Court Questions if Baffert Case Was Properly Filed

The case filed by Bob Baffert and Zedan Racing with the Kentucky Court of Appeals seeking a stay of a 90-day suspension of his trainer's license has taken an unanticipated turn.

The day after their emergency motion was filed with the appellate court, Judge Allison Jones signed an order directing the parties to address whether the underlying appeal to Franklin Circuit Court was properly filed by Baffert and Zedan in the first place.

On March 24, attorneys Craig Robertson and Clark Brewster filed motions with the Court of Appeals seeking emergency and interlocutory relief from a series of rulings denying Baffert's request for a stay of the suspension. Most recently, Franklin Circuit Judge Thomas Wingate denied Baffert's request March 21.

Baffert's case originated from a stewards' ruling suspending Baffert's trainer's license for 90 days and disqualifying Medina Spirit from his win of the 2021 Kentucky Derby Presented by Woodford Reserve (G1). After Baffert's request for a stay of the ruling was denied by KHRC executive director Marc Guilfoil and the KHRC itself, Baffert's attorneys filed an appeal with Franklin Circuit Court.

The Court of Appeals order wants briefs discussing whether the right court was chosen for the appeal, alluding to a provision of the Kentucky Revised Statutes (KRS 230.320(2)(f)) that says a person denied a stay by the KHRC may file an appeal "in the circuit court of the county in which the cause of action arose."

The issue raised by Jones' order is whether the underlying appeal was filed in the correct venue. There could be arguments as to three venues.

The case began when Churchill Downs stewards found that Baffert violated Kentucky Administrative Regulations because Medina Spirit had betamethasone in his system during the running of the Kentucky Derby. Kentucky stewards rotate their duties from track to track as race meetings occur. In this case, they ruled on a race run in Jefferson County (Louisville). The offices of Guilfoil and KHRC, who initially denied Baffert's stay request, are in Fayette County (Lexington). KHRC is an independent agency of the Kentucky Public Protection Cabinet, which is located in Franklin County (Frankfort).

In her order, Jones cited a 2017 Kentucky Supreme Court case that says when an appeal of an administrative decision is filed in the wrong county, the remedy is for the case to be transferred to a circuit court in the proper county, not dismissed.

One wrinkle could be that, even if Baffert's appeal should have been filed in a different county, KHRC did not object to the case being heard in Franklin Circuit court. That could lead to discussion of whether the venue defect, if there was one, was waived; and whether the Court of Appeals has the authority to raise such an issue for the first time.

There might be answers to these questions soon. The Court of Appeals order directs the parties to file simultaneous briefs no longer than 10 pages by the close of business March 29.

Jones' order says KHRC may file a response to Baffert's and Zedan's motion for emergency relief by March 29 as well. In a separate order, Chief Judge Denise Clayton warned Zedan and Brewster to refrain from filing any further papers with the court clerk unless Brewster timely files an appropriate application for permission to practice before the Court of Appeals. Brewster is not licensed in Kentucky, and it is standard practice for out-of-state attorneys to make such an application.