Instant Racing Article 7-2012

July 2012

With their Court of Appeals loss, gambling forces are now grasping for the KY Supreme Court

Rather than fully retry the case as the Court of Appeals mandated, they are appealing the case to the state’s highest court.

201207 B“No one can refute that we were denied our day in court when we were forbidden to ask questions in the Franklin Circuit Court,” said Martin Cothran, senior policy analyst for The Family Foundation.  His remarks came on July 16 after the Beshear administration and the horse racing tracks, stung by an appeals court ruling that did not go their way, filed a motion to bring the issue before the Kentucky Supreme Court.

“We would be stunned if the Supreme Court accepts review when, as the appellate court agreed, it is so clear that our basic constitutional due process rights were denied,” said Cothran.

The Franklin Circuit Court’s ruling was vacated on June 15 by the Kentucky Court of Appeals and the case was remanded back to the trial court.  On Monday, July 16, the last day that an appeal of the June 15 ruling could be filed, the Kentucky Horse Racing Commission, Kentucky Department of Revenue, and Kentucky’s eight race tracks all filed briefs asking the Kentucky Supreme Court to review the case.

“In April of 2011, the Supreme Court unanimously denied a nearly identical request by the same parties,” said Cothran. “Nothing has changed.  There is no reason for the Supreme Court to change its mind.”

Stan Cave, The Family Foundation’s attorney, has argued from the beginning of the case that “Instant Racing” is neither “horse racing” nor “pari-mutuel wagering” as is statutorily required.  The Instant Racing gaming scheme raised more questions than there were answers, however.  It was on that basis that the Court of Appeals concluded  “. . . 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.”

The public agencies and the race tracks are now petitioning the Supreme Court to try to prevent The Family Foundation from asking questions, reviewing documents and cross-examining witnesses – rights guaranteed to all litigants.

“After an 18-month court battle before the Court of Appeals decision, we were looking forward to a complete trial with all the facts on the table through the discovery process,” said Cothran.  “It looks that they don’t want that and it makes me wonder what they want to keep hidden.”

Another looming question that the case raises is “How can government agencies tasked with regulating the race tracks allow themselves to become instruments of the ones they regulate?”  This and other paradoxical questions will be answered if the case goes back to the trial court.  If the Supreme Court accepts review, questions such as these may never be answered.

The Foundation will file its brief in opposition to the high court review by Aug. 15.  Court watchers expect the Supreme Court to rule on the motion to review this Fall.

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