Can there be a more "Kentucky" thing than the Kentucky Derby? We can't think of one. Today's case from the U.S. Court of Appeals for the Sixth Circuit, West v. Kentucky Horse Racing Comm'n, No. 19-6333 (Aug. 28, 2020) is about the litigation stemming from the disqualification by the racing stewards of the "horse to cross the finish line first," the storied "Maximum Security."
As the opinion recounts, the owners of Maximum Security (we shall call him "MS" for short) thought they had a winner. He did indeed cross the line first. But the jockey of a different horse called "foul," and after careful review of the tape, the stewards agreed. Don't throw your stubs away yet, folks!
MS and his owners "were not awarded the Derby Trophy, an approximate $1.5 million purse, and potentially even far greater financial benefits form owning a stallion that won the Derby." Slip op. at 2. Litigation ensued. Civil rights litigation in federal court. Section 1983 and due process claims that the stewards' decision was arbitrary and capricious. District Court 12(b)(6)'d the complaint.
The Sixth Circuit affirmed. To bring a due process claim, you need first to identify a "property" interest subject to unconstitutional deprivation. Here, we're not talking about the owners being deprived of property like MS, but things like the potential purse, or future breeding revenue. As the court put it, "The Wests contend that they have a protected property interest in the winner’s share of the Derby purse, and a liberty interest in an agency following its own regulations." Slip op. at 11.
Now, in a case about horse racing, you'd expect some literary flourishes by the opinion writers. Maybe not "Rose the Second of Aberlone" level flourishes, but come on, who could resist the temptation to lay down some memorable metaphors?And the Sixth Circuit did not disappoint:
Right out of the gate, the Wests fall behind. Kentucky law provides that “the conduct of horse racing, or the participation in any way in horse racing, . . . is a privilege and not a personal right; and that this privilege may be granted or denied by the racing commission or its duly approved representatives acting in its behalf.” KRS § 230.215(1). Furthermore, “a party cannot possess a property interest in the receipt of a benefit when the state’s decision to award or withhold the benefit is wholly discretionary.” Med Corp., 296 F.3d at 409.The regulations are clear that the stewards have unbridled discretion in determining whether a racing foul occurred, and whether to disqualify a horse for a foul committed during the race. The regulation that governs “fouls” during a race, provides that “[i]f in the opinion of the stewards a foul alters the finish of a race, an offending horse may be disqualified by the stewards.” 810 KAR 1:016 § 12 (emphases added). This provision does not give the Wests a legitimate entitlement to the benefits of winning the Derby or limit the stewards’ discretion in determining who the winner is. Rather, it grants the stewards broad discretion in determining whether a foul “alter[ed] the finish of a race,” and if, in the stewards’ “opinion” it did, then the stewards “may” (not “shall”) disqualify the horse. See id. If the stewards exercise their discretion to disqualify a horse, then the extent of the disqualification is also left to their discretion. See 810 KAR 1:017 § 4(3). That regulation provides that “[i]n determining the extent of disqualifications, the stewards . . . may” impose sanctions on the horse or jockey. Id. § 4(3)(a)–(f).
Slip op. at 11-12.
Not to be outdone, the court also disposed of the argument that custom and practice gave rise to a property interest:
Heading down the final stretch, the Wests argue that because Maximum Security was the first horse in the 145-year history of the Kentucky Derby to ever be disqualified for a foul committed during the race,4 the custom and practice was to declare the horse that crossed the finish line first the winner. To be sure, custom can form the basis of a protected property interest, because “‘rules and understandings, promulgated and fostered by state officials’ can form the foundation of a protected property interest.” Gunasekera v. Irwin, 551 F.3d 461, 464 (6th Cir. 2009) (quoting Perry v. Sindermann, 408 U.S. 593, 602–03 (1972)). Therefore, the Wests allege, they had a property interest “for the Commission and stewards to obey the Commission’s regulations in the same way as they and their predecessors had routinely and customarily done since 1875.” Appellant’s Br. at 42.Even though Maximum Security’s disqualification was unprecedented, the fact remains that the stewards have always had the discretion to call fouls in horse races; this just happens to be the first time that they exercised this discretion in the Kentucky Derby.
Slip op. at 13.
No property, so no entitlement to any process, much less due process.
Game, set, match.
West v. Kentucky Horse Racing Comm'n, No. 19-6333 (6th Cir. Aug. 28, 2020)
