Lewitus v. Colwell

• Decision Date: 26 October 1979
• Docket Number: Civ. No. HM77-1852.
• Citation: 479 F. Supp. 439
• Parties: Bertram LEWITUS v. Fred COLWELL, J. Melvin Mackin and Merrall MacNealle, both in their official capacities as stewards of the Maryland Racing Commission and Individually; Frank Cucci, Donald S. Levinson, Robert W. Furtick, Carle A. Jackson, and J. Newton Brewer, both in their official capacities and as members of the Maryland Racing Commission and Individually; and Stephen H. Sachs, both in his official capacity as Attorney General of the State of Maryland and Individually.
• Court: U.S. District Court — District of Maryland

479 F. Supp. 439

Bertram LEWITUS v. Fred COLWELL, J. Melvin Mackin and Merrall MacNealle, both in their official capacities as stewards of the Maryland Racing Commission and Individually; Frank Cucci, Donald S. Levinson, Robert W. Furtick, Carle A. Jackson, and J. Newton Brewer, both in their official capacities and as members of the Maryland Racing Commission and Individually; and Stephen H. Sachs, both in his official capacity as Attorney General of the State of Maryland and Individually.

Civ. No. HM77-1852.

United States District Court, D. Maryland.

October 26, 1979.

COPYRIGHT MATERIAL OMITTED

Phillip L. Felts, Bethesda, Md., John D. Jessep, Bridgeport, Conn., for plaintiff.

Stephen H. Sachs, Atty. Gen., Maryland, Asst. Attys. Gen. F. Todd Taylor, Jr. and Robert J. Aumiller, Baltimore, Md., for defendants.

HERBERT F. MURRAY, District Judge.

MEMORANDUM

The plaintiff, Bertram Lewitus, brought this action under 42 U.S.C. § 1983 against various officials of the Maryland Racing Commission (hereinafter "the Commission"), alleging that Code of Maryland Regulation 09.10.01.25.B (formerly Maryland Agency Rules, Department of Licensing and Regulation Number 09.10.24.02) (hereinafter "Regulation 25B") is unconstitutional either on its face or as applied to the plaintiff. The regulation in question sets out the standards for issuing a license to one who seeks to participate in horse racing in the state of Maryland:

B. The Commission may refuse to issue or renew a license or may suspend or revoke a license issued pursuant to this section if it finds that the applicant, or any person who is a partner, agent, employee, or associate of the applicant:

(1) Has been convicted of a crime in any jurisdiction;

(2) Is associating or consorting with any person or persons who have been convicted of a crime or crimes in any jurisdiction or jurisdictions (3) Is consorting or associating with or has consorted with, bookmakers, touts, or persons of similar pursuits, or has himself engaged in similar pursuits;

(4) Is financially irresponsible;

(5) Has been guilty of or attempted any fraud or misrepresentation in connection with racing, breeding or otherwise;

(6) Has violated or attempted to violate any law with respect to racing, in any jurisdiction or any rule or order of the Commission;

(7) Has violated any rule of racing which has been approved or adopted by the Commission; or

(8) Has been guilty of or engaged in similar related or like practices.

Mr. Lewitus, a Massachusetts resident, applied for a "thoroughbred owner's license" at the Laurel Race Course on November 8, 1976. He intended to race a horse named "Daisy Will," which had been shipped from Massachusetts a few days previously. In considering his application, the Commission was particularly concerned with Mr. Lewitus' association with a Mr. Patrick Catrone. Mr. Catrone had been listed as "Daisy Will's" trainer when the horse had run in Massachusetts on November 3, 1976. "Daisy Will" had been shipped to Maryland from Mr. Catrone's barn in Massachusetts. Mr. Lewitus traveled to Maryland with Mr. Catrone just before Mr. Lewitus applied for his license, and the two shared a motel room in Maryland for three days in early November.

At the time in question, Mr. Catrone had a substantial record of difficulties with racing officials in several states. He had been barred from many racetracks. There was evidence he had been involved in at least four instances of "ringing," an illegal practice by which the perpetrator alters an inferior horse's identification papers and runs a relatively superior horse as if it were the inferior one. The practice permits the perpetrator to bet large sums of money at odds made very favorable by the public's ignorance of the switch. Findings of Fact and Order of the Commission, April 13, 1977.

