WV Panel Pursues Appeal on Exclusion Cases

The West Virginia Racing Commission will pursue an appeal tied to exclusion cases.

The West Virginia Racing Commission voted unanimously Dec. 7 to pursue an appeal of a ruling by a circuit court that said it can’t conduct hearings into exclusion cases at Charles Town Races & Slots.

The three-member commission took the vote after meeting in executive session, according to individuals in attendance at the meeting.

On Sept. 24, the Kanawha County Circuit Court said the WVRC couldn’t conduct the hearings because it “lacks the authority to unilaterally reinstate an ejected permit-holder over the objection of a racing association.”

Excluded by Charles Town owner Penn National Gaming Inc. are Dick and Janene Watson, the former president and executive director, respectively, of the Charles Town Horsemen’s Benevolent and Protective Association; and Patty Burns, a trainer at Charles Town.

All three are WVRC licensees. The Watsons have been barred from Charles Town property for about four years, and Burns for more than a year.

Kelli Talbott, deputy attorney general for the WVRC, said Dec. 8 the appeal must be submitted no later than Jan. 25, 2010. It could take several months after that for the West Virginia Supreme Court of Appeals to decide if it will consider the appeal.

If so, both sides would submit briefs and the case would be argued in court.

The National Horsemen’s Benevolent and Protective Association has assisted the horsemen with legal representation. National HBPA general counsel Doug McSwain said Dec. 8 the horsemen will petition individually to appeal the circuit court ruling. He said if the Supreme Court of Appeals decides not to hear the case, “that’s the end of it.”

The case is being watched closely by racetracks, horsemen’s groups, and regulators. On one hand, the WVRC has the power to regulate racing, but on the other, it can only go so far given the circuit court ruling.

“I hope the Supreme Court takes it,” Talbott said. “It’s a very important case.”

Dick Watson, then president of the Charles Town HBPA, was sued by the organization for allegedly misappropriating funds. The suit alleged Janene Watson, then executive director of the local HBPA, was a co-conspirator.

The suit was settled after Dick Watson apologized and admitted loaning himself HBPA money without approval of the board of directors. In August 2005, Dick Watson’s membership in the Charles Town HBPA was suspended, and three weeks later, Charles Town barred the Watsons from track property.

Burns, according to court documents, was arrested in February 2007 for being a party in an altercation in the Charles Town barn area, and in July of that year, track officials found syringes in Burns’ barn after an inspection. The board of stewards suspended Burns, a trainer, for 30 days, but in February 2008, Charles Town management ejected her.

Attorneys for PNGI, during a WVRC meeting in January 2008, argued the Watsons were banned because of integrity issues. Horsemen have argued the issues had nothing to do with the racetrack and ultimately were resolved by the local HBPA.

The National HBPA during its summer convention this year expressed concerns over what it called “arbitrary” exclusions.

In its conclusions of law, the circuit court cited previous rulings that racetracks “possess a common law right to exclude unwanted persons,” and the right to exclude “applies equally to the exclusion of patrons and to the exclusion of licensees or permit-holders.” The court cited a 1969 case involving Waterford Park, now Mountaineer Casino Racetrack & Resort.

The court acknowledged the WVRC “has full jurisdiction over and shall supervise all horse racing meetings, all dog race meetings, and all persons involved in the holding or conducting of horse and dog race meetings,” but the language “is not explicit enough to clearly and without equivocation evidence a legislative intent to alter or change the common law right of ejectment held by private racing associations.”

The court also said state law is “silent” on case reviews when a private racing association ejects a permit-holder, and there is violation of due process.