Ballard v. Wyoming Pari-Mutuel Com'n of State of Wyo.

• Decision Date: 01 February 1988
• Docket Number: No. 87-7,PARI-MUTUEL,87-7
• Citation: 750 P.2d 286
• Parties: Roy L. BALLARD, and Becky L. Ballard, Petitioners, v. WYOMINGCOMMISSION of the STATE of WYOMING and its Commissioners, Agents and Servants, and Wyoming Downs and its Agents and Servants, Respondents.
• Court: Wyoming Supreme Court

Page 286

750 P.2d 286

Roy L. BALLARD, and Becky L. Ballard, Petitioners, v. WYOMING PARI-MUTUEL COMMISSION of the STATE of WYOMING and its Commissioners, Agents and Servants, and Wyoming Downs and its Agents and Servants, Respondents.

No. 87-7.

Supreme Court of Wyoming.

Feb. 1, 1988.

Franklin D. Bayless of Bayless & Blythe, Cheyenne, for petitioners.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Terry L. Armitage, Asst. Atty. Gen., for respondents.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

This hegira through administrative-litigative processes started with suspension of a racehorse trainer who, after winning a race, found that his horse tested positive for an unpermitted drug. Proceedings followed through two restraining orders from two separate courts, finally to an adverse ruling in an administrative hearing, which adverse ruling is now on appeal here through certification from the district court, pursuant to Rule 12.09, W.R.A.P. The penalty entered initially was a $200 fine and one-and-a-half months suspension, and was augmented through the course of appellate and administrative processes to the present two-year suspension and $1,500 fine.

Out of this convoluted and complex proceeding we derive a conclusion that any further administrative suspension beyond time served should be disallowed, and that the pending proceeding should be dismissed as moot.

On July 19, 1985, Ators Greeter, a racehorse owned by Becky L. Ballard and trained by her husband, Roy L. Ballard (Ballard), petitioners herein, won the fifth race at the Wyoming Downs racetrack near Evanston. A urine sample taken pursuant to Pari-Mutuel Commission rules revealed the presence in the horse of the steroid prednisolone. On July 27, 1985, the racetrack stewards informed Ballard about the positive test result, and formally found him in violation of Commission rules Ch. 1 § § 10(p), 11(a), and 11(b), ¹ fined him $200, and suspended his trainer's license through September 12, 1985 by written notice:

"Violation of the 'trainer insurer' Rule, 10P. Violation of Rule 11A, allowing the horse 'Ators Greeter' to participate in the 5th race on 7.19.85 with the drug prednisolone in its body. Violation of Rule 11B, negligence in the handling and care of 'Ators Greeter.' Purse is to be redistributed. Said trainer is denied any and all privileges of the grounds and the case is referred to the Racing Commission for further action."

Four days later, Ballard sued in the Third Judicial District, Uinta County, and obtained a temporary restraining order followed by a preliminary injunction which apparently never has been lifted. That preliminary injunction provided in part:

"On August 2, 1985, the Stewards executed and filed herein their Waiver of Service of Process and Consent to Entry of Preliminary Injunction, waiving the failure of timely service of the Temporary Restraining Order upon them and consenting to the entry of a preliminary injunction against them until plaintiff obtains a hearing before the Commission.

"And it appearing to the Court after due deliberation that the action of the Stewards in ruling plaintiff off the Wyoming Downs race track and suspending him from further acting as a trainer thereat, without first affording him a hearing before the Commission, is in violation of Section 16-3-113(c), W.S.1977, as amended, and would deprive plaintiff of his livelihood and cause him irreparable injury, loss and damage for which he has no adequate and speedy remedy at law.

"IT IS THEREFORE ORDERED, that the above named Stewards and Commission, their agents, servants, employees and all persons in active concert and participation with them, be and they are hereby restrained and enjoined, until plaintiff receives a hearing before the Commission on the charges leading to his suspension by the Stewards, from enforcing said suspension or in any manner preventing or interfering with plaintiff acting as a licensed trainer at the Wyoming Downs race track * * *." ²

By memo dated August 7, 1985, as found in the court file, the executive secretary of the Pari-Mutuel Commission wrote to the Attorney General's office, stating in part:

"I believe we will need some help in this matter. The Commission will be meeting in Evanston on August 16 at 1:30 p.m., following the Management Audit Committee meeting (see notice attached). Bob Laramore is most anxious that the Commission have an attorney present who is well versed in Administrative Procedure so that we don't violate anyone's rights and have this case thrown out.

