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August 19, 1977;

JOHN BARCHI, Plaintiff,
BERTRAM D. SARAFAN, as Chairman and JOSEPH H. BOYD, JR. and EUGENE J. KEOGH, as Members of the NEW YORK STATE RACING & WAGERING BOARD, Division of Harness Racing, HON. HUGH CAREY, Governor of the State of New York, and HON. LOUIS J. LEFKOWITZ, Attorney General of the State of New York, Defendants

The opinion of the court was delivered by: GOETTEL


Plaintiff, John Barchi, is a duly licensed harness racing trainer. Defendants are the New York State Racing and Wagering Board (NYSRWB) and the individual members of the Board (the Governor and State Attorney General have also been cited as parties defendant). On July 12, 1976 plaintiff commenced this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3), 2281 et seq., challenging the constitutionality of New York Unconsolidated Law § 8022 *fn1" (McKinney 1961) and NYSRWB Rules 4120.5, 4120.6 and 4116.11, *fn2" 9 NYCRR 4120.5, 4120.6, 4116.11, as they had been applied by the NYSRWB against him. Upon plaintiff's posting of security the Court, on July 13, 1976, temporarily restrained defendants from further execution of the Board's disputed decision and defendants, in turn, moved for dismissal of the complaint for lack of subject matter jurisdiction. On December 23, 1976, defendants' motion was denied and a three-judge court was convened. (Two companion cases, making similar constitutional challenges, brought after the abolition of three-judge courts on August 13, 1976 have been held in abeyance pending the decision of this Court.)

 The facts which gave rise to the case are these: "Be Alert" is a harness race horse, owned by an uninvolved third party, and trained at the time this suit was brought by the plaintiff. On June 22nd, "Be Alert" ran in the third race at Monticello Raceway *fn3" and placed second. Two days later plaintiff was informed by the presiding steward *fn4" at Monticello that a post-race urinanalysis revealed the presence of "Lasix" *fn5" in "Be Alert's" system. Such treatment of a harness race horse is improper within forty-eight hours of a race and violates NYSRWB Rule 4120.4. Barchi declared his innocence in the matter. Thereafter, he was not given access to the analysis, the specimen, and was never confronted with the circumstances under which it was taken.

 On June 28th plaintiff voluntarily took a polygraph examination in an effort to establish his non-involvement. The examiner reported that the plaintiff was not lying. A subsequent polygraph examination was administered to plaintiff at the behest of the NYSRWB the next day and the results were similarly exculpatory. Nevertheless, on July 10th, plaintiff received a fifteen-day suspension for violation of the so-called trainer's "insurer" rule from John Fahey, the presiding steward and judge at Monticello. During the period of his suspension no horse of which he was the trainer would be allowed entry in races at the track.

 Race horse trainers may be entrusted with the care of a number of trotters at any given time. A trainer's income is derived in large measure from the proceeds of horse races (as opposed to a salary), and, since harness "meetings" are sporadic, trainers cannot recapture the racing opportunities lost by missed meetings. Once a trainer is suspended, even for a brief period, an owner will immediately seek the services of another trainer so that the horse is not barred from racing. This change is often permanent in order to avoid further disruption in the care of the animal. Significantly, plaintiff has proffered the affidavit of a third-party trainer/driver who experienced just such a loss during a suspension for a similar drug infraction. He had also suffered irreparable damage for a subsequent ex parte suspension that was later reversed. Racing opportunities lost because of a suspension cannot be recovered by a later reversal in a review hearing for obvious reasons. Furthermore, defendants do not dispute the fact that a loss of horses in a trainer's stable occasioned during his suspension can often be an irremediable injury, even though such suspension is erroneous and without justification.

 Defendants note that at Monticello (and presumably at other NYSRWB harness tracks) a prohibition on medication of horses within 48 hours of a race is enforceable since entries are made three days prior to race time. At Monticello, the horses for all the day's races are brought into a state-secured paddock prior to the first race of the day. Pre-race tests are performed there to determine if a horse has been drugged. (Pre-race testing is not done on thoroughbred race horses.) "Be Alert's" pre-race blood test was negative. (A different type of test, after the race, detected the drug.)

