A Howard County Circuit Court judge, citing the traditional right of private racetrack owners to ban trainers and jockeys from their property, has upheld Freestate Raceway's May 17 exclusion of harness driver Walter Callahan.

"This court cannot pierce the track's veil of discretionary authority," Judge Guy J. Cicone said today after a two-hour hearing on Callahan's request to overturn the exclusion.

Callahan and his attorneys were uncertain whether they would appeal to either a state special appeals or a federal court.

Callahan, 31, one of the state's most successful driver-trainers, was notified by a top Freestate official last month that he was being excluded from races at the track because of "business reasons."

A driver-trainer since 1970, Callahan appealed the exclusion to a Howard circuit court judge. When his bid for a temporary restraining order was denied earlier this month, Callahan sought a permanent injunction against Freestate to allow him to race and train at the Laurel track.

The exclusion "is contrary to all precepts of free enterprise and due process," said Howard Goldman, Callahan's attorney. "The fact that racetracks have done it for years does not make it right."

Although Callahan now races at other tracks, including Ocean Downs in Berlin, Md., and Brandywine in Wilmington, Del., his livelihood is threatened because the purses are much smaller than those at Freestate, Goldman said. Recent publicity about the Freestate exclusion also has "irreparably damaged and injured" Callahan's reputation, Goldman added.

Freestate attorney Donald E. Sharpe said Cicone's ruling "preserves the exclusionary right, which is the fundamental right of the track."

Earlier, Sharpe had argued that several courts have upheld the "common law right to exclude even a licenced driver or anyone else as long as it is not based on race, creed, or sex."

At no point in the hearing, however, did Sharpe or Freestate officials say precisely why Callahan was excluded. When Cicone repeatedly asked Sharpe to explain, Sharpe replied that the owners were not required to do so.

James G. Wilhelm, executive assistant to Freestate owner Frank DeFrancis, testified that he gave no reason for Callahan's exclusion when he met privately with the driver on May 16, the day before Callahan was formally notified of the ruling. DeFrancis was not at the hearing.

In his oral decision, Cicone remarked that the exclusion appeared to be based "solely on business reasons, albeit somewhat nebulous ones."

Callahan, who testified that he was excluded from Delaware's Dover Downs last year, appeared dejected after the judge's ruling.

"I'm down in the dumps pretty good," said Callahan, a father of six, who was accompanied by his wife Joan. "It's pretty upsetting that the track has that much power. They want to be the umpires and the players, too."