In the business environment, fostering the free market is as American as apple pie. When everyone is given an equal chance to develop and sell items of a certain product line, the quality of the items offered are invariably enhanced, while the price tags on the items become competitive, to the benefit of consumers. It is because of this that 125 years ago Congress passed the Sherman Antitrust Act; the first federal law of its kind promulgated to prohibit monopolistic activity in business that would tend to stifle competition. Yet, not every regulation that limits product development can be considered monopolistic. In the governmental realm, for example, consider that certain states license marijuana sale and use solely for medicinal purposes. While many entrepreneurs see this strict limitation as impinging upon free market retailing and a restraint upon trade, there exists a distinct countervailing state interest in protecting the public health through limiting the sale of cannabis-based products. Like everything else in law, there are few absolutes. What about limitations on the production of horses? Several years ago, our Association limited the stud books of stallions. The regulation was fashioned after genetic research disclosed that lack of diversity in our closed breed could be deleterious to the health of the progeny of a diminishing number of sires. Here, the regulation was not intended to limit production of foals or harm stallion syndicates, but rather to force breeders to make decisions that would ultimately promote healthy hybrids. Our Association has also prohibited cloning. In September 2013, we wrote about a successful challenge to the cloning ban established by American Quarter Horse Association (AQHA) on antitrust grounds in a federal trial level court in Texas. At that time, we stated that taking reasonable steps to ensure the longevity of our Standardbred breed and breeders is our obligation, and is hardly monopolistic, and hoped that future judges and juries would recognize this fact when dealing with regulations prohibiting cloning. Click here to read the September 2013 Racing and the Law installment on Cloning: http://xwebapp.ustrotting.com/absolutenm/templates/article.aspx?articleid=55416&zoneid=29 Last month, the federal circuit court of appeals covering Texas unanimously reversed both the jury’s verdict and the judge’s injunction against the AQHA’s cloning ban. The court’s reasoning is as important as their resulting decision. The allegation by plaintiffs, a breeder and veterinarian, was that by refusing to register foals they create through cloning championship Quarter Horses, the AQHA is monopolizing the so-called “elite Quarter Horses” market. First, plaintiffs claimed that members of the Stud Book and Registration Committee (SBRC) of the AQHA actually were in a monopolistic conspiracy with the AQHA itself, because alleged vocal and influential member of the SBRC had strong economic interests in keeping cloned horses out of the AQHA registry. The plaintiffs argued that although the AQHA was a single entity, its members were in competition with one another and that the breeders were being protectionist in their prohibition against cloning. In support of their position, the plaintiffs cited a 2010 United States Supreme Court decision that found 32 National Football League teams to be in potential competition with one another when it came to producing and selling team logo wearing apparel and headgear. While the court agreed that the claim was plausible in a vacuum, it found that the facts simply didn’t support the assertion. The court declared that the AQHA is more than a sports league and is not a trade association, and that its quarter million members are involved in a variety of non-breeding activities such as ranching, pleasure riding and training. Further, plaintiffs’ own expert conceded that in the breeding segment less than .5% of the yearlings sold each year fall with the plaintiffs’ self-styled “elite Quarter Horse” submarket. Thus, the court concluded: “Under such circumstances, it is difficult to draw the conclusion that because a tiny number of economic actors within AQHA may “pursue their separate economic interests,” the organization has conspired with that minority.” Further, the court pointed out that no other case has yet held an animal breed registry in violation of antitrust laws because of passing qualifications regarding the specific breed. The court recalled its own 1977 ruling in which it found that the AQHA was not being monopolistic by refusing to register the progeny of “elite” lineage because the horses had white markings above the permissible places on its legs. It also discussed decisions involving breed restrictions in the dog registry realm. Plainly, the court grasped the obvious practical ramifications that flow from the actions of a breed registry: “Whenever an organization devoted to the preservation of an animal breed revises its standards, exclusions from the relevant “market” will occur… breed standards for these volunteer groups should often be immune from antitrust scrutiny because they are essential to ‘creating the product’.” In sum, and the arguable restrictiveness of the cloning prohibition aside, the court found no conspiratorial intent on behalf of the AQHA or its members and components in establishing and repeatedly reaffirming the cloning ban. The court found that SBRC’s members were constantly rotated, that