The Kentucky Supreme Court voted Jan. 11 to take up the issue of Instant Racing at the state's racetracks.
Six justices voted to hear an appeal brought by Gov. Steve Beshear's administration and the tracks to reverse a decision by the Kentucky Court of Appeals that sent the case back to Franklin Circuit Court for further deliberation and proceedings. Justice Wil Schroeder did not hear the request for review.
Instant Racing, initially started at Oaklawn Park in Arkansas, is a form of electronic gaming resembling traditional slot machines. The outcome of the game is determined by the results of previously run horse races, with a three-second video of the race superimposed in a small window on the screen as the reels spin. The player does not know the outcome of the race until after the game is over. It is technically referred to as "historical racing" in Kentucky.
The Kentucky Horse Racing Commission has determined, and the state's Attorney General has agreed, that Instant Racing is legal because it is based on races that were previously run and therefore complies with regulations regarding pari-mutuel wagering.
Instant Racing has proven a boon for the only two tracks that offer the new form of gaming—Kentucky Downs in Franklin and Ellis Park in Henderson. The state's other tracks have not started Instant Racing while awaiting the outcome of the litigation and/or because of concerns about whether it would be appropriate in their respective markets.
The Family Foundation of Kentucky had challenged Instant Racing and won before the Kentucky Court of Appeals, action that was considered by the Supreme Court in its Jan. 11 decision.
The appeals court ruled last year that the request for discovery by the Family Foundation, which is challenging the legality of Instant Racing, "was relevant and necessary to the court's determination, and that a lower court's denial of discovery constituted an abuse of discretion."
The appeals court said it is "unable to address the merits of the remaining issues" because of the lack of discovery. Martin Cothran of The Family Foundation told the Lexington Herald-Leader he was surprised that the high court accepted the case, but remains confident The Family Foundation will prevail.
"It was headed back to the trial court where we were finally going to get to ask questions—something totally barred by the Franklin Circuit Court," he said. "Because the right of due process is so fundamental, by taking the case the Supreme Court may be signaling that it sees this case as nothing more than a rogue state agency attempting to legalize expanded gambling by regulation with no legislation or Constitutional amendment."