Instant Racing Article 2-2013

February 2013 – Opinion

Reshaping Kentucky . . . and jurisprudence in America

The Family Foundation won at the Appeals Court, but now it’s before the Supreme Court WITHOUT a complete record.

201302 LMost Kentuckians have little understanding of the “Instant Racing” case that the Kentucky Supreme Court is about to hear. The implications of the final decision could not only reshape Kentucky but, more importantly, change jurisprudence in the Commonwealth for years to come—all without a single vote of elected lawmakers.

The Instant Racing case on its surface is about whether Kentucky law allows certain forms of gambling most everyone has always thought were prohibited.

There are four specific issues in the case. First, whether videos of old horse races, showing horses, some of which have been dead for years, count as “live” horse races. Second, whether individual wagering on the bettor’s own video lottery terminal on his own specific event can legitimately be called “pari-mutuel wagering” (betting against other people in a pool on the same event). Third, whether gambling can be massively expanded by regulation—by a simple stroke of bureaucrat’s pen. And, finally, whether a public agency can avoid compliance with Kentucky’s open records law by claiming a “common interest” with those whom the agency is commissioned to oversee.

As of today, only two race tracks have installed the machines, and six more tracks are waiting.

The crux of the case has now become an issue that has nothing to do with gambling itself, but, rather, with the integrity of the judicial system. When The Family Foundation was first granted entrance into the case in September 2010, most everyone expected the case to move forward, as cases do, with discovery – a process where questions can be asked about facts, figures and perspective – and then ultimately a trial followed by a ruling.

But the case took a sharp detour: The Family Foundation was completely denied the right of discovery before it had ever made an argument or asked a question. It was disallowed from asking any questions about whether the so-called “Instant Racing” terminals were really just camouflaged slot machines or whether they were really “pari-mutuel,” the only kind of gambling Kentucky law allows.

On June 15, 2012, the Kentucky Court of Appeals agreed that The Family Foundation had not been allowed to engage in discovery. The Appeals Court sent the case back down to Franklin Circuit Court to ensure that there was discovery and a trial. When the Kentucky Supreme Court intercepted the case on its way back down to the trial court, the case moved instead to the state’s highest stage with no factual record whatsoever.

If the Kentucky Supreme Court rules that Instant Racing is lawful, it will have done so without so much as one judge even seeing any of the machines that are the very issue in the case. Not only that, but casino-style gambling will have been legalized without a single vote of a single lawmaker.

Well, I should take that back. There was one vote: a 4-to-1 vote by a legislative oversight committee early-on in the process AGAINST the regulation allowing the machines. Five were needed to defeat the regulation, but two legislators were mysteriously absent.

The issue at stake is perhaps the most basic legal principle: due process—a principle that ensures that wealthy, powerful interests cannot receive special treatment under the law. It is a principle so basic it is enshrined in the U. S. Constitution.

Numerous irregularities in this case—which involves a politically powerful industry—are hard to ignore. For example, why were 4 of the 10 Kentucky Racing Commission affidavits signed and dated on the day BEFORE the meeting they attested to actually happened? And why was there no substantive discussion in the minutes of the Racing Commission’s meeting when the regulations were approved?

The Instant Racing case could end up being the first court case in Kentucky history decided without allowing one side its due process right of discovery. And what’s worse, it would set a precedent.

Allowing a wealthy and powerful industry allied with an administration which got elected partly through campaign contributions from that same industry to institute a law that elected lawmakers never passed is bad enough. But the corruption of the law that would have allowed it to happen could prove much worse.

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