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Wilkey v. Illinois Racing Bd.

OPINION FILED SEPTEMBER 18, 1978.

WALTER D. WILKEY, D.V.M., PLAINTIFF-APPELLEE,

v.

THE ILLINOIS RACING BOARD ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

This is an action under the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 274) for review of a decision of the Illinois Racing Board finding veterinarian Walter D. Wilkey guilty of violating racing board rules and its order suspending and revoking his license to practice on Illinois race tracks.

On March 7, 1975, Dr. Wilkey was notified that he was charged with 119 violations of racing board medication rules during the 1974 racing season. Nine charges were subsequently added. The alleged violations concern four racing board rules:

Charges 1-52 allege possession and administration of drugs intended for human use without obtaining permission of the State veterinarian in violation of Rule 307;

Charges 53-57 allege failure to report administration of phenylbutazone in violation of Rule 309a;

Charge 60 alleges reporting of injections of phenylbutazone when none were given, a violation of Rule 310. (Related charges 58 and 59 were dropped during the administrative hearing.);

Charges 61-128 allege administration of apomorphine, an unpermitted drug, to certain horses shortly before races, a violation of Rule 301.

In an order dated November 12, 1976, after a full hearing on these charges, the racing board found Dr. Wilkey guilty of the violations charged and suspended his license for a total of seven months for the first three groups of charges, and revoked his license indefinitely for the last series of charges.

Dr. Wilkey filed a complaint for administrative review in the circuit court of Cook County, and on January 10, 1977, the circuit court entered an order reversing the racing board's decision and its order of suspension and revocation. It is from this order that the racing board appeals.

For the reasons stated below, the judgment of the circuit court of Cook County is affirmed.

The most serious of the charges against Dr. Wilkey are those alleging that he injected the stimulant apomorphine into 68 horses shortly before their races. Injection of such a forbidden stimulant is a violation of Racing Board Rule 301.

The case against Dr. Wilkey may be divided into two parts: first, direct evidence that apomorphine was found in post-race samples of urine of horses under Dr. Wilkey's care; and second, circumstantial evidence that Dr. Wilkey administered such injections. Because the facts relating to these two points are complex, it is useful to consider them sequentially.

We turn first to the direct evidence that apomorphine was present in post-race urine samples of horses under Dr. Wilkey's care. The crucial portions of this evidence are as follows:

Post-race urine samples were sealed and kept in a laboratory assigned the task of performing tests to determine the presence of drugs. This laboratory performed these functions on behalf of the racing board.

For each horse there were two urine samples and one blood sample. The last of the samples with which we are concerned was received by the laboratory in November 1974.

During the period of February through April, 1975, certain tests performed on these urine samples indicated to laboratory experts the presence of apomorphine. In every case, however, these tests were performed on samples whose seals had been broken.

There was testimony that the reason these seals were broken was that these samples had been tested previously. The results of these earlier tests were not produced in evidence, but there was some testimony indicating that these earlier tests were of a kind that would not have yielded results as conclusive as those obtained from the later tests.

The evidence shows that between the first and second series of tests the samples were stored in a locked freezer to which a significant number of people had access. There was no evidence that the samples had been tampered with, but because their seals had been broken it was impossible for any of the witnesses to state positively that no tampering had occurred. There was testimony that, had someone added pure apomorphine to the samples, this would have been detected in the tests, but it was apparent that, had the contents of the samples been replaced with other urine specimens, this would not have been detected by the tests.

Meanwhile, for each horse in question there existed also a sealed urine sample and a sealed blood sample, neither of which was ever tested. A method for testing blood samples was operational prior to the racing board hearing on these charges, but the samples in question were not subjected to it because the laboratory was proceeding to test samples in chronological order from an earlier date and had not yet come to them. The sealed urine samples were not tested because they were "referee" samples, intended for use by owners, trainers or other persons disputing a finding by the racing board that a horse had been illegally drugged.

Dr. Wilkey urged the racing board to test these samples, but the board refused to do so. Instead, it offered them to Dr. Wilkey, ...


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