On appeal from the decision of the New Jersey Racing Commission.
Dreier, Havey and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff, Jack Moiseyev, a harness driver, appeals from a decision of the New Jersey Racing Commission suspending his harness driver's license for a period of 30 days for an alleged violation of N.J.A.C. 13:71-20.10(b). He here claims that the regulation was unconstitutionally vague; that there was an insufficient basis for the Commission's conclusions that he violated the regulations; that the earlier hearings, prior to the submission of the matter to an administrative law judge, violated plaintiff's due process rights; and that the 30-day suspension was an unwarranted punishment for the alleged breach. With the exception of plaintiff's arguments concerning the length of the suspension, we find the points he raises to be unavailing.
On August 22, 1987, plaintiff drove a horse named Righteous Bucks in the tenth race at Freehold Raceway. The horse was one of six in the race and was favored to win, but finished third. The presiding race judge that day, Peter Virag, directed that plaintiff be cited to appear before the Freehold Raceway's Board of Stewards, as Virag felt plaintiff had shown "bad judgment" during the ride.
A jockey's conduct during a race is governed by N.J.A.C. 13:71-20.10. Subsection (a) regulates fraud or a "fixed" race; plaintiff was not charged under that subsection. Subsection (b), however, provides:
In the event a drive is unsatisfactory due to lack of effort, carelessness, misjudgment, or demonstrated lack of judgment in performance, and the judges believe that there is no fraud, gross carelessness, or a deliberate inconsistent drive, they [the race judges] may impose a penalty [similar to those available in subsection (a)] under this subsection.
The Raceway Board of Stewards determined that plaintiff violated this section in that his drive had been "unsatisfactory due to lack of effort, carelessness, misjudgment or demonstrated lack of judgment in performance," and imposed a 30-day suspension. Plaintiff then appealed to the State Steward who, after a two-day hearing, upheld the decision and reimposed the
30-day suspension. Plaintiff thereupon appealed to the New Jersey Racing Commission, which assigned the matter for a hearing de novo before an administrative law judge.
At the administrative hearing, the judge took substantial testimony, principally from plaintiff, his experts, Mr. Virag, and the State Steward. The judge also viewed a videotape of the race. Plaintiff explained that the horse had not acted right and he was afraid the horse would "break if I pushed him and there's a guy right on my back. I would have caused a crash." He insisted that he had been trying to win, but the horse had difficulty with the last turn, and therefore was unable to gain the lead. Plaintiff further claimed that the horse had physical problems at the time, and in fact was treated the next day by a veterinarian. Since the horse was entered in a substantial stakes race the next week, the trainer had instructed plaintiff "not to abuse the horse" (in the owner's words) or to "try not to rough him up too much" (in plaintiff's words). The track judge, however, pointed out specifically where plaintiff should have given more effort, and the State Steward similarly testified and characterized plaintiff as having exercised "very poor judgment" in the way the race was run.
Plaintiff initially contends that the regulation under which the penalty was assessed is unconstitutionally vague, both on its face and as applied to him. Of the four possible charges that could have been levied against the plaintiff (lack of effort, carelessness, misjudgment, or demonstrated lack of judgment in performance), plaintiff was suspended only for "lack of effort," i.e., "lack of effort in getting after the horse." Plaintiff contends that this term vests unfettered discretion in the Racing Commission, and fails to give drivers sufficient notice of the interdicted conduct. Furthermore, plaintiff claims that a reviewing court has "no objective standard by which it can determine whether in fact a violation has occurred."
The Supreme Court has stated that the test for facial invalidity is whether the language is "so ...