(CN) — The owners of Maximum Security, the horse that crossed the finish line first in the 2019 Kentucky Derby but was later disqualified, lost in the Sixth Circuit on Friday when the court held the disqualification is not reviewable under state law.
The three-judge panel upheld a ruling by U.S. District Judge Karen Caldwell after the case was argued in June.
Caldwell, an appointee of George W. Bush, told the owners, Gary and Mary West, that Kentucky’s horse racing regulations do not allow for a review of the race stewards’ decision to disqualify their horse.
Maximum Security crossed the finish line first in the 145th running of the Kentucky Derby last year but was disqualified after several competing jockeys lodged objections and the stewards determined he had impeded the progress of other horses during the race.
Caldwell also dismissed the Wests’ due process claims, finding they were not deprived of a protected liberty interest when the stewards made their decision.
The Wests argued on appeal that the disqualification was a “final agency order” subject to judicial review under Kentucky law, but the Sixth Circuit panel disagreed Friday.
U.S. Circuit Judge John Bush, an appointee of President Donald Trump, wrote that the stewards’ decision did not meet statutory requirements to be eligible for judicial review.
“First,” Bush wrote, “the process that the stewards undertook to make their decision was not an ‘administrative hearing,’ as that term is used in the statutory definition of ‘final order of an agency.’ Second, the stewards’ call was not a ‘final order’ because it was not ‘made effective by an agency head,’ as is necessary to issue a final administrative order.”
Bush described the stewards as referees who rendered a decision after watching the race without the “presentation of any other facts or any argument by the affected parties,” which he said prevents judicial review of their determination.
He contrasted the disqualification of Maximum Security with other proceedings conducted by the stewards’ association, including racing license suspensions, and pointed out that those types of hearings involve the presentation of evidence that would render them subject to judicial review.
Bush admitted he and the other judges on the unanimous panel are not equipped to question the decisions made by well-trained racing officials, and opined that their jobs would be easier if the horses could talk.
“Perhaps,” he said, “only a racehorse itself could tell us whether it was fouled during a race. See Jay Livingston & Ray Evans, ‘Mr. Ed’ (1961) (‘Go right to the source and ask the horse. He’ll give you the answer that you’ll endorse.’).” (Parentheses in original.)
He added, “But horses can’t speak, so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts – the stewards, not the appointed members of the commission or judges – to determine when a foul occurs in a horse race. It is not our place to second-guess that decision.”
The panel also rejected the Wests’ due process claims, and pointed out that taking part in the Kentucky Derby is, by law, “a privilege and not a personal right.”
The Wests argued that because Maximum Security was the first horse to be disqualified for an in-race foul in the 145-year history of the Kentucky Derby, the “custom and practice” of the race was to award the prize money to the horse that crossed the finish line first.
Bush admitted that “custom can form the basis of a protected property interest,” but stopped short of conceding the Wests’ point.
“Even though Maximum Security’s disqualification was unprecedented, the fact remains that the stewards have always had the discretion to call fouls in horse races; this just happens to be the first time that they exercised this discretion in the Kentucky Derby,” the judge wrote.
Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, and U.S. Circuit Judge Joan Larsen, a Trump appointee, also sat on the panel.
The Kentucky Horse Racing Commission said in a statement Friday that it is pleased with the decision.
“The KHRC prioritizes the integrity of horse racing in the commonwealth and maintains that the judgment of racing stewards is based on expertise and experience,” it said.