student is require to answer the followin questions (150-200 words collectively)

readings :

hearing will be much more informal than a trial. Following a decision by the hearing officer or committee, the rules may allow for a judicial review, a challenge of the finding in court. Most agency and organization rules do. A case involving prominent Thoroughbred trainer Bob Baffert illustrates the workings of a disciplinary proceeding. On May 3, 2000, a horse trained by Baffert, Nautical Look, won the seventh race at Hollywood Park. Blood and urine samples were obtained from the horse, with one-half of each sample (the "official sample") sent for initial testing. The official sample of urine and the second portion (the "split sample") of the urine sample both were positive for trace amounts of morphine, a prohibited substance. The official blood sample subsequently was destroyed due to an internal agency policy, and the split blood sample was destroyed when no request for retesting was made within a specified time limit. Following a stewards' hearing during which an extensive amount of evidence was presented, Baffert's training license was suspended for sixty days. Baffert appealed the suspension to the state racing commission within the required time limit. He also obtained a "stay" of the suspension, the effect of which was to postpone imposition of the penalty until the ultimate resolution of the appeal. This is a common practice. Before the appeal to the state racing commission was decided, however, the trainer also filed a civil lawsuit in federal court claiming a violation of his civil rights because the blood samples had been destroyed before they could be tested by experts for the defense. A federal district court in California sided with Baffert, but the Ninth Circuit Court of Appeals reversed the lower court and ordered Baffert's complaint dismissed. The Ninth Circuit did not decide the merits of Baffert's complaint, only that the timing of the federal lawsuit was premature because the state racing commission appeal was pending. After Nautical Look tested positive for a prohibited substance following the May 2000 race, the rules entitled Baffert to a hearing before the stewards made a decision. State procedures then gave Baffert an opportunity to appeal his suspension from the track stewards up the administrative food chain to the California Horse Racing Board. More importantly, especially for a trainer whose livelihood depends on an ongoing ability to saddle horses for races, Baffert was able to postpone 34 agreement to be bound by the federation's rules. Even if an entry blank is not signed, participation in the horse show constitutes an implied consent to be held accountable for any and all violations of the rules. In like manner, owners and trainers agree either expressly or implicitly to be bound by the rules of a state racing commission by choosing to compete in a recognized race meeting. Application to register a horse carries a similar implied consent to be bound by the registry's rules and regulations. The required notice also should indicate how and when to respond to the allegations. This requirement is similar to the time limit for responding to a lawsuit discussed earlier in this chapter. A response to the allegations must be submitted in the manner required, within the specified time limit. This is true even if the person charged with a violation has absolutely no doubt he or she is innocent of the alleged violation. Failure to respond in a timely manner might result in a decision by default against the person charged. While there may be a procedural way to address such a default, it is an unnecessary hurdle that easily can be avoided by responding to the allegations in a timely manner: An important decision at this point is whether to retain an attorney to assist with the response and to represent you through the rest of the proceedings. Most organizations allow, but hardly ever require, that a party be represented by counsel, either when making or defending against an allegation of misconduct. (In the United States Equestrian Federation scheme, an allegation made by one member against another member, or against the organization, is called a "protest" while an allegation made by a representative of the organization itself against a member or non-member is referred to as a "charge.") One general rule is to decide whether to retain an attorney based on what ultimately is at stake in the disciplinary proceeding. If the worst penalty that can be imposed if the agency prevails is a small fine, it might be difficult to justify the expense of an attorney, whose legal fees would be greater than the fine. If, on the other hand, the punishment is a possible suspension from competition or a hefty fine, it would be foolish to proceed without counsel. An attorney familiar with equine law and administrative procedures can provide guidance through the process and also provide impartial advice about the best course of action. 30 Following the initial response, the organization might ask for additional information. If so, it should be provided in a timely manner. The person charged also should start assembling evidence to support a defense. If there were witnesses, affidavits (statements given under oath) should be obtained. It seems that everyone has a video camera or cell phone camera these days, and a videotape or photographs of the incident also may be available. Reports from show stewards and other show officials should be obtained and reviewed. If the alleged violation involves a positive test for a prohibited substance, the person charged should request the testing laboratory report and consider asking for a second test. Most public and private administrative bodies that test for prohibited substances provide in their rules for a "split sample," a procedure in which blood and/or urine samples are divided into at least two identical parts. The first sample is submitted for testing after the competition. If the result of that test is negative, the second sample generally is destroyed. If, on the other hand, the first test result is positive, a rules violation can be charged. At this point the person charged should have the option of requesting that the second sample be tested, to confirm or refute the first positive result. Rules vary from one organization to