By T. D. Thornton
Even as rival owners of horses that finished behind Maximum Security (New Year's Day) are threatening legal action to get the allegedly doped 3-year-old champ disqualified from previous wins, Gary and Mary West are forging ahead with their 10-month federal court odyssey to overturn the controversial GI Kentucky Derby stewards' in-race interference DQ that stripped their colt of the honor, prestige and prize money of America's most important horse race.
“But for the stewards' nonfeasance and misfeasance, Maximum Security would have been declared the official winner, and Plaintiffs would have received the Derby purse, trophy, as well as the tangible and intangible benefits of owning and breeding a Derby winner,” states a Mar. 6 reply brief that the appellants filed in the United States Court of Appeals for the Sixth Circuit. “While Plaintiffs may be bound by Commission regulations, they are not bound by Defendants' misinterpretation, nonfeasance, negligent misapplication, or willful disobedience of the Commission's regulations.”
On May 14, 2019, the Wests, who co-own Maximum Security, sued the three stewards assigned to Churchill Downs, plus the 14 board members and the executive director of the Kentucky Horse Racing Commission (KHRC), based on allegations that “the final [revised Derby] order is not supported by substantial evidence on the whole record” and that the DQ violated the plaintiffs' Fourteenth Amendment rights.
The defendants' motion to dismiss the suit was granted by a U.S. District Court judge Nov. 15. “Kentucky's regulations make clear that the disqualification is not subject to judicial review,” the court order stated. “Further, the disqualification procedure does not implicate an interest protected under the Due Process Clause of the U.S. Constitution.”
The Wests then field an appeal brief Dec. 20, and the defendants countered with their own Feb. 20, part of which stated, “The Wests can neither claim a property interest nor assert a due process claim in a purse they never won…. For the privilege of participating in horse racing, the Wests agreed to all of the Commission's rules and regulations.”
The Wests' Mar. 6 reply outlines four key points that argue for overturning the motion to dismiss: 1) The KHRC's “no appeal” rule is not a basis to dismiss the original complaint; 2) The stewards' final race order is indeed a judicially reviewable order; 3) The plaintiff's “deprivation of a constitutionally protected property interest” argument is indeed viable and actionable, and 4) The plaintiffs' “deprivation of a constitutionally protected liberty interest” assertion is adequate to withstand the “motion to dismiss” challenge.
“Defendants first seek to minimize the importance of Plaintiffs' property interest by devaluing the magnitude of Plaintiffs' accomplishment,” the reply brief states. “From a group of more than 22,000 Thoroughbreds born the same year as Maximum Security, Plaintiffs are the only owners and breeders to have had their horse cross the finish line first in the Kentucky Derby.
“Defendants not only devalue Plaintiffs' accomplishment, they also say that the disqualification of Maximum Security in the Kentucky Derby is trivial–as if it is just another race,” the reply brief continues.
“They write that the disqualification of Maximum Security is no more consequential than the 'loss of one purse following the disqualification of one horse from one race at one race meet in one jurisdiction on one evening in May,'” the reply brief states. “Defendants' attempt to diminish the iconic status of the Kentucky Derby and trivialize Plaintiffs' accomplishment rings hollow.”
In the 2019 Derby, Maximum Security led almost every step and crossed the wire first.
But there was bumping and shifting in close quarters as he led the pack off the final turn. Two jockeys filed post-race objections, but there was no posted stewards' inquiry.
The three stewards who officiated the Derby–chief state steward Barbara Borden, state steward Brooks “Butch” Becraft, and Churchill Downs steward Tyler Picklesimer–launched a post-Derby adjudication process that played out on national TV.
After 22 agonizing minutes, Maximum Security was judged to have fouled Long Range Toddy (Take Charge Indy), and thus placed behind that rival in 17th. Country House (Lookin At Lucky), who crossed the wire second, was elevated to first place via the DQ process.
The Mar. 6 reply brief argues that had the KHRC followed its own regulations on adjudicating the Wests' initial commission-level appeal two days after the race, “Maximum Security and Country House would have been declared co-winners of the Derby by the Commission 'until the matter is finally adjudicated.' In failing to obey [the rule] the Commission violated Kentucky law.”
According to the reply brief, the Wests want the defendants' motion to dismiss reversed, “and the case remanded with instructions to the district court to terminate the stay and address the merits of Plaintiffs' motion for summary judgment consistent with the opinion of this Court.”
Three days after that reply brief was field, the entire aura surrounding Maximum Security was altered when his trainer, Jason Servis, was one of 27 individuals indicted and arrested on federal charges related to a widespread national horse doping ring.
Servis was caught on intercepted phone calls and text messages allegedly discussing administering illegal substances to horses, including Maximum Security.
Discussing SGF-1000, a customized performance enhancing drug intended to promote tissue repair and increase a racehorse's stamina and endurance beyond its natural capabilities, Servis allegedly told another trainer “I've been using it on every [horse], almost.”
And when Servis called a veterinarian in June to allegedly discuss his concerns about Maximum Security testing dirty, the vet allegedly replied, “They don't even have a test for it in America.”