Wests Plan Further Litigation Over 2019 Kentucky Derby

The 2019 Kentucky Derby Presented by Woodford Reserve (G1) is still not quite official.

Days after a federal court dismissed litigation brought by Gary and Mary West looking to overturn the Kentucky stewards' decision to disqualify their Maximum Security after he reached the wire first in the Derby, Gary West issued a statement that he plans to appeal.

"The Court's decision holding that disqualification decisions by Kentucky's stewards are never 'subject to judicial, or any kind of review' literally puts Kentucky's stewards above the law," West said in a statement Nov. 18, later adding, "I cannot, and will not, allow such a dangerous precedent to stand unchallenged. I have, therefore, authorized my attorneys to immediately appeal."

In a decision posted Nov. 15, United States District Judge Karen Caldwell ruled Kentucky regulations clearly state disqualification decisions are not subject to judicial review, and, furthermore, the disqualification procedure does not implicate an interest protected under the due process clause of the Constitution. 

"Accordingly, the court must grant the motion to dismiss," wrote Caldwell, judge for the U.S District Court in the Eastern District of Kentucky Central Division—Lexington.

West disagrees, especially with the judge's point on due process.

"As important as it is to me to have a court review the stewards' disqualification of Maximum Security, this case has now become much bigger than that," West said. "It's now a case about due process and the fundamental fairness of how racing is conducted in Kentucky.

"The secret and unreviewable actions by state actors that have been authorized by the court's opinion are the way things are done under totalitarian regimes in third world countries. The Kentucky State Racing Commission should be ashamed to have created a 'rule' like this; it is no wonder most people routinely question stewards' rulings on disqualifications. I, and nearly everyone, have been operating under the belief that in America 'due process' was an inalienable right. But that is simply not true in Kentucky racing."

The Kentucky rule is in line with racing's model rule. While longtime horse racing followers may recall interference calls occasionally being appealed to the racing commission level, a model rule adopted in 2002 effectively ended that practice in the majority of racing states. The Association of Racing Commissioners International, a racing regulator umbrella group, adopts model rules that its member jurisdictions are then encouraged to adopt to facilitate uniformity.

A pair of model rules adopted in 2002 address the issue. Under the model rule on proceedings by stewards or judges, license holders are allowed to appeal some stewards' decisions to the racing commission—for instance, sanctions based on a post-race drug test—but the rule does not allow appeals of stewards' in-race calls on interference and disqualifications.

One 2002 model rule on the topic reads: "A decision by the stewards/judges regarding a disqualification during the running of the race is final and may not be appealed to the commission."

The other model rule updated in 2002 makes the stewards the final arbiters and falls under the heading "Protests, Objections, and Inquiries." It states: "The stewards shall make all findings of fact as to all matters occurring during and (incidental) to the running of a race, shall determine all objections and inquiries, and shall determine the extent of disqualification, if any, of horses in the race. Such findings of fact and determinations shall be final."

The rule in place in Kentucky is in line with the model rule, stating, "Matters occurring and (incidental) to the running of the race," shall be final and not be subject to appeal.

But West, who did not detail his appeal plans in Monday's statement, believes the rule is unfair and unconstitutional.

"Stewards' decisions are of momentous financial and intangible importance to owners, breeders, trainers, jockeys, and the betting public. The transparency and reviewability of decisions by stewards is essential to the integrity of racing in America and is critical to the public's confidence in the sport," West said. "Sadly, the court's opinion allows secret deliberations by Kentucky's stewards that affect millions of people and billions of dollars to forever go unreviewable by any court; indeed, by anyone, no matter how negligent, reckless, or nefarious such secretly made decisions may be.

"The opportunities for abuses under such a bizarre and un-American system are self-evident. This is an outrageous state of affairs that does irreparable damage to the 'trust' in the sport of Thoroughbred racing in Kentucky."

In her decision, Judge Caldwell noted the stewards are responsible for findings of fact on all matters during and incident to the running of a race, determining all objections and inquiries on interference by a horse, improper course by a horse, or jockey fouls, and all other matters occurring or incident to a race. They are responsible for determining the extent of disqualification, if any, of horses for a foul committed.

The judge noted Kentucky administrative regulations also provide that all these findings and determinations, including a horse’s disqualification for a foul committed during the race, are “final and shall not be subject to appeal.”

"The regulations were clear. This was non-appealable,"  KHRC executive director Marc Guilfoil said in a telephone interview Nov. 16. "That being said, it was the right call."

The judge determined the Wests' due process rights were not violated.

"The Wests have not established that the defendants’ conduct deprived them of a protected life, liberty, or property interest," Caldwell said. "Accordingly, their procedural due process claim based upon how the stewards arrived at the decision to disqualify Maximum Security must be dismissed. For the same reason, the Wests’ vagueness challenge to Section 12 must also be dismissed."

Horse racing isn't the only sport this year where a federal court case followed a decision by officials. Season-ticket holders of the New Orleans Saints sought a ruling to have playoff ticket expenses repaid or the game rescheduled after a controversial non-call went against their team in the NFC championship game and favored the Los Angeles Rams, who won the game and advanced to the Super Bowl. That case was dismissed March 1.