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Baffert Wants Federal Judge Removed from Case Against CDI

Trainer Bob Baffert now wants the federal judge handling his year-old lawsuit against Churchill Downs, Inc. (CDI), to recuse herself.

The stated reason is that legislative lobbying efforts conducted by the judge's husband for two racing industry clients allegedly create a conflict of interest for Judge Rebecca Jennings in adjudicating Baffert's case.

Baffert is attempting to reverse the second year of a two-year ban by CDI that prohibits his trainees from accruing qualifying points and competing in the 2023 GI Kentucky Derby.

CDI first imposed that punishment in June 2021 because of a string of drug positives in horses Baffert trained, including two in CDI's most prominent races, the 2020 GI Kentucky Oaks and in the 2021 Derby.

The now-deceased Medina Spirit (Protonico) tested positive for the Class C drug betamethasone after crossing the finish wire first in the 2021 Derby.

Seven months later, the colt collapsed after a workout and died in December 2021.

Medina Spirit was posthumously disqualified from the Derby by the Kentucky Horse Racing Commission (KHRC) in February 2022.

Baffert's appeal on that matter (and a suspension he has already served but wants cleared from his record) is pending.

“The plaintiffs submit that the Court's impartiality is in question because [the judge's] husband, Michael Patrick Jennings and his firm, Commonwealth Alliances, are legislative agents employed by The Jockey Club,” Baffert's motion for recusal stated.

“The Jockey Club has actively intervened publicly and litigiously in the litigation surrounding the Bob Baffert/Medina Spirit matter since the beginning of state and racing association action against Mr. Baffert,” the motion stated.

“R. Alex Rankin, a named Defendant in this case, is a senior, influential member of the Jockey Club and serves as a Jockey Club Steward,” the recusal request continued. “The motion is brought on a good faith basis after a diligent investigation of the public record and not for 'other advantage or litigation tactic'…. [T]he impartiality of the Court is in question, and the necessary remedy is a disqualification.”

In an affidavit signed by one of Baffert's lawyers that accompanied the motion, attorney Clark Brewster stated that Patrick Jennings was also employed as a lobbyist by The Stronach Group (TSG).

Although TSG tracks have not banned Baffert, the filing noted that the lobbyist's engagement with TSG overlaps a time when “litigation was pending against TSG by Jerry Hollendorfer (a racehorse trainer excluded from Santa Anita by TSG).”

Brewster's affidavit stated that Patrick Jennings's firm was paid $50,750 by The Jockey Club during 2022, and that his personal income from that client was $34,256. His 2022 personal income from TSG was $34,038 out of $74,219 that went to his firm.

Baffert had initially sued CDI on Feb. 28, 2022, alleging civil rights violations related to what Baffert said was a deprivation of his right to due process of law guaranteed under the Fourteenth Amendment.

According to the court docket, Judge Jennings was “randomly assigned” to the case on the same day it was filed.

“The fees earned in 2022 are a clear source of extrajudicial bias,” Baffert's filing stated. “At no time during the litigation did Judge Jennings disclose her husband's employment by The Jockey Club [or TSG].”

Brewster's affidavit laid out his version of recent events, including details of a spat that erupted over the past week involving differences of opinion related to alleged “ex parte” discussions between the judge and the CDI defense team that potentially occurred without Baffert's attorneys being included. The result was a written denial from the judge that anything improper happened, along with an admonishment from the judge to Baffert's legal team.

“After the Court adjourned on Feb. 3, I sent an informal email to lead counsel for the defense seeking some understanding of how he knew the Court would commence the continued hearing with the defense being permitted to call a party-witness (Mr. Baffert) out of order and cross-examine a party before he was presented by Plaintiffs' counsel,” Brewster stated in his affidavit.

“Given that not every contact with court staff is a prohibited ex parte communication, there was no accusation of ethical or judicial impropriety. The email was sent to gain an understanding of Defendants' surprising degree of knowledge about the mode and manner of the proceedings…

“Defense counsel sent an incendiary email response, copying Judge Jennings and accusing [Brewster] of making false accusations regarding ex parte communications between defense counsel and the Court,” the affidavit stated.

On Feb. 8 Judge Jennings issued a memorandum that stated, in part, that, “The Court has not engaged in ex parte communications with either side [and] Plaintiffs are warned that any future conduct implicitly threatening the Court, attempting to create or fabricate a situation suggesting recusal, or made for other advantage or litigation tactic will not be tolerated and may result in a show cause hearing and disciplinary action.”

