Moody et al v. Michigan Gaming Control Board et al
Filing
231
OPINION and ORDER Granting Defendants' 206 Renewed MOTION for Summary Judgment and Denying Plaintiffs' 201 Renewed MOTION for Summary Judgment. Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN MOODY, ET AL.,
Plaintiffs,
Case No. 12-cv-13593
v.
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
MICHIGAN GAMING CONTROL
BOARD, ET AL.,
UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
Defendants.
/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [#206] AND DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT [#201]
I. INTRODUCTION
For the third time, Plaintiffs’ and Defendants’ cross-motions for summary
judgment are before the Court. Plaintiffs initiated this action on August 14, 2012,
alleging several civil rights violations under 42 U.S.C. § 1983. Dkt. No. 1. Since
then, this case has been appealed to the Sixth Circuit and sent back on remand on
two different occasions. Dkt. No. 134; Dkt. No. 195.
Present before the Court are Plaintiffs’ Motion for Summary Judgment
[#201], filed on July 19, 2018, and Defendants’ Motion for Summary Judgment
[#206], filed on August 13, 2018. After reviewing the briefs, the Court finds that
no hearing on the Motions is necessary. See E.D. Mich. LR 7.1(f)(2). For the
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reasons set forth below, the Court will GRANT Defendants’ Motion [#206] and
DENY Plaintiffs’ Motion [#201].
II. FACTUAL BACKGROUND
Plaintiffs John Moody, Donald Harmon, Ricky Ray, and Wally
McIllmurray, Jr. (“Plaintiffs”) are harness-racing drivers in the state of Michigan.
Dkt. No. 1, p. 3 (Pg. ID 3). In 2010, Defendant Michigan Gaming Control Board
(“MGCB”) launched an investigation into claims of race-fixing, and Plaintiffs were
among several harness-racing drivers subpoenaed to appear before a panel of
stewards from the Michigan Racing Commission to answer these allegations. Id.
at pp. 3-4 (Pg. ID 3-4).
The day before Plaintiffs were scheduled to appear before the stewards,
Michigan State Police Detective Thomas DeClercq contacted Plaintiffs’ attorney
and informed him that Plaintiffs would be arrested, criminally charged, and
arraigned following their hearings. Dkt. No. 90, p. 2 (Pg. ID 1447). On the advice
of counsel, Plaintiffs chose to assert their Fifth Amendment rights against selfincrimination and refused to answer any of the stewards’ questions at the hearings.
Id. Plaintiffs also refused to produce any of their financial records. Id.
Immediately following the hearings, the stewards -- Defendants Daryl
Parker, Richard Garrison, and Billy Lee Williams (“Defendant Stewards”) -- voted
unanimously to suspend Plaintiffs’ harness-racing licenses through the end of the
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calendar year. Dkt. No. 206, p. 15 (Pg. ID 4372). The reason being that Plaintiffs
failed to cooperate during the hearings, as required by Michigan Horse Racing Law
§ 431.1035(2)(d). Id. That section, in relevant part, provides, “the applicant [for
an occupational license, such as a license to race horses] . . . shall cooperate in
every way . . . during the conduct of an investigation, including responding
correctly . . . to all questions pertaining to racing matters.” Dkt. No. 1, p. 5 (Pg. ID
5). Because Plaintiffs chose to invoke their Fifth Amendment rights, as opposed to
answering any questions at the hearings, Defendant Stewards found that Plaintiffs
had violated § 431.1035(2)(d). Dkt. No. 206, p. 15 (Pg. ID 4372).
On May 26, 2010, Plaintiffs filed an administrative appeal of their
suspensions with Defendant MGCB. Dkt. No. 90, p. 2 (Pg. ID 1447). At the same
time, Plaintiffs filed an action in the Wayne County Circuit Court seeking
injunctive relief.
Id.
Consequently, Defendant MGCB had to stay the
administrative appeal pending the state court ruling. Dkt. No. 206, p. 17 (Pg. ID
4374).1
While the state court case was pending, Defendant Richard Kalm -- Racing
Commissioner and Executive Director of the MGCB -- issued orders of exclusion
that prohibited Plaintiffs from accessing any state-regulated facilities and tracks.