many members had no involvement in breeding and, of those that did, only a handful were involved in so-called “elite” breeding. Finally, the court found that the AQHA is a member organization, and the organization does not itself compete in the “elite Quarter Horse” market. Click on the link below to read the Fifth Circuit United States Court of Appeals decision dated January 14, 2015: https://scholar.google.com/scholar_case?case=7090613983668169594&q=American+quarter+Horse&hl=en&as_sdt=3,33&as_ylo=2015 It is important to caution that the AQHA case does not stand for the proposition that cloning is bad, or that cloning racehorses should be considered impermissible breeding. Basically, the proof offered by plaintiffs failed to exclude the possibility that the alleged conspiratorial conduct in banning clones was in fact the result of independent action without nefarious intent. In this, the case and its reasoning bears striking similarly to a 1999 federal appeals court decision which fully exonerated our Association from all antitrust allegations when it voted to ban what it found to be an inherently dangerous sulky design. The action was done to, among other things, protect the safety of drivers. The great news is that a high level court has reaffirmed that an otherwise restrictive regulation imposed by an animal breed registry will not be considered an illegal restraint of trade, so long as the regulation has a rational basis and was developed in a non-conspiratorial fashion, the complaints of a few disgruntled folks notwithstanding. Chris E. Wittstruck 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.
As a daughter of privilege, Amy Bull Crist could have rested on the laurels of her lineage. Rather, this remarkable first lady of Orange County spent her entire life serving the interests of others. It is thus fitting that George Casale, a tireless advocate for our industry and other worthy endeavors should be the 2014 recipient of the award named in her memory. On November 16 at the 56th Annual Awards Banquet of the Monticello-Goshen Chapter USHWA Casale will be the 31st recipient of the chapter's Amy Bull Crist Distinguished Service Award. George N. Casale received his bachelor's degree from St. Francis College, a master's from Long Island University and his juris doctorate from the University of New Hampshire School of Law. For over 35 years, George enjoyed a rewarding career as an insurance executive and practicing attorney. His work and leadership positions in various professional societies led George to places around the globe. His last employment was as a partner in Rivkin Radler LLP; Long Island's largest law firm. Despite the time and intensity of George's career, he always found time for those things that were foremost to him: Family, friends, service... and Harness Racing. A lifelong horse enthusiast who as a young boy marveled at the western movie genre on his television screen in Bay Ridge, Casale formed Brooklyn Cowboy Farms, a training and boarding center in Farmingdale, New Jersey. From this facility, George honed his skills as an amateur driver. The hard work paid off, as George was the Monticello-Goshen chapter's 2004 Amateur Driver of the Year, as well as a three-time victor in the American Harness Club Finals. George, however, is much more than an owner-driver. For over ten years, he served as the Executive Director of the Standardbred Owners Association of New York. Here, he championed the health, wellbeing and economic wherewithal of countless drivers, trainers, grooms and owners competing in New York. He was an all-important point person in negotiations with the New York State legislature, especially its insurance and workers compensation committees, as well as with the former New York State Racing and Wagering Board. As George's time commitments have lessened in retirement, his dedication to our industry has strengthened. Casale presently serves as the Vice-President of Goshen Historic Track and as volunteer counsel to the Harness Racing Museum and Hall of Fame. He is a frequent speaker on behalf of the Historic Track and Museum before Kiwanis clubs, chambers of commerce, schools and anywhere else he can share his love and knowledge of Goshen's favorite sport with others. He is also a U.S.T.A. certified judge, and serves in the stand of Goshen's favorite sport with others. He is also a U.S.T.A. certified judge, and serves in the stand during the July Grand Circuit meet. Yet, as to his spirit of selfless altruism, George is no one-trick pony. As Former Chairman of the Board for Daytop Village and Trustee of Daytop International, Casale fostered the drug and alcohol recovery of countless teens and young adults. As a member of Hofstra University's Paralegal Advisory Board, he followed in Amy Bull Crist's footsteps as an education advocate. A licensed pilot, George is a past President of the Orange County Pilots Association. George is married for nearly 50 years to his beloved Anita. They have two sons, Thomas and George, and three grandchildren Angelina, Christina, and Sabrina. While home is Staten Island, the young gals love spending time with their grandparents at George and Anita's second home bordering on, where else; the far turn of the Goshen Historic Track! by Chris Wittstruck, for the Monticello-Goshen Chapter USHWA
