De Silva v. Hartack

• Decision Date: 29 June 1990
• Docket Number: No. 1-89-1876,1-89-1876
• Citation: 559 N.E.2d 51,201 Ill.App.3d 387
• Parties: , 147 Ill.Dec. 51 Anthony J. DE SILVA, Plaintiff-Appellant, v. Bill HARTACK, E. Viox, Thomas P. Scott, acting Stewards Hawthorne Race Course, Ferrell Griffin, Cecil Troy, Saul Epton, Irwin Jann, Ralph Gonzalez, Thomas J. Garvey, Dan Webb, David Diana, and Hubert Messe, members of the Illinois Racing Board, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 51

559 N.E.2d 51

201 Ill.App.3d 387, 147 Ill.Dec. 51

Anthony J. DE SILVA, Plaintiff-Appellant, v. Bill HARTACK, E. Viox, Thomas P. Scott, acting Stewards Hawthorne Race Course, Ferrell Griffin, Cecil Troy, Saul Epton, Irwin Jann, Ralph Gonzalez, Thomas J. Garvey, Dan Webb, David Diana, and Hubert Messe, members of the Illinois Racing Board, Defendants-Appellees.

No. 1-89-1876.

Appellate Court of Illinois,

First District, Second Division.

June 29, 1990.

Arthur E. Engelland, Chicago, for plaintiff-appellant.

Neil F. Hartigan, Atty. Gen. and Robert J. Ruiz, Sol. Gen., Chicago (Tanya Solov, of counsel), for defendants-appellees.

Justice HARTMAN delivered the opinion of the court:

Plaintiff Anthony De Silva, a licensed jockey, was suspended by the stewards of Hawthorne Race Course (Hawthorne) after he was found guilty of violating Rule 234 of the Illinois Racing Board (IRB). After an appeal and full hearing, the IRB upheld the suspension. Plaintiff then filed a complaint for administrative review in the circuit court. From an order affirming his suspension, plaintiff appeals, contending Rule 234 of the IRB is unconstitutionally vague and, alternatively, that his suspension was contrary to the manifest weight of the evidence.

On August 19, 1988, in the fifth race at Hawthorne, plaintiff was assigned to ride a horse named "Mr. Valentino." In a previous race held July 16, 1988 (the July race), plaintiff rode Mr. Valentino for the first time, and won. Mr. Valentino is known as a "router," or distance horse, running a stronger race over a distance of one mile or longer. A "sprint" horse, on the other hand, runs a stronger race over a distance of less than one mile. A "router" would be at a disadvantage running against a sprint horse in a race of less than one mile.

The fifth race was a sprint race of 6 1/2 furlongs, or three-fourths of a mile. To facilitate Hawthorne's trifecta wagering scheme, which required a minimum of eight horses to be entered in the race, track officials solicited Mr. Valentino's trainer to enter the horse in the fifth race. The trainer agreed, despite his belief that Mr. Valentino would be better suited to a longer distance race.

In the fifth race, Mr. Valentino, with plaintiff riding, was listed at 13 to 1 odds, the second-longest price in the race. Mr. Valentino broke badly out of the gate, five lengths behind the nearest horse before he started running. By the end of the race, however, Mr. Valentino was passing horses and was described by one track observer as "going well at the finish." Mr. Valentino finished sixth in the field of eight horses.

After the fifth race, the three assigned stewards reviewed plaintiff's performance, and determined that he failed to ride Mr. Valentino "so as to finish as near as possible to first, and show the best and fastest race it was capable of," in violation of Rule 234 of the IRB. Plaintiff was suspended for 30 days.

Plaintiff appealed the stewards' decision to the IRB, which held several hearings. William Hartack testified he was one of three IRB stewards assigned to the fifth race. Hartack and another steward, Eric Viox, viewed the race through binoculars; a third, Thomas Scott, observed on a video monitor.

According to Hartack, the last three-eighths of a mile is the crucial part of the race. There, the jockey must use his most vigorous efforts to achieve the best possible placing. He identified two techniques riders use to urge the best possible performance from a horse: hand riding and whipping. In hand riding, the jockey loosens up on the reins, pushes or applies pressure on the horse's neck, moves his hands in a forward motion to release any restraint, and encourages the horse to go forward as fast as possible. A horse must be in balance with its head; the farther a rider can push its head forward, the farther the horse will stride to maintain its balance. The horse then runs faster with the longer stride. In conjunction with hand riding, a jockey must urge the horse with a "stick," or whip. Hand riding and whipping are the two visual criteria used by the stewards to determine whether a horse is run to the best of its ability, or conversely, whether Rule 234 is violated. Hartack noted that some riders also scream or "chirp" to the horse; in his opinion, however, it is "absolutely not" possible for a jockey to get the best performance out of a horse without utilizing at least one of the aforementioned techniques.