another regarding the method for selection of a second laboratory and other procedures for this testing, but the second test usually must be requested within a specified and generally fairly short period of time. The right to request a second test might be lost due to a failure to make a timely request. Depending on the applicable rules, there may be a hearing before a decision is made regarding the allegations. Most administrative bodies, including the United States Equestrian Federation, The Jockey Club, and most state racing commissions, will conduct a hearing at the request of a party alleged to be in violation of the rules. An administrative fee may be required. Many organizations also can order a hearing on their own initiative if one is not requested. If no hearing is held, a decision will be rendered based on the evidence submitted by the parties. An administrative hearing is similar to a trial but with several important differences. A hearing officer, or hearing committee, rather than a judge will be in charge of the proceeding and may have the assistance of the 31 AGENCIES AND ORGANIZATIONS Less visible than judicial resolution of disputes are administrative hearings arising from alleged violations of rules promulgated by public agencies and private organizations. On the public side, for example, state racing commissions govern horse racing; state departments of transportation license farm trucks and trailers; local zoning boards dictate whether a person can keep horses on the owner's property; the Occupational Safety and Health Administration establishes safety standards for employees on farms and in other workplaces; the Food and Drug Administration approves medications and treatments for animals; state licensing boards determine who can provide veterinary care; and the Environmental Protection Agency may have something to say about manure disposal practices. On the private side, the governing body for each discipline drafts rules for competitions, and breed registries maintain extensive breeding and ownership records. The list goes on. Although administrative bodies are pervasive, they also tend to be invisible, unless you run afoul of their rules - or at least appear to do so. When this happens, a person's livelihood and reputation may be put at risk, and the proper response is essential. It always is important to be familiar with the rules that control an activity; it is essential to know the rules and all the options when a violation is alleged. Consider the following scenarios: 1) A Thoroughbred trainer receives notice that one of his horses tested positive for a prohibited substance after winning an important race. 2) An owner receives notification from the United States Equestrian Federation that she has been charged with a serious violation of association rules at a recent hunter show where she was an exhibitor: 3) A breed registry informs a mare owner that a foal cannot be registered because there are questions about its parentage or because one or more of 28 Law and Order. A common thread running through all three is "innocent unless proved guilty," a fundamental right accorded all criminal defendants by the U.S. Constitution. "Absolute insurer rules" or "trainer responsibility rules," common in horse racing and other equine sports, turn the old adage on its head. These rules presume that trainers are responsible when their horses test positive for illegal substances, in effect making the trainers guilty unless proved innocent. The effect of this presumption is to shift the burden of proof from the governing body to the trainer, who must prove innocence by showing that he or she did not administer the prohibited substance to the horse or did not negligently allow someone else to tamper with the animal. The result can be imposition of a penalty without actual proof of guilt. Courts have uniformly upheld absolute insurer rules, despite what might appear on the surface to be a clear violation of due process of law. The Casse Court, at page 1312, summarized the situation: Moreover, the trainer responsibility rule is a practical and effective means of promoting these State interests-both in deterring violations and in exercising sanctions. The imposition of strict responsibility compels trainers to exercise a high degree of vigilance in guarding their horses and to report any illicit use of drugs, medications or other restricted substances by other individuals having access to their horses. Additionally, the rebuttable presumption of responsibility facilitates the very difficult enforcement of the restrictions on the use of drugs and other substances in horse racing. Indeed, it would be virtually impossible to regulate the administering of drugs to race horses if the trainers, the individuals primarily responsible for the care and condition of their horses, could not be held accountable for the illicit drugging of their horses or for the failure either to safeguard their horses against such drugging or to identify the person actually at fault. It is not surprising, therefore, that trainer responsibility rules have been upheld almost without exception, in other jurisdictions. American Horse Shows Association v. Ward, 718 NYS2d 593 (Supreme Court of New York, 2000) Courts also have upheld the right of private organizations to establish and enforce their own rules. Following a 1996 guilty plea to one count of conspiracy to commit wire fraud relating to a bizarre scheme in which horses were killed to obtain insurance proceeds, noted show-jump rider Barney Ward was expelled by the American Horse Shows Association (now the United States Equestrian Federation). He also was permanently barred from attending any recognized competition as a participant or spectator. Ward took the AHSA to court, arguing that even if he could not compete himself he wanted to watch his son participate in horse shows. He argued among other things that he already had resigned from the AHSA and that the organization had no authority to discipline a non-member. The Supreme Court of New York found that argument meritless, nuling that Ward's membership in the AHSA at the time of his criminal conduct, plus his promise to be bound by the organization's rules, authorized the AHSA to discipline him, regardless of his current membership status. The court also implied that the organization