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8th-DMR, $80K, Msw, 3yo/up, 6 1/2f, 10:27 p.m.

   A $475,000 KEESEP yearling purchase by the Three Amigos, AMERICAN REFUGEE (American Pharoah) will be the 13th foal to race out of the GSP mare Refugee (Unaccounted For). This makes him a half-brother to MGISW & $4.7 million earner Hoppertunity (Any Given Saturday) and MGISW & 'TDN Rising Star' Executiveprivilege (First Samurai). This is also the family of champion 3-year-old filly & MGISW Davona Dale (Best Turn). Trained by Bob Baffert, who famously campaigned his sire and both of his half-siblings, and owned by the trio of Mike Pegram, Karl Watson, and Paul Weitman who also raced both half-siblings, American Refugee posted a near-bullet work July 23, going five furlongs in :59 1/5 (3/86) and followed that up with six furlongs in 1:12 4/5 (2/5) July 29. TJCIS PPs

4th-ELP, $80K, Msw, 2yo, f, 5f, 3:14 p.m.

   From the first crop of Triple Crown champion Justify, AUNT SHIRLEY debuts Friday for owner/breeder WinStar Farm LLC. The chestnut filly is out of a half-sister to MG1SW Decorated Knight (GB) (Gailieo {Ire}). Third dam Mariah's Storm (Rahy) is best known for producing the likes of European horse of the year and leading sire Giant's Causeway (Storm Cat) and New York-based sire Freud (Storm Cat). Second Dam Pearling's half-sister You'resothrilling (Storm Cat) has gone on to produce eight straight winners from as many to race including: G1 Tattersalls Irish Two Thousand Guineas winner Gleneagles (Ire) (Galileo {Ire}), MG1SW Happily (Ire) (Galileo {Ire}), G1 Prix de Diane Longines winner Joan of Arc (Ire) (Galileo {Ire}), and G1 Etihad Airways Irish One Thousand Guineas victor Marvellous (Ire) (Galileo {Ire}) amongst others. TJCIS PPs

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Scopolamine has found its way into California hay supplies via jimson weed, so it's not unreasonable to conclude the positive test was a result of environmental contamination. It's also unlikely that the drug's presence at a low yet impermissible level had any impact on performance.

But rules are rules.

According to California Horse Racing Board rule 1859.5 (Disqualification Upon Positive Test Finding), a positive test of drugs in classes 1, 2 or 3 (as defined by the CHRB) “shall require disqualification of the horse from the race in which it participated and forfeiture of any purse … regardless of culpability for the condition of the horse.”

In April 2018, scopolamine was a Class 3 drug under CHRB rules.

CHRB members, meeting in executive session on Aug. 23, 2018, circumvented those rules by voting to not pursue the matter, acceding to the recommendations of the CHRB's equine medical director, Dr. Rick Arthur, and the board's then-executive director, Rick Baedeker.

There is an old expression that “we don't know what we don't know.” In this case, we don't know how many previous times the board took such actions, stopping an alleged medication violation before it reached the stewards for a hearing. We do know the CHRB has prosecuted numerous cases of positive drug tests that any rational person would assume resulted from environmental contamination.

So what was different about this case?

For starters, by the time this came before the CHRB in August 2018, Justify had a) won the Triple Crown, b) had his breeding rights sold for a record $75 million, and c) been retired from racing. He was also trained by a Hall of Famer who had become the “face” of the sport.

Additionally, there was a can of worms labeled “Derby Points” that some might try to open if Justify was disqualified from the Santa Anita Derby, a race that gave the son of Scat Daddy the points needed to qualify for the Kentucky Derby field.

So the CHRB voted behind closed doors to end the investigation and successfully tamped down what could have been an embarrassing situation – until a September 2019 report by Joe Drape in the New York Times exposed what had happened.

There's another old expression that “it's not the crime, it's the coverup.” Scopolamine positives have been called before in California. Trainers were not sanctioned but their horses disqualified. No one likes when that happens, but it's a matter of following the rules. Maybe the rules need to be changed to accommodate environmental contaminations, but until that happens it isn't right for regulators to circumvent the rules they don't like.

The New York Times article hit as California racing was trying to recover from the high-profile equine fatality spike at Santa Anita earlier in the year that thrust the sport in the national spotlight in a most unflattering way. The handling of the Justify case only poured gasoline onto the regulatory fire.

The controversies riled the office of Gov. Gavin Newsom and dominoes started falling at the CHRB. Chuck Winner had already stepped down as board chairman when the Justify story broke. Vice chair Madeline Auerbach resigned from the board when she was passed over to chair the organization. Executive director Baedeker announced that he was retiring and other staff positions changed. New appointees came from outside the industry and without direct investment in racing or conflicts of interest.

