Heft v. Maryland Racing Commission

ELDRIDGE, Judge. This case arose out of a thoroughbred horse race at the Laurel Race Course; it concerns the plaintiffs claim that the horse finishing first in the race should have been disqualified because he interfered with two other horses during the running of the race. The principal issue on appeal is whether, under the Maryland Racing Commission’s rules applicable at the time of the race here involved, COMAR 09.10.01.01 to 09.10.01.78, or under due process principles, the Racing Commission was required to conduct a hearing to review the decision of the stewards when no timely objection was made to the running of the race, when the stewards themselves instituted an inquiry, and when, at ²⁶¹ the conclusion of the inquiry, the stewards decided not to disqualify the horse finishing first. 1 I. The Dancing Count Stakes, a $50,000 stakes race for three-year-old thoroughbreds, was run as the tenth race at Laurel Race Course on February 4, 1989. The plaintiff in the present case, Sylvia E. Heft, entered her horse Pulverizing in the race.

Four other horses participated in the race, namely Assault Party in the first post position, Diamond Donnie in the second position, My Favorite Socks in the third position, and Dr. Sure in the fourth position. Pulverizing occupied the fifth position. As the horses left the starting gate, Diamond Donnie allegedly veered to the right, interfering with My Favorite Socks and Dr. Sure. The plaintiff later claimed that Diamond Donnie’s action constituted an infraction of the Commission’s Rules of the Race, particularly COMAR 09.10.01.-50C and COMAR 09.10.01.50D, and required the disqualification of Diamond Donnie. 2 When the alleged infraction of the Commission’s rules occurred, however, it was not observed by Heft, her trainer, or her jockey.

The horses finished the race in the following order: Diamond Donnie, ²⁶² first; Pulverizing, second; Assault Party, third; Dr. Sure, fourth; and My Favorite Socks, fifth. At the conclusion of the race the stewards instituted an “Inquiry” and reviewed the videotapes of the race. No owner, trainer, jockey, or anyone else, however, filed an objection concerning the running of the race. At the conclusion of the inquiry, the stewards determined not to disqualify Diamond Donnie and certified the results of the race as official.

The videotapes of the race then became available to the public. After viewing the tapes, and within forty-eight hours after the Dancing Count Stakes, Heft filed an appeal in writing with the Maryland Racing Commission. She requested a hearing before the Commission on the stewards’ failure to disqualify Diamond Donnie. Presumably, if Diamond Donnie were disqualified, first place would have been awarded to the plaintiff’s horse Pulverizing.

On February 10, 1989, the Commission delivered a letter to Heft stating that she had failed to lodge an objection to the race within the time specified by the Rules and that, consequently, she did not protect her right of appeal. 3 The Commission’s letter stated: “[SJince your client did not act within the time frame specified, i.e., ‘before or immediately after his jockey has passed the scales’, your client waived any right she may have had to file a complaint and therefore did not protect her right of appeal. In fact, there was not a complaint from anyone involved in the race. The Stewards took no action and the race results became official. At this ²⁶³ juncture, there is nothing to appeal and it is far too late to register a complaint with the stewards.” Shortly thereafter, Heft filed this action in the Circuit Court for Baltimore City against the Commission and the racing stewards, Clinton P. Pitts, Jr., John Heisler, Jean Chalk and William Passmore.

Heft asserted that the Commission’s rules provided for an absolute right of appeal to the Commission from the stewards’ action regardless of whether the party appealing filed a timely objection to the race, that the denial to Heft of a right of appeal to the Commission violated Heft’s state and federal constitutional rights of due process and equal protection, and that the stewards had violated their mandatory duty by failing to disqualify Diamond Donnie and award first place to Pulverizing. Heft sought an order requiring that the Commission provide her with an administrative appeal. Alternatively, she sought a writ of mandamus requiring the stewards to disqualify Diamond Donnie and award first place to Pulverizing. The circuit court, after a hearing, rejected Heft’s contentions, stating that she had no right to an appeal to the Commission because she had failed to file a timely objection, that the regulatory scheme was constitutional, and that the steward’s decision not to disqualify Diamond Donnie was not a proper basis for the issuance of a writ of mandamus.

Heft appealed to the Court of Special Appeals, and before argument in that court, we issued a writ of certiorari.

