JCA

Have you read the report?  The banning of access to overseas operators was definitely floated as an option to stop leakage.  It was actually Option A.  However it was rejected as the favoured option for a number of reasons - one of them being the difficulty of enforcement.  Which ironically is what you are complaining about.  What was being investigated was how to get a fair return on the NZ racing product (and sports) that has been invested heavily in.

I understand there were a considerable number of discussions behind the scenes about the precarious situation the TAB was in.  However there was a disconnect between what the accounts were showing and what was being reported publically and to the Minister (McAnulty?).  Although with the latter I wouldn't be surprised if whoever was the Minister at the time didn't know the true picture.  Ultimately it culminated in the Minister (Winston Peters) publically showing displeasure and providing a bailout package at a politically convenient time. Many of us on BOAY were posting here for a long time our analysis of the accounts.  I was particularly critical of McKenzie the transition CEO. What would they be held to account for?  There was hardly any corruption as the accounts were reporting accurately the state of the organisation.  A decade or two of incompetence and mismanagement definitely - corruption no. Allen signed up to two or three contracts which were the millstones i.e. the Spark contract, the Broadcasting contract and the Betting system contract.  They were all contracts that stunk from the beginning and had all the characteristics of contracts negotiated by a Government Bureacrat.   ENTAIN is a FTSE 100 company and could buy and sell our biggest companys.  They have taken some hits in the last two years but in the last 6 months their share price has rebounded by over 30%.  Once ENTAIN took over there would have been immediate cost savings e.g. the betting system contract.  I'm also sure that because of the change in operating structure ENTAIN as an experienced private sector company would have renegotiated many of the existing contracts.  They also had negotiated that after a period they could start to lay off staff.  Now I'm not sure that this is the case but for example why would you need two sets of bookies in the Australian and NZ market?   In all core overheads would have reduced since the takeover.   Sadly that is, in my opinion, a malaise inherent to NZ as a whole.  Racing is a competitive sport and everyone is into to win.  Afterall that is the essence of racing.  Where things have failed, and have failed for a very long time, is sectors in the industry haven't had strong sector organisations with strong leadership.  When they do try to stamp their feet they get it wrong and look stupid. An example of that is the recent Owners and Trainers Association call to action over the tracks.  The outcome was that they blamed track managers NOT themselves for promoting increased stakes for decades at the neglect of maintaining infrastructure.  Which doesn't surprise me because how many Owners or Trainers have ever bothered to walk a track on a regular basis.

The United States Supreme Court punted on Monday the constitutionality of the Horseracing and Safety Integrity Act (HISA) back down the legal ladder, requiring three different federal appeals courts to reconsider their earlier decisions on the matter in light of a fresh ruling by the highest court in the land. The Supreme Court's Friday decision in Federal Communications Commission (FCC) vs. Consumers' Research saw a 6-3 majority of justices essentially dismiss an argument that the agency delegated too much authority to a private company to administer the program. With this decision in mind, the Supreme Court issued near identical “summary dispositions” for all three of the active petitions before the court focused on HISA-stemming from the 5th, 6th and 8th Circuits of the U.S. Court of Appeals-requiring them to reconsider how they had ruled in their prior decision on HISA's constitutionality. In those decisions, the 6th and 8th U.S. Circuit Court of Appeals upheld HISA's constitutionality. The 5th U.S. Circuit Court of Appeals, however, struck down HISA's enforcement mechanism as unconstitutional. To discuss the possible implications from the Supreme Court's actions for HISA, the TDN spoke Thursday with constitutional law expert Lucinda Finley. Finley is the Frank Raichle Professor of Trial and Appellate Advocacy, and director of Appellate Advocacy at the University of Buffalo Law School. The following has been heavily edited for brevity.   TDN: Why does the FCC vs. Consumers' Research case that the Supreme Court ruled on last week hold such import over the various HISA cases? LF: Essentially, the cases involve the same constitutional issue, namely whether congress delegated too much authority either to the [Federal Trade Commission] FTC in the HISA cases, or the FCC in the consumers' research case. And second, did the agency delegate too much authority to a private entity, namely HISA [Authority], in the horse racing cases and a communications entity in the FCC case? They involve the same basic constitutional issues of what is known as the nondelegation and the private nondelegation doctrines-the concern about the scope of congress' authority to grant discretion to agencies, and an agency's authority to grant discretion to develop rules to private entities.   