Mick Ruis, who owned Santa Anita Derby runner-up Bolt d'Oro, sued the CHRB in January 2020, claiming he was entitled to the $600,000 first-place money from the race. In July, Ruis reached an agreement to settle the lawsuit when the CHRB said it would file a complaint to conduct a purse disqualification hearing on Justify. That hearing, which also included a complaint filed on Hoppertunity's positive test, was conducted on Oct. 29.

Here's where things start veering off into La-La Land.

The three stewards, John Herbuveaux, Kim Sawyer and Ron Church, did their due diligence sifting through the evidence and testimony. They put together a lengthy findings of fact and timeline, including making note that scopolamine changed from a Class 3 drug to Class 4 months after the Santa Anita Derby and Tokyo City Cup were run. The stewards did all the things you would expect them to do when conducting a hearing of this type and then making a determination.

Then they took the ultimate copout. No matter what the evidence was, no matter what the rules stated, they dismissed the complaint “because the CHRB has already ruled on this matter, in executive session, at the Aug. 23, 2018, meeting.”

Are you kidding me?

Unless this was some kind of carefully orchestrated kabuki theater involving CHRB members, staff and stewards to go through the motions of a hearing in order to satisfy the terms of the settlement agreement with Ruis – which seems highly unlikely – the final order by the stewards is mind-boggling.

If the stewards felt as though the matter was dismissed in August 2018, why did they go to the trouble of conducting a hearing? Couldn't they have sought clarification from legal counsel at the CHRB as to whether or not the matter was settled?

The order by the stewards may not be the final word. Attorney Darrell Vienna, representing Ruis, pointed out that California's Business and Professions Code, section 19517, states the CHRB “may overrule any steward's decision other than a decision to disqualify a horse due to a foul or a riding or driving infraction in a race, if a preponderance of the evidence indicates any of the following:

“1) The steward mistakenly interpreted the law.

“2) New evidence of a convincing nature is produced

“3) The best interests of racing and the state may be better served.

“…Furthermore, any decision pertaining to the distribution of purses may be changed only if a claim is made in writing to the board by one of the involved owners or trainers, and a preponderance of the evidence clearly indicates to the board that one or more of the grounds for protest, as outlined in regulations adopted by the board, has been substantiated.”

Within hours of the decision by the stewards to dismiss the complaint, Vienna filed a claim with the board on behalf of Ruis, asking for the CHRB to overrule the stewards.

The ball is back in the CHRB's court, but these are not the same CHRB members who opted to bury this matter in August 2018.

That's my view from the eighth pole.

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“Even if this panel were to disagree with the CHRB's decision to dismiss these matters or the way the CHRB handled the situation it cannot be argued that the CHRB lacked the authority to do so,” read the stewards' decision. “The law specifically allows such actions to take place and the CHRB followed the law.”

Stewards heard evidence from the CHRB and connections of both horses on Oct. 29. The horses' connections went to court in an attempt to block a stewards' hearing on the 2020 CHRB complaint but were unsuccessful.

The complaint brought this year after the Ruis civil suit focused only on whether Justify and Hoppertunity should be disqualified. It was not designed to impose sanctions on Baffert or any other individual.

In a written explanation, the stewards said their decision came down to the timing of changes to the classification of scopolamine. At the time of the races, scopolamine was a Class 3 drug by California rule, which would have required automatic disqualification of a horse regardless of the reason it was present in a post-race sample. However, by the time of the closed meeting for the board to discuss the Justify finding, the Association of Racing Commissioners International (ARCI) had changed the classification of the substance to a Class 4. The CHRB voted on in a regular, open meeting held on Aug. 23, 2018 to adopt an amendment to its drug rules which put them in line with ARCI guidelines — including, among other things, changing scopolamine from a Class 3 to a Class 4. The presence of Class 4 or 5 substances in horses post-race does not include automatic disqualification as a penalty.

It was in the closed-door executive session portion of that same Aug. 23 meeting that the board heard information about the scopolamine positives, including that of Justify, and voted to dismiss the whole thing without filing a complaint or referring the matter to the stewards for a hearing. CHRB rules at the time permitted the board to handle the case this way, with no public disclosure.

Wednesday's stewards' decision acknowledges that Arthur warned the board during that executive session “there might be a perceived lack of transparency should the CHRB fail to go public with the decision and that it would probably not remain a secret.”

The decision went on to question how the outcome may have been different had it gone through the normal channels for a post-race finding and done so more quickly.

