New filing from Maximum Security team in Kentucky Derby lawsuit

June 24, 2019 03:44pm

Maximum Security owners Gary and Mary West have filed a brief responding to the motion by the Kentucky Horse Racing Commission and its stewards seeking to dismiss the Wests’ pending complaint seeking to reverse the decision to disqualify their horse in the Kentucky Derby and, until a ruling is made, declare Maximum Security and Country House co-winners of the May 4 race.

In their opposition, the Wests argue the disqualification of Maximum Security should be reversed because the KHRC and stewards allegedly committed four violations of the Wests’ Fourteenth Amendment due process liberty and property rights in connection with the race decision.

The Wests also allege the decision to disqualify
 is arbitrary, is not supported by substantial evidence, violates  the Wests’ constitutional and statutory rights, and fails to comply with at least three of the KHRC's own regulations.

The KHRC and the stewards say their regulations have the “force of law.” In response, the Wests say the commission and stewards broke their own laws and, among other things, failed to follow any of the prerequisites governing fouls and disqualifications.

A summation of the brief was made available by the Wests' media team:

First, Section 12 of 810 KAR §1:016 (“Section 12”) gives Maximum Security the right of way as the “leading horse” “entitled to any part of the track” “if clear.”  Defendants admit that the Stewards failed to find that Maximum Security was not “clear” at the time he allegedly “drifted out and impacted the progress of” War of Will.

Second, the Stewards did not find, despite the requirement of Section 12, that the foul allegedly committed by Maximum Security altered the order of finish in the Kentucky Derby. Nor did the Stewards find that, but for the alleged foul by Maximum Security, the three horses allegedly impacted by Maximum Security would have had a better placement in the order of finish than eighth for War of Will, fourteenth for Bodexpress, and seventeenth for Long Range Toddy. The video footage viewed by the Stewards conclusively shows that the horses allegedly interfered with by Maximum Security all lost ground to him in the quarter-mile stretch run that followed immediately after the alleged interference.

Third, the Stewards did not explain why – despite having the discretion under Section 12 not to disqualify Maximum Security even if he had committed a foul that altered the finish of the Kentucky Derby – they elected to disqualify the horse that crossed the finish line first in the Kentucky Derby despite the fact that in the 144 prior runnings of the Kentucky Derby no horse that crossed the finish line first had ever been disqualified for interference occurring in the race.

Fourth, the video footage viewed by the Stewards shows that the initiating cause of the interference that was first brought to the Stewards’ attention by the objection of Jon Court, the jockey of seventeenth place finisher Long Range Toddy, was the careless ride of Tyler Gaffalione, the jockey of eighth place finisher War of Will, not the ride of Luis Saez, the jockey of Maximum Security.

The Wests also show that the Commission failed to follow Section 5 of Title 810 KAR §1:017 (“Section 5”), which is the Commission Regulation applicable to situations in which, as here, the result of a race is “placed in dispute” after the race is “Declared Official for Pari-mutuel Payoff.”  Under Section 5, if after a race is declared official, the result of the race is “placed in dispute,” then it is mandated that the horse that “crossed the finish line first” (here Maximum Security) and “any other horse that may become the winner” “shall be considered winners of that race until the matter is finally adjudicated.”

Further, under Section 5, “pending final determination of the disputed race,” the “purse money” and “trophy” “shall” be held by the “association on order of the stewards.” Section 5 is a mandatory obligation. It gives neither the Stewards nor the Commission any discretion not to do what the Regulation says it must do, namely, declare Maximum Security and Country House co-winners of the Kentucky Derby and escrow the purse and trophy.

The result of the Kentucky Derby was “placed in dispute” by the Wests through the appeal they filed with the Commission on May 6, 2019 of Maximum Security’s disqualification.

The Wests’ appeal also sought a stay pending appeal and that all related purse monies be withheld and placed in escrow pending final determination of the matter. The Wests, on May 23, 2019, sent another letter to the Commission demanding that, pursuant to Section 5, Maximum Security and Country House be declared co-winners of the Kentucky Derby and that any purse money and/or trophy previously distributed be “returned immediately” to the association “pending final determination of the disputed race” and “until the matter is finally adjudicated.”

The Commission, which rejected the Wests’ appeal of Maximum Security’s disqualification and has refused to answer the Wests’ May 23, 2019, demand, has failed to follow the mandates of Section 5.


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