West v. Ky. Horse Racing Comm'n

• Decision Date: 15 November 2019
• Docket Number: CIVIL ACTION NO. 5:19-211
• Parties: Gary WEST, et al., Plaintiffs, v. KENTUCKY HORSE RACING COMMISSION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

425 F.Supp.3d 793

Gary WEST, et al., Plaintiffs,

v.KENTUCKY HORSE RACING COMMISSION, et al., Defendants.

CIVIL ACTION NO. 5:19-211

United States District Court, E.D. Kentucky, Central Division. Lexington.

Signed November 15, 2019

D. Barry Stilz, Lynn Sowards Zellen, Kinkead & Stilz, PLLC, Lexington, KY, Dennis A. Drazin, Pro Hac Vice, Drazin & Warshaw, P.C., Red Bank, NJ, Eliott Berman, Pro Hac Vice, Kyle Cassidy, Pro Hac Vice, McElroy Deutsch Mulvaney & Carpenter LLP, Newark, NJ, Karen A. Murphy, Pro Hac Vice, Old Chatham, NY, Ronald J. Riccio, Pro Hac Vice, McElroy, Deutsch, Mulvaney, Tinton Falls, NJ, for Plaintiffs.

Carmine G. Iaccarino, Public Protection Cabinet—Office of Cabinet Secretary, Frankfort, KY, John Forgy, Shawn Duane Chapman, Kentucky Horse Racing Commission, Lexington, KY, for Defendants.

OPINION AND ORDER

KAREN K. CALDWELL, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the defendants' motion (DE 19) to dismiss the complaint filed by plaintiffs Gary and Mary West. The Wests' horse Maximum Security ran in the 2019 Kentucky Derby and crossed the finish line before all other 18 horses in the race. After reviewing objections lodged by two jockeys after the race, however, Kentucky racing officials disqualified Maximum Security from the first-place finish. The Wests ask this Court to reverse that decision and to also find that the decision violated their constitutional rights to due process.

Kentucky's regulations make clear that the disqualification is not subject to judicial review. Further, the disqualification procedure does not implicate an interest protected under the Due Process Clause of the U.S. Constitution. Accordingly, the Court must grant the motion to dismiss.

I. Background

On a motion to dismiss, the Court must assume that all the factual allegations in the Wests' complaint are true. Scheid v. Fanny Farmer Candy Shops, Inc. , 859 F.2d 434, 436 (6th Cir. 1988). Accordingly, the factual basis of this opinion comes solely from the facts alleged in the complaint.

The Wests own a thoroughbred racehorse named Maximum Security, who ran in the Kentucky Derby on May 4, 2019. The Wests assert that the defendants wrongfully failed to declare Maximum Security the winner of the Derby even though he crossed the finish line before every other horse in the race.

The defendants are the Kentucky Horse Racing Commission, its executive director, and its members and "stewards."

The Kentucky Horse Racing Commission is an agency of the Kentucky state government. It is charged with regulating "the conduct of horse racing and pari-mutuel wagering on horse racing, and related activities within the Commonwealth of Kentucky." KRS § 230.225(1). It has jurisdiction over all horse race meetings that take place in Kentucky. KRS § 230.260(1). It is also authorized "to prescribe necessary and reasonable administrative regulations and conditions under which horse racing at a horse race meeting shall be conducted in this state." KRS § 230.260 (8).

The commission consists of 15 members appointed by the governor. KRS § 230.225(2)(a). The governor appoints one member to act as chair, and another to act as vice-chair. KRS § 230.225(3)(b), (c). The governor also appoints the commission's executive director. KRS § 230.230(1).

A "steward" is an appointed racing official. 810 KAR 1:001 § 1(72).¹ Stewards exercise "immediate supervision, control, and regulation of racing at each licensed race meeting on behalf of and responsible only to the commission." 810 KAR 1:004 § 3. There must be three stewards at each meet, including a "chief steward." 810 KAR 1:004 § 2(a). The stewards determine "all questions, disputes, protests, complaints, or objections concerning racing which arise during a race meeting" and enforce the determinations. 810 KAR § 3(2). All three stewards at the Kentucky Derby are defendants in this case.

In the 2019 Kentucky Derby, Maximum Security crossed the finish line first. But after the race, jockeys on two other horses in the race – Country House and Long Range Toddy – lodged oral objections against Maximum Security. Country House had finish second in the race, just behind Maximum Security. Long Range Toddy had finished 17th.

After considering the objections, Chief Steward Barbara Borden read an announcement stating that the stewards had conducted a lengthy review of the race and had determined that, during the race, Maximum Security had "drifted out and impacted the progress" of the horse War of Will, which caused interference with Long Range Toddy. Borden stated that the stewards had unanimously determined to disqualify Maximum Security from the first-place finish. In accordance with what Borden described as "typical procedure," the stewards determined that Maximum Security would be placed 18th in the race, just behind Long Range Toddy (who had finished 17th), the lowest-placed horse that Maximum Security had "bothered."

