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Judging by What’s Right; Not by What You Like
Monday, August 2, 2014 - by Chris Wittstruck, Esq

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Chris Wittstruck

Cheating on your spouse is not very nice; and is still a crime in many places. While prosecutions for Adultery are admittedly rare, the Scarlet Letter crime is still on the books. In fact, at last count it's a criminal offense in 21 states. While liberalized divorce laws in all 50 states have eliminated the need to plead and prove civil grounds for divorce, such as Adultery, some spouses try to encourage prosecution of their wayward betrothed to extract an advantage with issues such as child custody and visitation.

Public Intoxication is also a criminal offense in several states, and, unlike adultery, arrests and prosecutions occur with regularity. A related crime, Public Lewdness, occurs when too much beer leads to the need to relieve oneself in an open place.

How prevalent are the types of activities described above?  You don’t need to have a degree in the social sciences to conclude that everybody has, and everybody will, do regrettable things during their lifetimes. While not everyone sleeps around or drinks to excess in public, there are those who have shoplifted a candy bar; made graffiti; sold a bootleg recording; hosted a poker game; walked across railroad tracks when the gates were down; passed a joint to a friend (constitutes a drug sale); cheated on their taxes and committed hundreds of other criminal offenses.

Imagine someone being permanently banned from participating in pari-mutuel harness racing because his spouse caught him carousing around her back, or because he screamed obscenities in a park at midnight in an inebriated state. Not nice; and possibly criminal activity… but do these actions truly speak to the appropriateness of participation in our industry? Moreover, if the activity occurred away from a racetrack, what possible business would a racetrack management, much less a racing commission, have in using it to judge the character and fitness of an individual who always acts as a professional while in the paddock? Finally, all other things considered, would the penalty of perpetual banishment truly fit the crimes referenced?

The stakeholders in our industry have varied opinions when it comes to horse slaughter. Irrespective of my opinion or that of anyone else, the present legal status of horse slaughter in this country is what it is; like it or not.  Against this backdrop, consider the lawsuit presently pending in a Federal District Court in Ohio entitled, Mumaw v. Ohio State Racing Commission.

The plaintiffs are longstanding owners and trainers of Thoroughbreds at Thistledown Racetrack. They contend that in 2012 they retired one of their horses by giving it to a woman seeking a riding horse for her children. The plaintiffs did not transfer the Jockey Club registration papers, explaining that they didn’t want the horse to end up racing ever again. They allege that it wasn’t until 2013 that the Jockey Club permitted a “Sold as Retired from Racing” designation on registration papers. Thus, they remained the paper owners of the horse.

Shortly thereafter, plaintiffs were contacted by somebody they describe as an animal rights’ advocate who indicated that the horse was purchased at a livestock auction house known as a conduit for horses destined for slaughter. It is alleged that this individual demanded money in exchange for her silence. Plaintiffs state that they balked at what they describe as blackmail, and the advocate then contacted both the stewards and track management.

Purportedly based upon a racetrack boarding agreement provision prohibiting any horse from being transported from the track for the purpose of slaughter or to an auction house who sells horses for slaughter, the stewards and racetrack management permanently banned plaintiffs and their horses from participation in racing at the track.

The question as to whether plaintiffs received a full, fair, constitutional hearing before the stewards is an open question in the litigation; as is the question of whether plaintiffs knew or should have known that the horse was going to a slaughter auction. The answers to these questions and many others are dependent upon what the court ultimately elicits as the true facts in the case. There are, however, questions that can be addressed without the need for much fact finding.     

The truth is that there is no jurisdiction, including Ohio, which makes it a crime to either buy or sell a horse for the purpose of eventual slaughter. In other words, while some may think selling a horse in a grade sale is horribly wrong, nobody has made it criminal. Yes, slaughter is illegal in certain states, but selling a horse with even nefarious intent doesn’t constitute slaughter. Moreover, not every horse at a grade sale necessarily goes to slaughter. In Ohio, some are purchased by Old Order Amish community members for transport or farm work. In fact, it appears from the complaint in the matter that the horse in question was actually purchased by a horse rescuer and never sent to slaughter.

Plaintiffs deny that they transported a horse from the track for the purpose of slaughter. Even if they were found to have done so, what was violated was a track rule embodied in a stall application, not a state statute or regulation. While Thistledown management might be allowed to exclude plaintiffs’ from participation at their premises, what authority did the state’s stewards have to enforce a “house” rule? The question is important, because there are other Thoroughbred venues in Ohio where the actions of the stewards could have wide-ranging implications.

What’s more, the very validly of house rules have always been a shaky issue. Decades ago, New York’s highest court voided a “policy” which was never promulgated according to state-mandated procedures that required jockeys suspended by the state during the Saratoga race meet to take their days at Saratoga. Years later, a federal judge refused to dismiss a complaint by New York jockey agents which challenged the legitimacy of a house rule limiting them from representing more than one journeyman jockey. In essence, if a house rule adversely affects a licensee, it impinges upon the vested property right granted to him or her via their state-issued occupational license. It’s for this reason that New York’s highest court also invalidated the state’s attempt to delegate licensing authority to the private, non-governmental Jockey Club.

In sum, you could commit a crime and not serve a day’s suspension. You could also violate a racetrack’s house rule, not be in violation of a single law or regulation, and be banned for life not only by racetrack management, by the stewards in their official capacity as state commission agents. Don’t think slaughter is good? I don’t either, but that’s not the point. If Ohio doesn’t have a rule on the books, their officials shouldn’t be enforcing the rules of private organizations.

Judges should fine and suspend the state licenses of individuals for regulatory violations, not because a private organization doesn’t like something. After all, aren’t the judges beholden to state law and regulation? When track managements persuade the judges to enforce track rules, it gives those non-governmental rules the impermissible imprimatur of the state. That’s just wrong, because while today the issue is slaughter, tomorrow it might be about free speech, driving style or perceived disloyalty. 

Chris E. Wittstruck is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.

Editor's Note: The views contained in this column are that of the author alone, and do not necessarily represent the opinions or views of the United States Trotting Association.


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