Although the Commission was thus concerned with Mr. Lewitus' association with Mr. Catrone, there was never any intimation that the plaintiff's own record was similarly blemished. Under the regulation being challenged here, specifically, subparagraph (3), the Commission could deny Mr. Lewitus a license if it found he was associating with one who engaged or had engaged in certain practices, regardless of whether the plaintiff himself had participated directly. The defendants have never contested Mr. Lewitus' assertions that his own racing record is clean.

After the plaintiff submitted his application on November 8, 1976, he appeared before the racing stewards on or about November 10 for questioning about his relationship with Mr. Catrone. He appeared before the stewards again on the 26th, when he was advised of Mr. Catrone's background and the applicability of Regulation 25B. At the plaintiff's request, the Commission held a hearing concerning his application on January 12, 1977. On April 13, 1977, the Commission issued an order denying Mr. Lewitus' application for an owner's license. The Plaintiff instituted this suit on November 8, 1977.

The defendants have moved for summary judgment, arguing that there are no genuine issues of material fact, and that the defendants are entitled to judgment as a matter of law. The court has given long and careful consideration to the arguments on both sides of the issue. The question is by no means an easy one. But having studied the facts and reviewed the applicable case law, the court has reached the conclusion that the defendants' motion for summary judgment must be granted.

Under Rule 56 of the Federal Rules of Civil Procedure, the court must make two separate determinations before granting a motion for summary judgment. The first is whether the pleadings, discovery and affidavits show that there is no genuine issue of material fact. Federal Rules of Civil Procedure Rule 56(b); Fli-Back Co., Inc. v. Philadelphia Manufacturers Mutual Insurance Co., 502 F.2d 214 (4th Cir. 1974); Johnson v. McKee Baking Co., 398 F.Supp. 201 (W.D.Va.1975), aff'd, 532 F.2d 750 (4th Cir. 1976). In the case at bar, there is no dispute between the parties over the principal events surrounding Mr. Lewitus' application for a license and the Commission's refusal to grant it. The only "factual" issue the plaintiff can point to is the question whether the Commission has approved (or failed to revoke) licenses of certain individuals who have not met the standards of Regulation 25B.

In order to qualify as a genuine issue of material fact, a factual dispute must be one whose determination affects the outcome of the litigation. Mutual Fund Investors, Inc. v. Putnam Management Co., Inc., 553 F.2d 620 (9th Cir. 1977); Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). As the Ninth Circuit stated in McGuire v. Columbia Broadcasting System, Inc., 399 F.2d 902, 905 (9th Cir. 1968):

The showing of a `genuine issue for trial' is predicated upon the existence of a legal theory which remains viable under the asserted version of the facts, and which would entitle the party opposing the motion (assuming his version to be true) to a judgment as a matter of law. The question to be resolved is whether there is `sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial.' Quoting from First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).

Viewing the matter in the light most favorable to the plaintiff, the court will assume arguendo that the facts are as he claims, and that certain individuals with questionable records hold Maryland racing licenses. Nevertheless, those facts do not conclusively establish that the Commission's exercise of its discretion under Regulation 25B denied the plaintiff any of his constitutional rights. As explained more fully in part III of this opinion, the mere fact that the regulation may result in some inequality does not necessarily prove a constitutional violation. The alleged factual issue is thus neither "material" nor "genuine," and cannot of itself preclude decision of the case by summary judgment.

The second determination a court must make before deciding a motion for summary judgment is whether the moving party is entitled to judgment as a matter of law. Rule 56(b); Kotmair v. Gray, 505 F.2d 744 (4th Cir. 1974). The plaintiff presents several legal theories in support of his claim. With respect to each of them, the defendants are entitled to prevail.

I. Vagueness

The plaintiff argues that Regulation 25B is unconstitutionally vague, either on its face or as applied to him individually. The established test for vagueness in a statute is whether it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . .." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). That test, however, as well as the vagueness doctrine itself, applies primarily to criminal statutes. Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951); Mules v. Maryland Racing Commission, 30 Md.App. 533, 353 A.2d 664 (1976). The standards applied to a law or regulation that imposes no criminal penalty, such as Regulation 25B, are somewhat less strict. If the language conveys sufficient warning about what is forbidden, it need not meet impossible standards of specificity. Jordan v. DeGeorge, supra, 341 U.S. at 231, 71 S.Ct. 703. The Supreme Court, recognizing that the English language limits the ability to be both specific and brief, has held that a statute is not unconstitutionally vague simply because it is unclear how the law might be applied in all possible circumstances. United States Civil Service Commission v. Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).

Viewed in that light, Regulation 25B is not unconstitutionally vague as applied to Mr....