State ex rel. Ned Hodkinson v. Ohio State Racing Commission
No. 18AP-931
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 11, 2020
[Cite as State ex rel. Hodkinson v. Ohio State Racing Comm., 2020-Ohio-4073.]
(REGULAR CALENDAR)
Rendered on August 11, 2020
On brief: Graff & McGovern, LPA, and John A. Izzo for relator.
On brief: Dave Yost, Attorney General, Anthony J. Garcia, and Charles E. Febus, for respondent.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE‘S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Ned Hodkinson, initiated this original action seeking a writ of mandamus ordering respondent, Ohio State Racing Commission (“commission“), to hear his appeals from decisions of track judges regarding two particular horseraces.
{¶ 2} This matter was referred to a magistrate of this court pursuant to
{¶ 3} No party objects to the magistrate‘s findings of fact, and we agree the magistrate accurately outlined all the facts necessary to the disposition of this matter. Nor does any party object to the magistrate‘s conclusions of law as to the Scioto Downs race challenge. We likewise find no error as to that issue. Because Hodkinson did not timely complain to track judges pursuant to
{¶ 4} As to the Fairfield County Fair race, the commission has filed objections to the magistrate‘s decision. It contends the magistrate erred in concluding Hodkinson was “aggrieved” by a Fairfield County Fair track judges’ “ruling” for the purpose of
{¶ 5} The commission, which consists of five members appointed by the governor, is vested with broad regulatory authority over horse racing.
{¶ 6}
{¶ 7} Courts interpret administrative rules in the same manner as statutes. Wilson v. State Chiropractic Bd., 10th Dist. No. 18AP-739, 2019-Ohio-3243, ¶ 35. “The primary goal in construing statutes and administrative rules is to ascertain and give effect to the intent of the rule-making authority.” Id., citing State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 11. As the magistrate noted, the commission did not define the terms “aggrieved” and “ruling” for the purpose of former
{¶ 8} Even construing the track judges’ decision finding no merit to Hodkinson‘s interference complaint as a “ruling,” he was not “aggrieved” by that ruling. In former
{¶ 9} Applying the rule of ejusdem generis here, the term “aggrieved” has a more limited application than that found by the magistrate. We find former
{¶ 10} For these reasons, we find the commission‘s objections have merit.
{¶ 11} Following our independent review of the record pursuant to
Objections sustained; writ denied.
BRUNNER and NELSON, JJ., concur.
State ex rel. Ned Hodkinson v. Ohio State Racing Commission
No. 18AP-931
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
(REGULAR CALENDAR)
M A G I S T R A T E’ S D E C I S I O N
Rendered on January 24, 2020
Graff & McGovern, LPA, and John A. Izzo for relator.
Dave Yost, Attorney General, Anthony J. Garcia, and Charles E. Febus, for respondent.
IN MANDAMUS
{¶ 12} Relator, Ned Hodkinson, has filed this original action seeking a writ of mandamus ordering respondent, Ohio State Racing Commission, to conduct hearings pertaining to his attempt to appeal rulings by racetrack judges that detrimentally affected relator‘s results in Standardbred horse races in which relator appeared as a licensed owner, driver, and trainer.
Findings of Fact:
{¶ 13} 1. Respondent is a state agency created pursuant to
{¶ 14} 2. Respondent “may issue, deny, suspend, diminish, or revoke permits to conduct horse racing” in Ohio, and impose penalties for violation of rules or orders issued by the commission.
{¶ 15} 3. Respondent has promulgated rules under which horse racing operations are supervised on-site by track judges, who may address complaints from participants regarding the conduct of the race and related activities.
{¶ 16} 4. Relator is an owner, driver, and trainer licensed by respondent.
{¶ 17} 5. By statute, respondent maintains its principal place of business in Franklin County, Ohio.
{¶ 18} 6. Jurisdiction and venue for an original action in mandamus lie with this court pursuant to the
{¶ 19} 7. Relator filed his complaint for a writ of mandamus in this court on December 5, 2018.
{¶ 20} 8. Relator‘s complaint alleges that on two instances in 2016 (the “Scioto Downs incident” and the “Fairfield County incident“), as a driver in Standardbred races, he suffered improper interference from competing drivers that should have given rise to corrective action with respect to his final finish in the race and/or disciplinary action against the offending drivers.
