University of Vermont AAHS

Wyoming Attorney General

Formal Opinion No. 99-005
1999 WL 744222
September 7, 1999

Summary of Opinion

The Wyoming Attorney General was asked whether the racing commission has jurisdiction to hear an appeal from racing stewards regarding fouls in racing.  The Attorney General responded that the commission has no authority to review the decisions of stewards except in cases in which the stewards’ decisions impose a fine or license suspension.

Text of Opinion

Frank Lamb
Executive Director
Pari-Mutuel Commission

RE: Statutory authority to hear appeals from stewards' ruling on fouls committed during the running of a race

Dear Mr. Lamb:

The Pari-Mutuel Commission has raised a question regarding whether Wyo. Stat. § 11-25-104(j) allows appeals from decisions of the stewards regarding rulings on the outcome of fouls committed during the running of a race. Under the current interpretation of the Pari-Mutuel statutes, the answer must be no.

An agency or commission "only has the power and authority granted by the constitution or statutes creating the same [citations omitted]. Such statutes must be strictly construed or 'any reasonable doubt of existence of any power must be resolved against the exercise thereof' [citations omitted]." Tri- County Electric Association v. City of Gillette, 525 P.2d 3, 8-9 (Wyo. 1974). In addition, the Wyoming Supreme Court held that "an administrative board has no power or authority other than that particularly conferred upon it by statute or by construction necessary to accomplish the aims of the statutes." Ibid. at 9. See also, Hupp v. Employment Security Commission, 715 P.2d 223, 225 (Wyo. 1986).

Restricting the right of appeal under certain circumstances is not without precedent in Wyoming. See McGann v. City Council of City of Laramie, 581 P.2d 1104 (Wyo.1978)(dealing with the city of Laramie's authority to amend zoning classifications, which authority was not reviewable pursuant to the Administrative Procedure Act because the power conferred was legislative in nature, and the provisions of the APA do not apply to legislative actions); Walker v. Board of County Commissioners, Albany County, 644 P.2d 772 (Wyo. 1982)(right of appeal of a new applicant for a liquor license from denial by licensing authority specifically prohibited by statute).

Barring a specific constitutional directive, the legislature can preclude judicial review:

'Each statute must be carefully examined to discover the legislature's intent to restrict judicial review of administrative action. [Citations omitted.] While it is often said that barring constitutional impediments the legislature can preclude judicial review [citations omitted], such intent must be made specifically manifest, and persuasive reason must exist to believe such was the legislative purpose. [citations omitted.] Only upon a showing of clear and convincing evidence of contrary legislative intent should the courts restrict access to judicial review.'

Walker, 644 P.2d at 774 (Wyo. 1982), quoting U.S. Steel Corporation v. Wyoming Environmental Quality Council, 575 P.2d 749, 750 (Wyo. 1978).

To determine whether the legislature has restricted appellate access in any way, the Pari-Mutuel Commission statutes must first be carefully examined. The pertinent section of the Pari-Mutuel Wagering Act is Wyo. Stat. § 11-25-104:

(e) The commission shall authorize by permits and supervise the conduct of all events provided for and regulated by this act, and shall make reasonable rules and regulations for the control, supervision and direction of applicants and permittees, including regulations providing for resolving scheduling conflicts and settling disputes between permittees and the supervising, disciplining, suspending, fining and barring from pari-mutuel events of all persons required to be licensed by this act, and for the holding, conducting and operating of all pari-mutuel events conducted pursuant to this act.