The Federal Bureau of Investigation is uniformly recognized as the premier criminal detection and enforcement agency in the United States. Whether exclusively, or as part of a team or task force, the FBI is involved in investigating and/or uncovering virtually all major crimes in this country. The DEA, ATF, IRS, SEC, USPS and scores of other federal agencies constantly utilize the FBI’s matchless investigatory expertise. Moreover, given the expansive interpretation by the judiciary of what constitutes interstate commerce, as well as the congressional promulgation of statutes like the Federal Hate Crimes Prevention Act, the FBI is regularly drawn into seemingly neighborhood-based events, the investigation of which would otherwise be limited to state authorities. For example, though the recent incident in Ferguson, Missouri involved a local police shooting, and the 2011 Amish “beard-cutting” affair was restricted to rural Ohio, the FBI was nonetheless there to do their job at each venue. How does the FBI maintain its superlative level of effectiveness? One of the Bureau’s important, though less heralded functions, involves the collection, compilation and categorization of crime data from hundreds of sources throughout the country through the National Incident-Based Reporting System (NIBRS). For decades, the Bureau’s Uniform Crime Report Program has been a tremendous resource for sociologists, profilers, investigators and government agencies. One of program’s annual publications, “Crime in the United States” is a virtual almanac of statistical information regarding the most serious offenses perpetrated, including murder, rape, robbery and arson. The numerous tables and graphs break down the offenses by such things as geographic region and demographics as to the perpetrators. The Uniform Crime Reports are essential in assisting agencies nationwide to properly allocate resources in order to maximize the prevention and enforcement of offenses. It is for this reason that a recent decision by the Bureau is so important to our industry. In September, the FBI officially announced that, for the first time, it will report animal cruelty crimes as a separate offense under the agency’s Uniform Crime Report Program. Starting in 2015, hundreds of law enforcement agencies throughout the country will report incidents of animal cruelty in a specific category, rather than as miscellaneous crimes, through the (NIBRS). The Bureau has established four distinct types of animal abuse that it will statistically track: a) simple or gross neglect, such as failing to properly care for a sick animal; b) intentional abuse and torture; c) organized abuse, such as participation in dog fighting rings, and; d) animal sexual abuse (bestiality, etc.), It stands to reason that animal cruelty is a dreadfully underreported crime. Like infants, dogs, cats and horses lack the ability to contact the authorities when they are the victim of abuse. It is only through the observation of caring humans that the abuse is brought to the forefront. With the advent of separate reporting by unique categories, the severity of these criminal acts will be exhibited in an enhanced way. This enhancement is critically important when the victim is a horse. In states like New York, horses are considered to be livestock. While abusing a companion animal like a dog or cat is a felony punishable by years in state prison, abusing a horse is a mere misdemeanor punishable by no more than one year in jail. Moreover, horse abuse rarely results in a sentence of jail time. The highlighted recording of acts of abuse against animals will hopefully serve as a springboard in state legislatures for the passing of stricter penalties for criminal acts against all animals, including horses. As the numbers and types of abuse begin to roll in to the FBI, subsequent Uniform Crime Report Program publications will highlight animal cruelty and its severity throughout the country. It is anticipated that the long term result of this tracking will be the creation of, and increased public funding for, specialized law enforcement units charged with combating abuse to animals, as well as more private funding for organizations such as the ASPCA. Animal abuse is especially important to law enforcement because it is generally recognized as a precursor to human abuse. Sadistic serial killers almost always start with the torture of animals. As a child, the notorious Jeffrey Dahmer was fascinated with dissection of dogs and cats so he could see and feel their organs. As he grew older, the fascination became a compulsion, and humans became the target of his depravity. Social scientists have written extensively about the link. For example, the abuse of animals is part of the “Mcdonald Triad.” Named in the 1960s for the psychiatrist that developed the theory, childhood animal cruelty and arson are considered markers for homicidal and predatory behavior in later life. Frustration and anger at repeated instances of humiliation are vented via setting fires and torturing small living creatures. The sociopathic behavior carries into adulthood, with the manifestations taking on literally larger risks and consequences. Clearly, early identification of an adolescent horse abuser could have incalculable, far reaching benefits for society. If just one instance of horse abuse can be prevented, or one budding serial killer can be identified and properly treated, the FBI’s decision should be considered a huge success. Chris E. Wittstruck Chris E. Wittstruck 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.
