2012

The Family Foundation wins Instant Racing at Appeals Court

Denied the right to “discovery,” The Family Foundation goes to court and triumphs

On June 15, a three-judge panel at the Kentucky Court of Appeals ruled 2-1 in The Family Foundation’s favor emphasizing that the constitutional right of discovery was vital to the Instant Racing case. The fact that the right was denied requires that the original decision be vacated and the case be tried all over again.

“The bottom line is that everyone deserves their day in court,” said Kent Ostrander, executive director of the Family Foundation. “But we were denied ours when the lower court said we could not ask any questions regarding what the other side was presenting.”

The crux of the opinion read as follows: “We conclude that the request for discovery by (The) Family Foundation was relevant and necessary to the court’s determination and that the court’s denial of discovery constituted an abuse of discretion.” [Emphasis added]

The victory was sweet after a series of uphill circumstances raised questions whether The Family Foundation was even going to have a chance to discover evidence, develop proof and cross-examine witnesses. Consider the fact that The Family Foundation attorney, Stan Cave, was denied discovery, was confronted with irregular court motions and regulatory decisions, and was pitted against 13 other attorneys.

The effort to use the state judiciary was engineered to expand gambling across the state after Gov. Beshear’s legislative and special election tactics failed to legalize expanded gambling via the General Assembly.  This new approach enabled the race tracks and the gambling interests to exert their influence in a whole new way.

The effort ultimately enticed a Department, a Commission and two Cabinets of the State Government to join with eight race tracks to attempt an unprecedented expansion of gambling using a contrived court case where the participants actually sued themselves in what is called an “agreed case.”

The Family Foundation petitioned the court for entrance into the case and was granted such, but was then told that no discovery would be allowed. In other words, no questions could be asked of those who initiated the case.  It was this denial of due process that was the backbone of the decision overturning the circuit court’s actions.

Well prepared, Cave argued the case before the panel on April 25 without notes, speaking about the facts of the case and responding to questions by the three judges.  Those present recognized that he had won the day when the other side, using three different attorneys stumbled through their presentations, flipped through pages of notes and, on occasion, contradicted one another.

The court’s decision was released 51 days later fully affirming Cave’s argument that The Family Foundation had indeed been denied the right to inquire and question the gambling proponents’ assertions.

Scheduling the new hearing in the Franklin Circuit Court has been delayed because on July 17 the gambling proponents moved the Kentucky Supreme Court to review the holding of the Court of Appeals. The Family Foundation must respond to their motion for review before the Supreme Court decides whether to take the case or allow the Court of Appeals decision permitting discovery, questioning and a retrial to stand.

P.O. Box 911111 Lexington, KY 40591 859-255-5400