Brewster claimed in his affidavit that he was “bewildered by the announcement of Judge Jennings and the 'warning' to counsel to not suggest recusal, given that counsel had made no effort to impugn the Court or to seek recusal.”

Then Brewster engaged in some Googling, which did lead to the seeking of recusal.

“To gain some understanding of Judge Jennings's disclosed concern regarding recusal, [I] searched the internet on Feb. 8 and discovered that Judge Jennings's husband, Michael Patrick Jennings, is the Legislative Agent/Lobbyist for The Jockey Club,” Brewster stated in his affidavit.

This is not the first time that a conflict-of-interest recusal has arisen in Baffert's intertwined legal cases and administrative appeals.

In September 2022, Clay Patrick, the hearing officer assigned to Baffert's KHRC appeal, recused himself three weeks after the appeal's testimony was heard.

Patrick stepped down after Brewster revealed that he had unknowingly bought a $190,000 horse at the Keeneland September Yearling Sale that was co-owned by Patrick, who operates Ramspring Farm.

The KHRC assigned a new hearing officer to that case.

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Baffert: CDI ‘Appears to Misunderstand’ Its Own Derby Qualifying Rules

Responding to a legal filing in which Churchill Downs, Inc. (CDI), alleged that a court-mandated lifting of Bob Baffert's ban from competing in the GI Kentucky Derby would harm the connections of other qualifying points earners who would “lose their fairly-earned berths in the Derby to make room for Baffert,” the Hall-of-Fame trainer's legal team fired back with a written response on Friday claiming that CDI “appears to misunderstand its own rules,” regarding the qualifying system.

“CDI argues that an injunction would force it to 'reallocate' points and 'deprive' owners of their existing 'berths,'” Baffert's Jan. 20 filing in United States District Court (Western District of Kentucky) stated. “CDI's rules vacate points earned by Baffert-trained horses; it does not redistribute them.”

CDI, in its Jan. 17 filing that urged a federal judge not to grant an injunction that would lift the ban in time for the May 6 Derby, had brought up the issue of Derby points as an example of purported harms to others.

The CDI filing had alleged that an injunction and possible points reallocation would “retroactively” deprive “innocent third parties, who have played by the rules.”

The Baffert filing took umbrage with that position, stating that, “an injunction here would simply require CDI to recognize existing merit and permit owners to earn qualifying points under Baffert (rather than with different trainers), it would not take away from others.”

At a later point, Baffert's filing stated, “CDI fails to address how existing rules applicable to all trainers are insufficient to protect its qualifying structure, given that a condition of receiving points is compliance with that race's medication rules.

“In addition, CDI's decision merely to vacate the points awarded to a horse who fails a drug test in a Derby-qualifying race rather than to refuse the horse's or trainer's entry belies its claim that banishment is the only means by which it can protect its business and reputation when a medication violation associated with the Kentucky Derby occurs,” Baffert's filing continued.

The disagreement over Derby qualifying points is only a small part of a wider-ranging, much more complex lawsuit.

Baffert is attempting to reverse the second year of a two-year ban CDI imposed in 2021 because of a string of drug positives in horses he trained, including two in CDI's most prominent races, the 2020 GI Kentucky Oaks and the 2021 Derby.

Baffert's trainees have crossed the finish wire first a record seven times in the Derby.

But it was that seventh Derby winner-Medina Spirit-who triggered Baffert's banishment by CDI when the colt tested positive for betamethasone, a Class C drug, in a 2021 post-Derby test.

CDI told Baffert in June 2021 that he would be ineligible to race at its six U.S. tracks until after the 2023 Derby, and that any horse that raced under his training license would not be eligible to accrue qualifying points to get into the 2022 or 2023 Derbies.

Separately, Baffert fought unsuccessfully in the courts to try and stave off a 90-day suspension for Medina Spirit's drug overage that had been imposed upon him in February 2022 by the Kentucky Horse Racing Commission (KHRC). As a result, he had to transfer his stable to other trainers and did not get to saddle any horses in the 2022 Derby while serving his suspension.

And even though that KHRC suspension has already been served, Baffert is appealing that ruling in an effort to expunge the violation from his record and to reverse Medina Spirit's disqualification.

Baffert renewed his court quest to run in the 2023 Derby on Dec. 15, 2022, asking for an injunction that would “work no hardship” on CDI.

The two sides have been trading court filings over the past week in preparation for a Feb. 2 preliminary injunction hearing.

