The Family Foundation has filed response briefs with the Kentucky Supreme Court laying out its argument for allowing discovery in the instant racing case.
In January, the high court agreed to review a ruling by the state Court of Appeals that would send the instant racing lawsuit back to Franklin Circuit Court. The Franklin court ruled in 2011 that historical wagering, a form of electronic gambling on anonymous old horse races, is legal and pari-mutuel even though it resembles a slot machine. Slots are not legal in Kentucky.
But the conservative Family Foundation, which challenged the legality, appealed and argued it was not allowed to pursue questions about how the games actually work. The appeals court agreed but Gov. Steve Beshear's administration and the racetracks asked the Supreme Court to step in before sending the case back to start over.
The Family Foundation said Tuesday it is confident it will win if it is allowed to present new evidence.
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"We have simply asked for our constitutional right to ask questions and present evidence in the legal process of discovery that was denied in the trial court," said Martin Cothran, spokesman for the Family Foundation. "That is what the Court of Appeals attempted to correct in its June 15, 2012, decision where it ruled that we are entitled to pretrial discovery. The gambling industry is a powerful special interest, but it shouldn't have the right to ignore the Constitution."
The foundation argues that the racetracks and the state did not present evidence to support their claim that gambling meets the legal definition for pari-mutuel betting on horse races.
The Kentucky Horse Racing Commission approved the expansion of gambling to allow the historical wagering, which has been implemented at Kentucky Downs in Franklin and at Ellis Park in Henderson. Through March 31, almost $306 million has been wagered at the two tracks on the games, with almost $20 million in revenue for the tracks and another $4.5 million in revenue for the state.
But Cothran, in a statement, pointed out that at a racing commission meeting last month commissioner Ned Bonnie questioned Kentucky Downs request to add new games such as "Pigs in Mud" and "Bayou Bash," which had no reference to racing.
"If he can question the regulations publicly, why can't we do so in court?" Cothran asked.
The state's reply is due by May 28, said Susan Speckert, attorney for the racing commission. The court has not indicated if they will hear oral arguments.