The Kentucky Court of Appeals is expected to issue an opinion on the challenge to Instant Racing machines in four to six weeks, one of three judges said April 25 after hearing oral arguments on the issue.
Judge Sara Combs called it an “important case” for the state and the Kentucky Horse Racing Commission, which adopted regulations authorizing Instant Racing last year.
“We will take a thorough look at it,” Combs said. “We’ll try to get an opinion to you in four to six weeks.”
The courtroom was packed for the hearing, which lasted more than an hour. Oral arguments were made by the Family Foundation of Kentucky, which appealed a Kentucky Circuit Court ruling upholding Instant Racing as pari-mutuel, and the three parties that first asked for declaratory judgment: the KHRC, Kentucky Department of Revenue, and the state’s eight racetracks.
Attorneys for the KHRC and racetracks argued the case is strictly about the legality of the regulations adopted by the racing commission and approved by the Legislative Research Commission, not about the legality of individual Instant Racing games, which resemble video lottery terminals but are based on the results of historical races.
Family Foundation attorney Stan Cave said the question of how odds are set on the games hasn’t been answered—he questioned whether the devices are truly pari-mutuel—and also noted an opposing attorney, Bill Lear, stated in his arguments state statute is “silent” on historical racing.
“This is a ruse,” Cave told Combs and fellow judges Joseph Lambert and Janet Stumbo. “It’s all a shell game. We ask you to reverse the circuit court ruling, and if not, we ask that it be vacated.”
Lear, who represents Keeneland, Turfway Park, and Players Bluegrass Downs but spoke on behalf of all eight racetracks, cited previous court cases in his arguments and also attempted to explain that “there are different ways to construct pari-mutuel pools.” He said original pari-mutuel pools evolved as the racing industry has expanded its wagering offerings.
Lear used “carryovers,” such as those for a pick six, as an example of how patrons can wager on different races on different days but still be betting into the same pool. The judges throughout the hearing raised questions about the nature of pari-mutuel wagering as it relates to Instant Racing.
“We literally don’t know what we’re talking about here,” Lambert said.
Industry officials expressed confidence after the hearing that Instant Racing will be upheld by the appeals court. Thus far only Kentucky Downs is operating the machines; Ellis Park is installing them and should have its Instant Racing parlor open in time for its live race meet that begins July 4, track owner Ron Geary said.
“These are the same arguments we heard (in circuit court), and I’m confident in our legal position,” Kentucky Downs president Corey Johnsen said.
“I feel our side proved its point that the racing commission had the power to do what it did,” Kentucky Horsemen’s Benevolent and Protective Association president Rick Hiles said.
Whatever the result, the case could go to the Kentucky Supreme Court.