II

The General Assembly has specifically granted to the Racing Commission “full power to prescribe rules, regulations and conditions under which all horse races shall be conducted within the State of Maryland.” Maryland Code (1957, 1988 Repl.Vol.), Art. 78B, § 11(a). The Legislature’s purpose in granting to the Racing Commission the authority to promulgate rules was to assure that horse races in ²⁶⁴ Maryland are “conducted fairly, decently and clean[ly].” Mahoney v. Byers, 187 Md. 81, 84 , 48 A.2d 600, 602 (1946); Jacobson v. Md. Racing Comm’n, 261 Md. 180, 183 , 274 A.2d 102, 104 (1971). The statute and “the Commission’s rules and regulations provide a comprehensive scheme for the regulation of horse racing in Maryland.” Silbert v. Ramsey, 301 Md. 96, 105 , 482 A.2d 147, 152 (1984). The Commission’s “Rules of the Race” are contained in Commission regulation 50.

As previously noted, supra footnote 2, under certain circumstances “[a] horse crossing another so as actually to impede him shall be disqualified____” COMAR 09.10.01.50C (emphasis added). Furthermore, “[i]f a jockey wilfully strikes another horse or jockey, or rides wilfully or carelessly so as to injure another horse ... his horse shall be disqualified.” COMAR 09.10.-01.50E. On the other hand, if a horse or jockey merely “jostles another horse, the aggressor may be disqualified.” COMAR 09.10.01.50D (emphasis added). 4 If the stewards ascertain that any violation of the Rules of the Race has occurred, they have the authority to determine the proper order of finish of the participating horses, and “they may disqualify the horse.” COMAR 09.10.01.50(0) (emphasis added). 5 In her complaint filed in the court below, the plaintiff relied on both COMAR 09.10.01.50C and 09.10.01.-50D, although disqualification is obviously more discretionary under the language of the latter regulation than it is under the language of the former. Commission regulation 35, as well as Commission regulation 50G concerning “Rules of the Race,” deal with the time, place and manner of making objections and with ²⁶⁵ appeals to the Commission from a stewards’ ruling on an objection.

The time and manner of making an objection vary with the nature of the objection and subject matter involved. For example, regulation 35A, GOMAR 09.10.01.= 35A, states that “[a]ll objections, except claims of interference during a race, shall be made to the stewards in writing, and signed by the objector.” (Emphasis added). The times for making objections vary considerably. For example, there is no set time limit for making an objection “[i]n ... cases of fraud or wilful deception.” COMAR 09.10.01.35N.

Certain types of objections can be made up to “48 hours, exclusive of Sundays, after the close of a race meeting____” COMAR 09.10.01.35K(1). Others must be made within 48 hours “from the time the race is run.” COMAR 09.10.Q1.35K(2). But, as mentioned earlier, regulation 35H mandates that “[objections to a horse based on an occurrence in a race shall be made before the numbers of the horses placed in the race have been officially confirmed.” COMAR 09.10.01.35H. Also, if the basis for the objection is a complaint that one of the rules in regulation 50 has been violated, the objection must be made “before or immediately after [the complainant’s] jockey has passed the scales.... ” COMAR 09.10.01.50G.

The plaintiff’s complaint in the present case was based on an occurrence in a race and on an alleged violation of regulation 50. The plaintiff, however, did not make an objection before the number of the horses placed in the race had been officially confirmed or before her jockey had passed the scales. In fact, she never made an objection or complaint to the stewards. Thus, under the plain wording of regulations 35H and 50G, there was no timely objection.

There is no provision in the regulations for excusing the time limits set forth in the regulations on the ground that neither the owner nor her trainer nor her jockey saw the violation of the Commission’s rules. While the stewards have the authority on their own of “taking cognizance of foul riding” (COMAR 09.10.01.50G) or other violations of the rules and of disqualifying the offender (COMAR 09.10.- ²⁶⁶ 01.35N, COMAR 09.10.01.50(0)), 6 there is no provision for an appeal to the Commission where the stewards merely initiate an inquiry and then take no action. Instead, appeals to the Commission relating to a race are based on objections having been made. COMAR 09.10.01.35E states (emphasis added): “E. The stewards shall decide every objection pertaining to a race.

