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  • September 27, 2019

    Appellate Standards of Review: Finding Justice for Maximum Security (Part 6)

    In this six-part series, Jacques Condon takes a look at the concept and reality of standards of review in appeals. In this sixth and final part, he discusses the appellate review through the courts.

    Jacques C. Condon

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

    In the final entry on this series covering standards of review, we now move from the internal appeal process to the next step: review through the courts. In doing so, I discuss the appeal process involving the Kentucky Derby, as well as the considerations that apply to review.

    In terms of review, I’ve previously discussed commonly understood reviewing standards, ranging from de novo review to deferential review. Other categories and policies exist, nuanced by the type of appeal, with the review often dictated by both the issue and its context.

    What happened in Kentucky is no different, where the reviewing body – the Kentucky Horse Racing Commission – reviewed the race stewards’ decision to disqualify the unofficial derby winner, Maximum Security, based on objections from others in the race.

    The matter has now found its way into the federal courts.

    A Race Through the Courts?

    After the disqualified horse’s owners “appealed” to the commission, which promptly denied the appeal as largely unappealable, the owners filed a lawsuit in the Kentucky federal courts.

    The lawsuit named the stewards individually, as well as members of the commission. The civil complaint labeled the process that disqualified the horse as “unconstitutional,” that the stewards “lied” about their conclusion, and sought multiple remedies that included, among other things, a redistribution of purse money.

    Essentially, the lawsuit sought review of an agency decision that an appeal was “unappealable” and a review of the decision itself.

    If this seems complicated, it is.

    Agency review adds a layer of complexity as, rather than simply a review with discretion, considerations are in play as to weight given to a decision. Often, the actual decision is reviewed as to whether the decision-making agency’s conclusion was “arbitrary and capricious.” This means that, while the court will look at the ruling/reasoning, as long as that reasoning is not “arbitrary,” it will be upheld – seemingly a deferential review standard on steroids.

    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.

    Typically a party can request and will be advised as to the basis for the stewards ruling – i.e., a short statement with a bare-bones conclusion that, in the stewards’ view, the horse was disqualified because he impeded other horses. Don’t expect much for explanation even if (presumably) the stewards could point to and articulate the reasoning behind disqualification.

    Indeed, after the derby, the chief steward read a statement, broadcast on national television, that basically said Maximum Security “drifted out and impacted the progress of” one horse, who then interfered with other horses.

    No questions were allowed of the stewards. The Maximum Security folks and, really, the general public as a whole, was left with a rather large “hmm.”

    Then, in denying an appeal of that determination, the Kentucky Horse Racing Commission concluded that this decision was “not subject to appeal,” without adding detail or further explanation. Essentially, some of who, what, when, where, and why was mentioned in the statement, but much of the detail was missing – and this is what the civil filing attempted to fill in, calling into question the stewards’ decision and the process.

    Decisions and Process Come into Question

    Keep in mind that public opinion was all over the board in terms of the horse’s disqualification. Opinions ranged from “the stewards got it right” to “outrage” to “it happens all the time.”

    Moreover, broadcast announcers noted in post-race coverage how the horse “changed lanes” during the race, seemingly confirming precisely what was described by the stewards in a post-race statement. Video replay from different camera angles also supports these comments. Even Maximum Security’s jockey, when interviewed on the live broadcast while still on his mount, immediately mentioned without prompting that something made his horse spook. Did he anticipate a looming issue?

    Of course, Maximum Security’s side – in providing detail through a civil complaint – also benefits from a jockey side-story. Since the race, the stewards themselves – in charging full-speed ahead despite torpedoes in the water – brought an action to suspend Maximum Security’s jockey based on the in-race infraction.

    In that case, however, and unlike appealing an “unappealable” decision, the jockey’s side was allowed to present a structured defense that included a detailed (i.e., expensive) demonstrative video challenging the stewards’ conclusion. The video, released for public viewing, appeared to question whether a foul even occurred in the first instance and that, even if it did, seemingly demonstrated how that foul was caused by either fouls or kicks from one or more horses trailing Maximum Security.

    Hindsight has brought about more detail including a lane change in reaction to fouls by other horses.

    Does Impedance Equal Negligence?

    So how does this argument fit within the court’s review? Here is why it becomes somewhat more difficult.

    Consider the argument this way: We know from the stewards’ written, post-race statement that the “objection” was part of a domino effect – Maximum Security “impeded” the progress of at least one other horse which, in turn, interfered with the progress of other horses. In contrast, the demonstrative video defending Maximum Security’s jockey appears to show that the horse was caught up in a domino caused by another horse, meaning the domino effect recognized by the stewards was brought about, not by Maximum Security, but other horses.

    In the legal world we call that contributory negligence.