TDN: Can you summarize the decision in the FCC vs. Consumers' Research case, and how it's applicable to HISA? LF: What the decision to me is saying is that a majority of the Supreme Court have zero interest in reconsidering their longstanding precedence about the non-delegation and private nondelegation doctrines. A six judge majority of the current Supreme Court has basically reiterated and upheld the precedence that the 6th, 8th and partially the 5th Circuit in the HISA cases have relied on to find most of HISA constitutional. The majority of the Supreme Court in the FCC vs. Consumers' Research case said congress can give broad authority to determine rules to an agency, as long as they have some general intelligible ascertainable principal to guide what the agency does. The HISA statute clearly has that. All the rules that are developed have to be based on the welfare and the safety of horses and riders and the integrity of the sport. That is actually more intelligible guidance than the principle in the FCC case, where the statute said that the private entity just had to determine a fee-that telecommunication carriers had to contribute to a fund as whatever amount was sufficient to enable the extension of telecommunication services to poor communities. The second principle from the FCC case concerns the private nondelegation doctrine. The petitioners in that case were challenging how, in order to provide broadband and other telecommunication services to poor or rural areas that the private marketplace might not want to serve on its own because they wouldn't make enough profit, the agency set up a fund requiring fees to be paid in. The agency in that case, the FCC, had given the authority to a private party to look at how much things were costing, what it would cost to extend services, and based on that, to determine the fee that the service providers had to contribute to the fund. The petitioners said that delegation by the federal agency to a private body violated the private nondelegation doctrine. The Supreme Court said, 'no it doesn't. It's fine.' They noted that all the private body was doing was essentially making recommendations that the federal agency had to review and had the approval power over. I think this new Supreme Court decision makes that argument a slam dunk for the constitutionality of the structure of the HISA Act, [for] it gives the [HISA] Authority the ability to recommend the rules in the first place and then send them up to the FTC for approval. US Supreme Court | Getty Images TDN: The Supreme Court has vacated each lower court's decision (in the 5th, 6th, and 8th Circuit Court cases), sending each one back to its originating federal appeals court for reconsideration. Can you walk us through what this will mean procedurally? LF: We call it G.V.R. Grant the petition for certiorari. Vacate the lower courts. And remand for reconsideration. The Supreme Court is saying, 'We're going to show respect to the lower courts who have looked at the particulars of the HISA structure, and let them be the ones to reflect on our new decision and write their own opinions explaining how our new decision applies to the HISA cases.' By vacating the lower court decisions, basically what that means is there is no binding ruling for or against the constitutionality of HISA right now. The lower courts will now probably ask the parties to submit briefs with their respective arguments as to how this new FCC vs. Consumers' Research case bears on the constitutional questions in the HISA cases, and then the lower courts will get to write their own opinions saying how they think this new decision applies to HISA.   TDN: How long will that take? LF: That's a question of how quickly the lower courts decide to set a briefing schedule and whether they want oral arguments or just want to do it based on a briefing schedule. I would hope that the lower courts will want to move this forward rather quickly because these cases were up at the Supreme Court for quite a long time. I think everyone understands it would be best to have a definitive resolution to the HISA issues sooner rather than later.   TDN: The 6th and 8th Circuits agreed that HISA's rulemaking structure is constitutional. The 5th Circuit disagreed by opining that HISA's enforcement provisions are unconstitutional because it incorrectly delegates governmental enforcement powers to a private corporation. How do you expect each of the appeals courts to act as they reconsider their original rulings in light of the FCC v. Consumers' Research decision? LF: First let me say, the cases would go back to the same panel of three judges in the lower courts that heard the case initially, who already found the basic structure and rule-making authority in the HISA statute to be constitution. I also think it is highly likely that the lower courts will once again, now bolstered by this new Supreme Court decision, say that the basic structure of the HISA statute that recognizes the private HISA Authority and gives it the ability to recommend rules to the FTC-and the FTC then gets to approve them, reject them, suggest modifications-that fundamental structure of the statute is constitutional. Now, the 5th Circuit found that the enforcement provisions of HISA were unconstitutional-that they gave too much enforcement authority to the private entity, because they gave it investigatory authority, subpoena authority, initial determination of violations. There was no enforcement issue in the recent FCC Supreme Court case. There's nothing in that case that directly bears on the enforcement power given to the private entity. So, it is possible the same three judges of the 5th Circuit that already found the enforcement power part of the HISA statute unconstitutional will say, 'we stick with our view. Nothing the FCC case changes that.' I suspect that HISA and the FTC will then be arguing, 'Oh, no, no. The new recent Supreme Court decision does change that.' As I said, going back to that larger policy implication, by a strong six-to-three majority, the current Supreme Court has basically said, 'We are not interested in revisiting our almost hundred-year-old precedence on private nondelegation. As long as the federal agency has the ultimate authority, it's constitutional.' Based on that, I would expect HISA and the FTC to argue that even under the enforcement provisions, the FTC and administrative judges and ultimately the federal courts have the final decision on whether anyone has violated the statute, and if so, what the proper penalty should be. We'll see whether the 5th Circuit is receptive to those arguments. It's important to emphasize the Supreme Court overruled the 5th Circuit in their FCC vs. Consumers' Research decision. It's generally been the U.S. appeals court for the 5th Circuit in a variety of cases that has been trying to resuscitate challenges to the longstanding precedent of the nondelegation and private nondelegation doctrines. I think the recent FCC case shows that there are only three Supreme Court justices wanting to go that way. At some point, the 5th Circuit may realize, how many times do you need to get slapped down by the Supreme Court before you say, 'Okay, we get it. We're not going out and around to make new law on the nondelegation doctrine.'   