"Violates every precept of justice."
"Un-American."
"Oh, justice, what crimes are committed in thy name!"
So said an outraged California Supreme Court associate justice Jesse Washington Carter in 1948 about California's "absolute insurer" rule, a rule that then, like today, comprises in various forms the bedrock trainers' responsibility rules in all 38 states that conduct horse racing. Justice Carter and one other colleague (Justice Douglas L. Edmonds) was on the losing side of a 5-2 decision in Sandstrom v. California Horse Racing Board, a path-breaking opinion that upheld, for the first time, the constitutionality of a state's absolute insurer rule.
For over 80 years, racing's no-fault absolute insurer rule has stood for the immutable standard that if a licensed trainer was on a five-year trip to Mars, but during that time ran a horse at Fairmount Park that tested positive for a banned medication, as the trainer of record he would automatically (even after a "hearing") be fined, suspended, and his owner forfeit the winning purse.
If Justice Carter was alive today, he would surely feel vindicated now that a Franklin (Ky.) Circuit Court judge, Thomas D. Wingate, last month declared Kentucky's version of the absolute insurer rule unconstitutional. In a decision that sent shock waves throughout the American equine legal and regulatory communities, Kentucky's rule was struck down, almost as an afterthought in a fairly routine appeal of a drug overage involving a winning horse owned by George Strawbridge Jr. and trained by H. Graham Motion. "Trainers must be able to present evidence to rebut their liability [for a] violation," the court held, and the challenged rule "impermissibly deprives [licensees] of due process."
It is unknown at this writing if the Kentucky Horse Racing Commission will appeal or concede the defeat in a non-precedential trial court and not risk an affirmance at a higher level which would have precedential value. Wholesale attacks on absolute insurer rules are being predicted by some, but Kentucky's stringent rule lacked a rebuttable presumption defense, a feature that other states provide in their regulations. But make no mistake, the starting gate has sprung and defense attorneys everywhere will use the Motion case as a template to challenge, on a constitutional basis, drug positives that are based on trace findings or minute amounts of therapeutic medications that have no objective pharmacological evidence of impacting a horse's performance in a race.
In the academic world, too, this is a blockbuster development as it recalls the great absolute insurer debate that raged during racing's golden era, the late 1940s, when Maryland and Florida's highest courts struck down their respective rules, the opinions of each couched in tones of moral indignation. In Maryland's Mahoney v. Byers (1946), a unanimous court of appeals affirmed a lower court's decision invalidating the AI rule, Judge C. Gus Grason calling it "worse than an ex post facto law." He condemned a rule that "destroyed the right of [trainer] Byers to offer evidence to establish his innocence. If this is 'just,' than the term 'unjust' has no meaning."
But just when the AI rule was about to be vanned off, California upheld it in Sandstrom and then West Virginia followed suit in 1949 (State ex rel Morris v. West Virginia Racing Commission) in a 3-2 photo finish that was also fraught with emotional fury. Dissenting Chief Judge Frank C. Haymond referred to sanctioned trainer Elsie Morris as "an innocent victim" and called her six-month suspension based on the AI rule "manifestly unfair and unjust."
In another close call (4-3), in 1969, Illinois was the last state supreme court to strike down an AI rule (Brennan v. Illinois Racing Board), which prompted a bitter denunciation from the dissenting defenders of the absolute insurer rule. Justice Walter V. Schaefer chastised the majority for gutting the state's role in "protecting the betting public [which] cannot protect itself against this kind of fraud [drugged horses]."
The Illinois, Maryland, and Florida decisions were later overturned outright or distinguished into obsolescence. Over the last five decades, appellate courts in some two dozen racing states, including Kentucky, not only upheld the constitutionality of the AI rule but gave it an aura of invincibility. Until last week, when the debate was re-ignited.
Nearly 50 years ago, trailblazing Kentucky attorney Ned Bonnie shocked the racing world when he and co-counsel Arthur Grafton convinced the same Franklin Circuit Court to reverse a Kentucky racing commission decision upholding the disqualification of Dancer's Image in the 1968 Kentucky Derby. In that case (eventually reversed on further appeal), Judge Henry Meigs II set aside the DQ, calling the commission's "chemical tests" that allegedly showed the presence of then-illegal butazoliden in the horse's system "wholly lacking in substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." From that landmark decision came numerous reforms in the legal rights of horsemen to challenge disciplinary rulings and the implementation of updated drug testing methodologies. Will the seminal Graham/Strawbridge case have the same result?
Bob Heleringer is a Louisville, Ky., attorney and former racing official who has taught equine regulatory law at the University of Louisville's Louis D. Brandeis School of Law and, in 2012, published a legal textbook: Equine Regulatory Law.