“It is the stewards' opinion that had this board of stewards heard the Justify and Hoppertunity complaints prior to Aug. 23, 2018, both horses would have been disqualified.”

See the full stewards' decision here.

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The CHRB filed the complaint as part of a legal settlement with trainer Mick Ruis, owner of Santa Anita Derby runner-up Bolt d’Oro (Medaglia d’Oro).

According to attorney Darrell Vienna, who represents Ruis, he filed a claim Thursday evening with the CHRB requesting that the board overturn the steward’s decision. The claim, he said, concerns a statute in the state’s Business and Professions Code.

The decision was issued Thursday evening following an Oct. 29 hearing on the matter. A TDN report on the hearing can be read here.

“I’m happy with the decision—mostly importantly for Justify. He is a great horse and deserves his undefeated record,” said Bob Baffert, trainer of both horses, in response to the decision.

In a 10-page ruling, the stewards framed the decision as one that came down to the following: “Whether, at the times of the races, Scopolamine was a class 3 or a class 4 prohibited substance as classified by the CHRB.”

Boiled down to its component parts, the decision circled two main CHRB rules: rule 1843.2, regarding drug classifications; and rule 1859.5, regarding disqualifications following a positive test.

The evidence as to what class of substance Scopolamine was listed in April, 2018, when the two horses competed, was “conflicted,” the stewards admitted.

“At the time of the races in April of 2018 the CHRB rules considered Scopolamine a class 3 prohibited substance,” the decision states. In California, class 3 drug positives trigger automatic disqualification of horses, regardless of trainer intent or culpability.

The CHRB, however, based its rules on the Association of Racing Commissioners International (ARCI) guidelines. The ARCI Uniform Guidelines for Foreign Substances was changed in December of 2016 to list Scopolamine as a class 4 substance.

“If this change in the ARCI Guidelines were to prevail in the interpretation of the 2018 version of rule 1843.2, then the disqualification of the two horses would not be necessary as the prohibited substance would not fall into a class 1-3 category,” the stewards’ decision states.

The slow-moving wheels of California administrative law, however, meant that the CHRB hadn’t formally adopted ARCI’s guidelines at the time of the two races.

At a CHRB board meeting on Aug. 23, 2018, the CHRB finally voted to adopt a rule amendment which formally changed Scopolamine from a class 3 to a class 4 prohibited drug, which wouldn’t require disqualification.

The CHRB, however, must formally adopt a rule change to 1843.2 before any changes in drug substances become effective, the stewards’ decision states. As such, “It is the Stewards’ opinion that had this Board of Stewards heard the Justify and Hoppertunity complaints prior to Aug. 23, 2018, both horses would have been disqualified,” the decision states.

Crucially at that same meeting on Aug. 23, however, the attending commissioners voted in executive session not to move forward with charges in the Justify matter, heeding the advice of former CHRB executive director Rick Baedeker and Rick Arthur, CHRB equine medical director.

For one, the CHRB knew at that time that the ARCI had changed its classification guidelines to reflect that Scopolamine was now a class 4 prohibited substance, the stewards’ decision states.

Secondly, “Dr. Rick Arthur was of the opinion that the Scopolamine found in Justify and Hoppertunity, as well as five other horses tested in April and May 2018, was the result of environmental contamination and that the matters should be dismissed. He believed it was the right thing to do,” the decision states.

Furthermore, “Testimony by Dr. Arthur indicated that he felt the change in the ARCI Guideline Classifications for Scopolamine from a class 3 to a class 4 in December of 2016 was sufficient enough for him to consider the rule amended because the rule changing process in California is cumbersome and inefficient,” the stewards’ decision adds.

“Even if this panel were to disagree with the CHRB’s decision to dismiss these matters or the way the CHRB handled the situation, it cannot be argued that the CHRB lacked the authority to do so,” the decision states. “The law specifically allows such actions to take place and the CHRB followed the law.”

Following the law the CHRB may have, but the lack of transparency with which the whole matter was handled has eroded public trust in the board, as Arthur feared at the now infamous executive session in August of 2018.

That day, Arthur warned of a perceived lack of transparency should the CHRB fail to go public with the decision, the stewards write. A little more than a year later, the New York Times published its explosive story which confirmed Arthur’s fears as it pulled back the curtains on the board’s inner workings.

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Perhaps more importantly, the annual Midlantic sale will allow the Chesapeake City, Maryland-based farm the opportunity to show off stock from their growing stallion roster, including the first weanlings from Irish War Cry (Curlin) and Hoppertunity (Any Given Saturday).

“Our game is to bring the best we can for the market in the Mid-Atlantic region and in Maryland and not to price ourselves out of the market,” said Northview’s Bloodstock Manager Paul O’Loughlin. “We try to go for sire power and horses with pedigree, and what’s affordable to the Maryland breeders.”