TDN: But if the 5th Circuit rules in a way that would send the case back to the Supreme Court, what will happen then? LF: If the 5th Circuit issues an opinion basically that HISA's rule making authority is constitutional but the enforcement authority is not, you will still have a conflict with the decisions of the 6th and 8th Circuits. I would then expect that the FTC and the HISA Authority would once again petition the U.S. Supreme Court. And I think it would be very likely that the Supreme Court would have to take that case, because you would still have a conflict between the lower circuit courts on the constitutionality of a significant part of the HISA statue. So yes, in another year or two, we could be right back at this same situation.   TDN: In this reconsideration process we're in right now, can the litigants apply other angles to their arguments, where they believe HISA is unconstitutional beyond the enforcement provisions? LF: In their initial complaints filed in the district courts, they raised some additional issues such as the appointment authority [otherwise known as an appointments clause challenge]-whether the members of the HISA Authority need to be co-principal officers of the United States, given their rulemaking recommendation ability. And thus, need to be appointed by the president and confirmed by the Senate. That's an issue that the lower courts didn't really resolve and was not an issue in the Supreme Court petitions that just got sent back for reconsideration. Another issue they raised in their complaints initially in the district courts was what they call the anti-commandeering argument. They argue that the fee structure in the HISA statute puts too much pressure on state racing commissions to be the ones to collect the fees and send them to HISA. But the lower courts have rejected that argument. So, [the litigants] could now try to focus on their appointments clause challenges. But there was another Supreme Court case last week that I think resolves the appointments clause question as well [in Kennedy vs. Braidwood Management]. I read both of those Supreme Court decisions of last week as pretty much settling the questions of the constitutionality of HISA, even on the enforcement issue. Under the enforcement scheme, it's very clear that HISA's enforcement rulings are the beginning of the process, they're not the final say. They [defendants] can go to an administrative law judge, and then ultimately to a federal court. [Furthermore], the lived experience under HISA, we are seeing administrative law judges more and more actively reviewing HISA decisions, and often disagreeing with them or making substantial changes, modifying and reducing penalties.   TDN: Unsurprisingly, various sides in the separate HISA cases have all claimed the Supreme Court's Monday action as a win. Do HISA's opponents have any reason to feel emboldened by Monday's decision? For example, the national HBPA described the Supreme Court's decision to remand as a “renewed opportunity for the Fifth Circuit to address the fundamental constitutional issues raised by horsemen nationwide-and do so in a manner consistent with the highest Court's recent guidance and precedent.” LF: I think the [broader NHPBA] statement signals that they're going to press their enforcement claims and their appointments clause claims in the lower courts. As I already said, the FCC case decision does not directly consider enforcement powers. But to the extent the enforcement powers arguments against HISA are essentially private nondelegation doctrine arguments, it's still the same underlying constitution issue. The way the Supreme Court has analyzed the question of private nondelegation is to look at whether the federal agency ultimately has the right to review and reject the actions of the private authority. And the Supreme Court said in the FCC vs. Consumers' Research case that if the federal agency has the power to review and accept or reject the actions of the private body, then it does not violate the private nondelegation doctrine. That general principle should apply whether its enforcement recommendations of the private body or rule making recommendations of the private body. As I said, I think the ultimate issue is, do they [the HISA Authority] have the powers of principal officers of the United States or not. That issue is why I think the case last week [Kennedy vs. Braidwood Management] about the panels that make recommendations about preventive health services to the secretary of HHS is so relevant. The court said no, they don't exercise the powers of principal officers to the United States because ultimately what they're doing is making recommendations to the agency and the agency gets to decide whether to accept or reject their recommendations.   TDN: In light of all that has happened legally since HISA was enacted, how do you see its legal footing? Stronger than ever? Still a little shaky? LF: I think the tenor of my remarks throughout our conversation has been that I think the Supreme Court decisions of last week put HISA on very solid constitutional footing. I guess the big question going forward is going to be, how many other states are going to go the route of Texas and say, 'you know, we are so intent on doing it our own way that we are willing to give up millions of dollars in interstate wagering revenue that are a life blood of horse racing.' The post Q&A With Lucinda Finley: “HISA On Very Solid Constitutional Footing” appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions. View the full article

Great memories Gamma......you doing your best to provoke some enlightening discussion. I about to get my hair done [and oil change] and a petticure as off to the much discussed Auckland Trots tonight. I think there are 4 x 6 horse fields ...sigh.......but it gonna be great !  Mid Xmas Dinner...free parking ,free water , free racebook ,free sports bar ,my friend has a 150th share in a tenth of 3 x horses so 3 x free beers. And many of NZ's greatest ever reinspeoples....many with Interdom memories .....I'll try and tweak a few comments out of them. THerlihy, BPurdon and Phelan, McKendry , JDickie, MWallis [ Delft ] MWhite ,PFerguson, DButcher, RDunn ,, TMacFarlane ,ICan doosit team ,Stormont. 82 yr old driver Luk Chin , ....the list goes on .