FRANKFORT — Franklin Circuit Court Judge Thomas Wingate heard arguments Wednesday in an instant-racing lawsuit on a motion by the Family Foundation to have an in-court demonstration of the electronic games based on past horse races.
"It would seem to me the joint petitioners who believe that these gaming machines are legal would relish the opportunity to roll them in here, plug them into the wall and display them in front of the court to provide a demonstration of how they work," said Stan Cave, attorney for the Family Foundation.
The racetracks and the state opposed the motion.
Wingate said he has never seen them; Cave referred to an article in the Herald-Leader in May quoting former Kentucky Supreme Court Justice Will T. Scott as saying he thinks the court was misled about the way the historical horse racing games work.
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"Let's plug them into the wall, let somebody gamble on them and let's see what they look like," Cave said.
Wingate asked the tracks, "Can you even do that?"
"No," attorney William Hoskins said. If the idea is to show how the games work, Hoskins said, "the demonstration is a farce," because the games are computerized and designed to look like slot machines.
"Mr. Cave thinks these machines are slot machines because they look like slot machines," Hoskins told Wingate. "That's not the question. It's whether they are pari-mutuel."
The racetracks and the state contend that historical wagering (often called instant racing) differs from electronic slot machines or video lottery terminals because the winners are determined by the outcome of a previously run horse race. A few seconds of the race might be shown on the machine to display the outcome, but otherwise, the games usually resemble other forms of electronic gambling.
Hoskins told Wingate that bringing a terminal in wouldn't work because it would have to be connected to the right server.
Cave's motion asks that the demonstration be provided to the court either in the courtroom, at Ellis Park in Henderson, or at Kentucky Downs in Franklin, and that it be recorded for use at trial.
Cave also filed a motion that the state should pay expenses for his deposition of expert Richard LaBrocca on how the games work because the Kentucky Horse Racing Commission has a $40,000 personal-services contract with Gaming Laboratories International to provide expert testimony.
"They're just trying to run me out of money," Cave argued. "They're trying to wear me down, run me out of money and increase my costs and expenses."
Hoskins denied that was the case; the racing commission opposed that motion as well.
"I think they're probably saying ... that that personal-services contract is for our time, to use this guy for trial preparation," the judge said.
Wingate said he would rule on both motions by July 18.
In February 2014, the Kentucky Supreme Court ruled that the racing commission could regulate instant racing if it is deemed pari-mutuel. The court sent the case back to Franklin Circuit Court to determine the legality of the games.
Historical horse-racing games have been installed at Kentucky Downs and Ellis Park, and they are to be installed this year at The Red Mile, which will operate them jointly with Keeneland Race Course. Keeneland separately plans to open a quarter horse track with instant racing terminals outside Corbin.