05/22/2012 3:54PM

Dutrow attorney has day in court

Barbara D. Livingston
Richard Dutrow Jr. is taking legal action to avoid a ban set down by New York officials.

ALBANY, N.Y. – The attorney for trainer Richard Dutrow Jr. argued Tuesday in court that the New York State Racing and Wagering Board’s case against his client is tainted by an “indefensible conflict of interest” on the part of board chairman John Sabini and that the organization’s ruling to revoke the trainer’s license for 10 years should be dismissed.

Michael Koenig, the attorney representing Dutrow, argued that Sabini’s dual role as chairman of the state racing and wagering board and secretary-treasurer for the Racing Commissioners International created an appearance of impropriety that resulted in a violation of Dutrow’s right to due process.

“What one of Mr. Sabini’s boards was actively advocating for, his other organization controlled and decided,” Koenig argued.

Koenig made his arguments before a five-judge panel that make up the state’s Supreme Court Appellate Division, Third Department, an intermediate-level appellate court. The panel consists of judges Leslie Stein, Robert Rose, Thomas Mercure, John Lahtinen, and William McCarthy.

Kathleen Arnold, an attorney from New York State’s Attorney General’s office, argued the case for the state. Arnold said there is no evidence that Sabini called for the hearing looking into Dutrow’s license. Further, she said, Sabini did not get involved in the case until “the record of evidence was before him.”

A decision in the case is not expected for four to eight weeks. Dutrow did not attend Tuesday’s hearing.

In February 2011, Dutrow was suspended 90 days by the board for two violations that occurred in November 2010. First, one of his horses tested positive for a banned substance. Second, three syringes filled with the drug xylazine were found in the desk drawer of Dutrow’s Aqueduct office.

Dutrow appealed those suspensions on Feb. 16. The following day, Ed Martin, executive director of the RCI, made public a letter asking the New York racing board to hold a show-cause hearing to review whether Dutrow should have his trainer’s license revoked because of a history of repeated rules violations.

According to Koenig, Sabini was forwarded an e-mail that originated from staffers of U.S. Sen. Tom Udall to the RCI questioning whether the 90-day suspension handed Dutrow was too light.

On March 2, the New York racing board announced it would hold a show-cause hearing, which took place over three days last May and June in Schenectady. In October, following the filing of a written report from hearing officer Clem Parente, the three-panel board – including Sabini _ voted unanimously to suspend Dutrow’s license for 10 years while also fining him $50,000.

By that time, Sabini had been elected chairman of the RCI.

Koenig argued that the “mere appearance of impropriety is enough to find a due process violation” and get the penalties dismissed.

“This case is centered on the appearance of impropriety, and we made every point related to it today,” Koenig said after Tuesday’s hearing.

Koenig further said that “a due process violation renders everything else irrelevant.”

Koenig did say in court that if the judge’s do find there was a taint of due process” all that’s left is the 90-day suspension from the two violations. He hinted that Dutrow would serve those days “as an alternative remedy.”

Each attorney had 10 minutes to argue their case. Briefs in the matter had been filed two weeks ago.

The judges had the opportunity to question the attorneys on their arguments, but very few were asked.

Judge McCarthy asked Koenig if the racing board could bring the charges against Dutrow again if the court sided with the trainer. Koenig said that it would require a whole new panel, a new hearing officer and new board members.

During her time, Arnold said “there is no need for a new hearing because there was no impropriety” and that Dutrow was afforded his “full due process rights.”