Berry v. Michigan Racing Com'r

• Decision Date: 21 July 1982
• Docket Number: Docket No. 57994
• Citation: 116 Mich.App. 164,321 N.W.2d 880
• Parties: Joseph BERRY, Plaintiff-Appellant, v. MICHIGAN RACING COMMISSIONER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 880

321 N.W.2d 880

116 Mich.App. 164

Joseph BERRY, Plaintiff-Appellant, v. MICHIGAN RACING COMMISSIONER, Defendant-Appellee.

Docket No. 57994.

Court of Appeals of Michigan.

Submitted Feb. 2, 1982.

Decided May 5, 1982.

Released for Publication July 21, 1982.

Neil H. Fink and David S. Steingold, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Charles D. Hackney and Theodore S. Klimaszewski, Asst. Attys. Gen., for defendant-appellee.

Before KAUFMAN, P. J., and V. J. BRENNAN and CYNAR, JJ.

PER CURIAM.

Plaintiff, an owner and licensed trainer of harness racehorses, appeals as of right from the circuit court's May 22, 1981, order affirming a two-year suspension of plaintiff's trainer's license based on a finding that plaintiff entered to race two horses determined to have apomorphine in their bodies, in violation of the general rules promulgated by the Racing Commissioner, 1979 AC, R 431.62(b). ¹

Plaintiff was the trainer of record of two horses, namely, "Quick Ideal" and "Miracle Blend". These horses ran in separate races at Northville Downs on February 7, 1981, and February 14, 1981, respectively. Post-race urinalysis of each horse revealed the presence of apomorphine, a derivative of morphine which in horses acts to stimulate the skeletal muscles and locomotor system. On February 19, 1981, and February 26, 1981, the Northville Downs track stewards issued a 365-day suspension of plaintiff's trainer's license for each incident, to run consecutively. The suspensions were based on the insurer rule, M.C.L. Sec. 431.71(4); M.S.A. Sec. 18.966(41)(4), ² which makes the trainer absolutely responsible for the condition of the horses he enters in a race.

On appeal, plaintiff argues that the insurer rule violates the due process clauses of the Michigan and United States constitutions (1) by creating an irrebuttable presumption of fault and (2) by subjecting to disciplinary action a person not shown to have committed any wrongdoing. The first part of plaintiff's claim may readily be disposed of. Due process forbids the adoption of an irrebuttable presumption as to which the presumed fact does not necessarily follow from the proven fact and where the state has a reasonable alternative means of making the crucial determination. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 644-645, 94 S.Ct. 791, 798-799, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2230, 2236, 37 L.Ed.2d 63 (1973). Plaintiff contends that whenever a prohibited substance is found in a horse's system the insurer rule creates an irrebuttable presumption that the trainer of the horse administered the substance or negligently cared for the horse. We disagree. The rule, as its name implies, makes the trainer of a horse that is entered into a race the insurer of that horse's condition. It creates no presumption of trainer fault when the presence of a prohibited substance is found. The rule simply does not concern itself with assigning fault, but instead requires the trainer, as a contingency of being licensed by the state, to bear the responsibility for the horse's condition. ³

Plaintiff's alternative contention, that due process is violated by the rule since it subjects a person to disciplinary action without a showing of wrongdoing, is also without merit. Due process does not require proof of guilty knowledge before punishment may be imposed. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910). In areas subject to strong police regulation, the state may impose the burden of acting at hazard upon a person otherwise innocent but standing in a responsible relation to a public danger. United States v. Dotterweich, 320 U.S. 277, 280-281, 64 S.Ct. 134, 136-137, 88 L.Ed. 48 (1943). In Dotterweich, the Supreme Court held that criminal liability for the introduction or delivery into interstate commerce of adulterated or misbranded drugs could attach to a defendant solely because of his position of authority or responsibility as president and general manager of a corporation. More recently, Dotterweich was reaffirmed in United States v. Park, 421 U.S. 658, 672, 95 S.Ct. 1903, 1911, 44 L.Ed.2d 489 (1975). The Court wrote:

"Thus Dotterweich and the cases which have followed reveal that in providing sanctions which reach and touch the individuals who execute the corporate mission--and this is by no means necessarily confined to a single corporate agent or employee--the Act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them. Cf. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 731, 741-745 (1960)."

