Federal Court Affirms Dismissal of Derby Lawsuit; Wests Won't Pursue Further Action

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Gary & Mary West | Sarah Andrew

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A three-judge panel of a federal appeals court Friday upheld a district court's decision from last November to dismiss a lawsuit by Gary and Mary West, the owners of Maximum Security (New Year's Day), which sought to overturn the colt's controversial disqualification from first place in the 2019 GI Kentucky Derby.

“What should have been the fastest two minutes in sports turned into over a year of litigation,” wrote Judge John K. Bush in the opinion accompanying the judgment of the United States Court of Appeals for the Sixth Circuit. “Neither Kentucky law nor the Fourteenth Amendment allows for judicial second-guessing of the stewards' call.

“The district court dismissed the suit for failure to state a claim,” the opinion stated. “It determined that the stewards' decision was not reviewable under Kentucky law, that the Wests had no property interest in the prize winnings, and that the challenged regulation is not unconstitutionally vague…. We agree and affirm the judgment of the district court.”

Gary West told TDN via email he won't be pursuing further legal action.

“This is the only comment I will ever have,” West wrote. “I obviously disagree with the courts' findings, but it is time to move on and the decision will not be appealed.”

The Kentucky Horse Racing Commission (KHRC), whose board members and executive director were the defendants in the lawsuit along with the three Churchill Downs stewards, issued a statement that said the organization was “pleased with the decision.”

KHRC executive director Marc Guilfoil said in the statement that the stewards' decision to disqualify Maximum Security was “an easy call to make, but a tough day to make it on.”

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 place. Country House (Lookin At Lucky), who crossed the wire second, was elevated to first place via the DQ process.

Ten days later, the Wests sued based on allegations that “the final [revised Derby] order is not supported by substantial evidence on the whole record” and that the disqualification violated the plaintiffs' Fourteenth Amendment rights.

The defendants' motion to dismiss the suit was granted by a U.S. District Court judge Nov. 15, 2019. The Wests appealed, and the case was argued June 16, 2020.

The Wests put forth four arguments on appeal. First, they argued that the stewards' decision to disqualify Maximum Security was a 'final order of an agency' that is subject to judicial review under Kentucky law.

Second, they argued that the stewards' decision was not supported by substantial evidence, was arbitrary and capricious, or was otherwise deficient as a matter of law.

Third, they argued that the stewards violated the Wests' right to procedural due process.

And finally, the Wests argued that the regulation that gives stewards the authority to disqualify a horse is void for vagueness.

“Perhaps only a racehorse itself could tell us whether it was fouled during a race,” the opinion stated. “But horses can't speak, so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts–the stewards, not the appointed members of the Commission or judges–to determine when a foul occurs in a horse race. It is not our place to second-guess that decision. We therefore hold that a stewards' decision to disqualify a horse under [state regulations] is not a 'final order' of an agency' under [state law] and therefore, is not subject to judicial review.”

The court next addressed the Wests' argument that the stewards deprived them of constitutionally protected liberty and property interests. To plead a due process claim, the opinion stated, the Wests must allege “a life, liberty, or property interest requiring protection under the Due Process Clause” and a “deprivation of that interest” without adequate process.

“The Wests contend that they have a protected property interest in the winner's share of the Derby purse, and a liberty interest in an agency following its own regulations,” the opinion stated. “Right out of the gate, the Wests fall behind. Kentucky law provides that 'the conduct of horse racing, or the participation in any way in horse racing…is a privilege and not a personal right; and that this privilege may be granted or denied by the racing commission or its duly approved representatives acting in its behalf.'”

The opinion also noted that “a party cannot possess a property interest in the receipt of a benefit when the state's decision to award or withhold the benefit is wholly discretionary.”

Bush wrote that the regulations “are clear that the stewards have unbridled discretion” in determining whether a racing foul occurred, and whether to disqualify a horse because of it.

“The Wests argued that [a Kentucky racing regulation] which governs the procedure after a race has been declared 'official,' grants them the right to the benefits of the Kentucky Derby,” the opinion stated. “Not so. That provision has no bearing here because Maximum Security was disqualified before the race results were official. Even if that regulation were to apply here, it does not grant any person the right to the benefits of winning a horse race. Rather, it dictates the procedures that the stewards must follow while they review objections and determine the propriety of any sanctions against a horse and jockey.”

The opinion continued: “Heading down the final stretch, the Wests argue that because Maximum Security was the first horse in the 145-year history of the Kentucky Derby to ever be disqualified for a foul committed during the race, the custom and practice was to declare the horse that crossed the finish line first the winner.

“[But] even though Maximum Security's disqualification was unprecedented, the fact remains that the stewards have always had the discretion to call fouls in horse races; this just happens to be the first time that they exercised this discretion in the Kentucky Derby.

“As a condition of maintaining a Thoroughbred racing license in Kentucky, the Wests agreed to…'abide by all rulings and decisions of the stewards and the commission.' The only mutually explicit understanding between the Wests and the Commission was that the Wests agreed to abide by the regulations, and those regulations do not give the Wests a property interest in the purse or the trophy.”

The Wests, the opinion stated, “cannot identify a property interest in the Derby winnings because Maximum Security did not win the race and they were never entitled to the winnings. The Wests have not pointed to a 'state statute, formal contract, or contract implied from the circumstances that supports [their] claim to a protected property interest.'”

The opinion stated that the Wests' argument that their liberty interest was violated largely mirrored their property argument. “Because the Wests do not have a liberty or property interest, their void-for-vagueness challenge fails as a matter of law.”

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