Social Security, The War Powers Act, Obamacare… each one of these laws were created after formal introduction, public and sometimes spirited debate, passage by both houses of Congress and presidential signature. Laws made by Congress, called statutes, are subject to interpretation by the judicial branch of government. Still, the courts can only say what they think Congress meant by the language contained in statutes; they can’t make up language that isn’t there. Some laws, however, are made by the courts, on the theory that the U.S. Constitution requires some type of action or protection that Congress hasn’t passed. Unlike statutes, these laws can be announced without much warning and yet have vast and profound far reaching effects. Consider a burglary that occurred in a Florida poolroom several decades ago. Based upon the word of a single eyewitness who indicated he saw him coming out of the establishment, Clarence Earl Gideon was arrested and charged with breaking and entering. Gideon had no money for a lawyer and was told by the Florida court that, inasmuch as he wasn’t charged with a “capital offense” (murder), the state had no obligation to provide him one. Despite representing himself as best as he could, Gideon was convicted. While serving a 5 year prison stretch, Gideon sued Florida, claiming his constitution rights were violated. He made it all the way to the U.S. Supreme Court, which ruled in 1963 in Gideon v. Wainwright that the 14th Amendment due process clause of the U.S. Constitution requires all states to provide all indigent criminal defendants with a lawyer. This pronouncement, never mandated by Congress, extraordinarily changed the criminal justice system in this country forever. Against this backdrop, consider a court ruling that implies, in the absence of a state statute on the subject, that all horses of all breeds may possess vicious propensities. If such a determination is finally made by the courts, the effects would be devastating for the entire equine industry. The facts of the underlying case, Vendrella v Astriab, are simple. Astriab operates a combined retail plant business and horse boarding stable in Milford, Connecticut. It was admitted that the plant customers, especially those with small children, constantly asked to see the horses. Astriab could have erected a barrier between the two businesses, but didn’t because, as was indicated, customers expected to see the horses. One day after buying plants, a father escorted his two-year-old son to view the horses. Standing close to the fence, the father proceeded to pet a horse named Scuppy. When the father turned away, Scuppy lowered his head and bit the child, taking a chunk out of his cheek. The injury required corrective surgery, resulting in permanent scarring. An action against Astriab for negligence soon followed. Before the case ever got to trial, Astriab’s lawyer made a motion before the court seeking “summary judgment.” The application stated that there was no reason for a trial, because there was no proof that Scuppy had previously misbehaved in any way, much less having ever bitten anybody. Based upon century-old Connecticut law, the Court granted the application. In dismissing that case, the judge indicated that inasmuch as pre-trial discovery proceedings had failed to uncover any evidence that Astriab knew or should have known that Scuppy could be vicious, he owed no duty to the child to protect him in any way beyond fencing the paddock. The finding of the lower court is consistent with established law in most jurisdictions involving liability for injury caused by domestic animals. In New York, for example, dog bites are not actionable unless there is either actual knowledge of a previous bite or evidence that it had been known to growl, snap or bare its teeth. Also, severely restraining the dog or keeping the dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities. In sum, a previous bite would render the dog as having vicious propensities, but the first bite is not “free” if the owner had other reason to know that the dog could injure someone, despite absence of a previous bite. The plaintiff in the Astriab matter appealed the judge’s decision on the theory that horses are of the class of animals that, by their very nature, have vicious propensities. In other words, the plaintiff argued that it was not necessary to prove Scuppy was vicious, since he belongs to a species naturally inclined to do mischief or be vicious, thus rendering future injuries foreseeable, even if Scuppy never exhibited vicious tendencies. In February 2012, the appeals court determined that the trial court judge was wrong, and that the case should be sent back to the