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Campbell v. New Jersey Racing Commission

October 11, 2001


The opinion of the court was delivered by: Verniero, J.

Argued September 10, 2001

On certification to the Superior Court, Appellate Division.

This appeal implicates the standards governing appellate review of administrative actions. Specifically, it involves the method by which the New Jersey Racing Commission (Commission) measures the level of total carbon dioxide (tCO2) in race horses. An abnormally high level of tCO2 is an indication that a horse has ingested or been injected with sodium bicarbonate or other substances to enhance the horse's performance during a race. That process of ingestion or injection is known in the racing industry as "milkshaking."

In this case, the Commission found that a horse contained impermissible levels of tCO2 in its blood following a race at Freehold Raceway. Accordingly, the Commission assessed penalties against the horse's trainer, James Campbell (respondent), consistent with the agency's regulations. The Appellate Division set aside the Commission's actions. We granted the Commission's petition for certification, 167 N.J. 90 (2001), and now reverse.


In accordance with its statutory authority, see N.J.S.A. 5:5-30, the Commission promulgated certain regulations setting forth the standards and procedures by which it would test for impermissible levels of tCO2 and assess penalties against any trainer of a horse found in that condition. Specifically, N.J.A.C. 13:71-23.1(b) states in relevant part:

On the day of the race, irrespective of the date, time and method of administration, no horse entered to start in or participating in any race shall carry in its body any drug and/or substance foreign to the natural horse . . . [including] . . . [s]odium bicarbonate (baking soda) . . . [and] . . . [m]ixtures, compounds or solutions commonly referred to as "milkshakes" which contain any prohibited drug and/or substance.

Further, N.J.A.C. 13:71-23.3A(a) states in relevant part:

An excess level of total carbon dioxide [tCO2] in the race horse is deemed adverse to the best interests of harness racing, and adverse to the best interests of the horse in that such condition alters its normal physiological state. Accordingly, . . . on the date of the race and following a minimum one-hour standing at rest period for the horse subsequent to the conclusion of the race within which it competed, a State Veterinarian representing the Commission may obtain blood samples from the horse for the purpose of the testing of said samples by the Racing Commission laboratory for [tCO2] level on a Clinical Auto Analyzer that applies an ion selective electrode method (ISE) for measuring [tCO2] in blood. Where the [tCO2] level, based upon such testing equals or exceeds the following levels, the judges shall order the relief authorized pursuant to (b) . . . :

1. Thirty-seven (37) or more millimoles per liter[.]

As a penalty for a first violation, subsection (b) provides that the trainer, "as the absolute insurer of the horse[,]" shall have his or her license suspended for a 75-day period, be ordered to pay a $1000 fine, "and be denied the privileges of all grounds subject to the jurisdiction of the Commission during the suspension period." N.J.A.C. 13:71-23.3A(b)1.

On October 25, 1997, Ramses Two (Ramses), a standard-bred horse trained by respondent, won a harness race at Freehold Raceway. After the race, and in accordance with the procedures set forth in the Commission's regulations, a track veterinarian extracted a blood sample from the horse to test for impermissible levels of tCO2. The test indicated a level of tCO2 in Ramses that exceeded the regulatory limit of 37 millimoles per liter (mmol/l). (A "mole" is a measure of molecular weight. A "millimole" is one one-thousandth of a mole.) The initial testing consisted of a screening test and a second confirmatory test, both of which detected excess levels of tCO2 in Ramses' blood.

Based on that initial testing, the Commission's board of judges charged respondent with a regulatory violation. Respondent disputed the charge. He invoked a provision of the Commission's procedures that requires a horse whose level of tCO2 has exceeded the permissible limit to be placed under guarded quarantine and re-tested to enable the animal's owner or trainer to demonstrate that such level is "physiologically normal for the particular horse[.]" N.J.A.C. 13:71-23.3A(c). The results of the re-test administered during the quarantine period confirmed that Ramses' previously-tested level of tCO2 was abnormal.

The Commission sanctioned respondent as a first-time violator. Respondent then requested a hearing before an administrative law judge (ALJ), and the matter proceeded as a contested case in accordance with statutory procedures. See N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.

The ALJ conducted a seven-day hearing during which the parties presented sharply divided expert testimony regarding the method by which the Commission tests equine plasma for impermissible levels of tCO2. That method involves a machine, the Beckman EL-ISE instrument, used by the Commission as the Clinical Auto Analyzer noted in N.J.A.C. 13:71-23.3A. Respondent does not challenge the use of the machine but rather ...

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