Roush v. Pari-Mutuel Com'n of State of Wyo.

• Decision Date: 29 May 1996
• Docket Number: PARI-MUTUEL,No. 95-133,95-133
• Parties: Charles C. ROUSH, Appellant (Plaintiff), v. TheCOMMISSION OF the STATE OF WYOMING and its Commissioners, Agents and Servants, Alice Beasley, Virginia Merritt, Bev Pridgeon, Ken Griggs, and James Purdy, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1133

917 P.2d 1133

59 A.L.R.5th 803

Charles C. ROUSH, Appellant (Plaintiff), v. The PARI-MUTUEL COMMISSION OF the STATE OF WYOMING and its Commissioners, Agents and Servants, Alice Beasley, Virginia Merritt, Bev Pridgeon, Ken Griggs, and James Purdy, Appellees (Defendants).

No. 95-133.

Supreme Court of Wyoming.

May 29, 1996.

Franklin D. Bayless of Bayless, Slater & Macy, P.C., Cheyenne, Paul Thomas Glause, Rock Springs, for appellant.

William U. Hill, Attorney General; Barbara L. Boyer, Senior Assistant Attorney General; and Dennis Coll, Senior Assistant Attorney General, Cheyenne, for appellees.

Before GOLDEN, C.J., THOMAS and LEHMAN, JJ., and GUTHRIE and STEBNER, District Judges.

THOMAS, Justice.

The issues in this case are the progeny of the absolute insurer rule found in the rules of the Wyoming Pari-Mutuel Commission (Commission). Charles C. Roush (Roush) was fined by the Commission, the winner's purse was forfeited, and his racing license was suspended because a horse he raced tested positive for an illegal drug, methylphenidate. The primary issue is whether the absolute insurer rule can be invoked by the Commission because of a failure to establish a proper foundation for the introduction of the result of a drug test that triggered the rule. In addition, Roush contends the Commission erred in its decision because he successfully rebutted the presumption of negligence upon which the application of the absolute insurer rule rests, and his right to due process of law was violated because of delay in the Commission proceedings and the failure to follow proper administrative law procedures. A collateral error is asserted because of the dismissal by the district court of a civil rights claim pursuant to 42 U.S.C. § 1983 (1988), which Roush sought to join with his petition for review. We hold the Commission correctly invoked the absolute insurer rule, and there were no prejudicial errors, relating to due process or otherwise, in these proceedings. The Order Affirming Agency Order Suspending License of Charles C. Roush entered in the district court is affirmed.

In the Brief of Appellant, Roush states these issues:

I. Whether Wyoming Pari-Mutuel Commission's decision should be reversed pursuant to W.S. § 16-3-114 for the reason that the absolute insurer rule is inapplicable absent a sufficient chain of evidence?

II. Whether Wyoming Pari-Mutuel Commission's decision should be reversed pursuant to W.S. § 16-3-114 for the reason III. Whether Wyoming Pari-Mutuel Commission's decision should be reversed pursuant to W.S. § 16-3-114 for the reason that the conduct of the hearings by the Wyoming PariMutuel Commission was not in accordance with the law, without observation or procedure as required by law, and conducted in such a manner as to be arbitrary, capricious and an abuse of discretion and contrary to constitutional right, power and privilege.

that the absolute insurer rule is inapplicable for the reason that appellant licensee was not negligent in the care of his horse Bulls Eye Special.

IV. Whether the May 5, 1995 order of the Laramie County District Court upholding the administrative decision and dismissing the 42 U.S.C.1983 complaint filed by appellant Roush was contrary to law and constitutional right, power and privilege.

In the Brief of Appellees, the Commission offers no statement of the issues but, instead, styles the arguments in this way:

I. Substantial evidence was presented to show that the chain of evidence was not broken and the sample containing the drug methylphenidate was taken from appellant's horse.

II. Appellant violated the absolute insurer rule because an illegal drug was found in his horse and because he failed to properly guard his horse.

III. Appellant was afforded due process during his administrative licensure hearing.

IV. The district court properly dismissed the 42 U.S.C.1983 complaint filed by appellant.

In June 1993, Roush brought a sorrel gelding named Bulls Eye Special to the Sweetwater Downs racing meet at Rock Springs. Roush was the trainer for Bulls Eye Special and, on June 27, 1993, the horse ran in, and won, the seventh race at Sweetwater Downs. After the race, Bulls Eye Special tried to jump the inside rail at the track. The horse sustained cuts on its back legs and a major laceration on the rib area of its right shoulder, underneath the front leg. Roush requested Bulls Eye Special be taken to its own stall for drug testing rather than to the test barn because of these injuries, and Dr. Michael H. Ruby (Ruby), veterinarian for the Commission, agreed to this change from the usual procedure. Ruby observed Bulls Eye Special was beginning to stiffen because of his injuries and thought it would be best if the horse did not have to walk to its stall after the testing.