Dkt. No. 206, p. 17 (Pg. ID 4374). These orders, issued on November 30 and
1
The Michigan Court of Appeals ultimately denied Plaintiffs’ request for
injunctive relief on July 21, 2011. Dkt. No. 90, p. 3 (Pg. ID 1448).
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December 7, 2010, stated that Plaintiffs were excluded “based on the continued
and ongoing administrative investigation into race fixing, information that
[Plaintiffs were] involved in race fixing, and [their] failure to cooperate.” See id.;
Dkt. No. 90-14.
In August 2011, Plaintiffs Moody, McIllmurray, and Harmon attempted to
reapply for their harness-racing licenses. Dkt. No. 213, p. 19 (Pg. ID 4471). They
were unsuccessful. In letters addressed to these three Plaintiffs, dated September
15, 2011, Defendant Al Ernst -- Horse Racing Manager for the MGCB -- wrote the
following: “Neither you nor your attorney filed an appeal to the Order of Exclusion
and the time [to] appeal the Order has passed. Due to your exclusion for failing to
cooperate we cannot consider your application.” Dkt. No. 85-16. Defendant Ernst
wrote to the three Plaintiffs again on November 16, 2011 stating: “The time to
appeal the Exclusion Order has long passed. By filing an application it seems that
you are attempting to recreate either an administrative or judicial appeal process
that has been exhausted.” Dkt. No. 98-16.
On January 13, 2012, Plaintiffs received letters from Eric Pederson of the
MGCB again explaining why their licenses were suspended in 2010 and informing
them that the reason their license applications have been rejected is because of
their exclusion orders. Dkt. No. 98-17. Pederson’s letter reiterated that Plaintiffs
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had not appealed the exclusion orders. Id. But Pederson noted that Plaintiffs could
now pursue an administrative appeal of their suspensions. Id.
On November 27, 2012, Plaintiffs formally requested an administrative
appeal of both their suspensions and their exclusion orders. Dkt. No. 206, p. 17
(Pg. ID 4374); Dkt. No. 85-14.
After ongoing discussions with Defendants,
Plaintiffs received an administrative hearing on April 25, 2013. Dkt. No. 206, p.
17 (Pg. ID 4374).
III. PROCEDURAL BACKGROUND
This case is before the Court for a third time after being sent back on remand
by the Sixth Circuit on two different occasions. Plaintiffs first moved for summary
judgment on June 17, 2013, arguing Defendants subjected them to unconstitutional
conditions and denied them due process under the law by (1) punishing them for
invoking their Fifth Amendment rights against self-incrimination, (2) suspending
their harness-racing licenses and excluding them from the harness-racing industry
without a proper hearing, (3) denying them the right to appeal their exclusion
orders, and (4) denying them the right to reapply for their harness-racing licenses.
Dkt. No. 90. Defendants filed a cross-motion for summary judgment, arguing they
were entitled to qualified immunity. Dkt. No. 85. At the time, the Court agreed.
Dkt. No. 120.
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In a November 27, 2013 Opinion and Order, the Court granted Defendants
motion for summary judgment, holding: (1) Plaintiffs were not subjected to
unconstitutional conditions when they were given the choice to either invoke their
rights against self-incrimination or face suspension, because any statements they
made would have been protected by automatic immunity if they were later tried in
a criminal court; (2) Plaintiffs had adequate notice and an opportunity to be heard
before their harness-racing licenses were suspended, thereby negating any
procedural due process concerns; and (3) Plaintiffs had no property interest in the
mere expectation of being licensed in the horse-racing industry. Id. Plaintiffs
appealed these rulings to the Sixth Circuit. Dkt. No. 134.
