Kentucky court rules absolute-insurer rule valid in Motion case: Daily Racing Form 12/27/18

LEXINGTON, Ky. – The Kentucky Court of Appeals has reversed a lower court decision from last year that sent tremors through the racing regulatory community by throwing out the state’s absolute-insurer rule in a case centered on a drug positive for a horse trained by Graham Motion more than three years ago.

The three-judge panel ruled unanimously that the absolute-insurer rule as enforced by the Kentucky Horse Racing Commission in the Motion case did not violate the trainer’s due process rights, a central contention of the ruling in August of last year by Circuit Court Judge Thomas Wingate. In addition, the Court of Appeals ruled that the commission’s penalty standards for the drug in the case were not “arbitrary and capricious,” as Wingate held, reinstating a central power of racing commissions to set limits on the amount of a drug that can be found in a post-race sample.

“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,” the Court of Appeals wrote in its ruling issued on Dec. 21. “These are significant rational reasons to uphold the regulation as constitutional.”

The Wingate ruling had unnerved racing commissions across the United States because the absolute-insurer rule is a linchpin of racing regulation, allowing racing regulatory bodies to hold trainers responsible for post-race drug positives regardless of the circumstances that may have led to them. Most racing commissions view the rule as essential to providing a deterrent to both the deliberate and careless use of drugs in racing, and no court in five decades had ruled against the constitutionality of the rule prior to the Wingate decision.

Following the Wingate decision, the Kentucky commission proposed modifications to its absolute-insurer rule allowing trainers to present evidence in cases involving drug positives that allow for “mitigating circumstances.” The modifications were approved for public comment in September as part of a process to “clarify” the state’s existing regulations, which had previously been interpreted as allowing for mitigating circumstances, so the effect of the Court of Appeals ruling may be limited as a practical matter if the language is ultimately put on the books.

Motion’s attorney, Craig Robertson, said on Thursday that he “anticipates” that Motion will appeal the case, although he did say that he welcomed the modifications to the existing rule.

“It’s the old rule, which is a strict liability rule, that I do have a problem with,” Robertson said.

The case centered on a post-race positive for a trace amount of the regulated medication methocarbomol in the post-race sample of a horse trained by Motion, Kitten’s Point, after she won the $150,000 Bewitch Stakes in October 2015 at Keeneland. Motion was initially suspended five days for the positive, but that suspension was rescinded after Motion appealed the penalty and reached a settlement agreement with the commission.

Kitten’s Point was disqualified from the race as a result of the finding, a decision that will be reinstated due to the Court of Appeals ruling.

Motion, a native of England, is fiercely protective of his reputation, and his record prior to the Kitten’s Point positive was unblemished. Kitten’s Point is owned by George Strawbridge, an outspoken advocate of strict drug-enforcement rules in racing.

Motion had testified before the commission that he had administered methocarbomol to Kitten’s Point on a regular basis prior to the Bewitch Stakes, but that he had not administered the substance to the mare within seven days of the race, well before the two-day withdrawal guideline published by the commission. During the appeals process, Motion had argued that the threshold level set by the commission was not based on a rigorous scientific analysis, an argument that Wingate had supported in his ruling last year.

But the Court of Appeals stated clearly that it disagreed with Wingate’s conclusion, saying that the commission was well within its rights to set threshold levels as part of the commission’s broad regulatory powers.

“We must disagree with Appellees that a rational basis for a statute or regulation devolves to only a consideration of whether there is supporting scientific evidence,” the judges wrote.