See also, People v. DeClerk, 400 Mich. 10, 19-23, 252 N.W.2d 782 (1977).

A majority of those jurisdictions considering the issue have concluded that horse racing is an activity requiring strong police regulation to protect the public interest. E.g., Division of Pari-Mutual Wagering v. Caple, 362 So.2d 1350, 1355 (Fla., 1978); Dare v. State, 159 N.J.Super. 533, 388 A.2d 984 (1978); O'Daniel v. Ohio State Racing Comm., 37 Ohio St.2d 87, 307 N.E.2d 529, 533 (1974); Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 189 P.2d 17 (1948), cert. den. 335 U.S. 814, 69 S.Ct. 31, 93 L.Ed. 369 (1948), but see Brennan v. Illinois Racing Board, 42 Ill.2d 352, 247 N.E.2d 881 (1969). As stated in Dare v. State, supra :

"The danger of clandestine and dishonest activity inherent in the business of horse racing has been well recognized. Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 55 (1959). The business itself and the legalized gambling which accompanies its activities are strongly affected by a public interest. State v. Garden State Racing Ass'n, 136 N.J.L. 173, 175 (E. & A.1947). Corruption in horse racing activities is regarded as an affront to a publicly sponsored sport with the potential of far reaching consequences. State v. Sipp, 149 N.J.Super. 459, 460 (App.Div.1968)." Dare v. State, supra, 159 N.J.Super. 536-537, 388 A.2d 984. We believe that a strong public interest justifying close regulation of horse racing is self-evident. Horse racing is accompanied by legalized gambling, making the activity especially susceptible to fraud and corruption. Strong regulation protects not only the wagering public but also advances the state's economic interests in the racing business by preserving public confidence in the activity.

The trainer of a horse stands in a position of "responsibility and power" to guarantee the condition of the horse when entered in a race. See People v. DeClerk, supra. Moreover, the activity of a trainer is one that is voluntarily assumed at the state's permission. Due process would not forbid a complete ban on horse racing as a legalized form of gambling. The imposition of strict liability is reasonable because the trainer is the person best able to prevent illegal drugging. The insurer rule provides maximum protection against illegal drugging; arguably it is the only practical means of reducing such corrupt practices. Morris v. The West Virginia Racing Comm., 133 W.Va. 179, 55 S.E.2d 263 (1949). If, as plaintiff proposes, we were to conclude that due process necessitates a finding of guilty knowledge or intent prior to the imposition of sanctions, enforcement of the prohibition on horse drugging would be virtually impossible, and the interests of the public and state would go unprotected. The insurer rule is a reasonable alternative to either leaving those interests unprotected or forbidding legalized racing. Stated alternatively, the insurer rule constitutes a proper exercise of police power inasmuch as (1) it seeks to advance a valid public purpose and (2) it provides a remedy that is reasonably related to that public purpose. Van Slooten v. Larsen, 86 Mich.App. 437, 445, 272 N.W.2d 675 (1978), aff'd 410 Mich. 21, 299 N.W.2d 704 (1980).

Plaintiff also argues on appeal that his due process right to notice of the charges against him was violated when the hearing officer for the office of the racing commissioner stated in his conclusions that the use of apomorphine violated an additional statute not mentioned in the initial notice of hearing sent to plaintiff.

The notice of hearing sent to plaintiff on March 5, 1981, provided, in part:

"The aforementioned allegations will be considered at the hearing under the Racing Commissioner's Rules for Harness Racing and General Provisions, including R 431.62(b) Corrupt Practices, Subsections (4), (5), (6), (7), and (8), of the Racing Law of 1980, and the Administrative Procedures Act of 1969, as amended."

The Racing Commissioner's General Rules, 1979 AC, R 431.62(b)(2)(a), define the term drug in the following manner:

"(2) As used in this rule:

"(a) 'Drug' means any medication or metabolic derivative thereof, which is a narcotic, or which could serve as a local anesthetic or tranquilizer, or which could stimulate or depress the circulatory, respiratory or central nervous system of a horse. A horse which has been entered to race shall not carry a drug in its body."

The purpose of the rule is to accomplish the prohibition or control of drugs and medications which could affect the racing condition or performance of a horse. 1979 AC, R 431.62(b)(1). Here, the racing commission hearing officer concluded that apomorphine "is a stimulant, which stimulates the nervous system of a horse and...