Having disqualified Maximum Security from the first-place finish, the stewards declared Country House, who had finished second just behind Maximum Security, the winner of the 2019 Kentucky Derby.

Two days later, the Wests delivered a completed Kentucky Horse Racing Commission form titled Notice of Appeal to the commission. (DE 1-1, May 6, 2019 Letter to Stout & Notice of Appeal.) In it, the Wests asserted that the stewards' "acts in reviewing the 145th running of the Kentucky Derby were arbitrary and capricious and did not comply with applicable administrative regulations." The Wests also asserted that the "determination to disqualify MAXIMUM SECURITY is not supported by substantial evidence."

On the same day, the Wests delivered a letter to the commission's executive director, which they stated was a formal notification that the Wests "hereby submit their complaint and protest of the Stewards' arbitrary and capricious acts" in reviewing the Derby. The Wests asked that their "complaint, protest, objection, and appeal be heard forthwith by the full Kentucky Horse Racing Commission." They further asked that they be provided with "notice and an opportunity to be present at any meeting or proceeding at which MAXIMUM SECURITY's disqualification or the Wests' complaint, protest, objection, and appeal is discussed or reviewed." (DE 1-1, May 6, 2019 Letter to Guilfoil.)

The Wests also requested copies of various items involved in the stewards' determination, stating:

Finally, we ask for copies of all views considered by the Stewards in connection with their decision to disqualify MAXIMUM SECURITY; recordings of all statements made by jockeys, trainers, and others that were obtained and considered by the Stewards in reaching that determination; the Stewards' notes concerning and the recording of their nearly 22 minutes of deliberations; any written decision issued by the Stewards with respect to MAXIMUM SECURITY's disqualification, and all daily logs and minute banks maintained by the Stewards" for the 2019 Derby.

(DE 1-1, May 6, 2019 Letter to Guilfoil.)

By letter dated the same date, the commission's general counsel informed the Wests that "the stewards' disqualification determination is not subject to appeal." (DE 1-1, May 6, 2019 Forgy Letter.) The Wests then filed this action. The defendants have moved to dismiss the complaint. The Court granted all parties' requests to file briefs exceeding the page limits imposed under the Local Rules.

II. Claims

The Wests assert two kinds of claims in this action. (DE 29, Response at 1-2.)

First, with Counts I through V of the complaint, the Wests ask this Court to review the stewards' decision disqualifying Maximum Security pursuant to a state statute that governs judicial review of final orders by administrate agencies. KRS § 13B.150. That statute provides that a reviewing court may reverse a state agency's "final order" if it finds the order is:

(a) In violation of constitutional or statutory provisions;

(b) In excess of the statutory authority of the agency;

(c) Without support of substantial evidence on the whole record;

(d) Arbitrary capricious, or characterized by abuse of discretion;

....

or

(g) Deficient as otherwise provided by law.

KRS § 13B.150(2)(a)-(d), (g).

Counts I through V ask the Court to reverse the stewards' decision disqualifying Maximum Security under each of these five provisions.²

The second kind of claim asserted by the Wests is a violation of their rights under the U.S. Constitution. These claims are asserted in Counts VI and VII of the complaint.

In Count VI, the Wests assert that a Kentucky regulation that deals with "fouls" during the running of a race is so vague that it violates their rights to due process under the Fourteenth Amendment to the U.S. Constitution. See 810 KAR 1:016 § 12 ("Section 12").

The only way to assert a constitutional claim against a state official is through a claim under 42 U.S.C. § 1983. Foster v. Michigan , 573 F. App'x 377, 391 (6th Cir. 2014) ("To the extent that Appellants attempt to assert direct constitutional claims, they fail; we have long held that § 1983 provides the exclusive remedy for constitutional violations.") (citing Thomas v. Shipka , 818 F.2d 496, 499 (6th Cir. 1987), vacated and remanded on other grounds , 488 U.S. 1036, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989) ). That statute provides in relevant that every "person" acting under the color of state law who deprives any citizen of any constitutional rights "shall be liable to the party injured...." 42 U.S.C.A. § 1983. While the complaint does not state explicitly that the vagueness claim is asserted under § 1983, the Wests clarify in their response that it is. (DE 29, Response at 2, 13.)

In Count VII of the complaint, the Wests do explicitly purport to assert a claim under 42 U.S.C. § 1983. In Count VII itself, the Wests do not elaborate on how the defendants violated their constitutional rights. They merely recite the words of § 1983 and refer to the other allegations in the complaint. The Wests do explicitly allege in Count II of the complaint...