The unprecedented and teetering aftermath of that race, in which the three Churchill Downs stewards reviewed video before disqualifying Maximum Security by unanimous decision 22 minutes after the finish, docked him to 17th place and elevated Country House from runner-up to the win. It also sent that race into a rare turn as a topic in courtrooms, given litigation by owners Gary and Mary West of San Diego.
“What should have been the fastest two minutes in sports turned into over a year of litigation,” the court concluded in a 14-page opinion certifying the dismissal. “Neither Kentucky law nor the Fourteenth Amendment allows for judicial second-guessing of the stewards’ call. For the foregoing reasons, we affirm the judgment of the district court in full.”
Along his way John K. Bush, writing for the three judges who heard the Wests’ appeal in mid-June, used terminology such as, “Right out of the gate, the Wests fall behind,” and, “The regulations are clear that the stewards have unbridled discretion in determining whether a racing foul occurred.” He wrote, “Perhaps only a racehorse itself could tell us whether he was fouled during a race,” and referred readers to Jay Livingston and Ray Evans’ show-theme composition for TV’s ancient show “Mr. Ed,” specifically the line, “Go right to the source and ask the horse. He’ll give you the answer that you’ll endorse.”
He wrote: “Heading down the final stretch, the Wests argue that because Maximum Security was the first horse in the 145-year history of the Kentucky Derby to ever be disqualified for a foul committed during the race, the custom and practice was to declare the horse that crossed the finish line first the winner … Even though Maximum Security’s disqualification was unprecedented, the fact remains that the stewards have always had the discretion to call fouls in horse races; this just happens to be the first time that they exercised this discretion in the Kentucky Derby.”
The Wests had spent tantalizing moments thinking they had won the country’s foremost horse race just after their horse had proved clearly the best of the 19 entries. It seemed fleetingly to become yet another pixie-dust type of Derby story, given that just four months prior anyone with a handy $16,000 could have claimed Maximum Security at Gulfstream Park near Miami. Maximum Security had won the Florida Derby that March but had spent Kentucky Derby week as a talented enigma fancied by some but dismissed by others.
So it seemed another pinnacle for the Wests, who started a telemarketing venture out of their garage in 1978, then went on to form West Corporation, a telecommunications giant, later directing parts of their fortune toward attempts to improve health care for low-income seniors. Gary West is a Vietnam War veteran.
When the three stewards overseeing the Derby, appointed by the Kentucky Racing Commission, heard complaints from two opposing jockeys and ruled that Maximum Security had impeded other horses just before the top of the stretch, it made the Wests the first owners have their Derby winner disqualified for something that happened during a race.
At the 1968 Derby, the apparent winner Dancer’s Image became disqualified three days later because of traces of a banned substance, elevating Forward Pass to the win.
Any last, lingering doubts about the 2019 Derby began on May 14 of last year, when the Wests filed suit in U.S. District Court. The United States District Court in the Eastern District of Kentucky in Lexington dismissed the claim in November, then the Wests appealed at the hearing in June, asking that the district court hear their case. But the appeals court, which serves Kentucky, Michigan, Ohio and Tennessee, agreed “de novo” (anew) with the district court on Friday, saying the Wests had not stated sufficient claim.
The 14-page opinion countered the Wests’ four arguments: that a decision to disqualify is a “final order of an agency” of a state and thus subject to judicial review under state law, that the decision was “arbitrary and capricious,” that the stewards “violated the Wests’ right to procedural due process,” and that the stewards’ power should be voided because of vagueness.
The judges ruled that the stewards’ ruling differed in nature from an administrative hearing with a final order. “Rather, it was by stewards who watched a horse race, then reviewed it by video, and, only minutes after the race, rendered their decision with no opportunity for presentation of any other facts or any argument by the affected parties,” the court wrote. It saw the circumstances as “too far afield from the usual adjudicatory decision-making of an administrative agency” to bring the Wests’ claim into relevance.
“Horses can’t speak,” the court wrote, “so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts — the stewards, not the appointed members of the (Racing) Commission or judges — to determine when a foul occurs in a horse race. It is not our place to second-guess that decision.”
As to the Wests’ argument that the stewards had “deprived them of constitutionally protected liberty and property interests,” the court wrote that entry in a Derby is “a privilege and not a personal right; and that this privilege may be granted or denied by the racing commission or its duly approved representatives acting in its behalf.”
It said, “The Wests knew about and agreed to be governed by the Commission’s regulations.”
Maximum Security, trained that Derby day by Jason Servis, has gone on to race seven more times with six wins, three in Grade I races, one at the Pacific Classic at Del Mar last Saturday and one the $20 million Saudi Cup in Saudi Arabia on Feb. 29. He also switched barns on Mar. 10, to superstar trainer Bob Baffert, one day after Servis and 26 other horse racing figures were indicted in federal court on doping-related charges.
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