On June 16, 2015, the Sixth Circuit issued an opinion reversing the Court’s
summary judgment ruling in part (“Moody I”). Id. The Sixth Circuit held, (1)
Plaintiffs’ rights against self-incrimination were violated because the state had not
affirmatively immunized them from criminal prosecution and such immunity did
not apply automatically; (2) Plaintiffs did receive adequate procedural due process
with respect to the suspension of their harness-racing licenses, but whether they did
with respect to their exclusion orders was an open question; and (3) Plaintiffs had a
property interest in their harness-racing licenses. Id.
The Sixth Circuit then
remanded the case back to this Court to resolve three questions: (1) Did the
violation of Plaintiffs’ Fifth Amendment self-incrimination rights involve a
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violation of clearly established rights? (2) If so, should a person in Defendants’
position have known about these clearly established rights? (3) Did Defendants
construe Plaintiffs’ 2011 license applications as requests for an administrative
appeal of their exclusion orders, and thus, deny Plaintiffs procedural due process
by not scheduling a prompt appeals hearing? Id.
After the case was remanded to this Court, Plaintiffs and Defendants again
filed cross-motions for summary judgment. Dkt. No. 138; Dkt. No. 144. On
August 15, 2016, the Court issued an Opinion and Order denying Plaintiffs’
motion and granting Defendants’ motion in part. Dkt. No. 172. The Court held,
(1) the violation of Plaintiffs’ Fifth Amendment rights against self-crimination did
not involve clearly established rights, and (2) there was a genuine dispute of
material fact surrounding whether Defendants construed Plaintiffs’ 2011 license
applications as requests for an administrative appeal of their exclusion orders. Id.
Subsequently, the case went back up to the Sixth Circuit for a second time. Dkt.
No. 195.
On September 11, 2017, the Sixth Circuit issued an opinion reversing the
Court’s findings on Plaintiffs’ Fifth Amendment self-incrimination claims,
concluding that this right was clearly established at the time of the violation
(“Moody II”). Id. at p. 14 (Pg. ID 4303). The Sixth Circuit, however, affirmed the
Court’s findings on Plaintiffs’ procedural due process claims surrounding the
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appeal of their exclusion orders. Id. at p. 10 (Pg. ID 4299). Thereafter, the case
was sent back to this Court on remand for what hopes to be a final time.
IV. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if ‘there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must view the facts, and draw
reasonable inferences from those facts, in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. No genuine dispute of material fact
exists where the record “taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Ultimately, the court evaluates “whether the
evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.
V. DISCUSSION
Relying on the Sixth Circuit’s opinion in Moody II, which concluded that
Plaintiffs’ rights against self-incrimination were clearly established at the time they
were violated, Plaintiffs move for summary judgment on their Fifth Amendment
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claims. Dkt. No. 201, pp. 14, 16 (Pg. ID 4336, 38). In addition, Plaintiffs move
for summary judgment on their procedural due process claims, arguing it is
undisputed that Defendants construed Plaintiffs’ 2011 license applications as
requests for an administrative appeal of their exclusion orders.
Id.
Because
Defendants failed to schedule a prompt hearing following these requests, Plaintiffs
maintain that this was a violation of their procedural due process rights. Id.
Defendants also move for summary judgment on Plaintiffs’ Fifth
Amendment self-incrimination claims, asserting quasi-judicial immunity. Dkt. No.
206., p. 18 (Pg. ID 4375). Further, Defendants oppose Plaintiffs’ request for
summary judgment on the procedural due process claims, arguing that a genuine
dispute of material fact still remains surrounding whether Defendants construed
Plaintiffs’ 2011 license applications as requests for an administrative appeal of
their exclusion orders. Dkt. No. 213, p. 14 (Pg. ID 4466).
Here, the Court finds that (1) Defendants are entitled to quasi-judicial
immunity on Plaintiffs’ Fifth Amendment self-incrimination claims, and (2) a
genuine dispute of material fact remains surrounding whether Defendants
construed Plaintiffs’ 2011 license applications as requests for an appeal of their
exclusion orders.
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A. Defendants are Entitled to Quasi-Judicial Immunity on Plaintiffs’
Fifth Amendment Self-Incrimination Claims.
