Mules v. Maryland Racing Commission

Orth, C. J., delivered the opinion of the Court. STATEMENT OF THE CASE The Federal Proceedings On 18 December 1974, in the United States District Court for the District of Maryland, * 1 Donald E. Mules was found guilty by a jury of six violations of the laws pertaining to controlled dangerous substances. 2 Motions for arrest of judgment, for judgment of acquittal, and for a new trial were filed on 26 December and denied, upon hearing, on 20 March 1975. Mules was thereupon sentenced to a total term ⁵³⁵ of imprisonment for three years. 3 He noted an appeal to the United States Court of Appeals for the Fourth Circuit. The judgments were affirmed in a per curiam opinion filed 19 January 1976.

United States v. Mules, 532 Fed. 2d 752. In the usual course, the mandate will issue twenty-one days from the date of the decision, with thirty days thereafter permitted to petition the Supreme Court of the United States for writ of certiorari. Fed. R. App. P. 41 (a) and (b); Rules of Supreme Court, rule 22. The State Proceedings The federal proceedings had a collateral effect.

For over two decades Mules had been licensed to practice veterinary medicine in Maryland. Agricultural Art. § 2-301 through § 2-313. 4 For some years he specialized in equine veterinary medicine. The Maryland Racing Commission (Commission) was created and established by the General Assembly as part of the Department of Licensing and Regulation. Its jurisdiction, supervision, powers and duties, subject to the power and authority of the Secretary of Licensing and Regulation, extend to all persons, associations and corporations conducting any meeting in Maryland whereat horse racing shall be permitted for any stake, purse or reward.

Code, art. 78B, § 1. The Commission has “full power to prescribe rules, regulations and conditions under which all horse races shall be conducted within the State of Maryland.” Code, art. 78B, § 11 (a). Under that power, it ⁵³⁶ duly adopted, pursuant to Code, art. 41, § 9, rules governing thoroughbred racing. 5 Commission Rule 09.10.46.08 provides: “No Veterinarian shall be allowed to practice at the race track of any Racing Association under the jurisdiction of the Commission until such Veterinarian shall have obtained a license from the Commission. Such license must be applied for and issued annually.

Such license may be revoked or suspended, for cause, by the Commission.” Mules was first issued a license by the Commission on 13 April 1967 to practice veterinary medicine at the various race tracks in this State. Thereafter, the Commission issued him a license for each calendar year through 1974. The Proceedings Involving the Stewards Code, art. 78B, § 5 (b) requires that there be three Stewards at every race meeting. Commission Rule 09.10.44.10 grants the Stewards the power and imposes on them the duty to regulate and govern the conduct of all. . . persons attendant on horses during, before and after races.” Commission Rule 09.10.44.22 provides: “If the Stewards shall find that any person licensed by the Commission has violated any of the Rules and Regulations of the Commission or has been involved in any improper turf practice, they may exclude such persons from the grounds, or any portion of such grounds, of the association conducting the meeting or the grounds of any other association under the jurisdiction of the Commission or by suspension from acting or riding during the meeting, or for a period not exceeding 20 days after the meeting, or by fine not exceeding $200, or by both; and, if they consider necessary, ⁵³⁷ any further punishment or additional fine, they shall promptly refer the matter to the Commission.” At the time the convictions of Mules were rendered in the federal court, a meet was being held at Laurel.

On 21 December 1974, after the convictions in the federal court but before the imposition of sentence thereon, the Stewards at the Laurel meet ordered that Mules be suspended because of the federal convictions and denied him the privileges of the grounds during the suspension. Mules could have appealed to the Commission. Commission Rules 09.10.44.22-1-2-3-4. He filed, however, an action in the Circuit Court for Baltimore County, Equity No. 82051, to enjoin the Stewards from denying him access to the race tracks in Maryland or from otherwise interfering with his practice of veterinary medicine, until final determination of the federal criminal proceedings.

On 9 January 1975, the Circuit Court for Baltimore County denied the request for an injunction. The chancellor found that the Stewards had “inherent power” under the Commission Rules to control those who have access to the tracks, including a licensed veterinarian “if the actions of such person have or tend to have an adverse effect on the conduct of racing in the State.” He concluded that, in the circumstances, the Stewards could suspend Mules during the current meeting and for 20 days thereafter. The current meeting at Laurel ended 1 January 1975. Thus, the suspension was effective for 20 days after that date.

