with simon versus taylor's seventeen too low a date may it please the court my name is chad done and i represent richard genelle simon citizens of the city of the state of louisiana they live outside of baton rouge where farmers for most of their adult lives they work in a paper mill but jenelle simon decided to race horses had an interest in it they say but their money and so they went to or show janell's all something in a horse that no one else did and so they bought it and they drank it but it and they paid for the vet bills and they raced it and it started to win a lot and before long they were asked to go to the biggest sporting event and quarter horse racing in the world the all american  into mexico and so it was the stuff of a walt disney film until it was it because the people like the simons aren't supposed to win the biggest race in the quarter horse and as they ran this race their horse came in a close second and it was obvious that the first place horse would be awarded the win until the test results came back and it turns out the first place horse was positive for a drug that the state had never before allowed to exist in a horse and let it retain its position and rights so the stewards the umpires of racing did their duty three of them that is a panel in the days following the race and they done as they had done in every case before and they disqualified the first place force because it had violated the rules of the state in a mexico because it had after the racing commission had decided so all they had done was had cleared the first hurdle toward winning if the final commission approved which course they did so it's not quite an accurate statement i don't think well we don't agree with the premise  the rules are clear that the stewards decision on the race finish can be overturned so i would have one where do you get the authority that the commission can't overturn it because the stewards because the rules that are in effect apply to this race of give the stewards the right to award the race finish and the rules say those that finishes final at least with respect to the pair mutual wager pool and the rules state that explicitly in fact that it's episteme point two point six point nine see that the rule tests are final is the stewards level now it is true that this keep adding the at the steward's level but but the way i read this it was quite clear that the commission had the final right of appeal ever final right of decision and they exercise that right the commissioner has the final right of appeal as to the licensure issues with respect to the the person charged with the violation so in this case the disciplinary proceedings instead what  did here was a process that had never done before it went out and appointed three hearing officers and if any person had seen we were saying that the commission the rules are clear that the commission does not have the authority to overturn the stewards decision about who wins the race that's clear with respect to the parimutuel wagering pool there's no question about that we're not talking about the waging pool at this point if the rules are not clear as to whether they can write a train or a wage and rules a different group of people they're not parties here we're talking about the declaration of the winner for the horse and when i understand your position i just have to disagree that the rules leon that was well one thing to say they're not clear i agree with you on that about that but is there anything in the rules that would indicate that they can't overturn the disqualification not explicitly so what what's your position about why they can't our position is the u s supreme court interests the property interests is that the rules of racing explicitly state that if there's a positive test there's no tolerance for it and the test is in the horses disqualified but they allowed that's the stewards and they basically very clearly individuals had a right to a contested hearing as to whether they were entitled to welfare benefits and in case it wasn't quite and there was an argument in that case this whole issue of does the stewards countered with the later hearing that triggers it was addressed directly by the supreme court in the sixty hearses kelly the supreme court relied on the fact that there was no discretion because the the the the claimants in that case if they had satisf the requirements they would automatically be written in titles a f d c payments correct that's how i recall the facts your honor i believe there was a degree of discretion in the case as to whether in fact the supreme court said that the plaintiffs in or were actually probably not eligible for welfare benefits but they were nevertheless entitled to a hearing list sake a case of are substantially after the goldberg case martin marietta materials research kansas department of transportation in that case didn't we specify those goals were that the test is whether following the procedures would require a particular outcome that well but that case was followed up by the jacket and arms are the crown point two thousand and two thousand and three i believe case it says the question is whether there's some limits of the discretion and so if there is there can be discretion according to this court there just has to be some limit to it and what the supreme court says this court has sided numerous times is that is long as there is a past history or an understanding is actually quote unquote an understanding is the charm and that's what happened here never before has the rape in commission done this never before has somebody allowed a positive everyone they allege contamination like they did here and she testified at the record that in every one of those cases that the panel didn't find contamination didn't find mitigating circumstances and outlaw the horse or reorder the finish that the record appellants appendix at thirteen eighteen and thirteen sixteen so this is the first time ever what i'm confused you had a right to a state court review of the race commission's decision as i my correct on that and if so my question is why did you dismiss the why didn't you pursue your state action and several responses it is for you the truth isn't true observation it's true that the third time they went to the stay court they filed a an appeal of the ruling that they were excluded from and then they ultimately denies you the appeal from being excluded from the final commission's deliberations or did they did they file a challenge to the oath to the conclusions of the recent commission reach ok so they saw in the state court a challenge both the procedural due process and the substantive