United States District Court, E.D. Kentucky, Central Division
OPINION AND ORDER
K. CALDWELL JUDGE
matter is before the Court on the defendants' motion (DE
19) to dismiss the complaint filed by plaintiffs Gary and
Mary West. The Wests' horse Maximum Security ran in the
2019 Kentucky Derby and crossed the finish line before all
other 18 horses in the race. After reviewing objections
lodged by two jockeys after the race, however, Kentucky
racing officials disqualified Maximum Security from the
first-place finish. The Wests ask this Court to reverse that
decision and to also find that the decision violated their
constitutional rights to due process.
regulations make clear that the disqualification is not
subject to judicial review. Further, the disqualification
procedure does not implicate an interest protected under the
Due Process Clause of the U.S. Constitution. Accordingly, the
Court must grant the motion to dismiss.
motion to dismiss, the Court must assume that all the factual
allegations in the Wests' complaint are true. Scheid
v. Fanny Farms Candy Shops, Inc., 859 F.2d 434, 436
(6th Cir. 1988). Accordingly, the factual basis of
this opinion comes solely from the facts alleged in the
Wests own a thoroughbred racehorse named Maximum Security,
who ran in the Kentucky Derby on May 4, 2019. The Wests
assert that the defendants wrongfully failed to declare
Maximum Security the winner of the Derby even though he
crossed the finish line before every other horse in the race.
defendants are the Kentucky Horse Racing Commission, its
executive director, and its members and
“stewards.” The Kentucky Horse Racing Commission
is an agency of the Kentucky state government. It is charged
with regulating “the conduct of horse racing and
pari-mutuel wagering on horse racing, and related activities
within the Commonwealth of Kentucky.” KRS §
230.225(1). It has jurisdiction over all horse race meetings
that take place in Kentucky. KRS § 230.260(1). It is
also authorized “to prescribe necessary and reasonable
administrative regulations and conditions under which horse
racing at a horse race meeting shall be conducted in this
state.” KRS § 230.260 (8).
commission consists of 15 members appointed by the governor.
KRS § 230.225(2)(a). The governor appoints one member to
act as chair, and another to act as vice-chair. KRS §
230.225(3)(b), (c). The governor also appoints the
commission's executive director. KRS § 230.230(1).
“steward” is an appointed racing official. 810
KAR 1:001 § 1(72). Stewards exercise “immediate
supervision, control, and regulation of racing at each
licensed race meeting on behalf of and responsible only to
the commission.” 810 KAR 1:004 § 3. There must be
three stewards at each meet, including a “chief
steward.” 810 KAR 1:004 § 2(a). The stewards
determine “all questions, disputes, protests,
complaints, or objections concerning racing which arise
during a race meeting” and enforce the determinations.
810 KAR § 3(2). All three stewards at the Kentucky Derby
are defendants in this case.
2019 Kentucky Derby, Maximum Security crossed the finish line
first. But after the race, jockeys on two other horses in the
race - Country House and Long Range Toddy - lodged oral
objections against Maximum Security. Country House had finish
second in the race, just behind Maximum Security. Long Range
Toddy had finished 17th.
considering the objections, Chief Steward Barbara Borden read
an announcement stating that the stewards had conducted a
lengthy review of the race and had determined that, during
the race, Maximum Security had “drifted out and
impacted the progress” of the horse War of Will, which
caused interference with Long Range Toddy. Borden stated that
the stewards had unanimously determined to disqualify Maximum
Security from the first-place finish. In accordance with what
Borden described as “typical procedure, ” the
stewards determined that Maximum Security would be placed
18th in the race, just behind Long Range Toddy (who had
finished 17th), the lowest-placed horse that Maximum Security
disqualified Maximum Security from the first-place finish,
the stewards declared Country House, who had finished second
just behind Maximum Security, the winner of the 2019 Kentucky
days later, the Wests delivered a completed Kentucky Horse
Racing Commission form titled Notice of Appeal to the
commission. (DE 1-1, May 6, 2019 Letter to Stout & Notice
of Appeal.) In it, the Wests asserted that the stewards'
“acts in reviewing the 145th running of the Kentucky
Derby were arbitrary and capricious and did not comply with
applicable administrative regulations.” The Wests also
asserted that the “determination to disqualify MAXIMUM
SECURITY is not supported by substantial evidence.”
same day, the Wests delivered a letter to the
commission's executive director, which they stated was a
formal notification that the Wests “hereby submit their
complaint and protest of the Stewards' arbitrary and
capricious acts” in reviewing the Derby. The Wests
asked that their “complaint, protest, objection, and
appeal be heard forthwith by the full Kentucky Horse Racing
Commission.” They further asked that they be provided
with “notice and an opportunity to be present at any
meeting or proceeding at which MAXIMUM SECURITY's
disqualification or the Wests' complaint, protest,
objection, and appeal is discussed or reviewed.” (DE
1-1, May 6, 2019 Letter to Guilfoil.)