"There is one major discrepancy in the complaint in that Ballard was afforded a hearing before the stewards--he didn't realize that his discussion of the matter with them should be considered a hearing. Also, he implied to his attorney that the Commission would have a hearing on his case August 16, when in fact the matter has only been referred to the Commission for their consideration and they do plan to meet on the 16th. However, under the circumstances it would appear advisable that the Commission hold a hearing on that date so that this matter may be resolved."

On August 16, as noted by comment in the brief, in response to the injunction and its hearing requirement, the Commission met in Evanston without notice to Ballard, and, without hearing and in his absence, ³ considered the stewards' action as resolved by increasing the penalty to a fine of $1,500 and the license suspension to one year, as stated in the minutes:

"Roy Ballard--Ruling E-12 of July 27, positive test on 'Ators Greeter' from Race 5 on July 19, for prednisolone, trainer fined $200 and suspended through 9-12-85. Upon a review of the case and motion by Baker seconded by Oliver, fine was increased to $1,500 and trainer suspended for one year to August 16, 1986."

In a letter to the Commission dated the prior day, August 15, with an indeterminate date of receipt since not date-stamped, ⁴ Ballard had asked for a stay of suspension and stated that he would accept the action of the stewards. Without responding to that letter, the executive secretary of the Commission, following the increase in penalty, wrote Ballard by certified mail on August 23:

"As you should know, you have the opportunity to present your case and appeal this decision at a hearing before the Commission. Should you wish to be heard by the Commission, either in person, by counsel, or both, it will be necessary for you to notify the Commission in writing within five (5) days of receipt of this letter. You may direct your request for hearing to the above letterhead address. The Commission is scheduled to meet on September 28, Saturday, in the Carbon County Library in Rawlins, beginning at 9 a.m. and should you request a hearing you will be heard that morning."

The record is somewhat fuzzy as to what occurred next, but in some fashion Ballard requested an opportunity to be present at the September 28 meeting where, without counsel or evidence being presented, as he asked for a reduction of suspension, the following action was taken by the Commission:

"Appeal by Roy Ballard of Commission's fine and suspension set at Aug. 16 meeting ($1500 and one year) for positive test results on 71985, 5th race, Ators Greeter: Ballard appeared to request reduction of suspension. After review and discussion, Baker moved, Oliver seconded that ruling stand as is. The motion passed unanimously."

Prior thereto, on September 10, 1985, another notice by order to show cause had been issued to Ballard by the Commission, scheduling a hearing for November 1, 1985. ⁵

Again the record is something less than a model of clarity, but the Ballard suspension again came to be considered by the Commission at a meeting held in Cheyenne on November 1, 1985, apparently in response to the order to show cause. Obviously no hearing was held, but exactly what occurred is not indicated, except for the action taken according to a portion of the minutes of that session:

"Ballard's request for 're-hearing' was discussed. Commission denied same, seeing little reason to rehear the same request. Ballard's course of action would have to be through the court system."

Apparently the American Quarter Horse Association computerized reciprocal suspension system finally caught up, and after further suspension in adjoining states, Roy Ballard and Becky Ballard, who was likewise under suspension as his wife, employed counsel, which resulted first in a petition for modification dated April 1, 1986 but denied April 5, 1986, ⁶ to be followed by a June 13, 1986 notice and order to show cause filed with the Pari-Mutuel Commission in behalf of Ballard challenging his continued suspension. At about the same time, a verified petition was filed in the First Judicial District, Laramie County, against the Commission, its commissioners and agents, and Wyoming Downs in Evanston, in behalf of both Roy Ballard and Becky Ballard. Although 42 U.S.C. § 1983 was referenced in the pleadings, the basic remedy requested was for issuance of a temporary restraining order and preliminary injunction enjoining and restraining defendants from the continued suspension of both Roy Ballard and Becky Ballard.

The temporary restraining order was granted on April 15, 1986, and following hearing and extensive briefing, including comment by plaintiffs that the Commission had not complied with the prior Uinta County restraining order and injunction, a new preliminary injunction was issued April 30, 1986, finding:

"2. That Plaintiff, Roy L. Ballard, has not been granted a hearing as required by the Administrative Procedures Act and in accordance with the Preliminary Injunction issued by the State of Wyoming, County of Uinta, in Ballard v. Wyoming Pari-Mutuel Commission, Civil No. 85-264, Third Judicial District.

"3. That pending the outcome of said hearing, Plaintiffs should not be deprived of their license privileges as horse trainers and...