Judge Wingate Creates Huge Conflict Of Interest

A better title might be: Instant Racing Judge: “No Big Deal, My Son Got Hired By A Race Track’s Law Firm In The Case And There’s Nothing You Can Do About It”

Hold on to your instant racing case hats, ladies, cause the Honorable Judge Thomas Wingate has created an appearance of impropriety to rival nearly everything we’ve seen in months.

On April 30, Wingate, who is hearing the big instant racing case (Family Foundation vs. Kentucky Horse Racing Commission, Kentucky Department of Revenue, Appalachian Racing, Churchill Downs, Ellis Park, Keeneland Association, Kentucky Downs, Lexington Trots Breeders Association, Players Bluegrass Downs and Turfway Park), filed a sue sponte order that blows our minds.

Here’s the deal:

Stoll Keenon Ogden represents some of the tracks in the case. Judge Wingate’s son, who is a first year law student, got hired to work in their Frankfort office. Wingate says it’s no big deal, there’s no conflict, nothing to see here, move along, and filed the order.

Here it is:


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Excerpts:

This matter is before the Court sua sponte. However, based on recurring statements, the Court believes written notice and disclosure is warranted. The Court, having reviewed the record, does not find any basis for disqualification under KRS 26A.015 or Canon 3 of the Code of Judicial Conduct. KRS 26A.015 reflects the Code of Judicial Conduct, specifically SCR 4.300 Canon 3(E)(d)(ii), which calls for recusal from cases in which a judge’s impartiality might reasonably be questioned due to a person within the third degree of relationship to the judge, or his or her spouse, is acting as an attorney in the matter. The Commentary for this section explicitly states that, “[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge.” Kentucky courts have set a difficult standard for a party seeking to show judicial bias. In Johnson v. Ducobu, 258 SW2d 509, 511 (Ky. 1953), the Court held that a party must show “facts which necessarily show prejudice or bias sufficient to prevent the judge from fairly or impartially trying the case.” These facts must “not only show bias, prejudice or personal hostility toward the accused, but [must be] of a character calculated seriously to impair the judge’s impartiality and sway his judgement.” Foster v. Commonwealth, 348 SW2d 759 (Ky. 1961).

-SNIP-

The Court also acknowledges that several former clerks work for various law firms that are involved in this litigation or are tangentially involved with gambling interests. None are participating in this case. Neither of these facts worries the Court that it cannot be fair and impartial.

You catch that? Wingate cited two cases from 60-70 years ago in trying to explain things away. Unfortunately, both regarded folks in the employ of law firms when the cases got started. In Wingate’s case, his son landed his job long after the case was rolling along.

By rolling along? We mean it. The state and race tracks have been fighting so hard that they won’t even turn over discovery:


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And it’s not that Wingate can’t be impartial. It’s that there’s a huge appearance of impropriety. His kid got a job, coincidentally, we’re sure, right as the case started to heat up. Then Wingate filed an order in the case to say he (the Court) doesn’t think it’s a big deal.

Here’s why it is a big deal:

  • This creates the appearance that his family is being paid by the side being sued whether he likes it or not
  • This gives SKO an extreme advantage in that his son has great access to him and could be privy to information, accidentally or not, that no one else would know prior to decisions being revealed
  • This comes just a year after we pointed out another major instance of the appearance of impropriety. By the way, we’ve since learned that her ties go much deeper and involves manufacturers of instant racing machines.

We’re all about gambling and willingly accept ad revenue to support it but come on.

Wingate is a respected judge and he needs to pull himself off this case immediately. There’s just no way around it. Not in such a high profile case with so much at stake for both the Family Foundation and Kentucky taxpayers. It’s beyond important for him to do so.

In light of actions over the past couple months that essentially amount to efforts to keep these proceedings secret, it really ruffles our feathers and should raise the ire of anyone interested in government transparency. Basically, the gambling/instant racing interests want to keep all kinds of information (not just trade secrets) secret and refuse to bring a machine into the court for examination. And they fought for a confidentiality and protective order, which was issued by Wingate just a week or so ago. It allows the Kentucky Horse Racing Commission to label nearly anything it wants as confidential and that prevents it from becoming public.

This means Wingate has given private enterprise the ability to keep whatever it wants secret in a huge case involving millions and potentially billions of taxpayer dollars.

Read the May 20 filing by the Family Foundation fighting against that here:


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And the July 7 order from the judge here:


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Minds. Blown.

Wingate really needs to give this case to another judge posthaste. The longer he waits, the less likely anyone is to trust him as an impartial judge. When we — the people who hate the Family Foundation the most — are on THEIR side? Something is seriously wrong.

Kentucky deserves better.

Yes, we reached out to Wingate for comment but no response has been received in the past two weeks.