could discipline anyone who violated AHSA rules, even if the person never had been a member. Referring to the agencies and organizations section in reading: 1. Do you believe that organization membership or participation in a regulated activity is sufficient to make a person subject to applicable rules? Why/why not? 2. What do you feel are the advantages or disadvantages of Alternative Dispute Resolutions? Support your position the foal's owners has been suspended by the association. In each example an administrative body (a state racing commission in the first, private groups in the second and third) is alleging a violation of its rules. Depending on the circumstances, the penalties for such violations can be severe: disqualification of a winning horse, loss of a purse or prize money, return of a trophy, suspension or revocation of a license and the resulting loss of income, non-registration of a horse and a subsequent precipitous drop in value. What is the proper response to such charges? Each administrative body has its own rules and procedures, and it is impossible to offer specific advice about a particular organization or rules violation here. There are a few considerations common to most situations, however: For example, fundamental due process of law requires that anyone charged with a violation receive both notice of the alleged violation and an opportunity to be heard before any action is taken. The required notice should inform the party of the specific infraction being charged, and if the individual is not already familiar with the rules, this would be a very good time to review them. It is impossible to defend against an alleged violation if the person charged lacks a full understanding of the rules relating to the supposed infraction. Also, keep in mind that an express agreement to be bound by the rules of a public or private regulatory body generally is not required. Either membership in an organization or participation in a regulated activity nearly always will be sufficient to make a person subject to the applicable rules. For example, the general rules of the United States Equestrian Federation (successor to the American Horse Shows Association as the governing body for equestrian sports in the United States) provide that "every recognized competition and every person participating at the competition including exhibitor, owner, lessee, manager, agent, rider, driver, handler, judge, steward or technical delegate, competition official or employee is subject to the Constitution and Rules" of the organization. It is a person's participation in a recognized horse show, rather than membership in the federation, that brings that person under the umbrella of the organization's rules and regulatory authority. Entry blanks for recognized horse shows also include an express 29 his sixty-day suspension until the final resolution of his appeal. The dispute finally was resolved in 2005, nearly five years after Nautical Look won the race in question, when the California Horse Racing Board dismissed the charges. Although it might seem that Baffert manipulated the rules simply to avoid punishment, such a conclusion would be unfair. Administrative rules and regulations are in place to protect both the interests of the parties involved and the integrity of the activity being regulated. These are lofty goals, and they can be achieved only when everyone involved in any sort of horse-related activity understands his or her rights and obligations under the rules of the governing body. Exercising your rights under the rules is an essential part of that protection. administrative organization's legal counsel. There will not be a jury. The parties will have the right to call and cross-examine witnesses and to present evidence, and the hearing officer or committee also can ask questions. The usual rules of procedure and evidence will be relaxed, and, in general, the CASE STUDIES Kentucky State Racing Commission v. Fuller, 481 SW2d 298 (Ky 1972) The most infamous disqualification in the history of Thoroughbred racing occurred in the 1968 Kentucky Derby, when first-place finisher Dancer's Image was disqualified after a urine sample tested positive for the analgesic phenylbutazone or a derivative. Calumet Farm's Forward Pass was declared the winner, and the legal wrangling began in earnest. Stewards at Churchill Downs held an administrative hearing a fow days after the race, disqualifying Dancer's Image. Owner Peter Fuller appealed to the Kentucky State Racing Commission (now the Kentucky Horse Racing Authority), which affirmed the decision of the stewards. Kentucky's rules of racing provide for judicial review of a final agency decision, in this case the disqualification of Dancer's Image by the racing commission, and Fuller appealed the order to the Franklin County Circuit Court. Late in 1970 , some twenty months after the contested Derby, the court tossed out the commission order and ruled that Dancer's Image was the winner after all. The racing commission, not surprisingly, appealed the circuit court decision to a higher court. After some preliminary discussion of procedural questions, the court reached the principal issue before it. This was not whether the initial urine tests for phenylbutazone were accurate or whether Dancer's Image should have been disqualified. Instead, the appellate court considered only whether there was sufficient evidence in the record to support the racing commission decision disqualifying Dancer's Image. Generally, when a court reviews the decision of a government agency, the court is bound by the agency decision if there was "substantial evidence" to support it. In the Dancer's Image case the appellate court found "an abundance of substantial evidence supporting the findings and rulings of the Kentucky State Racing Commission." Four years and two months after the 1968 Kentucky Derby, Forward Pass became the official winner. Allen v. Kentucky Horse Racing Authority, 136 Sw3d 54 (Ky App 2004); Casse v. New York State Racing and Wagering Authority, 517 NE2d 1309 (NY 1987); Fogt v. Ohio State Racing Commission, 210 NE2d 730 (Ohio Ct App 1965); Sandstrom v. California Horse Racing Board, 189 P2d 17 (Cal 1948) Depending on your generation, your understanding of the legal process probably comes from television programs such as Perry Mason, L.A. Law, or