Franklin Circuit Court Judge Thomas D. Wingate on Friday denied the Family Foundation’s motion for summary judgment against one type of historical racing game, Encore, in use at Kentucky Downs in Franklin.
Family Foundation attorney Stan Cave had argued in court on Monday that the Encore games use a “cartoon” rather than a “video replay” of the horse race that is used to determine winners, and thus does not comply with Kentucky law and should be found illegal.
The conservative advocacy group opposes historical racing as an expansion of gambling and has challenged the legality of it, arguing the games are not truly parimutuel.
The games were approved in 2010, and four tracks have added terminals for historical racing. A fifth, Turfway Park in Florence, has been approved. So far this year, more than $641 million has been bet on historical racing at Kentucky Downs, Ellis Park in Henderson and the joint Red Mile/Keeneland gambling parlor in Lexington.
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After an appeal to the Kentucky Supreme Court, the case was sent back to Franklin Circuit Court for discovery on whether the games are parimutuel.
Wingate ruled Friday that that is the only issue before his court, not whether they use a valid video replay.
“Whether the racing associations choose to use gaming machines that display a live action recording of the horse race or a computer generated graphical representation of the horse race does not affect the operation of the wager,” Wingate wrote.
The computer-generated version satisfies the requirement for a replay, he found.
Separately, Wingate also on Friday granted more time to the Family Foundation to respond to a motion by Kentucky Downs, Ellis Park and the Red Mile for a summary judgment finding that the Encore games are parimutuel, filed at the same time as the Family Foundation’s motion.
Wingate didn’t put a time limit on the response but directed the Family Foundation to respond only to the issue of whether the Encore games are parimutuel.
“Whether the gaming systems constitute a pari-mutuel form of wagering concerns the pooling of money and whether the wageror is betting against the house or other players,” Wingate wrote. “Pari-mutuel wagering is not about the presentation of the historical horse race on the gaming system. Addressing any other issue distracts from the order of the Kentucky Supreme Court when it remanded the matter to this court.”
Wingate pointed out that both parties must still litigate the issue of the Racetech games used at other tracks.
On Monday, Wingate set aside a previously scheduled trial date of Sept. 6 for the full historical racing case, granting the Family Foundation two months to depose the expert witness for the tracks and the state. No new trial date has been set.