* * *

(g) The commission may delegate authority to enforce rules of the commission and this act to three (3) stewards at each pari-mutuel event, at least one (1) of whom shall be an employee of and selected by the commission. * * * Stewards shall exercise such reasonable and necessary authority as is designated by rules of the commission including the following:

(i) Enforce rules of the commission and this act;

(ii) Rule on the outcome of events;

(iii) Levy fines not to exceed two hundred dollars ($200.00) for violations of rules of the commission. Violations shall be reported daily and fines paid to the commission within forty-eight (48) hours of imposition and notice;

(iv) Suspend licenses not to exceed thirty (30) calendar days for violations of rules of the commission. Suspensions shall be reported to the commission daily;

(v) Recommend the commission impose fines or suspensions greater than permitted by paragraphs (iii) and (iv) of this subsection.

(h) Only a licensed steward of the permitted event may impose fines or license suspensions except that a starter may impose fines when horses arrive at the gate until off time in an amount not exceeding two hundred dollars ($200.00).

(j) Any fine or license suspension imposed by a steward or fine imposed by a starter may be appealed in writing to the commission within five (5) days after its imposition. The commission may affirm or reverse the decision of a steward or starter or may increase or decrease any fine or suspension.

The lines of authority appear to be clearly laid out in the statutes. The Commission has full authority to authorize permits for the conducting of events, to license individuals involved in the business of racing, and to otherwise supervise the conduct of all events. As part of its authority to supervise the conduct of racing, the Commission has been given the power to adopt reasonable rules and regulations for the supervision and direction of licensees and permittees. In addition, by statute, the Commission has the power to delegate part of its responsibilities to a panel of stewards. The stewards, who are required to receive specific training and certification in all areas pertinent to horse racing, are given the authority by statute and rule to enforce the rules of the commission, to rule on the outcome of events, to levy fines, to suspend licenses, and to recommend cases to the Commission for increased fines and suspensions. Of these powers, the critical one in question involves the power of the stewards to rule on the outcome of races.

The stewards are given direct authority to rule on the outcome of races as they are the "judges" hired by the Commission to perform the on-site supervision of the race meet. Incidents involving riding violations committed by jockeys or interferences by a horse and/or rider are typical of the events that can occur during the running of a race, which may affect its outcome. The stewards watch the live race through binoculars and television monitors and then, in the case of a questionable racing incident, review the video tapes that typically show a head on view, a pan or side view and a backside view shot from the inside of the track. From these three angles, the stewards are able to review as many times as necessary a particular incident that may give rise to a foul. In addition, the stewards question the jockeys involved in the incident for their views. The review process is akin to instant replay and it helps the stewards make the most accurate decision that can be made in the time frame allowed.

The question is, however, whether these types of decisions are final and non appealable to the Pari-Mutuel Commission. The statutes clearly create the right of appeal to the Commission only in those cases involving actions taken against a license: a fine or suspension. Within the statutory scheme, the Commission retains full power over licenses, with the limited exception of the minor infractions that may be ruled on by the stewards. Because the Commission is the licensing authority, it makes sense that only the Commission has the power to take major enforcement action in the nature of revocation, suspension and fine. Decisions involving the outcome of a race, however, have been fully delegated to the three individuals chosen to supervise the conduct of racing and by statute have not been specifically included in those that may be appealed to the Commission. If the legislature had intended such decisions to be appealable, it would have written the statute in such a way as to be absolutely clear that all stewards' decisions are appealable, instead of just certain of those decisions. Hupp, 715 P.2d at 227. However, under the reasoning of Walker, even if there appear to be restrictions upon the right of appeal, there still must be persuasive reason to believe the Legislature intended this result.

The Commission is typically a lay board (no provisions within the statutes require any expertise in the field of horse racing), and expert decisions on the actual running of the racing events are appropriately delegated to the expertise of the stewards. By the wording of the statutes that grants appellate review only to licensing issues, the final word regarding the official outcome of a race, therefore, rests with the stewards. See Cramer v. New York State Racing Association, 525 N.Y.S.2d 938 (NY 1988)(stewards are authorized to resolve all objections concerning a race and declare the official outcome for purposes of distributing the betting pools). The ability to have an official outcome of a race shortly after the race is run is an extremely important function of horse racing, as it allows the betting public to determine prior to the start of the next race whether they hold winning tickets, and it prevents the delay of the start of the next race. In addition, during the running of quarter horse trials, the determination of which horses qualify as the top runners is made at the end of the day's trials. Significant delays in such determinations could impact the final races, typically run within one to two weeks.