A New Jersey-bred and homebred for Isabelle de Tomaso, Irish War Cry shone as a juvenile, breaking his maiden on debut and then taking the Marylander S. On the Derby trail at three, he won the GII Holy Bull S. and GII Wood Memorial S., and later ran second to Tapwrit (Tapit) in the GI Belmont S. He came back at four to win the GIII Pimlico Special S.

O’Loughlin says that Irish War Cry’s first crop was popular with breeders from the beginning.

“It’s always a good sign when you see the first foals and people come back again. Then you know they’re good,” he said. “He’s giving them the Curlin stamp and they look pretty good from what I’ve seen. All the breeders are still interested in him and there have been inquiries already for the coming year.”

Northview will offer one Irish War Cry weanling, a colt out of the stakes-placed Pret Say Eye (Ready’s Image), selling as Hip 118.

Northview’s other first-crop weanling sire Hoppertunity began his career at stud as the richest stallion to enter stud in the Mid-Atlantic. The Bob Baffert trainee earned a pair of Grade I scores in the Clark H. at three and Jockey Club Gold Cup S. at five. In his 34 starts, he ran in the money 22 times, and was seven-times Grade I placed. At seven, he retired with earnings of over $4.7 million.

“Hoppertunity doesn’t need any introduction,” O’Loughlin said. “He ran all over the world and danced every dance with every horse around the country. He’s stamping his progeny pretty well. They’re big, strong, and have plenty of bone. They look very racey.”

The son of Any Given Saturday stood his first two seasons at Northview’s Pennsylvania location, but upon the farm’s recent consolidation, he will stand his first year in Maryland in 2021.

“He bred over 100 mares in his first two seasons, so especially now being in Maryland, it looks like he’ll continue to be popular,” O’Loughlin noted.

Northview will consign Hip 132, a son of Hoppertunity out of the Silvikova (Badge of Silver) at the upcoming Fasig-Tipton sale, while two additional weanlings by the young sire will be offered as Hip 94 with Becky Davis and Hip 127 with Bill Reightler.

In addition to watching the development of the progeny from Hoppertunity and Irish War Cry, Northview also anticipates seeing the first crop of 2-year-olds hit the track next year for three-time graded stakes winner Madefromlucky (Lookin at Lucky).

“He didn’t have huge books, but he had enough to sustain a good 2-year-old season,” O’Loughlin said. “The yearlings are pretty sharp-looking for a horse that was a distance horse, so we’re excited.”

Founded in 1989 by Richard Golden, Northview Stallion Station has since been home to several of Maryland’s leading sires including Not For Love (Mr. Prospector), who topped the state’s sire list on 14 occasions, as well as Great Notion, Maryland’s leading sire by earnings since 2018.

While restricted to a smaller book nowadays at the age of 20, Great Notion is still producing winners. During this year’s Maryland Million program at Laurel Park, his progeny accounted for four of the eight winners on the stakes card.

“He’s loved by everybody in Maryland,” O’Loughlin said. “Outside of Maryland, they show up everywhere. He’s even had runners at Royal Ascot. It’s an honor for Northview to have the best active stallion in the Mid-Atlantic at the minute.”

O’Loughlin said that Golden’s son Michael oversaw the operation’s consolidation process this year and has additional plans to better the farm moving forward.

“Michael is very enthusiastic. He’s serious and plans to do a lot of remodeling. We’re going to make it a powerhouse moving forwarding, bringing new stallions and rebuilding the farm–what Maryland needs.”

O’Loughlin said he is confident in Maryland’s breeding program, and has high hopes for Northview’s growth in the coming years.

“The Maryland Horse Breeders’ Association is doing a great job in getting people to stay and breed here,” he said. “Northview Stallion Station is doing their utmost best to bring in the best stallions they can and afford people to keep them in Maryland. It’s encouraging for the future. To have better horses, we need better mares and we need more people to stay here. But it’s working.”

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The difference in classification might seem pretty simple to determine. And the distinction is of the utmost importance in California, where Class 1 through 3 drug positives trigger automatic disqualification of horses, regardless of trainer intent or culpability.

But as four-plus hours of back-and-forth testimony and cross-examination repeatedly underscored Thursday, a definitive answer on the drug’s technical classification remains elusive and open to interpretation because of the cumbersome, bureaucratic way the CHRB has to codify its rules to comply with state law (explained below).

Beyond the objection-laden testimony over scopolamine’s classification at the time of Justify’s positive, an attorney for Bob Baffert, the colt’s trainer, argued that the stewards shouldn’t even be re-hearing the case at all because the CHRB already adjudicated it without imposing any penalization or race disqualification in an August 2018 executive session.