1. Defendants Gary Post, John Lessnau, and Al Ernst Lacked the Sufficient
Personal Involvement Necessary to be Held Liable on Plaintiffs’ Fifth
Amendment Self-Incrimination Claims.
As an initial matter, Plaintiffs’ Fifth Amendment claims stem from the
decisions to suspend Plaintiffs’ harness-racing licenses and exclude them from
state-regulated facilities and tracks. Not all of the Defendants in this case were
involved in those decisions; rather, only Defendant Stewards and Defendant Kalm
took part in these actions. Defendants Post, Lessnau, and Ernst had no such
involvement, and Plaintiffs have failed to put forth any arguments suggesting that
they were involved.2 Because a defendant’s liability in a § 1983 suit depends on
the individual’s personal actions, Defendants Post, Lessnau, and Ernst are entitled
to summary judgment on Plaintiff’s Fifth Amendment claims. See Grinter v.
Knight, 532 F.3d 567, 575 (6th Cir. 2008).
2. Defendant Stewards did not Act in the Clear Absence of All Jurisdiction.
Another preliminary matter the Court must address is whether Defendant
Stewards had jurisdiction over Plaintiffs’ disciplinary hearings, such that they can
assert the defense of quasi-judicial immunity. Plaintiffs cite to Stump v. Sparkman
2
Plaintiffs chose not to file a reply to Defendants’ response to Plaintiffs’ Motion
for Summary Judgment.
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for the proposition that absolute immunity does not apply where one acts in the
“clear absence of all jurisdiction.” See 435 U.S. 349, 356-57 (1978). Here,
Plaintiffs argue that Defendant Stewards were not officially appointed as stewards,
and thus, were operating outside of their jurisdiction when they sanctioned
Plaintiffs for their alleged wrongdoings. Id. at p. 10 (Pg. ID 4518). Plaintiffs rely
on Michigan Horse Racing Law § 431.306(1), which provides:
The racing commissioner shall appoint 2 deputy commissioners and 3 state
stewards of racing as special deputies for each licensed race meeting in the
state. For the purpose of carrying out this act, the racing commissioner may
delegate the performance of his or her duties to the deputy commissioners or
special deputies.
Id. at p. 9 (Pg. ID 4517). Plaintiffs claim that the three official stewards at the time
of their suspension hearings were Eric Pertunnen, Pete O’Hare, and Pat Hall.3 Id.
at p. 10 (Pg. ID 4518). Plaintiffs thus argue that the racing commissioner could not
delegate his power to Defendant Stewards until he first removed Pertunnen,
O’Hare, and Hall from their respective positions, which he could only do for good
cause. Id.
Defendants respond by arguing that Plaintiffs read § 431.306(1) too
narrowly.
Dkt. 219, p. 5 (Pg. ID 4535).
Defendants assert that the racing
commissioner was permitted to designate three state stewards for each licensed
race meeting in the state. Id. (emphasis added). It follows, Defendants argue, that
3
None of these individuals are parties to this action.
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it would be impossible to conduct multiple race meets on the same day if the racing
commissioner could only designate a total of three state stewards. Id. Hence,
Defendants maintain that the racing commissioner could designate as many special
deputy stewards as he deemed necessary to effectively regulate the industry. Id.
Notwithstanding § 431.306(1), it is certainly reasonable to believe that
Defendant Stewards had the authority to carry out the delegated powers of the
racing commissioner and had jurisdiction over Plaintiffs’ suspension hearings.
Indeed, Plaintiffs responded to summonses to appear before Defendant Stewards.
Further, Defendant Stewards conducted hearings, in which Plaintiffs participated,
and issued decisions, in which Plaintiffs later appealed. Plaintiffs’ Complaint even
references Defendant Stewards’ authority. See Dkt. No. 1, p. 2 (Pg. ID 2).4
Moreover, Defendant Stewards -- official appointees or not -- performed the
exact same functions as special deputy stewards and were bound by and operated
within the same procedural rules. Plaintiffs do not argue that special deputy
stewards would be without jurisdiction over their hearings, such as to bar them
from raising the defense of quasi-judicial immunity. The Court is therefore not
4
“Defendants Daryl Parker, Richard Garrison, and Billy Lee Williams
(collectively the ‘Stewards’) were at times relevant to this complaint, appointed as
‘stewards’ under the Michigan Horse Racing Law. As such, MGCB authorized the
Stewards to conduct an investigation of the individual Plaintiffs; and, at the
direction and under the control of MGCB, Post and Kalm, the Stewards were
responsible for issuing the illegal orders suspending Plaintiffs. The Stewards are
sued in their individual capacity because, while acting under the color of state law,
the Stewards caused the deprivation of Plaintiffs’ federal constitutional rights.”