The chancellor cautioned: “It is imperative, however, that the Maryland Racing Commission set a prompt hearing for the purpose of affording Dr. Mules an opportunity to present his case.” 6 The Proceedings Involving the Commission The opportunity for Mules to present his case to the Commission came through his application to practice as a veterinarian at the tracks during the year 1975. Question 6 of the application asked: “Have you ever been denied a ⁵³⁸ license to work as a veterinarian by any Commission or Racing Association?” Mules struck out the words “by any Commission or Racing Association”, placed a check mark in the box designating “Yes”, and inscribed: “By Stewards at Laurel Race Course.” He explained, “Having been found guilty in U. S. District Court for the District of Md. Dec. 18, 1974.” Commission Rule 09.10.24.02 provides: “The Commission may refuse to issue or renew a license or may suspend or revoke a license issued pursuant to this section if it shall find that the applicant, or any person who is a partner, agent, employee or associate of the applicant, has been convicted of a crime in any jurisdiction, or is associating or consorting with any person or persons who have been convicted of a crime or crimes in any jurisdiction or jurisdictions, or is consorting or associating with, or has consorted with bookmakers, touts or persons of similar pursuits, or has himself engaged in similar pursuits, or is financially irresponsible, or has been guilty of or attempted any fraud or misrepresentation in connection with racing, breeding, or otherwise, or has violated or attempted to violate any lav/ with respect to racing in any jurisdiction or any rule, regulation or order of the Commission, or shall have violated any rule of racing which shall have been approved or adopted by the Commission, or has been guilty of or engaged in similar related or like practices.” On 13 January 1975, the Commission held a hearing on the application. See Commission Rule 09.10.10.01. After testimony was received and argument heard, Commissioner Carle A. Jackson, according to the transcript of the proceedings, moved that “we deny the application of Dr. Mules and deny him the privileges of the grounds.” The motion was seconded by Commissioner Donald S. Levinson and a vote was taken.

Commission Chairman J. Newton ⁵³⁹ Brewer, Jr. said: “The record will show that Commissioners Jackson, Brewer and Levinson voted to deny Dr. Mules his license.” A document entitled “Findings of Fact and Order”, hereinafter referred to as “Commission Opinion”, is reproduced in the Joint Record Extract. It apparently was taken from a xerographic copy of a document attached to the Petition filed by Mules pursuant to Maryland Rule B2, § e. Alleged to be labelled “Exhibit #1” but actually labelled “Exhibit A”, it is made a part of the Petition. The document ends with an “Order” reading: “It is the day of January 1975, ORDERED by the Maryland Racing Commission that the application for a veterinarian’s license of Donald Elmer Mules be denied and that he be denied the privileges of the grounds.” Not only is the date incomplete, but the document is not subscribed, although there are lines for the signatures of the three Commissioners and the Secretary.

There is no executed original or copy of an executed original of this document in the record transmitted to us. The Appeal Proceedings in the Circuit Court for Baltimore County On 17 January 1975 Mules filed an Order of Appeal in the Circuit Court for Baltimore County, requesting that the Clerk “Please enter an Appeal from the decision of the Maryland Racing Commission dated January 13, 1975 in the above-captioned matter.” 7 Md. Rule B2, § a. He filed a petition as required by Md. Rule B2, § e, setting forth the action appealed from, the error committed by the Commission in taking its action, and the relief sought. The action appealed from was the refusal of the Commission to issue him a license to practice veterinary medicine for 1975 at the Maryland Race Tracks, and the denial of access to the Tracks.

The errors alleged to have been committed by the Commission were basing its action on the conviction of him of a crime when he had not been convicted of a crime within the meaning of Commission Rule 09.10.24.02, and basing its ⁵⁴⁰ action on his guilt of or attempting “any fraud or misrepresentation in connection with racing, breeding, or otherwise . . .” under that Rule. The relief sought was the reversal of “the ruling of the Maryland Racing Commission denying [him] access to the Maryland Race Tracks and further denying [his] application to practice veterinary medicine at the Maryland Race Tracks for the calendar year 1975.” 8 The appeal was heard by the Circuit Court for Baltimore County starting on 23 May 1975. It continued intermittently thereafter. On 21 July the court filed an opinion and order.

The order read: “The decision of the Maryland Racing Commission dated January 13, 1975, is affirmed; the court costs shall be paid by the appellant, Dr. Mules.” Mules noted an appeal to the Court of Special Appeals from that judgment. ISSUES FOR DECISION Although, as we have indicated, the copies of the Commission Opinion in the record before us are not complete as they lack a date and the signatures of the Commissioners, it is manifest from the opinion of the court below that it was completely satisfied that the Commission had made the findings of fact and issued the order on 13 January 1975 as set out in the Commission Opinion. In any event, it is clear that the Commission refused to issue Mules a License for 1975 and that it denied him the “privileges of the grounds.” 9 ⁵⁴¹ The position of Mules has been consistent at all levels. Its essence is that the Commission cannot take action against him on the basis of the federal court convictions until those convictions have become final.

