The Nebraska State Racing Commission's order allowing Fonner Park to add historical horse racing terminals at the Grand Island track is unconstitutional and should be overturned, two Hall County residents said in a lawsuit.
Duane Fuller of Grand Island and Jeffery Hayman of Doniphan filed the lawsuit against the commission and Fonner Park in Lancaster County District Court on Friday afternoon.Â
Neither the Nebraska Constitution nor state law authorizes wagering using an electronic historical horse racing terminal, the two said in their lawsuit.
"By issuing the Final Order that allows Fonner Park to engage in pari-mutuel wagers on historic horse races in violation of the Nebraska Constitution and the Nebraska Revised Statutes, (the commissioners) improperly exceeded the authority granted to the Commission," their lawsuit said.
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The State Racing Commission narrowly approved the new, controversial form of wagering and machines for Fonner Park in July and the final order was issued last month.
Historical horse racing terminals allow a bettor to make wagers on unidentified horses in previously run races from across the U.S., officials with AmTote International said.Â
The terminals, which look like slot machines and operate in Kentucky, Wyoming, Oregon and Alabama, are seen by proponents as a way to draw more people to the tracks and keep the struggling industry viable after decades of decline in Nebraska.
In his order, Commission Chairman Dennis Lee of Omaha said the terminals are just a new form of pari-mutuel wagering, which is already legal in Nebraska, and state law doesn't allow the design of the terminals to be considered in assessing whether they perform a pari-mutuel wager.Â
Nebraska lawmakers in 2012 passed a bill to specifically allow betting on historical horse races, but then-Gov. Dave Heineman vetoed the measure, and an effort in 2014 to ask voters to amend the state constitution to allow historical horse race wagers was blocked by the Nebraska Supreme Court.Â
There was little further talk of historical horse racing in Nebraska until the Racing Commission voted to approve terminals for Fonner Park in October 2018. That vote was ultimately withdrawn after Nebraska Attorney General Doug Peterson questioned the legality of the vote and the meeting.Â
Then, in January 2019, the commission again considered the issue, and opponents of expanded gambling in Nebraska urged the commission not to approve Fonner Park's application.
The Attorney General's Office also warned the commission that it would not defend the commission in court if it approved historical horse racing and faced a lawsuit for doing so.Â
Chris Kotulak of Fonner Park said it still plans to install the terminals so they're operational Feb. 21, when the track hosts its first live racing of 2020.
Fonner Park officials believe the commission made an accurate and proper decision when it approved historical horse racing, he said.
"Historical horse racing is legal in more than half a dozen states, providing millions of tax dollars currently, and it has resurrected a number of state’s racing industries as close as Wyoming and far as Virginia," he said.