{¶ 21} 9. Relator‘s complaint alleges that he complained to the presiding track judge on both occasions, but no official action was taken by the track judges to modify the race outcome or discipline the offending drivers, the commission refused action on appeal, and judicial appeals were rejected for lack of jurisdiction.
{¶ 22} 10. In the Scioto Downs incident, the track judges’ written report for the day‘s racing indicates that no objections were filed for the race in question. The affidavit of the presiding track judge, John Yinger, states that he and the two associate judges reviewed the race and concluded that no foul occurred. Yinger did not hear from the
{¶ 23} 11. Relator‘s affidavit states that despite his belief that he had suffered prejudicial interference in the course of the Scioto Downs race, he did not immediately object after the race concluded, but waited until later in the day to contact the presiding track judge. (Relator‘s affidavit, exhibit 1 to relator‘s brief, 17.)
{¶ 24} 12. Relator attempted an appeal to respondent from the determination of the track judges in the Scioto Downs incident pursuant to the version of
{¶ 25} 13. Respondent initially set the Scioto Downs matter for an appeals hearing, then notified relator by letter on October 6, 2016 that the hearing was canceled and would not be rescheduled. The letter states, “Pursuant to Chapter 119 of the Ohio Revised Code and R.C. 3769 and the applicable rules of racing, the Commission does not have the legal authority to entertain your ‘appeal.’ In this instance, there was no ruling taken against your license or any other licensee. As a result, you are not entitled to a hearing.” (Stipulated Evidence, Ex. 10, 53.)
{¶ 26} 14. Relator appealed to the Franklin County Court of Common Pleas pursuant to
{¶ 27} 15. The common pleas court granted a motion by respondent to dismiss relator‘s appeal in the Scioto Downs incident. The court ruled that respondent, in refusing to adjudicate, had not issued a final adjudication from which an
{¶ 28} 16. Relator filed a notice of appeal to the Tenth District Court of Appeals, which affirmed the common pleas court‘s decision regarding the Scioto Downs incident. Hodkinson v. Ohio State Racing Comm., 10th Dist. No. 17AP-33, 2017-Ohio-7494 (“Hodkinson I“).
{¶ 29} 17. In the Fairfield County incident, relator complained to the starter and the presiding track judge immediately after the race. The judges ruled no infringement took place.
{¶ 30} 18. The commission refused to accept relator‘s appeal from the track judges’ “non-call” in the Fairfield County incident. The commission‘s notice refusing the appeal contained language comparable to the commission‘s October 6, 2016 letter declining jurisdiction over relator‘s appeal from the Scioto Downs incident.
{¶ 31} 19. Relator did not attempt a further appeal to the common pleas court from the commission‘s refusal to accept his appeal in the Fairfield County incident.
{¶ 32} 20. Respondent filed its motion to dismiss this action on January 4, 2019 for failure to state a claim on the face of the complaint. The magistrate denied the motion to dismiss by order entered February 14, 2019.
{¶ 33} 21. The parties then filed a stipulated joint statement of facts and documentary evidence and briefed the matter for submission to the magistrate.
{¶ 34} 22. The parties have attached additional affidavits to their briefs. Neither party objects to the other‘s submission of this additional evidence after the evidentiary deadline in the case scheduling order, and the magistrate has considered said affidavits in the preceding findings of fact.
Discussion and Conclusions of Law:
{¶ 35} For a writ of mandamus to issue, the relator must demonstrate (1) that relator has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts requested, and (3) that relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). In a mandamus proceeding, courts are not authorized to create a legal duty to be enforced; it is the duty of the legislative branch of government to do so. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 18.
{¶ 36} This court‘s holding in Hodkinson I makes clear that relator has no remedy in the ordinary course of the law for the Scioto Downs incident. Relator does not have a legal remedy in the form of an administrative appeal under
{¶ 37} Relator asserts that he has a legal right to have his appeals heard by respondent and respondent has a clear legal duty to grant such hearings. The administrative rule at the heart of this case is
(A) Any licensee fined, suspended, expelled or otherwise aggrieved by any judges’ ruling in the application of the rules of racing may appeal to the commission for a review of the decision. Such appeals shall be made in writing and must be filed with the presiding judge within forty-eight hours after [sic] notification of the ruling. Such forty-eight-hour period shall not include any day the judges are not in attendance at their office. The chairman of the commission may appoint a referee to hear such appeals.