decision no because none of the claims were based on federal constitutional i know that but i mean they were challenging the decision of of failure to disqualify and they were challenging a procedure that they were denied a seat at the table there's three different cause numbers in the first clause number they asked to be a part of the proceedings the commission said no the simons cannot participate in the state court hearing of the special three panel because they said it was acquired by criminal process involving only the license holders in this case the trainer's license and suspension so the state court said it was criminal and you don't have a you can't you have no right to be party to that yes or as a matter of you know they appealed that decision to the state appellate court they did not why because at that point it was about it was apparent that they were not going to event the question that they want wish to present was a federal constitutional question and it was their right to bring that case in federal the federal constitution which depends on what your state's rights are and the state court could it positively decided that decided to say well if you agree with that well that nobody of whether they have a property right judge morris was asking about that and i think i'm concerned about it as well you could have gotten a state court decision on that well they could have raised their federal points in state court they  didn't they chose to have them adjudicated in federal courts and this court has said time and again and due process cases that it is appropriate for federal courts to preserve their jurisdiction and citizens can choose to ask the federal court to adjudicate their federal rights the only issue  record but but i do want to follow up because i'm not sure that i understood how your or your answer pertains to judge of those question and that is  disqualified and if that were the case then there were assuming that whether or not there was a property interest there would have been a process that was provided because they would have ultimately been able to participate in the ability of the proceedings if they would have been by appealing to the state district court i definitely can concede all those ifs could have been possibilities a point is that they had state rights they were pursuing in state court it was apparent after every step of that point that the hearing was going forward without them and so they elected to pursue their federal court right in federal court when it's not just an if if they had the opportunity for post deprivation which is what we're talking about due process through the appeal process of the of the agencies determination then they had an opportunity for due process and by waiving that they'd wait that right well and so it's more than just speculation you had that opportunity in fact you actually appeal but didn't prosecute it they dismissed for lack of turned around not only the decision to exclude your clients they they could have said they did have standing and they should have been just a pencil the hearing so you would have had the procedural aspects of the due process and they could have turned around impossible for this imus to prevail and in just a few minutes i have left that also like to focus on a private party claims the district court determined that there were private party cause of action recognized both in the common law in the state in a mexico  you raised that argument for summary judgment at the hearing you argue at the hearing on the cross motions that you were entitled to summary judgment on the of action under the new mexico regulations correct well yes on the liability part i guess where i got confused is we hadn't argued argued the national trust issue right of those so the only time in district court that the issue  anybody would be entitled to summary judgment on this state cause of action for the employer private right of action under the new mexico regulations was at the hearing in which you specifically argued for a right to summary judgment on the issue right i believe that's true i mean it had been decided on motions to dismiss it was a law the case of the point it did it did it survived but we're not here on an appeal for a motion to dismiss exactly ok so the as i recall so we are essentially being called to determine whether your appeal on this day cause of action should be overturned when there is not a single syllable in any accessible record to us in the appendix or even if we go outside the appendix and scour the district court record there is not one iota of discussion of anybody's in the accessible record on the existence of an improper private right of action in mexico relations because there wasn't any evidence taken of the transcript so it's on the briefing it's on the motion for summary judgment papers and the evidence attached to nobody nobody argues for service judgment on court my name is nicholas i know i'm on here on behalf of the new mexico race information and its commissioners there are two brief issues that i would like to discuss with the course court first that new mexico regulations find some state law or other existing rules that entitle them to property the new mexico racing commission's regulations are are clear that a purse is not awarded and a party not entitled to a purse until after any appeal of the administrative ruling of the stewards now plaintiffs both in their reply brief and hear oral argument cite to pool of money wagered by people at the horse race and the reason why the stewards ruling is final for the purpose of that pool is that they need to pay out winnings to a few people attending the horse race in short order they don't want to wait until eleven ministry of appeal process is concluded but the person is different and the mr dunn claims that there is some ambiguity in the regulations about when a party is entitled t  if the racing commission could not reverse the stewards ruling regarding an entitlement to a person on appeal there would be no need to wait to award the person until after the appeal is concluded which that provision provides additionally the way in which the stewards can change the entitlement to a person from the for placed force to another horse is through disciplinary action against the first place  trainer or owners and that disciplinary action under the regulations is expressly subject to appeal so if you have a disciplinary action that results in the first being taken away from the first place for be redistributed shall be redistributed if the stewards or commission or a change in the official order of finish so here the stewards did order a change in