lower court. Although incorrectly reported by many mainstream media outlets, the appeals court did not determine whether all horses are vicious. Rather, it ruled that the question was one of fact, not law, which had to be resolved at trial. In reversing the lower court, the appeals judges based their decision upon a number of different grounds. First, the appeals court noted that during discovery proceedings a doctor of veterinary medicine provided a detailed description of "the propensities of horses to bite." A lifelong horseman similarly testified in his deposition that a horse can bite at any time, explaining that "[t]hey have been doing it . . . since the beginning of time, biting and kicking." For that reason, he explained that he always fed a horse either with a bucket or "palm up—I never put my fingers anywhere near the mouth of a horse." He further testified that a horse's propensity to bite is part of its nature. Second, the appeals court used Astriab’s own deposition testimony against him. He acknowledged that horses, by their very nature, could harm a person who attempted to pet or feed them, stating that "a horse could bite you and cause great physical damage." He also testified that although he had no knowledge of Scuppy biting a person prior to the bite in question, Scuppy was no different from other horses that would bite if a finger was put in front of him. He admitted that if someone made contact with Scuppy, whether to pet or feed him, they could get bit. The appeals judges also took note of the fact that although Astriab was cognizant of the fact all horses bite, he chose not to erect a barrier between the customers and the horses. Finally, in reviewing Connecticut case law, the appeals court rejected the trial court’s interpretation of the century-old precedent relied upon by that judge. They pointed out that the 1914 decision involved a cat, and that the court in its opinion stated, “The cat is not of a species of domestic animals naturally inclined to mischief, such as, for example, cattle, whose instinct is to rove, and whose practice is to eat and trample growing crops. The cat's disposition is kindly and docile, and by nature it is one of the most tame and harmless of all domestic animals." The appeals court reasoned that in making the cat/cattle comparison, the 1914 court implicitly acknowledged that in determining the care that an owner must exercise to keep an animal under control, the characteristics that are normal to its class are decisive. Needless to say, Astriab appealed the ruling before the trial court had an opportunity to take up the matter On Tuesday, September 24, 2013, Connecticut’s highest court, the Supreme Court, heard oral argument from both sides regarding the propriety of the appeals judges’ decision. In addition to legal briefs filed by the parties, “Friend of the Court” briefs were filed by Connecticut’s Farm Bureau and Horse Council. Both urged the high court to reverse the appeals court and reinstate the ruling of the trial level judge which dismissed the negligence action. A decision in the matter is not expected for several months. If the appeals court decision is affirmed, the case will be sent back to the trial court. If that court finds all horses to be inherently vicious and dangerous by nature, Connecticut would be the first state in the nation to do so. While not binding on other states, it would be a persuasive decision which courts in other jurisdictions might adopt. How much is riding on the Connecticut courts’ treatment of the matter? For the equine industry, including the racing and breeding industries, virtually everything. If horses are deemed to have inherent vicious propensities by nature, equine farms; training centers; riding academies; summer camps, virtually anywhere guests, customers, vendors or other third parties come in regular contact with horses, would be rendered uninsurable. It would more than likely spell the end of youth contact with horses. While waivers of liability could be required for participants, such relinquishments of rights by parties are vigilantly scrutinized by courts in order to protect victim’s rights. Insurance companies know this well, and will more than likely walk away from the industry. At best, liability insurance for equine operations would become prohibitively expensive, akin to an assigned risk pool for auto drivers with multiple accident histories. As this case exhibits, judges making wide-ranging law within limited factual settings can be downright dangerous. Based upon admissions made at a deposition by an unwitting businessman conducted by a sharp lawyer, horses may forever be lumped into a category shared by lions and