Wests also requested copies of various items involved in the
stewards' determination, stating:
Finally, we ask for copies of all views considered by the
Stewards in connection with their decision to disqualify
MAXIMUM SECURITY; recordings of all statements made by
jockeys, trainers, and others that were obtained and
considered by the Stewards in reaching that determination;
the Stewards' notes concerning and the recording of their
nearly 22 minutes of deliberations; any written decision
issued by the Stewards with respect to MAXIMUM SECURITY's
disqualification, and all daily logs and minute banks
maintained by the Stewards” for the 2019 Derby.
(DE 1-1, May 6, 2019 Letter to Guilfoil.)
letter dated the same date, the commission's general
counsel informed the Wests that “the stewards'
disqualification determination is not subject to
appeal.” (DE 1-1, May 6, 2019 Forgy Letter.) The Wests
then filed this action. The defendants have moved to dismiss
the complaint. The Court granted all parties' requests to
file briefs exceeding the page limits imposed under the Local
Wests assert two kinds of claims in this action. (DE 29,
Response at 1-2.) First, with Counts I through V of the
complaint, the Wests ask this Court to review the
stewards' decision disqualifying Maximum Security
pursuant to a state statute that governs judicial review of
final orders by administrate agencies. KRS § 13B.150.
That statute provides that a reviewing court may reverse a
state agency's “final order” if it finds the
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole
(d) Arbitrary capricious, or characterized by abuse of
. . . .
or (g) Deficient as otherwise provided by law.
KRS § 13B.150(2)(a)-(d), (g).
I through V ask the Court to reverse the stewards'
decision disqualifying Maximum Security under each of these
second kind of claim asserted by the Wests is a violation of
their rights under the U.S. Constitution. These claims are
asserted in Counts VI and VII of the complaint.
Count VI, the Wests assert that a Kentucky regulation that
deals with “fouls” during the running of a race
is so vague that it violates their rights to due process
under the Fourteenth Amendment to the U.S. Constitution.
See 810 KAR 1:016 § 12 (“Section
only way to assert a constitutional claim against a state
official is through a claim under 42 U.S.C. § 1983.
Foster v. Michigan, 573 Fed.Appx. 377, 391 (6th Cir.
2014) (“To the extent that Appellants attempt to assert
direct constitutional claims, they fail; we have long held
that § 1983 provides the exclusive remedy for
constitutional violations.”) (citing Thomas v.
Shipka, 818 F.2d 496, 499 (6th Cir. 1987), vacated
and remanded on other grounds, 488 U.S. 1036 (1989)).
That statute provides in relevant that every
“person” acting under the color of state law who
deprives any citizen of any constitutional rights
“shall be liable to the party injured….”
42 U.S.C.A. § 1983. While the complaint does not state
explicitly that the vagueness claim is asserted under §
1983, the Wests clarify in their response that it is. (DE 29,
Response at 2, 13.)
Count VII of the complaint, the Wests do explicitly purport
to assert a claim under 42 U.S.C. § 1983. In Count VII
itself, the Wests do not elaborate on how the defendants
violated their constitutional rights. They merely recite the
words of § 1983 and refer to the other allegations in
the complaint. The Wests do explicitly allege in Count II of
the complaint that the “process followed by the
Stewards in disqualifying Maximum Security failed to comport
with the minimum requirements of Procedural Due Process under
the Fourteenth Amendment . . . .” (DE 1 Complaint
¶ 124.) As discussed, however, Count II asserts a claim
under a KRS § 13B.150(2)(a), which is a state statute
permitting a reviewing court to reverse an agency's final
order if it is “[i]n violation of constitutional or
statutory provisions.” (DE 1, Complaint, ¶ 118.)
the Wests clarify in their response to the motion to dismiss
that they allege “four separate Fourteenth Amendment
due process violations” under § 1983. (DE 29,
Response at 11.) Three of these involve the process the
stewards followed in reaching their decision to disqualify
Maximum Security from the first-place finish. (DE 29,
Response at 12-13.) The final alleged due process violation
is the vagueness challenge to the state regulation regarding
fouls. (DE 29, Response at 13.) This comports with the
defendants' interpretation of the complaint in their
motion to dismiss.
these reasons, the Court will interpret both Counts VI and
VII to assert § 1983 claims for violations of the
Wests' due process rights. Count VI asserts a vagueness
challenge to the commission's regulation regarding fouls.
Count VII asserts that the defendants violated the West's