    In the Kentucky racing world, it comes down to a statute that asks whether there was a “foul,” described as when:

    “a leading horse or any other horse in a race swerves or is ridden to either side so as to interfere with … or impede any other horse or jockey, or to cause the same result.”1

    The problem with this language, at least for Maximum Security, is that it doesn’t talk about a domino effect or provide an excuse for a foul; a foul is swerving, interfering or impeding, and, at least from the multiple viewpoints (at least on the surface, which I’ll elaborate on in a second), this is what the stewards determined happened.

    But that had an out. Indeed, the same statute gave the stewards an opportunity to deny an objection because they also needed to find that the foul that, “in the opinion of the stewards [this] foul alters the finish of a race,” at which point the offending horse “may be disqualified by the stewards” (my emphasis on may) but does not have to be disqualified.

    In the legal world, we break down the statutory language into elements, with the review based on:

    1) a foul, which is based on interfering or impeding another horse or even causing the same result, that
    2) alters the finish of the race; and
    3) warrants disqualification.

    To be sure, video supports a lane change by Maximum Security, and a chain reaction of sorts amongst horses trailing Maximum Security, through a series of bumps. The stewards post-race statement did not seem to follow the statutory words to the letter, but we know from the statute that, in disqualifying a horse, the stewards needed to find that there was a foul that altered the finish and warranted disqualification.

    Of course, in both the legal and horse racing world there needs to be an identification of the matter, which takes on the form of a complaint or – in this case – an objection.

    Here is where it gets interesting and requires more elaborate discussion.

    A Tale of Two Objections

    According to Maximum Security’s lawsuit, two objections were lodged.

    One was by the jockey for Long Range Toddy, which cried foul against Maximum Security and a horse named War of Will. Long Range Toddy ended up nearly last, finishing 17th out of 19 horses – nevertheless, this is the objection sustained by the stewards.

    According to the stewards’ post-race statement, Maximum Security “impacted” War of Will, with War of Will “interfering” with Long Range Toddy and this then impacted another horse that ended up finishing 14th. War of Will finished 8th but did not object.

    In other words, the sustained objection concluded that the leading horse fouled the horse that ended up finishing 17th, albeit the foul involved other horses that finished out of the money.

    If you did not notice a red flag here, you should. Once again, in the legal world, the statutory wording uses the words “interfere” or “impede,” but the stewards’ statement did not: the stewards used the word “impact,” i.e., Maximum Security impacted other horses in changing lanes. It is unclear what the stewards meant by the word impact.

    Of course, we now know that the stewards, in investigating the objection, did not speak with the folks for the 8th or 14th place finishers (according to the lawsuit), yet sustained an objection by the 17th place finisher.

    So, even setting aside the wording of the stewards’ statement and that the stewards did not consult the horses that perhaps did foul (or were part of the domino), the stewards ended up sustaining an objection by a horse who finished nearly dead last on the theory that Maximum Security impeded one horse, that then impeded another, and then another – the dominos falling one on top of the other.

    In contrast, there was a more interesting development that became lucid post-race. That is, while one objection was sustained, there was a second objection denied. The second objection was lodged by the jockey for Country House (which finished 2nd). Country House can be seen on video as outside the pack trailing Maximum Security. County House lodged its objection solely against Maximum Security, the winner. Despite the fact that video shows Maximum Security being nudged further outside in a domino-reaction, this objection was denied (or disallowed).

    So, rather than sustain all objections, the stewards apparently determined that whatever Maximum Security did in fouling another horse, there were limits – there was some “reasoning” behind sustaining one objection, not the other.

    Once again, the 17th place finisher’s objection was sustained while the 2nd place finisher’s objection was denied.

    According to Maximum Security’s lawsuit, not only was this second objection somewhat glossed over in the post-race statement, the stewards had to actually correct the post-race record a few days later to make clear whose objection was sustained and whose was not.

    Objecting to Assumptions

    Let’s assume that both of the two post-race objections were for the same series of events, meaning both objections were for “fouls” committed by Maximum Security around the same time – i.e., with nearly one-quarter of the race to go – an assumption that appears accurate given the post-race statement.

    It too raises red flags, and issues.

    That is, returning to the elements of the Kentucky statute on in-race infractions, the fact that there was a sustained objection means that there was a foul, warranting disqualification, and that it apparently changed the race result, but there was a second foul that did not satisfy the same standard.

    It would be interesting to know how the stewards viewed the rules, why one objection was sustained, the other not, and how the lane change impacted the race.