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convinced that Defendant Stewards should be prevented from raising this defense.
See Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (holding a court “looks to the
‘nature of the function performed, not the identity of the actor who performed it.’”)
(quoting Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2613 (1993)). Accordingly, the
Court finds that Defendant Stewards were not acting in the clear absence of all
jurisdiction. (emphasis added).
3. Defendant Stewards’ and Defendant Kalm’s Roles in Suspending and
Excluding Plaintiffs from the Harness-Racing Industry were Functionally
Equivalent to that of a Judge, such that they are Entitled to Quasi-Judicial
Immunity.
Defendants argue that Defendant Stewards and Defendant Kalm are entitled
to summary judgment on Plaintiffs’ Fifth Amendment claims because they are
shielded by quasi-judicial immunity. Dkt. No. 206, pp. 10-11 (Pg. ID 4367-68).
The Court will agree.
The Supreme Court has recognized that it is “a general principle of the
highest importance to the proper administration of justice that a judicial officer, in
exercising the authority vested in him, should be free to act upon his own
convictions, without apprehension of personal consequences to himself.” Stump,
435 U.S. at 355. To that end, “judges of courts of superior or general jurisdiction
are not liable to civil actions for their judicial acts, even when such acts are in
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excess of their jurisdiction, and are alleged to have been done maliciously or
corruptly.” Id. at 355-56.
The Sixth Circuit has “extended absolute immunity to some officials who
are not judges, but who ‘perform functions closely associated with the judicial
process.’” Flying Dog Brewery, LLLP v. Michigan Liquor Control Comm’n, 597
Fed. Appx. 342, 347 (6th Cir. 2015) (quoting Cleavinger v. Saxner, 474 U.S. 193,
200 (1985). The burden, importantly, is on the officials seeking quasi-judicial
immunity to demonstrate that public policy requires an exemption of this scope.
Id. at 348. The following non-exhaustive list of factors, characteristic of the
judicial process, guides the inquiry: (1) the need to assure that the individual can
perform their functions without harassment or intimidation; (2) the presence of
safeguards that reduce the need for private damages actions as a means of
controlling unconstitutional conduct; (3) insulation from political influence; (4) the
importance of precedent; (5) the adversary nature of the process; and (6) the
correctability of error on appeal. Id.
For example, in Friedman v. Hall, the Sixth Circuit suggested that racing
stewards, such as we have here, were entitled to quasi-judicial immunity for their
role in the plaintiff’s disciplinary proceeding. 1988 WL 31553, at *3, n.4 (6th Cir.
April 11, 1988). In that case, plaintiff sued the defendants in their capacity as
Michigan racing stewards after they suspended his occupational license following
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an evidentiary hearing. Id. at *1. The district court granted the defendants’ motion
for summary judgment on the basis of quasi-judicial immunity. Id. at *2. The
district court based its decision on the fact that (1) racing stewards were neutral
and needed to be free from harassment, (2) there were procedural safeguards in
place for the plaintiff’s benefit, and (3) there was a strong public interest in the
strict regulation of horse racing. Id. The plaintiff subsequently appealed the
district court’s ruling to the Sixth Circuit.