(B) All appeals of the judges’ final rulings shall be made in writing to the commission.
{¶ 38} The critical language here is found in subsection A, which states that “[a]ny licensee fined, suspended, expelled or otherwise aggrieved by any judges’ ruling in the application of the rules of racing may appeal to the commission for a review of the decision.” (emphasis added.) Respondent insists that this language applies only to instances in which the track judges have affirmatively ruled, either sua sponte or upon complaint, that an infraction occurred in a race, and does not apply to instances in which the track judges determined that no infraction occurred. As a result, respondent contends, there is no right to appeal from any in-race controversy unless the track judges have affirmatively ruled, as they declined to do here, that an infraction occurred.1
{¶ 40} Relator responds by arguing that a “non-call” can leave a licensee just as aggrieved as a finding of infraction. Relator also points out that if the betting outcome of a race cannot be changed after the fact, respondent can still reorder the race, which impacts horses in qualifying status, and impose penalties that were foregone by the track judges. Relator emphasizes that respondent in the past has accepted appeals from such “non-calls.” Relator cites Ohio State Racing Commission No. 2006-42, Wollam v. Ohio Stating Racing Comm., in which respondent adjudicated the question of whether a judges’ decision to not advance the final placement of a horse affected by misconduct from two other horses was in error.
{¶ 41} Fortunately, the magistrate need not consider here those arguments addressing the practical intricacies and customs in the harness racing industry. In the context of a mandamus action, the question before the magistrate is a purely legal one: does the pertinent statutory and regulatory language require the commission to allow and adjudicate an appeal from a “non-call” by track judges?
{¶ 42} The magistrate first concludes that in the Scioto Downs incident, the discussion is curtailed because relator did not preserve his right to appeal to the commission. Relator failed to institute a timely objection that would have allowed the track judges to review the race and ascertain the validity of his complaint regarding the racing conduct of his competitors.
{¶ 43} The first step in initiating a complaint regarding alleged misconduct during a race is defined by
(B) All complaints by drivers of foul driving or misconduct during the race must be made after the race, unless the driver is prevented from doing so by an accident or injury. Any driver desiring to enter a claim of foul or other complaint of violation of the rules must, before dismounting, indicate to the judges
or patrol judge his desire to enter such claim or complaint and, upon dismounting, shall proceed to the telephone or judges’ stand where and when such claim, objection, or complaint shall be immediately entered. The judges shall not cause the official sign to be displayed until such claim, objection, or complaint shall have been entered and considered.
{¶ 44} As set forth in the findings of fact, relator did not immediately lodge his complaint following the Scioto Downs incident as required by
{¶ 45} The magistrate finds that the two incidents are not identically situated for purposes of determining relator‘s right to a writ compelling the commission to conduct a hearing. Because relator did not preserve his right to lodge a complaint on the Scioto Downs incident, he had no right to expect a ruling from the track judges. In contrast, the Fairfield County incident proceeded to the point of a preserved complaint and discussion by the track judges. The magistrate‘s first determination in this case, therefore, is that relator is not entitled to a writ of mandamus to compel the commission to hold a hearing regarding the Scioto Downs incident. The Fairfield County incident merits further discussion.
{¶ 46} The two critical terms to be assessed in
{¶ 47} In relation to other statutes, the Supreme Court of Ohio has defined the term “aggrieved“: ” ‘aggrieved’ is commonly defined as ‘having legal rights that are adversely affected; having been harmed by an infringement of legal rights.’ ” Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, ¶ 18, quoting Black‘s Law Dictionary 77 (9th Ed.2009). Although the term aggrieved is often taken to include some substantive merit in the complaint, as in “actually harmed” by an action, leading to the unnecessary qualification of a party as “allegedly aggrieved,” it is best seen not as a
{¶ 48} The magistrate then turns to what may constitute a ruling in application to the rules of racing, and whether this includes the “non-call” that occurred in the Fairfield County incident. The commission asserts that only an affirmative ruling by the track judges, that is, an affirmative determination that a complaint has merit and the judges will impose a penalty on a competitor, may be appealed. Certainly, that fits the definition of the newer version
{¶ 49} It is therefore the magistrate‘s decision that a writ of mandamus shall issue ordering the commission to reinstate relator‘s appeal in the Fairfield County incident, and grant relator a hearing in that appeal.
/S/ MAGISTRATE MARTIN L. DAVIS