That controversial 2018 commission vote took place privately after a detailed–but not publicly disclosed at the time–investigation that led to the exoneration of Justify and Baffert based on a finding of accidental environmental contamination by jimson weed.

“This case was correctly decided by the CHRB in 2018. It was a final and binding decision. And nothing has changed since then, and you all should simply affirm that decision so that we can put this matter to bed once and for all,” said Baffert’s lawyer, W. Craig Robertson III.

“When that investigation was complete, there were two things that were clear, undisputed and undeniable,” Robertson continued. “Number one, that this was a case of innocent environmental contamination from hay and it was not a case of any intentional administration of any drug or medication. And number two, that the trace levels of scopolamine … had no effect on the performance of these horses and no effect on the races.”

But Robert Petersen, an attorney representing the CHRB, said he disagreed “with the idea that this is somehow a re-do of some earlier adjudication. I think the facts clearly show there has never been a full adjudication on the merits of this issue … People may have an issue with the rule [mandating Class 3 disqualifications being too] draconian. But that’s what the rule is. I can’t change the rules.”

Although Justify is the “headline horse” in the case, the stewards were combining two cases into one hearing Thursday. Also up for potential re-adjudication was the scopolamine positive of MGISW Hoppertunity, another Baffert trainee who tested dirty when winning the GIII Tokyo City Cup S. the day after Justify won the Santa Anita Derby.

For context, the two positives of the Baffert trainees were not isolated cases. In roughly the same time frame in 2018, the CHRB received positive post-race tests for scopolamine on five other horses, and the CHRB eventually treated them all as unintentional jimson weed contaminations from ingesting tainted hay.

Thursday, the CHRB’s equine medical director, Rick Arthur, DVM, was the chief witness called by Baffert’s attorney to defend the new complaint.

Arthur, who led the 2018 scopolamine investigation and had recommended not penalizing Justify, Baffert, or any of the other horses or trainers based on the findings and mitigating circumstances, testified under the unusual circumstances of disagreeing with the CHRB’s decision to have the Santa Anita stewards revisit the case. (It should be noted that the CHRB is no longer comprised of the same makeup of commissioners who were on the board in 2018).

“The entire case [of all scopolamine positives during that time frame] was dismissed. And I’m actually pretty shocked the state’s arguing otherwise,” Arthur said.

“I stand by my recommendation to the executive director and the board 100%,” Arthur continued. “This was the correct decision. It was the fair decision. Usually, regulatory agencies don’t have the guts to do what’s fair and right, and this board made that decision appropriately. I think they could be questioned about the lack of transparency. And I warned them that this was not going to stay a secret at that time. But that was their decision, not mine.”

Background on the case

Arthur’s point about the lack of transparency factors centrally in the way the Justify and Hoppertunity positives were handled in 2018. No complaints were issued at the time of findings, and the CHRB’s investigation unfolded behind the scenes while the nation was watching Justify win race after race en route to an undefeated, Triple Crown-winning season.

When the CHRB finally did vote not to penalize Justify or Baffert, it was August 2018, and their unanimous executive-session decision was not made public.

It was more than a year before news about Justify’s positive and non-penalization became widely known. On Sept. 11, 2019, the New York Times broke the story that Justify tested positive when he won the Santa Anita Derby, a GI Kentucky Derby points qualifying race that vaulted him into contention for the Triple Crown.

That revelation sparked a January 2020 lawsuit initiated against the CHRB by Mick Ruis, who owned and trained the 2018 Santa Anita Derby runner-up, Bolt d’Oro. In his suit, Ruis alleged that the CHRB’s secret vote to dismiss the case led Ruis to suffer “the loss of purse caused by the CHRB’s failing to disqualify Justify and re-distribute the purse for the positive test result.”

Eight months later, as part of a negotiated settlement to get Ruis to drop his lawsuit, the CHRB again met in closed session, voting Aug. 20, 2020 to reverse its previous course of no action and to proceed with a complaint seeking the disqualification of Justify and the redistribution of the purse from that stakes.

So is scopolamine Class 3 or 4?

The new complaint that the stewards were tasked with adjudicating Thursday pertains to possible race disqualifications for Justify and Hoppertunity, and not punishment of Baffert.

The bone of contention that came up early and often was how California classified scopolamine at the time of the offenses.

The CHRB, by its own regulation, follows the Association of Racing Commissioners International (ARCI) Uniform Classification Guidelines for Foreign Substances and Recommended Penalties when establishing model rules for drugs. The ARCI once classified scopolamine as a Class 3 drug (lower-number classifications are more severe). But in December 2016, the ARCI reclassified it to a lesser Class 4 offense.