Sherry Robison (Robison), veterinarian assistant to Ruby, was in charge of collecting the urine sample for drug testing on Bulls Eye Special. When she learned the horse had been taken to its own stall, she took the pole and cup used to collect the urine sample, but decided not to take the rest of the testing kit, including the urine bag and test card, because she was concerned the horse would urinate before she could reach its stall. When she arrived, Roush directed her to Bulls Eye Special's stall. She observed that the horse was "bleeding out the front end on his chest."

Ruby came to the stall, examined Bulls Eye Special, and returned to the test barn to get the rest of the testing kit. At the test barn, he recognized the urine bag for the eighth race already was prepared, but there was no urine bag for the seventh race. He then checked the sequence numbers for the fifth and sixth races and realized that Marty Lloyd (Lloyd), another assistant, had filled out the next numbered test card, J21769, with information for the eighth race. Lloyd had done so because he believed Robison had filled out the information for the seventh race and had taken the bag and test card with her. Ruby showed the error to Lloyd, explaining Robison had not filled out the card for the seventh race. Ruby directed Lloyd to change the card, and Lloyd, agreeing there had been a mistake, crossed out the information pertaining to the eighth race, and then wrote "Bulls Eye Speicle [Special], sor [sorrel], G [gelding], 4[age] and 6101K [tattoo number]" on the card while Ruby watched him.

Ruby took the card Lloyd had altered, numbered J21769, a urine bag, blood tube, and a syringe and needle, and joined Robison at Bulls Eye Special's stall. Ruby gave the The only people who had access to the refrigerator were Ruby and the two assistants. For security, Ruby ran a chain through the lock through the door on the refrigerator, locked the refrigerator, and also locked the test barn at night. He testified it was impossible for the samples to be switched.

card to Robison. He went into the stall, verified the horse's tattoo number as 6101K, the same number as on the record the racing secretary had provided him, took a blood sample, and placed the sample in the collection tube. Ruby returned to the test barn where he labeled the blood tube, sealed it, and placed it in the refrigerator with other blood samples. Later, after everyone else had left the barn to prepare for the ninth race, Robison successfully collected a urine sample from Bulls Eye Special. She put the sample in the urine bag, checked the label against the test card, and noticed the test card Ruby had given her had been altered. Roush returned to the barn and signed the test card without comment. Robison returned to the test barn, sealed the urine bag, put it in another bag, tore off the end of the test card, making certain all the information matched, sealed the bag, and put it in the freezer. She testified she was the only person to handle the urine bag.

After the weekend of racing, Ruby sent all samples, including those from Bulls Eye Special, to Industrial Laboratories Company in Denver. The product of the testing at Industrial Laboratories Company was that methylphenidate was found in the urine sample J21769 collected from Bulls Eye Special. Industrial Laboratories Company prepared an affidavit informing the executive director of the Commission of that fact on July 2, 1993.

On the same day, Roush was served with a copy of the Commission's Notice of Violation and Formal Hearing, and the hearing was set for July 9, 1993. Roush filed a motion to continue to allow "additional time to investigate this matter, conduct discovery, subpoena witnesses and prepare for the hearing." The Commission granted the motion and reset the hearing for July 24, 1993. On that day, Roush objected to a hearing before stewards who were not present at the Sweetwater Downs race involving Bulls Eye Special, but did agree that the matter could be transferred to the Commission without a stewards' decision. A new notice of hearing, then, was given to Roush setting the hearing for August 11, 1993. He was informed he had "the right to have counsel present, the right to present a defense, including witnesses for that purpose, and the right to cross-examine the Commission's witnesses." Later, the Commission granted Roush's second motion to continue, and it set the matter for hearing on August 31, 1993. A third motion for continuance filed by Roush was denied.

The hearing was commenced on August 31, 1993, and two witnesses testified for the Commission. Roush cross-examined each witness and, since the proceeding took longer than expected, it was continued to October 7, 1993. When the hearing resumed, Roush was permitted additional cross-examination of the Commission's witnesses, and he also presented evidence through four witnesses, including himself and an expert witness. Following that hearing, the Commission orally announced a tentative decision to suspend Roush's racing license for one year, fine him $3,500, and require the purse to be forfeited, all contingent upon the results of DNA...