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Edelberg v. Illinois Racing Board

decided: August 9, 1976.

EDWIN EDELBERG, MORTON FINK, DAVID POCHIS, ROBERT ROSSDEUTSCHER, RUSSELL ROSSDEUTSCHER, FREDERICK WEISSBURG, ANTHONY MENOLASCINO, ROBERT H. FRANKENBUSH, CHARLES N. SALZMAN, BERNARD L. STEIN, CHARLES D. STEIN, SONFRED N. BRENNER, EMANUEL C. LIZZO, MANNY CROSSMAN, AND JOSEPH VATTEROTT, PLAINTIFFS-APPELLANTS,
v.
THE ILLINOIS RACING BOARD, ANTHONY SCARIANO, RAY FREEARK, LUCY REUM, PATRICIA W. HEWITT, SIDNEY HYMAN AND HERBERT CHANICK, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 75 C 951 RICHARD McLAREN, Judge.

Swygert, Tone and Bauer, Circuit Judges.

Author: Bauer

BAUER, Circuit Judge.

The question presented by this appeal is whether a three judge court should be empaneled pursuant to 28 U.S.C. § 2281*fn1 to hear a challenge to the constitutionality of the Illinois Racing Board Rules which provide for the automatic withholding and redistribution of purse money when a winning horse is allegedly drugged before a race. The trial judge refused to convene a three judge court and dismissed the suit for failure to present a substantial federal question. We affirm.

Plaintiffs are racehorse owners, licensed annually by the Illinois Racing Board (the "Board"), who entered their horses in various races during 1974. Defendants are the individual members of the Board and the Board itself, sued as an agency of the state.*fn2 On March 1, 1975 the Board issued to each plaintiff a notice of preliminary hearing charging that the Board's laboratory had found unauthorized drugs in the urine specimens of horses owned by the plaintiffs. Those horses had received prize money as a result of races won in 1974. The notice stated that, pursuant to Racing Board Rule 317c, the Board would hold hearings to determine whether the prize moneys won by these horses should be forfeited.

The plaintiffs filed a complaint for injunctive and declaratory relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2281 alleging that Rule 317 was unconstitutional because it violated their constitutional right of due process. In addition, plaintiffs contended that the defendants, under the auspices of Rule 317c, were threatening to deprive them of money and property, in addition to damaging their good names, reputation, honor and integrity in the horse racing community.

Rule 317*fn3 provides that, upon determination that a positive laboratory report finding presence of drugs is accurate, all purse money won by the drugged horse shall be forfeited and redistributed among the remaining horses in the race. That rule is based on a concept of absolute liability regardless of fault. In other words, a condition precedent to receiving the purse money is that the winning horse be free of certain drugs.*fn4 There is no possible defense once the presence of an illegal drug is established. Whether the owners took every precaution against the possibility of the horse being drugged or whether the owners permitted the horses to be drugged is irrelevant in determining who receives the purse money. The rule provides for a hearing at which time the adequacy of the laboratory tests can be challenged. If the laboratory test survives technical challenge or if the report is not contested the purse money is forfeited and redistributed among the remaining horses in the race according to their order of finish.

I. PLAINTIFFS HAVE NOT ESTABLISHED A DEPRIVATION OF PROCEDURAL DUE PROCESS.

Essentially plaintiffs have argued that the prize money is a property right and thus the Board cannot take away this property without some form of due process which necessitates a hearing and a finding of fault. In support of their argument plaintiffs cite Suarez v. Administrador Del Deporte Hipico de Puerto Rico, 354 F. Supp. 320 (D. Puerto Rico, 1972), and Brennan v. Illinois Racing Board, 42 Ill.2d 352, 247 N.E.2d 881 (1969).

Suarez involved a factual situation closely analogous to this case with one important difference: although the racing board rule was practically the same (i.e., presence of drugs automatically disqualified the horse regardless of fault) the rule also called for an automatic suspension of the horse from racing for six months.

Similarly, in Brennan the horse trainer's license was revoked after the discovery of a drug in the race horse pursuant to a rule which made the trainer and other persons who cared for the horse absolutely liable for the condition of the horse regardless of the acts of third persons. In Brennan and Suarez the courts found that the owners' and trainers' rights of due process had been violated.

But those decisions were premised on the fact that the racing board was imposing a penalty without a hearing and without a determination of fault. In the instant case the Board is not attempting to suspend or punish plaintiffs for a violation of its rules. Rather, it is simply attempting to establish an objective and absolute condition that every winning horse must meet before its owner becomes legally entitled to the money in the purse. Furthermore the rule allows for a hearing at which time an owner can challenge a laboratory test finding that prevents his horse from meeting a condition precedent to being entitled to the purse money, i.e., an absence of prohibited drugs in the horse at the time the race was run.

Therefore, Rule 317 does not deprive the appellants of a "property right" in the prize money. On the contrary, Rule 317 protects the property rights of the owners of the horses that do compete fairly, in accordance with the rules and regulations of horse racing. It allows the state to fulfill its responsibility to see that the prize money is awarded to the owner of the horse who fairly won the race.*fn5

Plaintiff-appellant cites a series of recent Supreme Court decisions for the proposition that Rule 317 violates the constitutional guarantee of due process. We fail to ...


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