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  • September 27, 2019

    Appellate Standards of Review: 'Neigh' to Kentucky Derby Appeal (Part 1)

    In this six-part series, Jacques Condon takes a look at the concept and reality of standards of review in appeals. In this first part, he sets up the situation, based on the dethroning of 2019 Kentucky Derby first-place finisher, Maximum Security.

    Jacques C. Condon

    horse race

    Note: This is the first of six articles on the appellate standards of review.

    Year after year, the first Saturday in May marks arguably the greatest event in horse racing: the Kentucky Derby. This year’s derby was no exception, albeit perhaps for different reasons.

    Held on May 4, 2019, a field of 19 3-year-old thoroughbred horses took to the turf in sloppy, rain-soaked conditions. On the line was a seven-figure purse to the winner. A horse named Maximum Security, the odds-on favorite at post time, proved the line correct, leading wire-to-wire and crossing the finish line first by 1 ¾ lengths. It was the first derby win for the horse’s trainer, jockey and owner.

    Not so fast.

    Objections were lodged. The objections, lodged by two jockeys in the race, claimed Maximum Security committed a “foul” – in horse racing lingo – by interfering, or impeding, the progress of their horses.

    Jacques C. Condon Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases.

    Unlike other field sports, there is no “referee” on the turf. Here, eyes were watching from afar and through the use of cameras, in-person jockey reports, and replay.

    Handling the objections was the job of racing stewards.

    Think of a steward as your trial court judge, or, in this case, having a three-person panel of jurists, because there were three stewards, one of which served as chief, whose job was to review and decide the objections. The stewards can raise an inquiry on their own, or decide what is brought to their attention. At his point, it is unclear whether the stewards intended on raising their own inquiry into a race with multimillion dollars at stake.

    No matter, as once objections were lodged, the stewards were put to work.

    The Unappealable Decision

    The Kentucky Derby has been run every year for 145 years. There have been objections in that time, and at least one horse was disqualified over a testing result; but never, in all those years, was the winner removed over the type of objection lodged on May 4, 2019.

    It has now. After a review that ran over 20 minutes, the stewards determined, unanimously, that Maximum Security committed a foul, and was disqualified.

    (Technically, per rule, Maximum Security’s finish position was moved from first to behind the horses he interfered with, the equivalent in this race from a first to worst change in fortune.)

    Literally millions of dollars changed hands with the decision. Maximum Security’s co-owner, according to The Associated Press, called it the most egregious disqualification in the history of horse racing.

    Yet perhaps most intriguing was the co-owner’s post-race commentary on next steps. According to various reports, there was talk of an appeal – perhaps an appeal to the state racing commission, or to the state courts, or to the federal courts, or a direct appeal to the stewards themselves.

    Maximum Standards

    Which brings up today’s topic: standard of review.

    Indeed, in terms of the derby decision, there are immediate procedural questions as to what rules and laws apply, what steps must someone take to “exhaust remedies,” and who, if anyone, has the right to review this decision.

    But the larger question – whether it be the Maximum Security side attempting to appeal the stewards’ decision or how it impacts those that benefited from the result – is what deference is given to the stewards. Does an appeal assume the stewards got it right? Does it review the video and consider what the stewards considered as if for the first time? Is it somewhere in between? And what should it be for this type of decision – deference to the stewards, or not.

    That’s standard of review.

    Many Meanings, Multiple Standards

    Over the next few posts I will look at the most common reviewing standards, square some of the terminology, and attempt to highlight why the standard of review is itself a concept often confused with issues over evidence, jurisdiction, and appellate strategy. I’ll also address an “actual” appeal involving Maximum Security and agency review – a matter of increased attention in Wisconsin, based on recent court rulings.

    As the saga unfolds, the actual rule – and standard of review – will be front and center, as will be my next post, De Novo Has Many Meanings.

    This article was originally published on the State Bar of Wisconsin’s Appellate Practice Section Blog, Sua Sponte. Visit the State Bar sections or the Appellate Practice Section webpages to learn more about the benefits of section membership.

    The Appellate Standards of Review: Concept and Reality

    In this six-part series, Jacques Condon explores the concept and reality of standards of review in appeals. Find the other parts in the Appellate Practice Blog or click these links:

    To find out more about State Bar of Wisconsin section blogs, visit the blog page on


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    Sua Sponte is published by the Appellate Practice Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Jacques Condon and review Author Submission Guidelines. Learn more about the Appellate Practice Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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