Politics & Government

Foes of expanded gambling in Kentucky present a potential legal obstacle

Kent Ostrander, left, and Stan Cave, both with The Family Foundation, testified against expanded gambling at meeting of the House Licensing and Occupations Committee.
Kent Ostrander, left, and Stan Cave, both with The Family Foundation, testified against expanded gambling at meeting of the House Licensing and Occupations Committee. Herald-Leader

FRANKFORT — The Family Foundation threw a potential legal obstacle Wednesday into the path of expanded gambling legislation in this year's General Assembly.

Testifying before the state House Licensing and Occupations Committee, Lexington attorney Stan Cave, general counsel for the Lexington-based conservative group, said state lawmakers run the risk of violating the state constitution by approving legislation to spell out exactly how expanded gambling would work before enacting a constitutional amendment to allow gambling.

"The case law says the General Assembly may only enact legislation which is authorized by the constitution," said Cave, a former state representative who was chief of staff for former Republican Gov. Ernie Fletcher. "And if the constitution prohibits gambling, which by definition it does or they wouldn't be running a proposed amendment to the constitution, then proposed enabling legislation is prohibited by the constitution."

By approving enabling legislation for expanded gambling before voters approve a constitutional amendment to allow it, lawmakers would violate their oath of office to uphold the constitution, Cave said.

House Speaker Pro Tem Larry Clark, D-Louisville, is pushing two bills to expand gambling.

House Bill 67 calls for a constitutional amendment to let Kentucky voters decide at the polls in November whether they want casino gambling in the state. It would "allow the General Assembly to permit casino gambling by general laws."

HB 68, the so-called enabling legislation, outlines a plan to license and regulate casino gambling at five horse racetracks and three standalone casinos.

Clark said he appreciated Cave's legal analysis and pledged to "look at that and see if it is proper."

"That is his opinion, and it may have to be the courts will have to decide, like any other issue," Clark said. "But I'm very comfortable with the legislation that we have drafted."

The pro-casino group Kentucky Wins took issue with The Family Foundation's opposition.

"The Family Foundation does not want casinos in Kentucky, but the truth is, they are already here, located just a few hundred feet from Kentucky's borders," said Jonathan Blue, co-chairman of Kentucky Wins. "It is completely irrational to suggest that it is worth giving up $500 million in tax revenue to maintain 500 feet of separation."

Cave hinted that The Family Foundation would sue if legislators approve enabling legislation for expanded gambling before a constitutional amendment is enacted.

"It certainly would be an issue someone could litigate successfully, I believe," Cave said.

Some legislators, including House Speaker Greg Stumbo, D-Prestonsburg, and Senate President Robert Stivers, R-Manchester, contend that no constitutional amendment is needed to expand gambling in Kentucky. But supporters of such an amendment said it would make clear that expanded gambling is what Kentuckians want.

Also speaking against expanded gambling at Wednesday's committee hearing were representatives of Stop Predatory Gambling.

The group's chairman, John-Mark Hack, called gambling predatory, and he said not a single Kentuckian is expendable to addiction.

Clark said he appreciated the group's testimony but that gambling has existed in Kentucky for years.

Clark does not plan to ask the House committee to vote on his bills until the Senate has approved a constitutional amendment to expand gambling.

Neither the Democratic-controlled House nor the Republican-led Senate wants to go first in handling a proposed constitutional amendment to expand gambling. This is an election year and Republicans are seeking to gain five seats and take control of the state House for the first time since 1920.

House Democratic leadership wants the Senate to OK a "clean" amendment that doesn't put restrictions on how the state can spend money generated by gambling.

Sen. Dan Seum, R-Louisville, has a proposed amendment that would allow casino gambling at no more than seven places in the state, with 10 percent of the revenue guaranteed "to promote equine interests" and the state's share dedicated to "job creation, education, human services, health care, veterans bonuses, local governments and public safety."