By Dan Ross
More details are emerging as to the grounds by which Mick Ruis, trainer of 2018 GI Santa Anita Derby runner-up Bolt d'Oro (Medaglia d'Oro), is seeking a public review on Justify (Scat Daddy)'s scopolamine positive subsequent to winning the race, and the circumstances that led to those test findings being dismissed.
As first reported in the Louisville Courier Journal Wednesday, Ruis had requested the California Horse Racing Board (CHRB) to conduct a public hearing into the board's dismissal of that test result. The board is reported to have informed Ruis on Tuesday that “further hearing on the subject is not required or warranted.”
In a letter made available to TDN, Ruis' attorney, Darrell Vienna, lays out what he sees as the justification for the hearing: essentially, that the CHRB made a legal error in treating the overage as a Class 4c violation with a lesser penalty, rather than a tougher 3b penalty which would have required disqualification and redistribution of purse money. The drug, he writes, didn't officially receive its lesser categorization until Jan. 1 of 2019, well after the positive and the case dismissal.
“We believe that statements of CHRB Chairman Chuck Winner provide substantial evidence that the CHRB based its consideration and voting on the matter upon a mistaken understanding or interpretation of the law,” states the letter, dated Sept. 27, to CHRB chief counsel John McDonough.
The “vote” referenced in the letter pertains to the private session meeting Aug. 28 of 2018 at which the board voted “unanimously not to proceed with the case against Baffert,” as first reported in the New York Times' bombshell report on the matter.
After his win in the 2018 Santa Anita Derby, the Bob Baffert-trained Justify proceeded to annex the Triple Crown. He was retired unbeaten shortly thereafter.
In a written response Thursday concerning Vienna's September letter, CHRB executive director, Rick Baedeker, wrote that the CHRB's decision was based on the “merits of the case” which showed that Justify's positive was a case of environmental contamination.
“Scopolamine naturally occurs in Jimson Weed, which is sometimes harvested along with straw or hay and delivered to racetracks for feed or bedding. Such contamination has occurred in the past, as in 2016 when the CHRB issued an advisory after Jimson Weed had been found in straw at Del Mar and again in spring of 2018 at Santa Anita, when laboratory findings found that several horses in various barns had ingested plant alkaloids, including scopolamine, from straw, hay or other feed. Jimson Weed was subsequently located in straw there,” Baedeker wrote.
“The Board, in consultation with the Executive Director and the Equine Medical Director [Rick Arthur], may choose not to file a complaint when an investigation determines that a laboratory finding resulted from factors beyond the control of the trainer or owner, such as environmental contamination,” Baedeker added.
Vienna's 19-page letter revolves around CHRB Rule 1843.2, which deals with the classification of drug substances.
He writes that he has reviewed the rulemaking file for 1843.2 from 2010 to 2019, and found that, “at all times from the date of the running of the 2018 Santa Anita Derby, through the testing of both the official and split sample collected from 'Justify' following that race, and through the subsequent dismissal of the finding of the substance scopolamine, prevailing CHRB rules provided that scopolamine was a category 3 substance with a B penalty designation.”
This means the positive should have required “disqualification of the horse from the race in which it participated and forfeiture of any purse and that such disqualification shall occur regardless of the culpability for the condition of the horse,” the letter states.
Vienna notes remarks former CHRB chairman Chuck Winner made to the Times arguing that, at the time of the violation, ARCI guidelines listed scopolamine as a class 4c substance, which would not trigger disqualification or redistribution of a purse. Winner is reported to have said that CHRB Rule 1843.2 classifications are based on the ARCI guidelines, unless specifically modified by the Board, and the Board never modified that designation.
Further reporting appears to support the assessment that Justify's scopolamine positive didn't necessitate his disqualification.
In a lengthy article for NBC, Tim Layden writes how, “California had, at the time of Justify's test, listed scopolamine as a Class 3b substance, which would have carried a penalty of disqualification,” before adding that under ARCI rules, “that would still have meant a DQ; but under California rule 1859.5 – 'Disqualification for a positive test' – only substances in classes 1-3 carry a disqualification. Hence, Justify should not have been disqualified.”
In his statement issued Thursday, Baedeker wrote that, with regard to penalty determination, “the Board has historically followed the ARCI penalty guideline with few exceptions. The penalty guideline however, was not used as a basis in the Board's decision. The decision made by the Board was final.”
In his September letter to the CHRB, however, Vienna takes issue with the way in which it appears the ARCI's rules could have been used as a guideline. He writes that, in order for the drug to have been officially re-categorized, it needed to have done so via the Administrative Procedures Act (APA), an official process for putting laws into place. This didn't happen, he writes, until Jan. 1 of 2019, well after the drug positive and the board's closed-door session Aug. 28, 2018.
“Any attempt by the CHRB to issue, utilize, enforce, or attempt to enforce a rule without following the APA is called an 'underground regulation.' (Govt. Code 11340.5) State agencies cannot enforce or utilize underground regulations,” he writes.
“Simply put, the fundamental CHRB assertion that scopolamine was, at the relevant juncture herein described, a 4C violation is not true,” the letter states. “Review of the rulemaking file exposes that very critical fact. As you are no doubt aware, grounds for rehearing exist where the law was misinterpreted or mistakenly applied or where new evidence of a convincing nature was not available at the time. Such is the case, here.”
The need for a public hearing is “significant,” Vienna told the TDN, via telephone.
“In this case it's significant to the tune of $400,000,” he added, referencing the difference in prize money between first and second place in the Santa Anita Derby. “Who knows, if [Bolt d'Oro had] won the Derby there might have been a bonus in syndication.”
While the board has no formal obligation to conduct a public hearing on the matter, Vienna said, the intense spotlight under which racing currently sits–especially in light of the damning public comments made by California Governor Gavin Newsom–requires its rule making processes to be done with transparency.
“Let's say that they revisit it with a proper understanding of the rules. They may come to the same conclusion, and they may not, but we need to see that deliberation,” said Vienna, who explained that he was unable yet to publicly reveal how he plans to proceed with the matter, but suggested litigation if the board fails to conduct the hearing, as requested.
“They can decide whatever they want, but that doesn't mean we will stop there,” he said. “What we do know is that in the best interests of this state and horse racing in general is to clear this up, and the only way to clear this up is to put some sunlight on it.”