Instant Racing Machines

Instant Racing Machines

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Judge Delays Date for Instant Racing Trial

Attorneys are seeking trial date and scheduling deadline

A Circuit Court judge said Nov. 3 he would issue a ruling within two to three weeks on a motion seeking a trial date and other deadlines in connection with a lawsuit challenging the legality of historical racing in Kentucky.

Following a brief hearing, Franklin (Frankfort) Ky. Circuit Court Judge Judge Thomas Wingate said he would review briefs submitted by both parties and rule within two to three weeks on the request from attorneys representing the Kentucky Horse Racing Commission, the state's racetracks, other parties on the scheduling of deadlines for discovery and a trial date.

The case before Wingate is a result of a Kentucky state Supreme Court ruling earlier this year that stated The Family Foundation of Kentucky, which is challenging the legality of historical race wagering, has a right to discovery on the issue of whether the electronic form of gaming is "pari-mutuel."

Modeled after Oaklawn Park's Instant Racing gaming, historical race wagering involves wagers placed through machines that resemble slot machines but base payouts on a pari-mutuel formula. The outcome of the game is determined by the finish of a previously run horse race displayed in a small window on the machine. The player does not know the identity of the race nor the outcome before making the wager.

The KHRC has deemed historical race wagering is pari-mutuel because it involves a common pooling of wagers to determine payouts and the regulatory body has implemented regulations dealing with historical racing.

In its ruling, the Supreme Court recognized the KHRC's decision to allow and regulate historical race wagering, but said, "Whether the actual operation of wagering on historic races violates the gambling provisions of the Kentucky Penal Code is dependent upon facts not in the record and therefore, this action is remanded for further proceedings in circuit court."

In the motion seeking a trial date, the racetracks' attorneys argued that the deadlines are needed to move the case along, stating that discovery requests made by The Family Foundation's attorney exceed the boundaries established by the Supreme Court.

"Both the Kentucky Supreme Court and this court (Circuit) clearly have held that the only permissible discovery in this case is that which goes directly to whether wagering on historical horse races constitutes pari-mutuel wagering," and that the discovery in the case should be confined to that question.

The Family Foundation continues to seek discovery that exceeds the scope defined by the courts, the attorneys argued and have made few requests for discovery "relevant to the only remaining issue." That, the attorneys said, is dragging out the case.

The Family Foundation countered that the request for a trial date is premature and that the other side has not answered but instead delayed or objected to its discovery requests and included examples of information it has sought but which has not been produced.

For example, the filing said Kentucky Downs, one of two tracks where historical race wagering has been implemented, "has not produced the computer programs and codes which control how the wagering works nor is it providing any assistance in securing the locations of the codes. This is 'material' since the Instant Racing devices appear to be Internet-based gaming where the material functionality of the devices are at off-site, out-of-state, remote locations, and controlled by persons/entities which are not parties to this case," the filing states.

Also, Kentucky Downs will not permit inspections of its machines unless the Family Foundation meets certain conditions outside the Civil Rules, according to the filing.