Arthur testified that the CHRB fully intended to follow the ARCI’s model rule that reclassified scopolamine (and other drugs that also changed classes). But since California’s Office of Administrative Law doesn’t allow the CHRB to change rules by automatically referencing another authority’s code, the racing agency has to go through a drawn-out process to make even minute changes such as drug reclassifications.

So because of this bureaucratic backlog, scopolamine in 2018 was still technically Class 3 in California, even though Arthur and the CHRB considered it to match the ARCI’s newer Class 4 downgrade.

Arthur explained how as the equine medical director, he has regulatory leeway to take into consideration mitigating circumstances, and that’s what he did when recommending no initial penalties for the scopolamine positives.

“It is inherently unfair to hold somebody to a classification that is outdated because of regulatory inefficiency,” Arthur said.

But Petersen, the CHRB attorney, said regardless of Arthur’s intent and interpretation, that’s not how the scopolamine rule was on the books at the time Justify and Hoppertunity tested positive.

“It is true that scopolamine was later reclassified as Class 4. But that did not happen until January 2019,” Petersen said.

In concluding remarks, Robertson urged the stewards to consider the wider, precedent-setting implications of not allowing the scopolamine adjudications from 2018 to remain intact.

“You, as stewards, always have discretion to do what’s right and just,” Robertson said. “And not only do you have that discretion, you should exercise that discretion. Not just for the parties in this case, but for the horse industry as a whole.”

CHRB steward John Herbuveaux, who moderated the proceedings, cautioned all parties at the conclusion of the hearing that a decision is “not going to be something that’s going to happen in the very near future.”

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Both horses tested positive for the banned substance scopolamine: Justify, after his win in the Grade 1 Santa Anita Derby; and Hoppertunity in the Grade 3 Tokyo City Cup.

Los Angeles Superior Court Judge James C. Chalfant denied an application for a temporary restraining order requested by attorneys for WinStar Farm, China Horse Club, Head of Plains Partners, and Starlight Racing, the owners of Justify, and Michael Pegram, Karl Watson and Paul Weitman, the owners of Hoppertunity. Trainer Bob Baffert and jockeys Mike Smith and Flavien Prat were also named as petitioners in the case.

Earlier this year, the CHRB settled a lawsuit filed by Mick Ruis, owner of Santa Anita Derby runner-up Bolt d'Oro, conditional on the stewards conducting a hearing into Justify's positive drug test. The case was not pursued in 2018 after CHRB members voted unanimously in closed-door executive session – upon the recommendation of equine medical director Dr. Rick Arthur and then-CHRB executive director Rick Baedekr – not to file complaints. Arthur and Baedeker had investigated the cases and concluded the positive tests were a result of hay contaminated with jimson weed.

Ruis filed suit after learning of the CHRB's actions from a 2019 report in the New York Times.

Attorneys for the connections of the two horses argued  that the CHRB was violating government code by reopening a case more than two years after the fact. Attorneys for the state said the petitioners were premature in seeking judicial review because the cases had not yet gone through the administrative process (i.e., a stewards hearing).

“At this hearing, the parties will have the opportunity to present evidence and make argument,” the state said in its opposition to the restraining order. “After the hearing, the Board of Stewards will render a decision. The decision by the Board of Stewards could be in favor of Petitioners or could be against Petitioners. If Petitioners take issue with the decision by the Board of Stewards following the Oct. 29, 2020, hearing, they can file a petition for writ of mandate. … Instead of following the procedures set forth by California law, Petitioners want this court to prematurely intervene and short-circuit the administrative processes of the CHRB.”

Darrell Vienna, an attorney for Ruis, issued a statement after the ruling that stated: “We are pleased that Judge Chalfant saw through this flimsy attempt to delay or avoid a long overdue and proper treatment of the positive tests involving these two horses.”

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The petition, filed Tuesday in Los Angeles County Superior Court, seeks a judgment, injunction, and “peremptory writ of mandate commanding Respondent CHRB to dismiss the Complaints filed against Petitioners and cancel all hearings on the matter.”

The petitioners–Baffert, WinStar Farm LLC, China Horse Club, Head of Plains Partners LLC, Starlight Racing, Michael Pegram, Karl Watson, Paul Weitman, Mike Smith, and Flavien Prat–are also going after the CHRB for unspecified monetary damages, attorney fees, and court costs, plus “other, different, or further relief as the Court may deem just and proper,” according to the 26-page court filing.

