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Case Summary

The unelected Commission has ushered in all the burdens of slot gaming for the near exclusive benefit of the Commission’s constituent racetracks, with virtually no benefit to the State and without a word of policy debate.


Policy decisions of these magnitudes, with these implications, being determined by an unelected Commission, without a vote of the people or the General Assembly violates the most fundamental principles of Kentucky’s tripartite system of government.


This appeal is not about church-sponsored casino nights or a bet on a football game. This case is about a massive gambling industry-driven expansion of slot gaming.


The unchecked actions of the Commission, which have occurred over the past eight years, have real consequences to the State. The 2018 Opinion and Order pointed out on page 7 that: “The Commonwealth is being shortchanged on revenue as two (2) billion dollars in wagering has produced only eight (8) million dollars in state revenue.”  


By treating slot gaming as pari-mutuel wagering on horseraces, Kentuckians are cheated out of revenue. Under KRS 138.510, an excise tax is levied on all money wagered on historical horseraces at the rate of 1.5% of which the State General Fund receives about .5% after reductions of .75% for the Thoroughbred Development Fund for purses (KRS 138.510(1)(c)1.), 0.2% for the equine industry program trust for the University of Louisville (KRS 138.510(1)(c)4.), and 0.1% for the trust for the purchase of equipment for equine programs at the state universities (KRS 138.510(5)(a)).

If not reversed, the Kentucky Supreme Court will have presided over the greatest expansion of gaming in the history of Kentucky without a vote of the people or the General Assembly. It will do so based on a trial court that (i) disregarded this Court’s instructions on remand, (ii) disregarded every applicable rule of construction, (iii) disregarded the plain meaning of words and basics of grammar, and (iv)  relied on legal opinions of a non-lawyer consultant to a public Commission, whose firm was paid $860,849.67 by interested vendors and certain of the racetracks.


A more shameful development of public policy could not be imagined. The Commission and racetracks have had their run.  It is now time for the KY Supreme Court to stop it.

Based on the foregoing, the testimony and exhibits at trial, The  Family Foundation has respectfully requested that the KY2018 Opinion and Order of the Franklin Circuit Court be reversed, vacated and that judgment be entered in favor of the Foundation, including a finding that Exacta Gaming and other "historical horse racing" slot gaming are not pari-mutuel wagering on horse racing and that all operations be stopped. 

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