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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