Instant Racing Article 4-2013

April 2013

Cave prepares TFF briefs for KY Supreme Court

The “Instant Racing case,” ultimately, will decide whether the right of discovery exists when facing off with a Governor.

Last year, 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. With that right denied at the trial court, the appeals court vacated the original decision and remanded the case back for retrial.

“The bottom line is that everyone deserves their day in court,” Kent Ostrander, executive director of The Family Foundation, said at the time. “We were denied ours at the trial court level and the Court of Appeals agreed.”

The victory was sweet, given the series of uphill circumstances that raised questions as to whether The Family Foundation was even going to have a chance to discover evidence, develop proof and cross-examine witnesses.

But, the celebration was short-lived.  Instead of going back down to the trial court, gambling proponents moved the Kentucky Supreme Court on July 17 to review the holding of the Court of Appeals. On Jan. 11, 2013 that Court took review of the case, surprising court watchers because now there is a chance that The Family Foundation may never be able to ask questions.

Citizens must consider the fact that The Family Foundation was denied discovery, was confronted with irregular court motions and regulatory decisions, and was pitted against a total of 13 attorneys for the state and the race tracks.

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 scheme 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.

“We are confident that we can prove that these ‘Instant Racing’ machines are unlawful under the current Kentucky Revised Statutes,” said Ostrander. “We just need to have our Constitutional due process right of discovery properly granted.”

Stan Cave, The Family Foundation’s only attorney in this case, must file three briefs by May 10 in response to the Administration’s three-pronged judicial argumentation.  Oral arguments will likely be scheduled for this Fall.




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