From every decision, an appeal in writing may be made to the Commission within 48 hours of the time the objector has been officially informed of the decision.” Similarly, COMAR 09.10.01.35L states in relevant part (emphasis added): “L. Every objection shall be decided by the stewards, but their decision is subject to appeal in writing to the Commission____” As the plaintiff made no timely objection to the stewards concerning the running of the race, and as the stewards on their own did not take any action, the plaintiff under regulations 35 and 50 was not entitled to appeal to the Commission. (2] The plaintiffs response to the language of regulations 35 and 50 is to rely upon language in paragraphs V(3), V(5) and V(6) of regulation 45, COMAR 09.10.01.-45V(3)(5)(6). The plaintiff seizes upon certain language in these paragraphs referring to “appeals to the Maryland Racing Commission,” and states that the language authorizes appeals from all actions of the stewards regardless of the timeliness of any objection. The plaintiffs argument represents a classic example of taking language out of context.

Regulation 45, titled “Stewards,” deals generally with the appointment, duties, and power of the stewards, including, ²⁶⁷ e.g., duties before a race actually begins (paragraphs D, E), authority to regulate the conduct of racing officials, owners, trainers, jockeys and grooms during, before, and after races (paragraph J), control over stands, weighing rooms, and jockey rooms (paragraph K), determination of questions concerning entries (paragraph L), power to impose fines and/or suspensions upon persons for violating the rules (paragraph 0), power to examine horses (paragraph Q), authority to appoint deputies (paragraph S), authority over pari-mutuel betting machines (paragraph T-l), etc. Paragraph V of regulation 45, entitled “Violations,” states as follows: “V. Violations. “(1) If the stewards find that any person licensed by the Commission has violated any of the rules of the Commission or has been involved in any improper turf practice, they may exclude this person from the grounds, or any portion of the grounds, of the association conducting the meeting or the grounds of any other association under the jurisdiction of the Commission, or may suspend the license of this person to act or ride for a period not exceeding 90 days, or may fine this person not exceeding $500, or they may impose any combination of the above sanctions. If the stewards consider that the violation merits sanctions beyond those permitted in this rule, they shall promptly refer the matter to the Maryland Racing Commission, which shall institute proceedings against this person under Regulation .10. The stewards shall have the power to suspend the license of this person pending action by the Commission. “(2) A person licensed by the Commission who is fined, excluded from the grounds, or disciplined by the stewards may appeal to the Maryland Racing Commission from the stewards’ ruling. “(3) Except in the case of objections under Regulation .35, all appeals to the Maryland Racing Commission shall be in writing stating the reasons for the appeal and filed with the Maryland Racing Commission within 7 days of the date of the stewards’ ruling. ²⁶⁸ “(4) At the time of filing any appeal from a decision or ruling of the stewards, a deposit of $50 shall accompany the appeal. If the Maryland Racing Commission determines that the appeal was justified, this sum shall be refunded to the person appealing the decision or ruling.

If the Maryland Racing Commission determines that the appeal was not justified, this sum may be retained to cover the costs and expenses of the appeal. “(5) Upon receipt of the written appeal, the Maryland Racing Commission, through its Executive Director, shall send the person written notice, advising him of the time, date, and place at which the Maryland Racing Commission shall hold a hearing on the appeal. The Maryland Racing Commission shall hold the hearing as promptly as possible with due regard to the rights of the person involved. At the hearing, the person is entitled to be represented by counsel, to be confronted with the evidence on which the stewards’ ruling was based, to testify on his own behalf, and to produce other testimony or evidence relevant to his appeal. “(6) A person who appeals to the Maryland Racing Commission from a steward’s ruling may apply to the Maryland Racing Commission for a suspensive stay of the effect of the steward’s ruling pending disposition of the appeal by the Maryland Racing Commission. The decision to stay a steward’s ruling pending disposition of the appeal is within the sole discretion of the Maryland Racing Commission.” (Emphasis added).

It is clear that the language in paragraphs V(3) through V(6) of regulation 45 does not grant one in the plaintiff’s position a right of appeal to the Commission. The only right of appeal granted by regulation 45 is in paragraph V(2), which grants a right of appeal to persons fined, excluded or disciplined by the stewards. It grants a right of appeal to those persons subject to the stewards’ disciplinary authority in paragraph V(l) and in certain other paragraphs of regulation