After a nearly ten-year court battle, the Kentucky Supreme Court now has everything it needs to determine whether one type of the historical horse racing devices is actually legal.
The Family Foundation filed its reply brief, the last of the written arguments in the case, on Nov. 21. The next step in the case will be oral arguments before Kentucky’s seven Supreme Court justices.
The case boils down to one issue under Kentucky Law – it must be “pari-mutuel.” Here are two versions of that question: “Are the patrons wagering “with” or “among” or “against” other patrons?” Asked another way, “Are patrons required to be wagering on the same event in order to be engaged in pari-mutuel wagering?”
Despite attempts from the Horse Racing Commission and Racetracks to distract from that issue with attempts to discredit The Foundation and attack it for bringing attention to a number of irregularities throughout the case, undisputed facts clearly establish that patrons are NOT wagering on the same event and are NOT wagering with anyone else. It is only the device, the patron, and their own private video on the machine each time he/she bets.
The Kentucky Horse Racing Commission claims that patrons wagering on different races doesn’t matter. But there is a MAJOR problem with that claim, any reasonable interpretation of “patrons are wagering among themselves” in a manner consistent with the ordinary use of those words requires patrons to be wagering on the same race.
So, the ten-year case essentially all comes down to what the definition of “is” is.
Which law to use is clear. The facts about how the devices work are clear. The Court just has to decide whether to apply the law to the facts in a way that is consistent with the plain and ordinary meaning of the words — OR, change the meaning of those words and preside over the largest gambling expansion in state history.
If the Commission and Racetracks had provided the necessary facts when they brought this case in 2010, which was their duty, the primary issue of the case would have known and the Court could have ruled years ago. But the Commission and Racetracks robbed the Court of that opportunity when they failed to provide the facts required by law and blocked The Foundation from discovering any facts to provide the Court with.
In 2013, the Kentucky Supreme Court ruled that facts were necessary to understand how the devices worked and rule on whether they are legal. The Franklin Circuit Court was ordered to allow The Foundation to conduct discovery, which it had wrongfully denied. But the Commission and Racetracks did not always cooperate. They opposed and prevented a demonstration of the devices to the court, making discovery more difficult, longer, and costly. Then they dumped tens of thousands of pages on Stan Cave, The Foundation’s attorney, as the deadline for discovery neared.
The delay in providing the courts with the facts needed to answer the question asked by the Commission and Racetracks has had serious consequences for Kentucky.
Additional types of devices were created, thou-sands of the machines were licensed and began operating, and “racinos” are now collecting billions of dollars from Kentucky’s families. But now the case is back before the Kentucky Supreme Court and the law can be applied to the now-known facts. If done in a manner consistent with the plain meaning of words, the Court will have no choice but to put a stop to these historical horse racing devices because they are not pari-mutuel, and thus unlawful.