It seems that he considers “final” in accordance with the formula enunciated in Linkletter v. Walker, 381 U. S. 618 (1965), where the Court said, at 622, note 5: “By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed . . . .” When Mules attacked the action of the Stewards in suspending his license by seeking to enjoin them from denying him access to the tracks or from otherwise interfering with his practice of veterinary medicine, it was on the ground that measures against him were precluded until final determination of the criminal proceedings. At the hearing before the Commission, Mules’ attorney, as pointed out in the Commission Opinion, “argued at length that the Commission should construe those references in its Rules to a ‘conviction of a crime’ to mean conviction after exhaustion of all appellate remedies.” At the appeal proceedings before the Circuit Court for Baltimore County, as noted by the court in its opinion, Mules maintained “that he should be permitted to continue his practice at the Maryland Tracks until he has exhausted his appeals from his criminal conviction.” On the appeal before this Court, he presents the question: “Under Rule 09.10.24.02 of the Maryland Racing Commission which purports to allow the exclusion of any licensee of the Commission from the race tracks of this State upon ‘conviction of a crime,’ ⁵⁴² was it proper to bar the appellant, a veterinarian, from the tracks, upon the verdict and judgment in the United States District Court, where the appellant pursued a prompt and timely appeal therefrom?” He argues that the action of the Commission was improper pending appellate determinations. As consistent as Mules’ position have been the decisions thereon below. The chancellor in the injunction proceeding remarked: “I might add that in my judgment the fact that the case has not yet gone through the appellate procedures does not affect the fact that Dr. Mules has been convicted of a crime, which in and of itself shows he is not worthy of access to race tracks.” The Commission, in making its determination said: “While the Rules of Racing do not define ‘conviction of a crime’, -. . . the Commission’s broad discretionary powers permit it to conclude that a finding of guilt by a jury in the United States District Court meets the definition of a ‘conviction of a crime’.” Although pointing out that “the Commission’s powers to refuse to issue a license may be based on grounds other than conviction of a crime”, the Commission made clear that the basis of its action was the convictions.

It declared: “In summary, the Commission believes that Dr. Mules’ conviction in the United States District Court is sufficient cause for the Commission to refuse to grant him a license in the exercise of its broad discretionary powers to control all aspects of racing.” 10 It later repeated this view: “[I]t is the Commission’s conclusion that Dr. Mules’ conviction in the United States District ⁵⁴³ Court is sufficient cause to deny his application for a veterinarian’s license.” The judge on appeal below was of like mind. Observing that the Commission concluded that the finding of guilty by a jury in the federal court met the definition of “a conviction of a crime” as used in the Rules, he said: “A fortiori is this true when, as the evidence now shows, the verdict of the jury of ‘guilty’ was converted into a judgment of conviction and sentence.” The issue of what is meant by “conviction of a crime” in the contemplation of the Commission Rules is now before us. The question is, does the phrase “has been convicted of a crime in any jurisdiction”, as used in Commission Rule 09.10.24.02, contemplate that the provisions of the Rule may be invoked: (1) upon the entering of a verdict of guilty by a court or jury in a criminal action; or (2) upon the imposition of sentence on a verdict of guilty; or (3) upon the exhaustion of all direct appeal rights, that is when the judgment of conviction and sentence becomes final under the Linkletter formula. The Mootness of the Case The question whether the Commission was wrong in refusing to license Mules for the year 1975 would ordinarily be moot because it involves a license for a year which has ended.

Comrs. of Vienna v. Phillips Co., 207 Md. 12, 19-20 (1955). 11 We believe, however, that the circumstances here provide a justification for a conclusion of nonmootness. We adopt the rationale of Roe v. Wade, 410 U. S. 113 (1973). In ⁵⁴⁴ Roe an action was brought for declaratory and injunctive relief respecting Texas criminal abortion laws which were claimed to be unconstitutional. The action was instituted by Jane Roe, 12 unmarried and pregnant, who alleged that she was unable to obtain a legal abortion in Texas.

The record did not disclose that she was pregnant at the time of the district court hearing or when the opinion and judgment were filed, and the rule in federal cases was that an actual controversy must exist at stages of appellate or certiorari review and not simply at the date action is initiated. It was suggested that the case had become moot because Jane Roe and all other members of her class were no longer subject to any pregnancy which existed when the action was filed. The Court said, at 125: “But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.

Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be ‘capable of repetition, yet evading review’.” The denial of a license to Mules could certainly be “capable of repetition, yet evading review,”'on the point he presents.

If he applies for a license for 1976, and the application is denied, and he exercises his appellate rights, that denial may also become moot by the passage of the calendar year before appellate determinations. But even if we did not think that a conclusion of nonmootness was justified, we would be constrained to express our opinion in the