    Moreover, what can we make of Maximum Security’s lane-shift movement if based on kicks by another horse, as is alleged by Maximum Security’s side. Was another horse actually interfering with Maximum Security? What would have happened if the winner objected? What would be the purpose of a winner objecting? Remember, in a post-race comment, the jockey knew his horse moved, while leading, but didn’t know why. He likely made the same comment to the stewards during post-race review. His horse won by a healthy margin. What happens if the jockey was asked, did your horse spook because of the crowd, and the jockey said, maybe, only to see video replay later on that shows the movement wasn’t crowd noise at all but instead repeated kicks to your horse’s hind quarters.

    And if the stewards are actually basing disqualification on this so-called domino effect, at what point does it begin and end such that it would not affect the outside horse (Country House) but somehow impacted the race result and warranted disqualification for the horse that finished almost dead last?

    You can begin to see the makings of a case.

    Dissimilar Standards of Review, Different Ability to Appeal

    The racing commission added to the soap opera when, on Monday, May 13, 2019, it sided with the stewards, issuing a 15-day suspension to the jockey.

    The juxtaposition is fascinating.

    Take the stewards’ decision to disqualify Maximum Security. It was made at the time of the race, after viewing video replay, talking with some (not all) of the participants, and changed the official race result. Per the racing commission, that decision was final and nonappealable, akin to the too bad, so sad standard – that’s racing.

    But compare that to a hindsight, later decision to suspend the jockey. This decision, involving the same actors, is reviewable, with the impacted party allowed to defend a position. The racing commission can review this decision, and consider fact and argument, presumably through the eyes of the beholder (the stewards). This makes it curious as to why it would be precluded from doing a similar review of disqualification that would involve the same participants and is based on the same event.

    You can begin to see the makings of constitutional due process arguments.

    Furthermore, one has to ask whether the jockey’s suspension was politically motivated. It would be foolhardy to dismiss this as a possibility. If the stewards stand by the decision to disqualify the horse, don’t they also have to place blame on the jockey? Wouldn’t the racing commission, in reviewing the issue, have a natural bias in favor of the stewards? At the same time, isn’t the appeal of a suspension, much like disqualification, subject to the same reasoning – i.e., that the stewards are in the best position, given their knowledge and experience, to assess whether a suspension or disqualification is warranted?

    Standards, What Standards?

    All of these issues have a way of backing into standard of review.

    Indeed, Maximum Security’s post-race odds on appeal largely come down to a standard of review. Even if the stewards bungled their handling of objections and disqualification, and even if there was little to no due process, does a reviewing court nevertheless defer to the agency-decision-maker in favor of affirmance?

    And on this question Wisconsin law appears to be on the cutting edge. In Tetra Tech EC, Inc. v. Wisc. Dep’t of Revenue2, the Wisconsin Supreme Court’s decision (through a panoply of sections, concurrences and dissents) appeared to “end our practice of deferring to administrative agencies’ conclusions of law.”3 Prior to Tetra Tech, courts reviewed agency decisions through a deference-lens, described as giving “great weight” or “due weight” or no weight to the decision (depending on context). Tetra Tech called this review into question.

    Furthermore, as recently retired Seventh Circuit Judge Richard Posner reasoned in the court's 1995 decision in Nesses v. Shepard4, there are doctrines that bar federal court review of state court decisions – among them the Rooker-Feldman doctrine – but not necessarily some other right, including a review by a tribunal “uncontaminated by politics.”

    This means other considerations are in play that yet again call into question the amount of deference, if any, driven by the issue and context, and, more often than not, are more complicated than a simply-articulated reviewing standard.

    Such is the lot by which adversaries in an appeal are continually cast.

    Such is the task of the court.

    All are charged with carefully dissecting, evaluating and articulating reviewing standards.

    Eyes of the Beholder

    As for Maximum Security, most would agree it unfortunate such acts and decisions are being reviewed at all.

    Likewise, opinions abound as to whether there was justice done, or not, which has a tendency to take on the eye of the beholder and make the court’s end-decision, whatever the outcome, somewhat less impactful.

    But the point of this six part series was to demonstrate that despite sound-bites and headlines surrounding objections, horses and their unpredictive qualities, the end result – justice for Maximum Security – will be largely driven by the reviewing standard.

    It doesn’t mean the theories are any less interesting.

    Quite the opposite. To be sure, you’re not going to be the life of the party by throwing out words like “de novo review” or explaining the nuances of Tetra Tech, but, at least in terms of the Maximum Security, the discussion becomes more dynamic when considered in the context of unappealable decisions (whether this is right or wrong) and whether to give the stewards the benefit of the doubt.

    Which is exactly the point and caution: make it interesting, and make it thorough, as the end result, whether it be horses or general appellate practice, requires carefully articulated and understood reviewing standards and their application.

    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 1:016 Section 12

    2 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21

    3 ¶ 108

    4 68 F.3d 1003, 1005​


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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.

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