By T. D. Thornton
The defense in the GI Kentucky Derby disqualification lawsuit did not rest over the long holiday weekend.
For the second time in four weeks, the Kentucky Horse Racing Commission (KHRC), et al, filed court documents underscoring that a federal judge should dismiss the case on grounds that the ongoing litigation “still fails to state a claim for which relief can be granted” and that plaintiffs Gary and Mary West are attempting “to claim legal rights to which they are not entitled.”
The July 5 filing in the United States District Court for the Eastern District of Kentucky (Lexington Division) is the latest legal action in the back-and-forth salvo of filings that began May 14 when the owners of Maximum Security (New Year's Day), sought the reversal of the unprecedented Derby DQ, plus reinstatement of the original order of finish “confirming that Maximum Security is the official winner of the Derby.”
In the May 4 Derby, the Churchill Downs stewards judged that Maximum Security fouled Long Range Toddy (Take Charge Indy). In the first-ever instance of an in-race infraction resulting in the DQ of the horse who crossed the wire first in the Derby, Maximum Security was placed 17th place while Country House (Lookin At Lucky) was elevated to first and recognized as the official Derby winner.
On June 8, the three stewards assigned to Churchill Downs, plus the 14 board members and the executive director of the KHRC, filed a “motion to dismiss” citing the alleged failure by the Wests to follow Federal Rule of Civil Procedure 12(b)(6).
On June 24, the Wests fired back with a court response to that motion in which they alleged that giving the Churchill Downs stewards the final say in the controversial Derby DQ amounts to a “breathtaking and dangerous” concentration of power that is “the very definition of tyranny.”
Friday's legal parry by the defendants again attempts to assert that “the Wests have identified no protected property (or liberty) interest recognized by contract or Kentucky law, no due process deprivation, and therefore no violation of a constitutional right.”
It also alleges that the plaintiffs, in their June 24 filing, improperly raised new legal claims for the first time in response to an opposing party's summary judgment motion [and thus] the court “should ignore these new claims.”
Beyond the legal arguments that are laid out in this latest filing, the footnotes of the document articulate several of the defendants' points in plain language.
“[T]he Wests complain repeatedly about their expectations and their understandings,” one footnote of the filing states. “But as experienced thoroughbred owners who agreed to the rules of racing, they should have expected the Stewards to resolve foul claims exactly as they did—in a summary fashion. And they should have expected to be bound by the Stewards' determination and unable to appeal, even if they disagree with the outcome.
“That the sport of horse racing is regulated by the state does not change the nature of foul calls compared to other sports,” a separate footnote continues. “Indeed, the effect of what the Wests propose is staggering. Consider, for example, that high school sports are regulated by the Kentucky High School Athletic Association…. If foul calls are subject to due process challenges like the Wests' have brought, then every blow of the whistle at a high school sporting event—baseball, basketball, football, soccer, softball, track, swimming, tennis—is a single filing away from an administrative hearing or—as here—a federal lawsuit.”
The defendants in the case are the three stewards who officiated the Derby—chief state steward Barbara Borden, state steward Brooks “Butch” Becraft, and Churchill Downs steward Tyler Picklesimer—plus KHRC executive director Marc Guilfoil, chairman Franklin King, vice chair Mark Simendinger, and board members Gatewood Bell, Jr., Larry Bisig, Stuart Brown II, DVM, Kerry Cauthen, Kiki Courtelis, Pat. Day, Douglas Hendrickson, Lesley Ann May Howard, Kenneth Jackson, Bret Jones, Foster Northrop, DVM, and J. David Richardson.
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