The Sixth Circuit affirmed the district court’s ruling, though on alternative
grounds. Id. at *3. Nevertheless, the Sixth Circuit concluded that the functions of
a racing steward “in many ways corresponds to that of a prosecutor in his
adversarial role and that of a judge in conducting proceedings.” Id. The Sixth
Circuit then emphasized that “[a]lthough we do not decide in this case whether
defendants are entitled to absolute immunity, absolute immunity may be
warranted.” Id. at *3, n.4
The Eighth Circuit took this a step further in VanHorn v. Oelschlager,
affirmatively granting members of the Nebraska State Racing Commission, and its
Executive Secretary, quasi-judicial immunity for their role in the plaintiffs’
disciplinary proceedings. 457 F.3d 844, 847-48 (8th Cir. 2006). In doing so, the
court was ultimately persuaded by three factors: (1) the Commission’s powers in
conducting disciplinary proceedings were similar to judicial powers, (2) the
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Commission’s actions were likely to result in lawsuits from disappointed parties,
and (3) sufficient safeguards existed to control unconstitutional conduct;
specifically, aggrieved parties could file an appeal with the state court. Id. at 848.
In closing, the Eight Circuit stressed, “To the extent that the [Commission]
weighed evidence, made factual determinations, determined sanctions, and issued
[a] written decision[ ], we conclude that these duties are functionally comparable to
the duties performed by the courts.” Id. (quoting Dunham v. Wadley, 195 F.3d
1007, 1011 (8th Cir. 1999)).
In contrast, Plaintiffs cite to Scott v. Schmidt, where the Seventh Circuit
expressed reservation about extending quasi-judicial immunity to racing stewards
in the state of Illinois. 773 F.2d 160, 165, n.7 (7th Cir. 1985). There, the court
was primarily concerned with the fact that the stewards made their decisions
without the benefit of a formal due process hearing. Id. This, the court noted,
could lead to a greater likelihood of error or bias in decision making.
Id.
Ultimately, however, the Seventh Circuit left the issue unresolved, opting instead
to decide the case on other grounds. Id.
Here, the Court finds Friedman and VanHorn instructive, and concludes that
Defendant Stewards and Defendant Kahn are entitled to quasi-judicial immunity
for their roles in Plaintiffs’ disciplinary proceedings. See 1988 WL 31553; 457
F.3d 844. First, there is undoubtedly a need to assure racing stewards and racing
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commissioners that they can perform their jobs without harassment or intimidation.
See Flying Dog Brewery, LLLP, 597 Fed. Appx. at 348. The Sixth Circuit has
definitively held that there is a strong public interest in the strict regulation of
horse racing. See Friedman, 1988 WL 31553, at *3. In Michigan, racing stewards
are tasked with the responsibility of maintaining integrity and fairness within the
sport. See id. Similarly, racing commissioners are responsible for enforcement,
regulation, and licensing under Michigan Horse Racing Law. See Dkt. No. 206, p.
29 (Pg. ID 4386). Both roles would be compromised if these actors were routinely
subjected to lawsuits from aggrieved licensees.
Second, as highlighted in Friedman and VanHorn, there were several
procedural safeguards in place here to protect Plaintiffs. See 1988 WL 31553, at
*2; 457 F.3d at 848. In regard to the hearings in front of Defendant Stewards,
Plaintiffs received advanced notice, the assistance of counsel, and the opportunity
to present testimony in an adversarial-like setting. See Dkt. No. 206, pp. 25-26
(Pg. ID 4382-83). Following these hearings, Defendant Stewards issued written
decisions, detailing the reasons for Plaintiffs’ suspensions. See Dkt. No. 90-13.
And importantly, Defendant Stewards were required to rely on specific statutory
criteria in making these decisions.
These are just some of the procedural
safeguards in place resembling that of the judicial process.
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Plaintiffs enjoyed similar protections with respect to their exclusion orders.