“This action challenges the CHRB’s groundless decision to reopen a closed matter and conduct a retroactive hearing with an apparently foregone conclusion to disqualify and redistribute winnings from horse races that occurred two and a half years ago. When those races [the [GI] Santa Anita Derby and [GIII] Tokyo City Cup] were run in April 2018 and two horses (Justify and Hoppertunity, respectively) were declared the winners, the CHRB decided the very issue it is seeking to revisit now,” the court documents state.

“The CHRB has no legal or factual basis for reopening its prior final decision,” the filing continues. “As the CHRB knew when it decided this issue in 2018, both Justify and Hoppertunity tested positive for scopolamine just after their respective races in April 2018. But after a thorough investigation and deliberation, consistent with the well-established equine science and its very own governing statute and rules, the CHRB correctly decided that the positive results were due to naturally occurring contamination in the horses’ feed and therefore dismissed the matter. Now, after almost two and a half years, the CHRB has issued complaints and announced it intends to hold a hearing [Oct. 29] to consider retroactively disqualifying these two horses.”

The filing contends that “The CHRB’s attempted proceedings, however, ignore a critical element: the CHRB could not have disqualified either horse in 2018 and cannot do so now because scopolamine is a classified substance that, by law, does not permit disqualification. Further, the CHRB has no authority, or basis, to reopen this closed matter. Rather, the CHRB has admitted it has issued its complaints and is holding a hearing simply to dispose of a civil action brought against it by a race runner-up, and solely as a way to avoid further litigation and expense in that lawsuit.”

According to the Oct. 13 filing, “All racing jurisdictions have rules that govern the sport and the presence of medications and substances in post-race blood and urine tests. California is no different, and the April 2018 tests were taken pursuant to those rules. Specifically, California’s classification system delineates five classes of substances [and] four categories of penalties. [The more egregious and harmful] Class 1-3 substances correspond with penalty categories A and B, while Class 4-5 substances are associated with penalty categories C and D.”

“At the time of the 2018 Santa Anita Derby, just as it is today, the CHRB’s rules designated scopolamine as a Class 4, penalty C substance. Significantly, disqualification is not an authorized penalty for Class 4, penalty C substances. Plainly stated, disqualification premised on the presence of scopolamine was not a permissible option for the CHRB in April 2018 under its own rules [nor is it an option today].”

The filing continues: “There have been numerous incidents of jimson weed contaminating bales of hay, leading to what are called ‘clusters’ of horses testing positive for scopolamine when they unknowingly ingest contaminated feed. Fortunately, there is a proven scientific method for determining whether the presence of scopolamine in a horse is due to intentional administration or is the result of innocent contamination from hay. If the horse has ingested jimsonweed, blood tests of that horse will reveal the presence of atropine. On the other hand, if scopolamine has been intentionally administered, atropine will not be present.”

“Racing commissions routinely use the presence or absence of atropine in the blood as a determinative factor in deciding whether to pursue complaints against an owner or trainer.. Equally important, the amounts of scopolamine found in the blood of Justify and Hoppertunity..were small enough that they would have no pharmacological effect in a horse.”

The filing states that, “There were five other horses who tested positive for scopolamine during this time period. All seven horses were investigated by Dr. Rick Arthur, the CHRB’s Equine Medical Director, and Rick Baedeker, the CHRB’s Executive Director. Arthur and Baedeker determined that the cluster of scopolamine positives at Santa Anita in 2018 was the result of contaminated hay. They found jimson weed in hay that had been delivered to Santa Anita and the blood and urine samples of all the horses revealed the presence of atropine. The investigation and science were conclusive: this was a case of environmental contamination that had no effect whatsoever on all seven horses tested that day, nor the outcome of their respective races. Thus, Arthur and Baedeker jointly recommended to the Board of the CHRB that all seven cases be dismissed.”

“Arthur and Baedeker’s recommendation was presented to the Board of the CHRB, which voted unanimously to dismiss all seven cases. That decision was not only proper, it was the only one the CHRB could make under its own rules..In sum, the cases for the seven horses testing positive for scopolamine in April 2018..were all thoroughly and properly investigated and were

all dismissed. The science was not only overwhelming, it ‘mandated’ such a result.”

The filing further contends that a January 2020 lawsuit initiated against the CHRB by Mick Ruis, who owned and trained the 2018 Santa Anita Derby runner-up, Bolt d’Oro, is “the only reason the CHRB has decided to reopen the formally closed decisions with respect to Justify,” because the CHRB “agreed to do so as part of a private settlement.”

In his suit, Ruis alleged that the CHRB’s August 2018 vote to dismiss the case against Justify led Ruis to suffer “the loss of purse caused by the CHRB’s failing to disqualify Justify and re-distribute the purse for the positive test result.”