Because of the difficulty a lay commission has when faced with the task of reviewing what is essentially the call of an umpire hired for his or her expertise and because of the increased popularity of seeking legal remedies for perceived injustices, two of the major racing jurisdictions in the United States, Oklahoma and California, have recently adopted legislation and rules prohibiting appeals of stewards' decisions regarding the outcome of a race. Kentucky, a state often viewed as a center for horse racing and breeding, has long had rules prohibiting this type of appeal.

In addition, in cases that are appealed to commissions and district courts regarding such decisions, courts are loathe to upset the judgment of the stewards:

Our [the court of appeals'] reaction on reviewing the videotape, which constitutes a portion of the record before us, was not unlike that of the [ [common pleas court] as the tape suggests some interference or intimidation. Our review of the common pleas court's decision, however, includes the remainder of the record as well.

Sidney Gendelman, a steward for the race at issue, with approximately twelve years of experience as a steward and forty-four years experience in the racing industry, testified that a horse is clear when it is separated from another horse by 'a length, a length and a half or two'; that despite Woods [the jockey] standing up on Bobby M. [his horse] to check him, a length and a quarter to a length and a half separated the two horses at that time; that Woods was grandstanding as he knew the race was over.

* * *

Similarly, ... the other two stewards ... testified that when Woods stood up on Bobby M., Wall Street Dancer was clear of Bobby M., and that Bobby M. had plenty of room to come through on the rail. Clark [steward], himself a former jockey, testified that there was no reason for Woods to check, or pull up on, Bobby M. * * * In summing up his testimony, Borgemenke [steward] stated: 'In my opinion I think Charlie Woods just tried to make something out of nothing that wasn't there. I think, like we said, he was on a beat horse, and he knew it. So he stood up on the horse to make it look good like something happened which never did.'

Miller v. Ohio State Racing Commission, 1995 WL 89696 (Ohio App. 10 Dist.) (emphasis added)(unpublished decision)(upholding decision of commission affirming the findings of the stewards).

The decision in Miller has one of the best discussions regarding the difficulty in evaluating the events that happen during the running of a race. As indicated, the tape definitely showed that something happened, and, to the uneducated eye, it appeared as though there was some type of interference or intimidation. However, in the expertise of the stewards, the jockey was grandstanding in an attempt to create the illusion of interference when none was actually present. The stewards, with their many years of experience, recognized that. Other cases also typically defer to stewards' decisions in light of their vast experience and numerous years in the business. Pelling v. Illinois Racing Board, 574 N.E.2d 116, 118 (Ill. 1991)("Each steward testified to his years of experience in judging thousands of races.")

Because these situations are difficult for a lay board to decide, reason dictates that decisions of stewards regarding the outcome of a race should be considered final. Montana has gone so far as to pass a rule that states, "On review of a stewards' decision disqualifying a horse in a race, the board shall not substitute its judgment for (second guess) that of the stewards as to the weight of the evidence on questions of fact." Rule 8.22.302, ARM. In a sense, the Montana board assumes a truly appellate role in reviewing such cases, where only procedural or legal claims, not factual claims, are raised. This particular rule came under scrutiny by the Montana Supreme Court in 1998 in Smith v. Board of Horse Racing, 956 P.2d 752 (Mont. 1998), when the board relied upon it when upholding a stewards' decision regarding a disqualification of a horse.

