Wests: Stewards Getting Final Say in Derby DQ is ‘Very Definition of Tyranny’

[Wandering Eyes]

Court documents filed Monday by Gary and Mary West allege that giving the Churchill Downs stewards the final say in the controversial GI Kentucky Derby disqualification amounts to a “breathtaking and dangerous” concentration of power that is “the very definition of tyranny.”

The Wests are also alleging that in the aftermath of the disputed GI Kentucky Derby disqualification, the Kentucky Horse Racing Commission (KHRC) failed to follow its own rules by not declaring Maximum Security (New Year’s Day) and Country House (Lookin At Lucky) co-winners until the case got decided in a court of law. The Wests now want the purse money and trophy escrowed until the final outcome gets definitively adjudicated via the lawsuit they currently have pending.

“There is no reason for the Court not to immediately right this wrong by declaring Maximum Security to be co-winner of the Derby pending final adjudication of this case,” the plaintiffs’ attorneys wrote in the filing.

The Wests own Maximum Security, who crossed the finish wire first in the Derby but was disqualified from the victory for shifting out while leading on the far turn and causing crowding that almost triggered a clipping-of-heels accident.

The 43-page document filed June 24 in United States District Court for the Eastern District of Kentucky (Lexington Division) is the Wests’ legal response to a June 8 “motion to dismiss” filed by the KHRC, et al, which asked a federal judge to dismiss the original suit on grounds that the litigation “fails to state a claim…upon which relief can be granted.”

On May 4, after a 22-minute-long foul claim decision played out in dramatic fashion on national TV, the three stewards who officiated the Derby–chief state steward Barbara Borden, state steward Brooks “Butch” Becraft, and Churchill steward Tyler Picklesimer–decided that Maximum Security fouled Long Range Toddy (Take Charge Indy).

The decision to DQ a Derby winner for an in-race foul was the first in 145 runnings of America’s most important horse race, and the stewards demoted Maximum Security to 17th place. Country House, who crossed the wire second, was elevated to first and recognized as the official Derby winner.

After an appeal to the KHRC was disallowed on the grounds that the commission considers race DQs non-reviewable, the Wests took the matter to federal court. They are seeking the reversal of the DQ, plus reinstatement of the original order of finish “confirming that Maximum Security is the official winner of the Derby who remains undefeated.”

The legal meat of the June 24 filing aims to assert that the Wests do, indeed, have four separate Fourteenth Amendment due process violations that are cognizable as a matter of law.

A related argument set forth in the filing attempts to deconstruct the KHRC contention that a stewards’ DQ in Kentucky is “neither judicially reviewable under KRS 13B.150 nor reviewable by anybody, not now and not ever.”

The Wests’ are underscoring an alleged contradiction between the KHRC’s assertion that stewards’ DQ decisions are not subject to review by a higher authority by pointing out that Kentucky does, in fact, have a separate statute on the books that confers certain rights “pending final determination” of a disputed race “until the matter is finally adjudicated.”

The plaintiffs are arguing that Title 810 KAR 1:017, Section 5, “is the Commission Regulation applicable to situations in which, as here, the result of a race is ‘placed in dispute’ after the race is ‘Declared Official for Pari-mutuel Payoff.'”

That regulation states that “If the result of a race is placed in dispute by the lodging of an objection or complaint or by discovery of an alleged violation of an administrative regulation, after the race has been declared official for pari-mutuel payoff…The purse money and trophy to which the horse objected to may have been entitled shall be withheld and placed in escrow by the association until final adjudication of the dispute…”

Such a rule, the Wests are claiming, “obviously contemplates a final adjudication by a tribunal other than the Commission,” and that “the only forum that could provide final adjudication of the Order disqualifying Maximum Security is a court of law.”

A Monday email requesting comment sent to Carmine Iaccarino, the Kentucky Public Protection Cabinet lawyer listed as counsel for the defendants, did not yield a response prior to deadline for this story.

The Wests’ latest court fling states that “The proposition advanced throughout Defendants’ brief that the Stewards are the only and final arbiters who can decide the fate of Maximum Security’s owners’ constitutional rights is at once both breathtaking and dangerous.

“Breathtaking in the sense that it runs contrary to the core principle…that unconstitutional acts by state actors, such as the actions alleged here, are judicially reviewable and, if found to violate the constitution, will be declared void.

“Dangerous in the sense that it empowers three unelected state actors, cloaked with the mantle of investigators, prosecutors and judges, to make unreviewable decisions of momentous importance without being held accountable to Plaintiffs…to the public, and indeed, to anybody ever.”

The filing continues: “Concentrating such enormous power over others in the hands of a few state actors is the very definition of tyranny and is an anathema to the structure of our constitutional system of checks and balances.”

Beyond the above-named stewards, other defendants in the suit are 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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