The opinion of the court was delivered by: DUFFY
The plaintiffs Ruane, a jockey, and the Jockeys' Guild, Inc. ("Guild"), a national association which represents the interests of member jockeys, bring this civil rights action against the New York State Racing and Wagering Board ("Board") and the Board of Stewards
pursuant to 42 U.S.C. § 1983. The complaint requests monetary, declaratory, and injunctive relief because of certain state statutes and rules relating to the running of New York race tracks and actions taken pursuant to those statutes and rules. The plaintiffs have also requested preliminary injunctive relief from the operation of the challenged statutes and rules.
The events giving rise to the suit are as follows. On September 21, 1974, the plaintiff Ruane and seven other jockeys refused to ride in the seventh race at Belmont Park. That race was to be run on the turf track. The jockeys contend that they refused to ride because they believed the turf track would be dangerous as a result of rainfall. According to plaintiffs, the jockeys requested that the race be transferred to the dirt track on which all the other races were being run that day. There is some dispute as to how promptly the jockeys voiced their concern to the stewards. When the race was not transferred to the dirt track, Ruane and the seven others refused to ride. Their mounts were offered to other jockeys, some of whom accepted. The race was conducted on the turf track with a reduced number of entries. There were no casualties.
On September 23, 1974, the jockeys who had refused to ride were fined $250 each by the stewards. The fines were paid under protest. This disciplinary action was subsequently approved on March 17, 1975 by the Board after a full evidentiary hearing.
Under the legislative scheme for thoroughbred racing in New York State, the defendant Board is the regulatory agency which oversees all racing. The New York State Racing Commission ("Commission") is a subsidiary of the Board and has the power to supervise race meetings and adopt and promulgate rules necessary to that end. See N.Y. Unconsolidated Laws § 7908 (McKinney 1973).
At each race meeting three stewards perform supervisory duties. One steward is the official steward of the Board; one steward is appointed by the appropriate jockey club, steeplechase, or hunt association; and one steward is appointed by the corporation or association conducting the event. N.Y. Unconsolidated Laws § 7914 (McKinney 1973).
Plaintiffs, in their complaint, challenge this scheme and its operation in several respects. They oppose their fines as having been imposed without prior notice and a hearing, alleging a constitutional due process violation. They challenge certain rules promulgated by the Commission as violating due process in their vagueness. Finally, they argue that the composition of the stewards violates the equal protection clause of the fourteenth amendment by failing to include a representative of the jockeys.
The motion for a preliminary injunction requests that I prohibit: (1) defendants from conducting races at Aqueduct prior to a unanimous decision by the stewards plus a representative of the Jockeys' Guild, Inc., and (2) the stewards from disciplining jockeys who refuse to ride on grounds of hazardous conditions until the Board promulgates administrative procedures to protect the jockeys.
Although the requested preliminary and permanent relief sought involves, in part, injunctive relief from a state statutory scheme, a three-judge court will not be convened pursuant to 28 U.S.C. § 2281 et seq. since I find the constitutional challenges to be frivolous and wholly without merit. See Goosby v. Osser, 409 U.S. 512, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973).
I find that plaintiffs are not entitled to preliminary injunctive relief since not only have they failed to show a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, but also they have failed to demonstrate any possible irreparable harm
or balance of hardships tipping decidedly in their favor.
See Gresham v. Chambers, 501 F.2d 687 (2d Cir. 1974); Gulf & Western Indus., Inc. v. Great Atlantic & Pacific Tea Co., Inc., 476 F.2d 687 (2d Cir.), aff'd 356 F. Supp. 1066 (S.D.N.Y. 1973).
In any case, the plaintiffs' failure on the first part of both tests for a preliminary injunction also dictates dismissal of their complaint. For the sake of clarity, the various claims raised by plaintiffs will be dealt with in the following order: (1) the propriety of the fines; (2) the lack of notice and a hearing prior to imposition of the fines; (3) the alleged vagueness of certain of the Racing Rules; and (4) the equal protection challenge to the composition of the stewards.
The imposition of the $250 fines has been affirmed, as noted above, by the Board after a full evidentiary hearing, the record of which I have before me and have reviewed. The fines were imposed pursuant to Racing Rule 40.6 authorizing punishment for refusal to ride. The Board has found that the "belated refusal . . . to ride . .. was calculated to cause turmoil and chaos." I can see no reason for substituting my judgment on this question for that of the Board after a full hearing.
The due process challenge to the lack of notice and hearing prior to the imposition of a fine is equally unpersuasive. The plaintiffs, in pressing their claim that a prior hearing is constitutionally mandated, cite the Appellate Division (1st Dept.) opinion in Tappis v. New York State Racing and Wagering Bd., (unreported) in which the imposition of a $100 fine on a trainer who violated a Board rule was annulled for failure to provide a prior hearing. That decision has since been reversed by the New York Court of Appeals on May 13, 1975. The Court of Appeals found a "compelling and substantial state interest" in maintaining discipline among trainers and owners. A similar interest applies to the question of discipline among jockeys. Accordingly, where, as here, subsequent review of the penalty is available, I find no violation of the due process clause. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974); Hubel v. West Virginia Racing Comm'n, 513 F.2d 240 (4th Cir. 1975).
The attack on certain of the Racing Rules on the grounds of vagueness is likewise flawed. Count 3 of the Complaint charges that rules 22.8 and 22.21 are void for vagueness in that they grant the stewards too much discretionary power. The memorandum in support of the motion for a ...