The trainer argued that he was not given meaningful participation in the hearing before the stewards and that, therefore, his due process rights were violated on appeal when the board concluded it was required to accept the stewards' findings as to the facts in the case. The Montana Supreme Court agreed with Mr. Smith, stating that it was unconstitutional for the board to defer to the stewards on questions of fact in a "situation such as this where the stewards made their factual determination without affording both sides an opportunity to be heard. Such deference is only appropriate if the stewards have weighted the factual contentions of both sides of the dispute." Smith, 956 P.2d at 754. In Wyoming, any concerns about due process and the right to be heard should be foreclosed by the Commission Rules, which permit both an informal and a formal hearing process before the stewards to discuss and determine on any infractions of the rules. The process allows a licensee an opportunity to be heard, to be represented by counsel, to bring witnesses and to present a defense. Commission Rules, Chpt. III, Secs. 4 and 5.

Other factors also argue in favor of the legislature's intent to prohibit this type of appeal. For example, when an owner enters his horse into a race, he does so with the knowledge that he has no guarantee of winning and he assumes the risk that is inevitable when 10 horses in a limited space vie for position and the win. Interference can result, and the decision as to the outcome following interference is left to the opinion and judgment of the experts hired by the Commission. See, Commission Rules, Chpt. II, Sec. I (g)( "Every licensed person participating in a permitted event including all owners and trainers and their stable employees are subject to the Laws of Wyoming and the Rules promulgated by the Commission immediately upon acceptance and occupancy of stabling accommodations from or approved by a permittee or upon making entry to run on permittee's track. Owners, trainers and stable employees shall abide by the Laws and Rules and accept the decisions of the Stewards on any and all questions, subject to their right of appeal to the Commission.").

As Associate Justice Johnson stated, in his concurring and dissenting opinion in Youst v. Longo, 207 Cal.Rptr. 447, 454 (Calif. 1984), some incidents, like opinion calls regarding the outcome of a race, are "the kind of acts a sports competitor can be assumed to risk when he voluntarily participates in an athletic event." Associate Justice Johnson also stated, almost as though he were a harbinger of what California would eventually pass regarding appeals of stewards' decisions involving the outcome of a race, "I want to emphasize, moreover, what I would not hold were I in the majority. I am not suggesting the courts second guess the stewards. Whatever fouls they call or discipline they impose should remain final. Moreover, whichever horse they declare to be the winner should remain the winner for all purposes. The same goes for place, show and the remaining order of finish they certify." Youst v. Longo, 207 Cal.Rptr. at 460 (emphasis added). (NOTE: The original decision in Youst v. Longo was vacated on other grounds and remanded to the Racing Board for further action regarding Petitioner's claim for compensation for the intentional interference with his prospective economic advantage, e.g. winning the race. Youst v. Longo, 215 Cal. Rptr. 577 (Calif. 1985). This decision was affirmed by the California Supreme Court on other grounds by Youst v. Longo, 233 Cal. Rptr. 294, 306 (Calif. 1987); however, the Supreme Court held that the Racing Board lacked jurisdiction to award general tort damages in such cases and that the "the chance of winning a horserace or any sporting event does not present a basis for tort liability for interference with prospective economic advantage.").

In conclusion, Wyoming's Pari-Mutuel Wagering Act permits delegation of the direct supervision of horse racing to three stewards. Of the decisions made by the stewards, the only ones that, by statute, may be appealed to the Commission are those involving fines and suspensions. All other decisions of the stewards are considered final and non appealable to the Commission. Given the nature of horse racing, the necessity of immediate decision making, and the fact that the stewards are hired by the Commission specifically because of their expertise, training and certification, it is clear that the legislature did not intend for the Commission to be second guessing its experts in matters involving racing fouls and the determination of the outcome of a race. Without specific statutory authority to hear such appeals, the Commission does not have the jurisdiction to hear these appeals. Any rules conferring such authority have not been adopted in accord with the statutes and should be amended.

Sincerely,

Gay Woodhouse
Attorney General

Michael L. Hubbard
Deputy Attorney General

Barbara L. Boyel
Senior Assistant Attorney General


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