tigers. All of us have known an ornery horse. Yet, for every one of them, we’ve known horses that could qualify as house pets. Yes, horses have teeth; so do dogs, and the potential for biting in a given circumstance is ever present. There is, however, a difference between potential and propensity. The thought that horses have a built-in predilection to do harm, while dogs and cats are by nature not so inclined, is asinine reasoning. Moreover, the analogy made of horses to cattle trampling crops is equally alarming. Any animal, and most humans, will act with physical force in a given circumstance, be it defensive, out of fear or illness, or by accident. Thus, isn’t every animal geared for provocative conduct in an appropriate situation? Does it render them all as possessing vicious propensities? Hopefully, the high court will do the right thing and uphold dismissal of the lawsuit. If not, it could ultimately be up to Connecticut’s legislature to develop a statute which categorizes horses as generally tame and docile. That, of course, would require the industry to navigate the political thickets, with an outcome far from certain and, in any event, subject to scrutiny by the same Connecticut court system. This is a mess that could get much worse, and for now, all we can do is wait and hope. Chris E. Wittstruck 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. Reprinted with permission by www.ustrotting.com
If you decide to drop a claim slip in with the judges, it's fair to say that you've done all your homework first. You've looked at pedigree; studied past performances; watched how the horse makes it around the oval for several weeks and generally have the feel that you can get him to be competitive in a higher class in rapid fashion.
If you think that it's laudable to employ an undocumented alien because you're helping out someone who desperately needs a job so he can eat, you're arguably correct. While the immigration debate rages on in Washington, folks already here aren't always treated with human kindness or afforded human dignity.
What has been described in some quarters as the biggest doping scandal in racing history occurred in England last month. The magnitude of the incident aside, there is a lesson to be learned from this notorious event that has little to do with doping. The message developed is this: Advocate for others only that which you truly practice yourself.
As April 15 rapidly approaches, our thoughts turn to the annual tradition of paying the taxing authorities their due. In addition to being assessed for money earned through work, labor and services (for many called salary), those harness racing owners privileged enough to have realized purse earnings in excess of training and related expenses for the tax year are required to pay what the government is owed on such profit.
Human nature being such as it is, there is a strong tendency to blame others for our troubles. In the harness racing industry, a popular target of our rants is government. In fairness, our rage is not always completely misplaced.
The cry is heard constantly; 'Why is that guy still training? He was suspended over a year ago!' The answer is really quite simple. Those charged with a violation have a fundamental right to exhibit that they have been wrongfully accused and should be exonerated, and deserve a stay of enforcement of penalties until that right has been fully exhausted.
We've discussed the New Jersey sports betting issue before, but recent developments warrant that harness racing address the topic again. While the legal controversy over sports betting presently rages only in the Garden State, the ultimate outcome will affect every state in the union. In sum, and as we suggested last summer, proponents, including the state's Governor, shouldn't hold their breath awaiting sports betting's arrival.
The Standardbred Owners Association of New York was proud to yet again honor one of its journeyman reinsmen for achieving a haness racing career plateau. On Friday evening, December 21, the SOA feted Cleveland, Ohio native Jim Pantaleano in the Yonkers Raceway winner's circle and recognized him for capturing his 6,000 lifetime victory.
What happens in Vegas... doesn't necessarily stay in Vegas!
At every racetrack, on every harness racing date, there are multiple tips about virtually every horse in every race.
The annual general membership meeting of the Standardbred Owners Association of New York was held on Saturday, December 1 at the organization's office in Yonkers, New York.
How has man historically employed the horse? Up until the late 1800s, the irrefutable answer was that horses were primarily used as beasts of both burden and transportation.