Crux of Argument in Wests' Derby DQ Appeal: 'Stewards Are Put Above the Law'

An attorney for Gary and Mary West argued in a federal appeals court teleconference Tuesday that a 2019 dismissal of their civil rights lawsuit pertaining to the disqualification of Maximum Security (New Year's Day) in the GI Kentucky Derby should be overturned on the basis that a Kentucky Horse Racing Commission (KHRC) regulation should not pre-empt a state statute that gives power to courts to review final orders of agency determinations.

“If this decision of the district court is not reversed, what it means is that the stewards' decision to disqualify a horse is never reviewable by anybody, ever,” Ronald Riccio, representing the appellants, told a three-judge panel from the United States Court of Appeals for the Sixth Circuit.

“Kentucky will be the only jurisdiction in the United States in which the stewards have unlimited power to disqualify horses and nobody can change it. Not the commission, not a court, not anybody. The stewards are put above the law,” Riccio said.

Jennifer Wolsing, an attorney arguing for the appellees, which include the three Churchill Downs stewards who officiated the Derby, the KHRC executive director, and all of the board's members at the time, told the judges that participating in Kentucky racing as a licensee is a privilege and not a right, and that the Wests' should have known that by Kentucky's rules, in-race rulings regarding fouls shall be final and not subject to appeal.

“The Wests' agreed to abide by the commission's regulations, including the provision that stewards' determinations are final,” Wolsing said. “And this rule is here for a reason: To [allow] otherwise would turn the most exciting two minutes in sports into two years of protracted litigation.

“Just as it would be ludicrous to litigate an umpire's decision at a high school baseball game, it's also inappropriate to ignore Kentucky's regulation and allow the Wests' to challenge the stewards' unappealable disqualification determination,” Wolsing said.

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 was 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, who own Maximum Security, 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.

“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 filed an appeal brief Dec. 20, 2019. The June 16 oral arguments were the first scheduled opportunity for both sides to state their case in oral form and offer rebuttals before a panel of judges.

Much of the argument that Riccio put forth centered on the definitions of what constitutes a “final order” issued by a “state agency head.” He likened the way the Churchill stewards made their disqualification decision to an “administrative hearing” that he believes should be reviewable by a higher power or court of law.

“What the district court concluded was that the stewards' process by which they disqualified Maximum Security was not the product of an administrative hearing,” Riccio said.

“And that, we suggest, is very flawed,” Riccio continued. “It was flawed because what the stewards did was conduct a process by which they had the sole and exclusive power to conduct the hearing…. We take the position that the district court misinterpreted 'final order' and produced a result that is in conflict with the legislative intent of the Kentucky racing commission.

“First the [KHRC] said the commission can't review the stewards' disqualification. Then they said that this court can't review what the stewards did. In other words, what that means is, if the stewards want to flip a coin and decide who should be disqualified and who should not be disqualified, they can do that with impunity and without fear,” Riccio said.

Wolsing countered that stewards routinely determine disqualification in summary fashion in the immediate aftermath of race, and that they are not an “agency head” determining a “final order” after a formal administrative hearing. She again brought up her point that stewards function more like umpires in a baseball game.

“Regulations say [stewards] have to exercise immediate supervision, control and regulation of racing licensees,” Wolsing explained. “Which is kind of a way of saying that they call balls and strikes. In contrast, the full 16-member racing commission is actually the agency head for the purpose of final order.”

Judge John Bush interjected to bring up a point about defining the stewards' true roles in officiating races.

“This is a little different than an umpire at a Little League game. You have a situation where you have a regulated sport where gambling is also sanctioned by the government as part of the sport, and there is an elaborate procedure by regulation as to how the stewards are to function,” Bush said.

“[The stewards] actually issued an order saying what their decision was after interviewing witnesses,” Bush continued. “Doesn't this look more like an agency determination that would be subject to this statute that says 'All final orders of an agency shall be subject to judicial review'?”

Riccio, at a later point in the proceedings, also took umbrage with the analogy that stewards function as umpires.

“The stewards are state actors. Umpires are not. What the stewards did in this case would be the equivalent of umpires changing the rules of the game,” Riccio said. “Instead of having three strikes and you're out, the umpire decides you can have four or five strikes or no strikes.

“So what we're dealing with here is not a judgment call by the stewards. We're dealing with changing the rules of the game to fit their purposes and to make [arbitrary] decisions never subject to judicial review,” Riccio said.

At a different point, one of the judges asked Riccio to state what property or liberty interest the Wests had prior to the race being declared official. (The plaintiffs in their original lawsuit argued that the disqualification had stripped them of the honor, prestige and prize money of winning America's most important horse race. They wanted Maximum Security and Country House declared as co-winners until the courts could render an official result.)

Riccio said the Wests' acquired those property and liberty interests “not prior to, but immediately after the horse crossed the finish line first.” He added that “You don't need to have something in hand in order for a property right to be protected under the 14th Amendment.”

Wolsing, when it was her turn, cited a point of law that underscored “one cannot forfeit something that one does not possess,” adding that “Maximum Security's purse was not forfeited. It was awarded to the horse that won the race.”