Today, the Paulick Report posted the letter from Congressman Bobby Rush (IL), Chairman of the House Committee on Energy and Commerce, to Robert Beck, Chairman of the KHRC. Of note:
“What factors were considered in formulating the penalty imposed on Mr. Dutrow? Did KHRA take into account Mr. Dutrow’s previous violations in other racing jurisdictions as authorized in Section 3 of 810 KAR 1:028, or did the Authority treat this Class B violation as a first time offense in the state of Kentucky?”
For the record, I unwittingly answered this question yesterday as a comment on a Paulick flashback:
Kerry Says:
July 29th, 2008 at 9:06 am
Here’s a fun bit of trivia. This is 810 KAR 1:028, the penalties reg:
Section 3. Prior Offenses.
(1) [...] Prior offenses occurring in other racing jurisdictions may be considered by the stewards and the Authority in assessing penalties. [...]
(2) Prior offenses occurring before September 7, 2005 shall not be considered.
(3) Prior offenses involving a Class C drug or Class D drug may be considered as a prior offense, if the act that constituted the offense was committed after September 7, 2005 and within one (1) year of the offense for which the person stands charged.
(4) Prior offenses involving a Class A drug or Class B drug may be considered as a prior offense, if the act that constituted the offense was committed after September 7, 2005.
(5) Prior offenses shall not be considered for purposes of enhancing a penalty if the drug, medication, or substance that was the subject of the prior offense was of a lower class, pursuant to the schedule, than the drug, medication, or substance that is the subject of the offense for which the person stands charged.
Here’s how I read the above: Looking at Crist’s ‘Dutrow rap sheet’ – http://cristblog.drf.com/crist/2008/06/bad-rap-sheet.html …
The only ‘prior offenses’ the Commission could have even considered were the 2008 Phenylbutazone overages (after September 7, 2005, within one year of this charge … why they don’t look back beyond three years, or in this case one year, is baffling). Moreover, Clenbuterol is a Class B drug, Phenylbutazone is a Class C drug. So according to (5), the Commission couldn’t have even considered the Phenylbutazone overages because the subject of the offense was a lower Class.
Bottom line: according to the Kentucky regulation … 13 prior drug rulings looked like a blank slate.
The above isn’t essential; the point is the same no matter how you reach the conclusion: the regulations aren’t working. But for some reason the fact that Dutrow got a light sentence because the KHRA/C was following the regulations, rather than because they were ignoring them, strikes me as important. Probably only pedantically.
But the day wasn’t over for exciting equine law issues. When I checked later, I saw the following comment had been left after mine:
Garrett Redmond Says:
July 29th, 2008 at 12:58 pm
Kerry makes a good point. The real problem is the regulations of the KHRC (KHRA) were/are written by people who do not know how to write a clear, cogent sentence in the English language.
Perhaps this is deliberate. It allows the Commissioners to make whatever ruling is in the best interests of insiders.
Now, for the life of me, I knew I recognized the name, but I couldn’t figure out where I knew it from. It took me a while, and then it hit me like a ton of bricks. Garrett Redmond is responsible for one of the most interesting equine law cases to pop up in the last couple of years. You might remember him as the guy who sued the Jockey Club for not letting him name his filly “Sally Hemmings.”
Redmond v. Jockey Club went all the way up to the 6th Circuit Court of Appeals, which ruled in favor of the JC last August. But the case was about much more than whether or not you have a Constitutional right to register your horse under any name you like. Because the defendants were both the Jockey Club and the KHRA – the case was about regulating racing.
Here’s the crux of the most compelling argument, which, according to the Justice Clay, concurring, was briefed by Redmond yet not really addressed by the majority: was the Jockey Club, for all intents and purposes, a state actor? In other words, was the Jockey Club asserting a kind of legislative power that was not supposed to be delegated to a private entity?
The Jockey Club registers Thoroughbreds; the Jockey club also keeps track of Thoroughbred names. A Thoroughbred can be registered without being named (most foals are). But the KHRA won’t let a Thoroughbred run unless it has a Jockey Club approved name. Even if the foal is already registered with the Jockey Club, it must also have a JC name before it can race. So, the argument goes, the Jockey Club, not the KHRA, controls whether a Thoroughbred can race in KY or not.
The majority opinion seemed more intent on self-congratulatory cleverness than giving the issue the scrutiny I think it deserved (again, props to Justice Clay for giving it some attention). Here we are, a year later, scrutinizing just how effective the KHRA has been at its job, and the interplay between public and private organizations can most certainly be implicated in the inquiry. Clay got the real issue; it seems like the rest of the court did not.
On a related note, also yesterday (the Thoroughbred Brief offices* were abuzz) the KHBPA filed their counterclaim against CDI in the mega antitrust suit currently pending in the Western District of Kentucky. I’m not honestly sure what the HBPA did before the Interstate Horseracing Act appeared, but they’re pretty experienced with antitrust litigation by now. That’s all the subject for another post. But KHBPA was in another antitrust suit just last year, which was ultimately settled (as most of them are, anyway), and before it settled the District Court granted a temporary injunction in favor of the KHBPA on the grounds that the IHA pre-empts Sherman antitrust claims. Later, the KHBPA tried to get the District Court to actually rule on the merits on that pre-emption issue, but the court refrained, declaring the issue moot, not capable of repetition and evading review. Well, it turns out the issue was capable of repetition, and the court will have a chance to rule on it again.
As I’ve noted before, Kentucky Judge Donald Wintersheimer, ruling on a race horse drugging case over 30 years ago, said, “It would appear that the racing industry should utilize every opportunity to improve itself.” As racing commissions and state legislatures take a hard look at their regulations and governing structures, I hope the judiciary is also on notice. At the end of the day, this stuff gets fought out in court, and they need to give it the attention it deserves.
*The Thoroughbred Brief does not really have offices.
