A three-judge panel heard arguments over whether Kentucky horse racing regulations allow for judicial review of a disqualification.
CINCINNATI (CN) — The owners of Maximum Security, the horse that crossed the finish line first but was later disqualified from the 2019 Kentucky Derby, argued before a Sixth Circuit panel Tuesday to revive their due process case against the Kentucky Horse Racing Commission.
Gary and Mary West sued the commission in federal court after Maximum Security was disqualified from the first leg of the 2019 Triple Crown after several competing jockeys filed objections for interference.
U.S. District Judge Karen Caldwell, an appointee of George W. Bush, sided with the commission and dismissed the suit six months after it was filed.
Caldwell ruled last November that Kentucky horse racing regulations do not allow for judicial review of a disqualification, and that the Wests’ grievances did not implicate a protected liberty interest under due process.
The Wests claimed the commission deprived them of their winnings when it disqualified Maximum Security and cited Section 5 of state regulations on horse racing, but Caldwell disagreed.
“Section 5,” she wrote, “does not grant any person the right to the benefits of winning any horse race including the Derby. It merely dictates the procedure to follow if a race result is placed in dispute after it has been declared official.”
She added, “No portion of it requires that the stewards award the purse money or any other benefit of winning a race to any person until the dispute is resolved.”
Tuesday’s arguments before the Cincinnati-based Sixth Circuit were conducted via telephone, with attorney Ronald Riccio arguing on behalf of the Wests.
Riccio argued the racing commission’s decision to disqualify Maximum Security was a final order subject to judicial review, and that Judge Caldwell misinterpreted the statutory law.
“The district court,” Riccio said, “did not apply the strong presumption which has been recognized by this court and the Supreme Court that statutes should not be interpreted to preclude judicial review of final agency determinations … unless the legislative intent to preclude judicial review is clear and convincing.”
U.S. Circuit Judge John Bush, an appointee of President Donald Trump, interrupted Riccio and asked if there was any case law to support his argument.
The attorney said there is no case in the United States – other than his clients’ – in which a court has “precluded judicial review and administrative review of a stewards’ disqualification order.”
Riccio said the statute is “very clear” and that the track stewards’ meeting – during which they heard complaints from the competing jockeys, reviewed video evidence and deliberated – should have been considered a final order by Judge Caldwell.
“There is no ambiguity,” Riccio said. “All you’re dealing with is interpreting the words of the statute as the words of the statute are written.”
Attorney Jennifer Wolsing argued on behalf of the Kentucky Horse Racing Commission and pointed out that participation in horse racing in the Bluegrass State is a “privilege, and not a personal right.”
“There is no due process interest in the particular outcome of any racing event in the commonwealth,” Wolsing told the three-judge panel.
The attorney said the finality of a decision handed down by racing stewards “is the most common rule in United States racing jurisdictions,” and that the Wests agreed to abide by the decision when they signed up for the race.
“To hold otherwise,” Wolsing said, “would turn the most exciting two minutes in sports into two years of protracted litigation. Just as it would be ludicrous to litigate an umpire’s decision at a high school baseball game, it’s also inappropriate to ignore Kentucky’s regulations and allow the Wests to challenge the stewards’ unappealable disqualification decision.”
Judge Bush disagreed with the attorney’s analogy and pointed out that not only is the Kentucky Derby a sanctioned event that involves gambling, the stewards’ decision is made in an entirely different fashion than an umpire calling balls and strikes.
“Doesn’t this look more like an agency decision that would be subject [to judicial review]?” Bush asked.
Wolsing answered by disputing her counterpart’s argument that the stewards’ decision was a final order, specifically because the stewards are not the heads of the commission and their review process was not sufficiently formal to meet statutory requirements.
She said Kentucky law “absolutely requires a hearing officer” for any meeting to be considered an administrative hearing, and all parties must also be given the opportunity to submit arguments and evidence, which did not happen in this case.
In his rebuttal, Riccio warned the panel that if it upholds the lower court’s decision, Kentucky will be the only state in the country in which race stewards have unfettered discretion to disqualify a horse.
“The stewards’ decision to disqualify a horse is never reviewable by anybody, ever, and Kentucky will be the only jurisdiction in the United States in which a steward has unlimited power to disqualify horses and nobody can change it,” Riccio said. “Not the commission, not the court, not anybody. The steward is above the law.”
Senior U.S. Circuit Judge Alice Batchelder, a George H. W. Bush appointee, and U.S. Circuit Judge Joan Larsen, another Trump appointee, also sat on the panel.
No timetable has been set for the court’s decision.