or finish correct that's correct and it says or does that suggest that if the stewards order a change which happened here the procedure shall be redistributed that's mandatory suggest that the commission can change than a word i think i know you read that i guess i read it together with other provisions in the regulation that make clear both that the stewards order is subject to an immediate stay which is what happened the second issue that i wanted to address just agree fully clear up some of the administrators the administrative procedural history in this case and the plaintiff's repeated attempts to go to state court so there was first place filed a motion to the first was denied scripture but in the second the court heard that appeal and denied a affirmed the racing commission's ruling not permitting that intervention so that decision that decision on the motion to district court to review the commission's ultimate ruling that the state district court and granted granted surgery in that case ordered the plaintiff to file an opening brief in state district court and planets never did though and so they feel the administrative deal was closed for lack of prosecution if plaintiff had pursued that appeal they both would have been able to argue that the racing commission's ultimate rul  suppose i'm addressing the possibility that judge browning raised that they have some sort of they could have potentially due process right to a free floating hearing independent of the clause ideas ishall requires a criminal administrat what's available in the record before us you can't use the regular course is not state what was in those flames in your answer is we can't tell from the record before that it's what i can tell you is that in plaintiff's federal court complaint they claim that in the administrative christian the in the state court appeal of the administrative proceeding they made constitutional claims that's their own history of the proceeding and they claim that they made a good process when their reserve rests my  so i was in this case from the beginning because i propose i appear before the stewards hearing so as you've already heard there was a hearing before the stewards which is a sort of a policeman or a hearing to determine whether or not that there are some violation of the rules is a very informal proceeding a set forth in the rules the rules of evidence really do not apply it is a very informative type hearing but you're allowed to cross examine people the stewards made a ruling this is this is like three or four months after the test comes back positive from louisiana state in from iowa state and they made a policeman or a ruling that there was that there was a positive test and that the defendant and that mr taylor nothing to do with the owners in this case the owners were never brought up for any disciplinary hearing that mr taylor will face six months suspension a fine and the person would be redistributed so therefore the second place first became first the million dollars with their loan everybody would move up if you got thirty with the second and all the way down because this is the world's largest quarter horse race that last about twenty one seconds and everybody that races in the finals gets a piece of the action if you finish last you get a certain amount as a result of that though there was an automatic appeal in the state of all of that there was  automatic appeal stayed the stay was granted and the pill is a dyno appeal in front of the commission you can hear the go the rules allow to go in from the commission themselves where they can appoint a hearing officer in this case because of the nature of the case this is the world's largest quarter horse race there was an issue about giving back a million dollars to my clients or the owners of that and the executive director the state who was is a new mexico racing commission if the state was adequately represented they were represented by the attorney general's office and unless they could show somehow that that the state was not adequately representing or the reason commission was not representing their rights they did not have standing to do that to participate the three judge panel made that ruling it went to the commission the commission had another hearing that everything goes to the commission anything done by the hearing office they give to the to the original decision second abuse of discretion to the panel so any way that the same thing that happens as it relates to the disciplinary action before this court the been generated based upon the the hearing officers made a recommendation there was no violation that any presumption was rebut because of environmental contamination based upon three or four issues that are in the wrecker that was then a pill bottle that that recommendation goes back to the racing commission the five members of the racing commission the reported and noble laws of the state of new mexico ever done with that the defense when the plaintiff came before the court they never filed a motion for summary judgment on that issue they found their own motion for summary judgment or what was in their complaint when it came before the court for a hearing in the first time this came up in front of the hearing as you stated when we were in front of judge brown for this argument on the summary judgment motions and was adapt when time for the first time was raised and you said there's no there's no transcripts or it was never briefed on those issues only briefing that came out was based upon the fact that the judge made a ruling on that in his most in his sermon judgment motion on page one hundred ten or one hundred seventeen or whatever it was but there was never in an argument or there was never any briefing on the lower court or on those issues and there was no record of that so i guess that's a answer to your question i'm sorry it's a written motion written motion we have in the record before us yes or at at it starts at ten eighty four and the main section begins at eleven twelve it is the constitution as a supreme court in this court has said time again when it comes to due process gives a right to be heard at the end of the day a million dollar purse was awarded initially to my clients and then taken away by the government and despite numerous efforts ten years worth of effort they've yet to be heard on the new mexico raising commission paid out the person violation of that rule judge morris it was already had left the building the state had every interest in making sure this thing was papered over the way it was and all the signs are asking for is an opportunity to be heard maybe they didn't maybe the co