 Defendants admit that an unsuccessful attempt was made to determine the actual party responsible for the drugging of "Be Alert" and that only after such efforts proved fruitless was plaintiff suspended under the trainer "insurer" rule. This action was deemed necessary by the judges "to protect the integrity and reputation of the sport and to insure public confidence." Defendants note that, historically, both harness tracks and state authorities have found it imperative that racing be conducted fairly both in fact and in appearance and that even the specter of impropriety has been enough to cause disorders at the tracks, with resulting jeopardy to the safety of members of the public and the industry. (There is no indication that the events in dispute here caused any such disorders.)

 Plaintiff challenges Section 8022 on due process and equal protection grounds. He contends, with respect to the former, that the statute denies a trainer any opportunity to confront and contest an accusation of dishonesty before a suspension has been both ordered and, in many cases, executed. On equal protection grounds the plaintiff contests the prohibition on stays which exist in the harness racing provisions of the Unconsolidated Laws but which do not exist in the thoroughbred racing provisions. Finally, plaintiff challenges the NYSRWB Rules which establish a presumption of deliberate drugging and make the trainer an "insurer" of his horses' conditions as a matter of law.

 Defendants respond by asserting that the procedures established by Section 8022 and the NYSRWB Rules are a valid exercise of the state police power and are a fair response to the potential for corruption in the heavily regulated racing industry. Furthermore, they argue that this Court should not exercise jurisdiction over plaintiff's claims until the New York state courts have been given an opportunity to review the issues presented. While this action is clearly within the jurisdiction of the Court, the defendants argue for abstention from the exercise of such jurisdiction pending an "authoritative" state interpretation of Section 8022, citing Carey v. Sugar, 425 U.S. 73, 47 L. Ed. 2d 587, 96 S. Ct. 1208 (1976) and Zwickler v. Koota, 389 U.S. 241, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967).

 A federal court's discretion to abstain, in cases otherwise within the court's jurisdiction, when the controversy involves unsettled issues of state law, was first extensively discussed in Railroad Commission of Texas v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). In reversing a three-judge court's decision enjoining enforcement of a Texas Railroad Commission order, Justice Frankfurter criticized the wisdom of basing federal constitutional determinations (in Pullman, a Thirteenth Amendment decision) on unsettled state law foundations. In such situations, Pullman reasoned, the trial court should abstain from deciding the case until the state court decides the state law issues. 312 U.S. at 500.

 While the Pullman doctrine has been expanding in recent cases, see, e.g., Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486, 45 U.S.L.W. 4535 (1977); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376, 45 U.S.L.W. 4269 (1977); Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); *fn6" the clearest statement of the test to be applied in the instant case is found in Harman v. Forssenius, 380 U.S. 528, 14 L. Ed. 2d 50, 85 S. Ct. 1177 (1965). In that case the Supreme Court reviewed a three-judge court's decision striking down a Virginia poll tax provision as violative of Art. I, § 2 and the Seventeenth Amendment to the Constitution. In reaching a decision on the merits the court refused Virginia's request for abstention in order to first allow the state courts to pass on the state law. In affirming the lower court refusal to abstain, the Supreme Court stated:

Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law and premature constitutional adjudication. E.g., Railroad Comm'n. v. Pullman Co., supra. The doctrine, however, contemplates that deference to state court adjudication only be made where the issue of state law is uncertain. . . . Thus "recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law." England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415-6, 11 L. Ed. 2d 440, 84 S. Ct. 461.

 Harman v. Forssenius, 380 U.S. at 534-5.

 Is the question concerning the constitutionality of Section 8022 an open question of state law? We think not. In Tappis v. New York State Racing and Wagering Board, Harness Racing Division, 36 N.Y.2d 862, 370 N.Y.S.2d 922, 331 N.E.2d 697 (1975), the Court of Appeals, in a review of sanctions against a harness trainer, explicitly upheld the constitutionality of the provisions challenged in the instant case. The Appellate Division had set aside the confirmation of a fine levied on a trainer in accordance with its holding that the NYSRWB Rules permitting fines ...

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