WHY MISREPRESENT FACTS TO THE COURT?
On July 20, 2010, the Commission had passed regulations which it claimed made the machines legal, despite no change of law in Kentucky's General Assembly.
The Commission, charged with ensuring the integrity of horse racing and protecting the public, and the Racetracks were well aware that no other state had ever found "historical horse racing" slot gaming to be lawful absent a change of law.
Given their shaky legal ground, Kentucky’s Commission and Racetracks sought the court's determination of whether licensing and operating the machines was legal. On the same day the regulations were passed, an "agreed case" was filed.
However, irregularities in the process raise the question:
"Why misrepresent facts to the court?"
#1 Claiming They Wouldn't License & Operate Machines
Until After Court Determination
When the Kentucky Supreme Court first considered this case in 2013, it was under the impression that Kentucky’s Racetracks and Horse Racing Commission were seeking determinations about the legality of “historical horse racing” slot gaming “before actually conducting operations” to “eliminate or minimize the risk of wrong action” and ‘to ensure that they may proceed without being subject to any legal penalties, including criminal liability under Kentucky’s penal code’”.
The Court was under that impression, because that's what the Commission and Racetracks claimed in their 2010 "agreed case" filing.
But the Kentucky Horse Racing Commission, charged with ensuring the integrity of the industry, seemed to care little about “the risk of wrong action” when it began approving these machines more than two years before the Court made the statement above and long before the case they brought remotely approached finality. The same goes for the Racetracks, who began operating the machines.
The Commission and Racetracks used the Franklin Circuit Court’s erroneous and reversed 2010 Opinion to shield themselves from being punished for licensing and operating machines they believed may be illegal.
#2 Claiming There Were No Random Number Generators
Kentucky’s Horse Racing Commission and Racetracks wrongly denied that “Instant Racing”, the first version of historical horse racing slot gaming, used random number generators or random elements of chance in association with prize determination.
They maintained this denial and concealment until around September 23, 2015. That’s when the Wyoming Attorney General issued his Opinion declaring that the machines were not pari-mutuel wagering on horse racing because they utilized random multipliers, random wild symbols, random bonus rounds, and even random race outcomes running in the background and unknown to the player.
Perhaps a result of Gaming Laboratories International, LLC’s dual role as a consultant in Kentucky claiming the machines were legal and a consultant in Wyoming claiming they were illegal, notices of correction were filed with the Court.
Those September 17, 2015 and September 23, 2015 notices of correction make it clear that, despite earlier denials and concealment, random number generators were used in the machines.
#3 Flaws With Four Affidavits
Four of the ten affidavits within that filing were flawed. Under penalty of perjury, four affidavit signers swore to events which had not yet occurred.