The Jan. 17 filing by CDI had stated that, “Baffert refuses to accept responsibility for his wrongful actions [and now], as the two-year anniversary of his CDI suspension approaches, Baffert has renewed his motion in a brazen attempt to litigate his way into the 2023 Kentucky Derby. This belated, tactical, and meritless motion should meet the same fate as his prior unsuccessful efforts to challenge his suspension.”

Baffert's legal filing from Jan. 20 stated that CDI's written response “addresses claims and inferences that bear little to no resemblance to Baffert's arguments. In the select instances CDI attempts to address Baffert's assertions directly, it deflects attention to inapposite cases. Baffert's arguments are meritorious on their own terms, and CDI's attempts to lead this Court astray should fail.”

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Baffert Fails in Latest Attempt to Block NYRA Hearing

After having failed back in October to get a federal judge to block the New York Racing Association (NYRA) from moving forward with a Jan. 24 hearing that could once again bar him from NYRA tracks, trainer Bob Baffert asked the hearing officer who will preside over the case to either recuse himself and/or dismiss the proceeding entirely because NYRA “self-created” the hearing process when it didn't have the authority to do so.

On Wednesday, hearing officer O. Peter Sherwood said no to both motions.

So starting Monday, at what is expected to be a multi-day hearing, Baffert must answer to a three-count complaint filed against him by NYRA in the form of a “statement of charges.”

Those three counts correspond to Baffert's alleged conduct that is or has been “detrimental” to three entities: 1) The best interests of racing”; 2) The health and safety of horses and jockeys; 3) NYRA business operations.

Separately, NYRA is defending itself in a federal lawsuit initiated by the Hall of Fame trainer with the well-publicized history of equine drug positives over whether or not NYRA violated Baffert's constitutional rights by trying to ban him outright without any type of hearing back on May 17.

NYRA currently has an active motion to dismiss that complaint, but no ruling has yet been issued by the judge, who heard arguments from both sides Jan. 6. That dismissal motion is not directly related to the Jan. 24 non-court hearing Baffert sought to avoid.

“Baffert argues that I must recuse myself because: (i) he supposes, without any evidence whatsoever, that I may have some pecuniary interest in the outcome of this proceeding; and (ii) that I have somehow demonstrated that I have pre-judged the merits of the hearing,” Sherwood wrote in a Jan. 19 ruling. “Both assertions are false. Recusal is not only unwarranted, but acceding to the demands would impair to the efficient administration of justice.”

Baffert had taken umbrage with the fact that NYRA had chosen the rules of the hearing, the charges within it, and the person who would adjudicate it.

Baffert's legal team had argued via the Jan. 12 recusal motion that Sherwood “has refused to disclose the complete and true extent of his relationship with NYRA” and that “Sherwood was chosen after a secret process within NYRA.”

That same filing also stated that, “Baffert's competitors, some of whom raced directly against him in the [GI] Kentucky Derby have their hands all over this 'proceeding.'”

Despite that allegation, Baffert's filing did not state any specific names of owners or trainers whom he believed might be conspiring against him by attempting to influence the hearing.

NYRA had barred Baffert back 16 days after the now-deceased Medina Spirit won the May 1 Derby while testing positive for an overage of betamethasone. In the 12 months prior to that positive, four other Baffert trainees had also tested positive for medication overages, two of them in Grade I stakes.

On July 14, the United States District Court (Eastern District of New York) granted Baffert a preliminary injunction that allowed him to race at New York's top-tier tracks pending the resolution of his overall case.

While that ruling allowed Baffert to start horses at Saratoga Race Course, Belmont Park and Aqueduct Racetrack, NYRA additionally took the judge's order to mean the association could move forward with drafting new procedures for holding hearings that could suspend licensees who engage in injurious conduct.

After those rules were made public, NYRA, on Sept. 10, wrote a letter summoning Baffert to appear at just such a hearing, presenting him with the statement of charges.

On Sept. 22, Baffert filed a motion asking a federal judge to hold NYRA in civil contempt for trying to schedule any sort of hearing that could once again bar him from participating at NYRA's tracks. He claimed NYRA's move to initiate that sort of hearing was in violation of the preliminary injunction.

But on Oct. 5, a federal judge dismissed Baffert's “contempt” allegations, underscoring that NYRA could, in fact, move forward with its newly created hearing process because it was entirely separate from NYRA's original May 17 attempt at banishing Baffert.

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