When Defendant Kalm issued those orders, he did so in written form, clearly
specifying the grounds for each exclusion. See Dkt. No. 90-14. Though Plaintiffs
did not receive a hearing prior to being issued these orders, they had the option of
making a written request for a de novo hearing. See id. This presumably would
have given Plaintiffs the opportunity to present their case anew in front of
Defendant Kalm, with similar procedural safeguards that they enjoyed during their
hearing in front of Defendant Stewards.5
Finally, all decisions by Defendant Stewards and Defendant Kalm were
subject to appeal. Pursuant to Michigan Horse Racing Law § 431.1235, any
person aggrieved by a decision of the racing stewards could seek review from the
racing commissioner. Dkt. No. 206, pp. 27-28 (Pg. ID 4384-85). Similarly, under
Article VI, Section 28 of the Michigan Constitution, all final decisions by the
racing commissioner were reviewable by the state court. Id. at pp. 32-33 (Pg. ID
4389-90). Hence, there were mechanisms in place under Michigan law to correct
any errors by Defendant Stewards and Defendant Kalm.
5
While an open question remains as to whether Plaintiffs requested and/or
received a timely post-exclusion administrative hearing (See Section B below),
there is no indication that Defendant Kalm was at fault for this potential delay.
The fact remains that at the time Defendant Kalm issued the exclusion orders, he
did so with the understanding that Plaintiffs could request a de novo hearing in
front of him if they so desired. Therefore, the Court does not share the same
concerns surrounding bias or error in Defendant Kalm’s decision making that the
Seventh Circuit expressed in Scott. See 773 F.2d at 165, n.7.
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In short, the Court finds that public policy favors extending quasi-judicial
immunity to Defendant Stewards and Defendant Kalm. The roles that these quasijudicial actors played in Plaintiffs’ disciplinary proceedings closely resembled that
of a judge, and the safeguards in place mirrored those available throughout the
judicial process. Recognizing this, the Sixth Circuit has already indicated that
racing stewards may be entitled to quasi-judicial immunity. See Friedman, 1988
WL 31553, at *3, n.4. It naturally follows that Defendant Kalm, acting under the
same authority, would also be entitled to quasi-judicial immunity. Accordingly,
the Court will Grant Defendants’ Motion for Summary Judgment on Plaintiffs’
Fifth Amendment claims.
B. A Genuine Dispute of Material Fact Remains Surrounding Whether
Defendants Construed Plaintiffs’ 2011 License Applications as
Requests for an Administrative Appeal of their Exclusion Orders.
Plaintiffs argue that they are entitled to summary judgment on their
procedural due process claims because there is no dispute that Defendants, and
specifically Defendant Ernst, construed Plaintiffs’ 2011 license applications as
requests for an administrative appeal of their exclusion orders, and then failed to
schedule a timely hearing thereafter. Dkt. No. 201, p. 21 (Pg. ID 4343). The Court
will disagree.
In Moody I, the Sixth Circuit held that there was an open question
surrounding whether Defendants denied Plaintiffs the post-exclusion process they
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were due, or whether Plaintiffs failed to seek that process. Dkt. No. 134, p. 15 (Pg.
ID 3572). Subsequently, this Court held that there was a genuine dispute of
material fact surrounding that question. Dkt. No. 172, pp. 12-13 (Pg. ID 4144-45).
The Sixth Circuit’s opinion in Moody II did not affect that holding. See Dkt. No.
195, p. 10 (Pg. ID 4299) (affirming the district court’s denial of summary
judgment on procedural due process claim).
While it is undisputed that Plaintiffs requested an administrative appeal on
November 27, 2012, and received a hearing on April 25, 2013, whether that gap in
time establishes a due process violation is not a question before the Court. See
Dkt. No. 172, p. 13 (Pg. 4145). Plaintiffs attempted to raise this argument in a
previous motion for summary judgment, but the Court held that Plaintiffs’
Complaint did not properly reflect this claim. See id. The operative question
before the Court is whether Defendants construed Plaintiffs’ 2011 licenses
applications as requests for an administrative appeal of their exclusion orders.
Because a genuine dispute of material fact still remains surrounding this question,
Plaintiffs are not entitled to summary judgment on their procedural due process
claims.
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VI. CONCLUSION
For the reasons stated herein, the Court will GRANT Defendants’ Motion
for Summary Judgment [#206] and DENY Plaintiffs’ Motion for Summary
Judgment [#201].
IT IS SO ORDERED.
Dated:
March 15, 2019
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, March 15, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager
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