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Ross A. Croghan v. New Jersey Racing Commission

January 26, 2011

ROSS A. CROGHAN, APPELLANT,
v.
NEW JERSEY RACING COMMISSION, RESPONDENT.



On appeal from a Final Decision of the New Jersey Racing Commission.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 19, 2010 - Decided Before Judges Payne and Baxter.

Ross Croghan, a horse owner, trainer and driver, appeals from (1) a June 18, 2008 decision of the New Jersey Racing Commission (the Commission) adopting a decision by an administrative law judge (ALJ) to deny Croghan's motion to compel discovery; (2) a December 1, 2009 decision of the Commission adopting the ALJ's initial decision to suspend Croghan's license and impose other penalties; (3) a February 1, 2010 decision denying Croghan's request to stay his suspension pending appellate review; and (4) a February 23, 2010 decision denying Croghan's application for a 2010 trainer's license.

On appeal, Croghan raises the following issues:

POINT I THE APPELLANT HAS A CONSTITUTIONALLY-PROTECTED PROPERTY RIGHT THAT CANNOT BE TAKEN WITHOUT DUE PROCESS OF LAW.

POINT II THE APPELLANT WAS WRONGFULLY DENIED NECESSARY DISCOVERY.

A. "Overly Burdensome" is Not a Basis to Deny Factual Discovery.

B. The TCO2 Rule is Based Upon Hypotheses and Assumptions.

C. The Denial of Discovery Denied Due Process to the Appellant.

POINT III THE APPELLANT HAS NOT RECEIVED DUE PROCESS.

A. The Summary Disposition Denied the Appellant the Right to Confront and Cross-Examine the Commission's Witnesses.

B. The "Absolute Trainer Liability" Rule is Unconstitutional and Improper as Applied to the Appellant Via the TCO2 Testing Regime.

POINT IV THE EXECUTIVE DIRECTOR WRONGFULLY ENHANCED THE PENALTY.

POINT V THE EXECUTIVE DIRECTOR WRONGFULLY DENIED THE APPELLANT A STAY PENDING JUDICIAL APPEAL. POINT VI THE APPELLANT WAS WRONGFULLY DENIED HIS 2010 TRAINER'S LICENSE.

I.

This case involves an alleged violation of the medication rules promulgated by the Commission as applicable to horses engaged in harness racing in New Jersey, their owners and their trainers. N.J.A.C. 13:71-23.1(a) sets forth the intent of the rules, stating:

(a) It shall be the intent of these rules to protect the integrity of horse racing, to guard the health of the horse, and to safeguard the interests of the public and racing participants through the prohibition and/or control of all drugs and/or substances foreign to the natural horse. For the purpose of these rules, a drug and/or substance administered to a horse is foreign to the natural horse irrespective of whether the said drug and/or substance is also naturally occurring to the horse.

Among the performance-enhancing substances that the regulations prohibit from being administered to a horse prior to a race is sodium bicarbonate or baking soda. N.J.A.C. 13:71-23.1(b)10.

To determine whether such administration has occurred, a process known as "milkshaking,"*fn1 the regulations provide for preand post-race testing of any horse entered to start at any licensed race meeting. N.J.A.C. 13:71-23.2. Whether milkshaking has taken place is determined by measuring the total carbon dioxide (tCO2) present in the horse's blood plasma following a ...


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