The rules of harness racing are dictated by the state where the racing activity occurs. All racing ovals are situated within the boundaries of a certain state. By virtue of inherent police power to protect the health, safety and morals of its citizens, each sovereign state independently determines how our sport is conducted.
On this score, consider that medication regulations are solely within the purview of the individual state governments. When regulations are deemed to be "uniform," that identity happens only because each of the participating states adopt mirror image rules. Even if they appear to be the same or substantially similar from jurisdiction to jurisdiction, the rules are, in fact, unique to each state. Licensing is a function of the state as well and, as everyone in our industry is aware, being licensed in one state in no way guarantees that a license will issue in others.
Federal law was created by the states. The promulgation of the U.S. Constitution was accomplished only because the independent colonies agreed to abdicate a very limited amount of their respective powers to a federal government for the greater good of all. As powerful as the federal government may at times seem, it can only act if a constitutional provision allows it to do so. In the racing realm, the sparse instances of federal regulation occur based upon the Interstate Commerce Clause of the U.S. Constitution. That provision reserves solely to Congress the regulation of commerce across state lines. It makes perfect sense.
Imagine if each state developed their own regulations for the size and shape of mud guards on the rear of tractor trailers. Truck drivers would be required to carry scores of different flaps, and to stop and change the flaps at the border of each state. In fact, 55 years ago the U.S. Supreme Court struck down just such state regulations as unconstitutional burdens on interstate commerce.
Thus, the Interstate Commerce Clause permits the federal government to regulate things such as interstate simulcasting and the transportation of horses across state lines. So, what about a state law or regulation that prohibits the interstate movement of racehorses for periods of time? Can such rules pass constitutional muster, or should they be struck down as being in conflict with the Interstate Commerce Clause as unnecessarily impeding the free flow of business among the states?
These questions are not hypothetical. Several states have regulations geared towards ensuring that there are always enough horses to fill race cards at meets. Both the Pennsylvania Code and New York regulations dictate that a harness horse may not race at a track other than the track where claimed for 30 days or the balance of the current racing meeting, whichever comes first, unless released by the racing secretary. In Maryland, the rules bar a claimed harness horse from racing outside the state for 60 days if the claim was at Rosecroft, or for 30 days if the claim was at Ocean Downs, unless the respective meet ends sooner. Delaware regulations contain a blanket 60 day prohibition on racing a claimed horse out of the state without approval of the track where the horse was claimed.
May a state prohibit an owner from immediately racing a claimed horse in another state? That was exactly the question decided by the Kentucky Court of Appeals last month. The case, Jamgotchian v. Kentucky Horse Racing Commission, was brought by a Thoroughbred owner who claimed a horse at Churchill Downs in Kentucky in May of 2011. Under Kentucky Thoroughbred rules, the horse was not permitted to race outside the state until the Churchill meet ended on July 4, 2011. In June, the owner entered the horse at Penn National Race Course in Pennsylvania. The racing secretary, in consultation with Churchill officials, rejected the entry based upon the Kentucky regulation. The owner claimed that the Kentucky prohibition violated the Federal Interstate Commerce Clause.
In its ruling, the court stated that the test to be employed was whether, a) the challenged law is protectionist in measure, or; b) whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental. In other words, the court initially indicated that not every state regulation affecting interstate commerce is unconstitutional.
In applying the test to the regulation in question, the court first reasoned that the general regulation of horse racing is both a traditional and legitimate state function, and is thus a valid exercise of Kentucky’s police power. In its analysis, the court pointed out that out of the thirty-eight states that permit wagering on horse racing, twenty-seven states have a claiming law similar to Kentucky's regulation. In sum, state regulation of claiming is pervasive across the United States.
As to whether the regulation is protectionist or discriminatory, the court pointed out that the regulation applied evenly to both in-state and out-of-state licensees. Also, it determined that the effect on interstate commerce is incidental, inasmuch as the prohibition was strictly limited to horses acquired in the claiming realm. The court reasoned that the aggrieved owner could have purchased a horse privately or at an auction sale, and could have freely and immediately raced that purchase elsewhere. Finally, the court concluded that the regulation was limited in duration and scope, inasmuch as it banned transport out of state for racing for only the duration of the meet, which at the outside was just three months.
To read the full text of the case, click here:
While Kentucky upheld the regulation, it is unclear whether a federal court would agree with the reasoning of the Court of Appeals. That just might be Mr. Jamgotchian’s next move.
By Chris E. Wittstruck, who is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.