Hartack further explained that if these techniques are not used, the jockey is considered to be riding "under a hold," or coasting with the horse. Riding under a hold is usually employed to maintain a horse's position in the field while biding time until a later charge. The only time a jockey would ride under a hold for the entire race is when the horse is winning easily. Hartack, however, would not expect a jockey to whip or abuse a fading horse simply to demonstrate the use of his "best efforts." Nevertheless, at some point in a race, the horse had to have been "asked" to run, either by hand riding or whipping.

In the fifth race, Hartack watched Mr. Valentino almost exclusively after its bad start. He observed plaintiff did not urge the horse, either with hand riding or whipping, from the 1/2-mile pole to the end of the race. After the race, the stewards ordered the track veterinarian to check Mr. Valentino; she found the horse to be sound, although the front bandages were "applied rather tightly" causing slight discomfort. According to Hartack, the horse's actions during the race did not create a situation that rendered use of the techniques unreasonable or impossible. In his opinion, use of the techniques by plaintiff would have caused Mr. Valentino to finish closer. Hartack concluded plaintiff violated Rule 234.

Thomas Scott, the steward assigned to the video monitor for the fifth race, testified that, in order to ascertain whether Rule 234 is violated, he watches for hand riding and whipping. He also asserted a jockey could not get the best performance out of a horse without using these techniques. He observed no hand motion, hand riding, or whipping by plaintiff down the stretch. He thought Mr. Valentino would have finished closer if plaintiff had used the techniques, which would have overcome the disadvantages caused by the horse's bad start and inherent weakness in sprint races. He acknowledged, however, there was no written rule requiring a horse to be hand ridden or whipped during the course of a race.

Eric Viox, the third steward, agreed with Hartack's explanation of the criteria used to determine a violation of Rule 234 and his conclusions concerning plaintiff's performance. He further concurred with Hartack that plaintiff violated Rule 234 in the fifth race. He knew of no IRB rule requiring a horse to be whipped or hand ridden during a race. Eddie Arroyo, the senior steward, also agreed with Hartack's analysis of plaintiff's performance and the conclusion it violated Rule 234. He thought Mr. Valentino was "restrained from doing his best" by plaintiff.

For plaintiff, John Beach testified that, in his opinion, some horses run better under a hold and respond adversely to hand riding and whipping. He suggested the jockey would best know the horse's preferences, especially if he had previous experience with the particular horse. He agreed that if Mr. Valentino responded negatively to the whip, it would do so consistently.

Bill Cassiday averred he was assigned by the Daily Racing Form to observe and comment on the fifth race. He described Mr. Valentino's performance as "broke poorly, was going well at the finish."

Paul Milanko, Mr. Valentino's trainer, stated the horse performed best without being whipped and when "running against the bit." On cross-examination, however, he admitted Mr. Valentino was whipped and hand ridden in the July race, which it won. He never instructed plaintiff not to whip or hand ride Mr. Valentino in the fifth race.

Plaintiff testified Mr. Valentino worked best without a whip and when "running against the bit." He explained "running against the bit" was a necessary tactic with a heavy headed horse such as Mr. Valentino. According to plaintiff, this type of horse tends to founder and get leg-weary unless the jockey holds onto it and keeps the bit against its mouth; this action pulls the horse's head up, causing it to run evenly and stride properly. Plaintiff claimed he picked Mr. Valentino's head up when turning for home in the fifth race, allowing him to run against the bit. He thought the horse was running to the best of its ability. He did not use the whip because he knew the horse would not respond. On cross-examination, however, plaintiff admitted he used the whip on Mr. Valentino in the July race down the stretch. He also acknowledged he let Mr. Valentino "run on his own" in the fifth race, and did not use the whip or hand riding techniques.

Based on this evidence, the IRB made the following findings: All four of the stewards who testified were properly qualified as expert witnesses; their testimony was unanimous and uncontroverted; there are two basic techniques used by jockeys to increase the performance of their mounts, the use of a whip and hand riding; because of the lack of other efficacious methods to urge a mount, one or both of these techniques will be utilized at some point in a race by a jockey attempting to obtain the best possible performance from his horse; the only circumstance that would preclude use of these techniques occurs when a horse maintains a lead throughout the race without the need for urging; this singular circumstance was not present in this case, as Mr. Valentino broke poorly and was trailing from the start of the race; plaintiff at no point in the race urged his horse through hand riding or whipping; and, the films of the race, in evidence, corroborated the stewards' testimony. The IRB also found that plaintiff's failure to urge his...