The Oct. 13 filing states that, “the CHRB is only attempting to reopen its 2018 decision regarding Hoppertunity because that horse too was trained by Bob Baffert” and that, “the CHRB agreed to file the [Aug. 25, 2020] complaints against Justify and Hoppertunity solely to avoid further litigation costs associated with its legal defense in the Ruis lawsuit and to placate the race runner-up.”

The Baffert, et al, filing states that as a result of the CHRB’s unlawful conduct, the petitioners have, “suffered harm, including damage caused to Justify’s and Hoppertunity’s reputations, as award-winning Thoroughbred horses.”

But the Oct. 13 court documents do not provide specific details about the exact nature of this alleged harm.

“Unless [the CHRB] is restrained and enjoined from reopening these actions that were previously and rightfully dismissed, Petitioners’ rights will continue to be violated, as they have no plain, speedy, or adequate remedy at law; injunctive relief is the only legal means available to protect their legal rights,” the filing concludes.

The post Justify, Hoppertunity Connections Seek Court Block of CHRB Scopolamine Re-Hearings appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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The writ of mandate, filed on Oct. 13, claims Aug. 25, 2020, actions by the CHRB to reopen the cases are “void, arbitrary, capricious, unconstitutional, beyond the power of the CHRB, and a prejudicial abuse of discretion.” It alleges the CHRB has violated California Code of Regulations and Government Code as well as the due process rights of the petitioners under the U.S. Constitution.

Justify and Hoppertunity, along with five other unnamed horses, tested positive for scopolamine in 2018. According to the legal filing, the Justify and Hoppertunity cases were investigated by the CHRB's equine medical director, Dr. Rick Arthur, and then-CHRB executive director Rick Baedeker. Both determined the “cluster” of scopolamine positives at Santa Anita in 2018 resulted from hay contaminated with jimson weed, proof of which, the writ of mandate states, is that all horses also indicated the presence of atropine, which it states is a “definitive marker of environmental contamination.”

Arthur and Baedeker recommended to the CHRB members in closed-door executive session that all seven scopolamine cases be dismissed, and the board in place at the time unanimously voted to support that recommendation, according to the action filed Oct. 13. The CHRB has several new members who were not on the regulatory body  in 2018.

It wasn't until a September 2019 report in the New York Times that the positive drug tests and decision not to conduct stewards hearings were revealed. Several months later, Mick Ruis, owner of Santa Anita Derby runner-up Bolt d'Oro, filed suit against the CHRB demanding the case against Justify be reopened. Ruis stood to gain $400,000 in purse money (the difference between $600,000 for first and $200,000 for second) and other possible gains if Bolt d'Oro were declared winner of the Grade 1 race.

The Santa Anita Derby win by Justify in his stakes debut earned the Scat Daddy colt 100 qualifying points for the Kentucky Derby. He went on to win the Kentucky Derby, Preakness and Belmont Stakes, then retired to stud undefeated in six starts after being sold to Coolmore Stud for a reported $60 million.

As part of a settlement agreement with Ruis, the CHRB said it would file a complaint against the owners of Justify and conduct a purse disqualification hearing. The CHRB also filed a complaint against the owners of Hoppertunity, though not against the other five unnamed horses testing positive for scopolamine.

The owners of Justify at the time were WinStar Farm LLC, China Horse Club, Head of Plains Partners LLC and Starlight Racing. The owners of Hoppertunity were Michael Pegram, Karl Watson and Paul Weitman.

Attorneys for he petitioners contend scopolamine was – at the time of the April 2018 victories by Justify and Hoppertunity – a Class 4 drug with a C penalty classification under Association of Racing Commissioner guidelines. As such, they contend, a positive test for scopolamine would not trigger a disqualification.

They also contend the CHRB did not act in a timely manner in reopening the cases.

The legal action accuses the CHRB of violating its own rules and engaging in “unfair, arbitrary and capricious conduct. Petitioners have been intentionally treated differently from others similarly situated and there is no rational basis for he difference in treatment.”

As a result of the CHRB's actions, the writ of mandate alleges, the connections of Justify and Hoppertunity “have suffered damages, including in the form of reputational harm.”

The petitioners are seeking a writ of mandate from the court ordering the CHRB to dismiss the complaints and cancel all hearings related to Justify and Hoppertunity's positive tests. They are also seeking unspecified damages, along with attorneys' fees and court costs.

The post Connections Of Justify, Hoppertunity Seek To Prevent CHRB From Conducting Hearings Into 2018 Scopolamine Positives appeared first on Horse Racing News | Paulick Report.

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