By T. D. Thornton
The New York Supreme Court for the County of Schenectady on Friday granted trainer Todd Pletcher a preliminary injunction precluding the New York State Gaming Commission from enforcing penalties related to the disqualification of Forte (Violence) from his win in the 2022 GI Hopeful S. at Saratoga Race Course, meaning that the sanctions are halted until the court decides issues of the case related to due process and rules interpretations.
According to the Mar. 29 court order, the NYSGC had found that “based upon blood and urine samples taken after the race, that Pletcher was responsible for the positive finding of the drug Meloxicam in Forte. As a result of the disqualification, the owners of Forte were stripped of the first-place portion of the purse and, as a result of the drug administration finding, Pletcher's license to train horses was suspended for 10 days and he was fined $1,000.”
But, the court order explained, “Pletcher's Petition asserts that the Commission Order must be annulled and vacated because (1) Pletcher was found to have violated a rule that doesn't exist; (2) Pletcher was found liable based upon a standard outside of the Commission's rules; (3) that the subject rule is impermissibly vague; (4) the Commission fails to show that the finding against Pletcher was supported by substantial evidence; (5) the Commission Order inexplicably departs from precedent so as to make it arbitrary and capricious; (6) it adopts a Hearing Officer's report based upon an unlawful hearing wherein the Hearing Officer acted in excess of authority by permitting the owner representative of the second place horse to intervene in the hearing and to act in a prosecutorial role, despite not being admitted to the practice of law in the State of New York.”
The NYSGC, represented by the New York Attorney General, had opposed the motion for a preliminary injunction, asserting that since Pletcher raised the substantial evidence question, the entire proceeding, including any request for a preliminary injunction, must be transferred to and determined by the Appellate Division.
Supreme Court Justice Michael Cuevas disagreed, writing in the Mar. 29 order that the case must remain at the Supreme Court level.
“[T]his Court can only conclude that Petitioner has demonstrated a reasonable likelihood of success on the alleged due process violations and the alleged misinterpretation of existing rules or application of a non-existent rule,” Cuevas wrote.
“We are very pleased that the Supreme Court has decided to review what we believe are serious due process issues in this case,” Pletcher's attorney, Drew Mollica, told TDN. “We are also elated that the Supreme Court has taken the position that they will review the standard by which the Gaming Commission saw fit to disqualify Forte and sanction Mr. Pletcher.
“While it's early, the issues raised, including the participation of an unlicensed attorney to assist in prosecuting this matter, is something we look forward to litigating,” Mollica continued.
“Judge Cuevas has flagged these procedural legal issues that must be addressed before any appellate review. The procedural and legal issues will prove that not only should Forte not have been disqualified, but that any sanction of Mr. Pletcher is a miscarriage of justice,” Mollica said.
The finding of meloxicam, a non-steroidal anti-inflammatory drug, in Forte's system wasn't the entirety of the controversy when it was first made public nearly 11 months ago.
A more concerning aspect was that the 2022 juvenile champion's positive test result was kept from the public for more than nine months, and wasn't revealed until May 9, 2023, when the New York Times first broke the story, citing as sources “two people who are familiar with the matter but are not authorized to speak about it.”
Two days later, the NYSGC formally announced Forte's disqualification from the Hopeful S. while imposing the fine and suspension upon Pletcher.
Pletcher promptly appealed his penalties, and Mike Repole, Forte's owner, appealed the colt's DQ.
The commission then stayed the penalties while the appeals process played out, and, as the Mar. 29, 2024, court order stated, “The commission also invited each other owner representative of a horse that received a share of the purse in the disputed race to appear in the joint hearing as an intervenor.”
Prior to the hearing, Pletcher had objected to the permitting of intervenors and their roles in the hearing.
At the July 20, 2023, hearing, eight witnesses testified and 44 exhibits were received into evidence.
The hearing officer then issued a report on Sept. 30, and on Dec. 4 the NYSGC adopted the report's findings of fact and conclusions of law in levying the penalties against Pletcher and in disqualifying Forte.
Mollica won a temporary restraining order for Pletcher on Dec. 21 by filing an Article 78 appeal. Article 78 appeals are lawsuits mainly used to challenge an action, or inaction, by agencies of New York State and local governments. The parties were in court to argue their points on Jan. 8, 2024.
TDN emailed a spokesperson for the NYSGC seeking comment on Friday's ruling but has not yet received a reply.
The next steps in the process are for the NYSGC to answer or otherwise move with respect to the petition within 20 days of the Mar. 29 order. Then Pletcher may reply to any counterclaim or new matter asserted in NYSGC's answer by May 10, when a status conference has been scheduled.
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