Request By:
Carl B. Larsen
Executive Director
Kentucky Harness Racing Commission
Suite 300, 3rd Floor
West Jefferson Place
535 West Second Street
Lexington, Kentucky 40508
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
You have asked this office for an Attorney General's Opinion on whether House Bill 956, which regulates simulcasting in a county with a population of less than 150,000 and containing more than one track is special legislation which affects only the two tracks in Henderson County. Your letter states that this would authorize Ellis Park to simulcast races during the racing dates of Riverside Downs without prior approval of Riverside Downs.
House Bill 956, also known as 1988 Acts, CH. 376, involves the subject of simulcasting of horse races with parimutuel wagering. This bill enacted new statutes (KRS 230.376 - wagering. This bill enacted new statutes (KRS 230.376 - 230.379) and amended some existing statutes. The statutory provisions applicable to the question raised in your letter are KRS 230.377(2), (3), (4) which provide as follows:
(2) In a county with a population of one hundred fifty thousand (150,000) or more people and containing more than one (1) track, receipt of simulcasting and participation in intertrack wagering as a receiving track on the same days on which racing is conducted in the county is prohibited unless the track conducting racing agrees in writing to such simulcasting.
(3) In a county with a population of less than one hundred fifty thousand (150,000) people and containing more than one (1) track, the track which conducts racing of the same breed as a host track shall have an exclusive right of first refusal for the simulcasts of such races. If the track conducting racing of the same breed does not receive the simulcasts, the other track in the county may do so and all tracks may receive the simulcasts if agreed to in writing by the tracks affected.
(4) In a county with a population of one hundred fifty thousand (150,000) or more people and containing more than one (1) track, the track which conducts racing of the same breed as a host track shall approve in writing the simulcasting of racing of that breed before another track in the same county may simulcast such races. All tracks may receive the simulcasts if agreed to in writing by the tracks affected.
KRS 230.377(3). These new statutory provisions became effective July 15, 1988.
At the present time, the only county in Kentucky containing more than one track and having a population of less than 150,000 is Henderson County. Henderson County has a quarterhorse track (Riverside Downs) and a thoroughbred track (Ellis Park). Jefferson County, with a population of over 150,000, has a harness track (Louisville Downs) and a thoroughbred track (Churchill Downs). Fayette County, with a population of over 150,000, has a harness track (Red Mile) and a thoroughbred track (Keeneland). McCracken County has only one track which is a quarterhorse track (Bluegrass Downs). Boone County has only one track which is a thoroughbred track (Turfway Park). Therefore, you are correct that KRS 230.377(3) only affects the two tracks in Henderson County at the present time. KRS 230.377(2) and (4) only affect the two tracks in Jefferson County and the two tracks in Fayette County. These three statutory provisions provide different requirements for simulcasting, depending on the population of the county.
The Constitution of Kentucky, § 59, provides that the General Assembly shall not pass local or special acts in any case where general laws can be made applicable. The Constitution of Kentucky, § 60, provides that the General Assembly shall not indirectly enact any special or local act by exempting from the operation of a general act, any county. "Special" and "local" legislation is defined as follows:
A local act is one confined to territorial limits other than that of the whole state or one which is applicable to some political subdivision and not to others. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others.
Miles v. Shauntee, Ky., 664 S.W.2d 512, 516 (1983) quoting
Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496, 498 (1971).
As stated in Miles v. Shauntee,
Although classifications according to population are allowable, where the subject is one of general application throughout the state and has been so treated in the general scheme of legislation, distinctions favorable or unfavorable to particular localities resting alone upon numbers and density of population would be violative of Section 59 and Section 60 of the Constitution of Kentucky.
Miles v. Shauntee, Ky., 664 S.W.2d at 516.
House Bill 956 provides no justification or rational basis for treating Henderson County differently than Jefferson or Fayette County. This office is unable to discern a reasonable relation between these classifications and the purpose of the Act. Therefore, it is the opinion of this office that the classifications contained in KRS 230.377(2) - (4), which are based upon population of counties, are not authorized by the Constitution and constitute an exception for only Henderson County without any rational basis for doing so. Such an arbitrary classification is special and local legislation and violates the Constitution of Kentucky, §§ 59 and 60.
It shall be considered that it is the intent of the general assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the general assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the general assembly.
KRS 446.090. [Emphasis added.]
It is the opinion of this office that KRS 230.377(2) through (4) can and should be severed from the remaining provisions of House Bill 956. The remaining provisions are not inseparably connected with and dependent upon KRS 230.377(2) through (4) and are capable of being executed in accordance with the intent of the General Assembly. Each racing commission may promulgate necessary and reasonable administrative regulations to provide for the conditions under which simulcasting may be conducted. KRS 230.377(6). Therefore, the remaining statutory provisions of House Bill 956 can and should remain in force.