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  • September 27, 2019

    Appellate Standards of Review: Maximizing an Appeal for Maximum Security (Part 5)

    In this six-part series, Jacques Condon takes a look at the concept and reality of standards of review in appeals. In this fifth part, he contemplates how the intersections of different standards of review may come into play in the case involving the horse disqualified from a first-place finish at the 2019 Kentucky Derby.

    Jacques C. Condon

    Note: This is the fifth of six articles on the appellate standards of review. Start at part one.

    In the final two installments of this series on appellate standards of review, I harken back to the first post. There, I discussed the 2019 Kentucky Derby result where racing stewards, reviewing post-race objections, upheld at least one of the objections and found that a foul occurred. For the first time in the 145 years of the running of the Kentucky Derby, they disqualified the unofficial winner for an in-race infraction. The disqualified horse went by the name Maximum Security.


    Although the race was just a few months ago, a number of things happened since, and we’re going to discuss them now – paying particular attention to the reviewing standard in play.

    Not long after the race, Maximum Security (through its owners) filed a complaint with the Kentucky racing commission and requested a hearing by the full commission. The commission denied the complaint. The basis for denial was largely because that the stewards’ decision was deemed “unappealable.”

    Is this true? Can a decision to disqualify truly be unappealable?

    Yes … and No

    The short answer is “yes,” a decision to disqualify can be unappealable. The slightly longer answer is somewhat of a soft, more complicated “yes,” because there are due process rights as well as considerations that play into finality, scope, and politics.

    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.

    For instance, one must first understand context. Horse racing in Kentucky is a creature of state statute: the Kentucky statute created the horse racing commission that oversees racing, and the Kentucky statutes have rules by which they abide.

    Having such rules is not unusual, particularly in sports. In fact, the promulgations of rules, the structure of sports leagues, and the handling of disputes – whether based on rights such as due process or the power from which a decision is based – is commonplace to sports law, and often result in a unique, dispositive ruling that may run afoul of our own common sense.

    And in Kentucky, the statutory rules state that no appeal is available from a stewards’ decision to disqualify a horse for a foul occurring during the race.1

    But this doesn’t necessarily mean that Maximum Security cannot appeal, which is a double-negative way of saying Maximum Security can file an “appeal” with the Kentucky racing commission. But the commission can dismiss the appeal for multiple grounds, including that the decision is unappealable – and both have happened here.

    Water Cooler Talk

    Other states have discussed the theory behind why a stewards’ decision may be labeled unappealable. The theory is that “finality” is important for the integrity of the sport, the wagering public, and to bring certainty to contestants.

    There is a case out of New York where the stewards determined after the fact that their disqualification was incorrect, yet this reversal changed neither the purse payout nor the official result.

    Moreover, the participants in horse racing – themselves licensed – likely understand the unknown nature of competition, racing itself, and that no one is entitled to “win” or to a certain result.

    At the same time, there is something dissatisfying in this year’s Derby, where a decision was made under enormous outside pressures, with millions of dollars at stake, a 20-plus minute review, and questions abound as to whether video replay (and the stewards’ actions) fairly supported disqualification.

    Compressed timelines often lead to odd results.

    On or Within?

    Having pursued administrative remedies and lost, a second option for Maximum Security is to address the matter in the courts.

    In my last post I discussed the caution that exists in certain review, with the review often a multi-tiered concept where different tiers have deferential qualities, and different issues may bring in entirely new concepts of review, phraseology, and considerations.

    No more is this more at play than in reviewing Maximum Security’s disqualification at the Kentucky Derby.

    Setting aside the procedure in doing so (and timing), here is the rub: Are the courts reviewing a decision that the decision is unappealable or does the court actually review the stewards’ decision to disqualify the horse (i.e., the decision within the decision)?

    And that leads to my final blog entry, Finding Justice for Maximum Security.

    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


    1 810 KAR 1:029 Section 2(9); 810 KAR 1:025 Section 21


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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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