Kentucky Court Of Appeals: Absolute Insurer Rule Is Constitutional; Kitten’s Point Medication DQ Upheld

by | 12.21.2018 | 4:12pm
Trainer Graham Motion

The Kentucky Court of Appeals on Friday reversed a lower court decision that had overturned a positive drug test and rendered horse racing's absolute insurer rule unconstitutional in Kentucky.

Court of Appeal Judges Gene Smallwood, Debra Lambert and Sara Combs sided with the Kentucky Horse Racing Commission in a case centered around Kitten's Point, first-place finisher of the 2015 Bewitch Stakes at Keeneland for owner George Strawbridge Jr. and trainer H. Graham Motion. Kitten's Point subsequently was found in post-race testing to have 2.9 nanograms per milliliter of methocarbamol in her blood, higher than the commission's threshold of 1 ng/ml. Racing commission stewards entered an order finding two regulatory violations.

A hearing officer then heard the case, affirmed the violations and recommended the commission suspend Motion's license for five days, fine him $500 and disqualify Kitten's Point from the win, causing Strawbridge to forfeit the $90,000 purse. The commission adopted the hearing officer's findings and ordered all but the suspension of Motion's license. During the hearing, Motion said Kitten's Point previously had been administered methocarbamol – an approved therapeutic medication  muscle relaxant – but that the drug had been withdrawn well before the recommended cutoff timeline.

Motion and Strawbridge appealed the case to Franklin Circuit Court, where Judge Thomas Wingate in August 2017 ruled that the commission had acted arbitrarily in imposing sanctions, in part because of a lack of scientific evidence in setting the 1.0 ng/ml threshold for methocarbamol. Wingate also ruled that the state's absolute insurer rule was unconstitutional because it deprived a trainer of due process.

In the opinion written by Judge Smallwood, the Court of Appeals stated that the threshold levels set by the regulations are neither unconstitutional nor arbitrary. The judges cited testimony by Dr. Richard Sams, expert witness for the commission, who testified that impairment could be easily seen in horses given large doses of methocarbamol. However, Sams said, the pharmacological effects of methocarbamol at smaller doses were not fully understood because of a lack of scientific testing.

“Limiting the amount of a drug in a horse's system that is not fully understood is a rational reason for the low threshold,” the Court of Appeals opinion states. “By limiting the amount of medications and drugs given to horses, the commission is protecting the health of horses and ensuring the integrity of racing itself. These are significant rational reasons to uphold the regulation as constitutional.”

The Court of Appeals said the racing commission's powers are broad, citing state statute that reads: “…it is in the interest of the public health and safety to vest in the commission forceful control of Thoroughbred racing. Inherent in such control is the right to enact and enforce rules which are necessary to fulfill that mission. Moreover, the statutes permit rules which condemn the presence of prohibited substances which affect the speed or health of a horse.”

The judges ruled that setting thresholds falls within the scope of those powers, then quoted the hearing officer in the Kitten's Point ruling: “If the agency's statutory mandate were interpreted to create a right to run horses carrying drugs unless an effect of the drug could be proven, every drug violation would turn into a science contest.”

The Court of Appeals also overturned the lower court ruling stating that the trainer's absolute insurer rule is unconstitutional because trainers are deprived of due process.

“In other words,” the opinion states, “the circuit court found that a trainer should be allowed to defend himself or herself. The commission argues that the rule does not violate due process because it must still prove a violation occurred before the trainer is penalized. Again, we agree with the commission.”

The absolute insurer rule dictates that mitigating or aggravating circumstances shall be considered by stewards or the racing commission before penalties are imposed. “Mitigating factors were in fact considered and discussed by the hearing officer in this case,” the Court of Appeals opinion states. “These facts also underscore the reason for our finding that the absolute insurer rule does not violate due process.”

W. Craig Robertson III, attorney for Motion, said he was “surprised and disappointed” in the Court of Appeals opinion and hopes that Motion and Strawbridge will carry their argument to the Kentucky Supreme Court. “We certainly feel like this is the kind of case that should be heard by the Supreme Court and would hope they would reinstate (the circuit court judgment).”

Robertson said horsemen deserve regulations that “have a rational or scientific basis” and that the Court of Appeals opinion on the absolute insurer rule means trainers do not have a right to defend themselves. “The absolute insurer rule does not give you that right,” Robertson said. “The evidence can only go to lessen the punishment, not to argue whether you are guilty in the first place.”

Strawbridge issued the following statement through his attorney, Joel B. Turner: “We disagree with the Court of Appeals' decision and are considering all available options. This is not over yet.”

Pending an appeal to the Kentucky Supreme Court, the original penalties will be reinstated.

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