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Racing group wants state Supreme Court help

CHARLESTON, W.Va. -- Fearing that it is a first step toward marginalizing live racing at state racetrack-casinos, a horsemen's association Monday asked the state Supreme Court to overturn an agreement between the state Lottery Commission and the Racing Commission.

"The Lottery Commission has effectively co-opted the Racing Commission," said David Hammer, attorney for the Charles Town Horseman's Benevolent and Protective Association. "It's a big problem for the horsemen."

Hammer filed a petition for a writ of mandamus Monday to overturn the June 18 agreement, which authorizes the Lottery Commission to provide a variety of services for the Racing Commission.

The Racing Commission unanimously approved the agreement at its June 18 meeting, over objections from thoroughbred and greyhound industry representatives.

"It is no stretch at all to see that the Lottery Commission, having 'captured' the Racing Commission by administrative agreement, will instruct its in-house legal counsel in matters regarding the Racing Commission and in-house legal [counsel] will then direct the Racing Commission under the shield of attorney-client privilege," the petition argues.

"This jeopardizes the livelihoods of horsemen ... by allowing the Lottery Commission and its in-house counsel to control the vast statutory powers of the Racing Commission, and will likely harm and damage the state's interests in, among other things, the integrity and success of horse racing and corresponding tax revenues."

Arguably, Hammer said, the agreement gives the Lottery Commission power to take such action as reducing live racing days at the state's four racetrack-casinos to the point where state thoroughbred and greyhound operations would no longer be viable.

Supreme Court Clerk Rory Perry said justices will have to determine whether to hear the petition, and if they do, will set a schedule for responses.

The petition names Revenue Secretary Bob Kiss, Lottery Director John Musgrave, and Racing Commission Jon Amores as respondents.

Department of Revenue spokeswoman Heather Raines declined comment, saying the department had not had an opportunity to review the petition, and could not comment on pending litigation.

In 2009, then-Gov. Joe Manchin introduced legislation to create a Gaming Commission to oversee all forms of state-sanctioned gambling, including Lottery, thoroughbred and greyhound racing, and charitable Bingo.

The bill died in the House of Delegates, in part, because of objections from thoroughbred industry lobbyists.

In February, then-Revenue Secretary Charles Lorensen named Musgrave as deputy secretary, with oversight over the Lottery, Racing Commission, Alcohol Beverage Control Administration, and Athletic Commission.

"This is an opportunity to see if things can run a little more efficiently and smoothly," Lorensen said at the time.

The petition filed Monday also argues that the interagency agreement violates state law by allowing Lottery Commission attorneys to serve as legal counsel for the Racing Commission.

By law, the attorney general is the official legal representative for the Racing Commission, the petition contends.

Hammer said Senior Deputy Attorney General Kelli Talbott has competently represented the Racing Commission in legal matters for a number of years.

Reach Phil Kabler at philk@wvgazette.com or 304-348-1220.


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