# Appendix — LeRoy v. Illinois Racing Board

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1577%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1131

## Text

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1994

Steven LeRoy,
Petitioner,

Vv.

Illinois Racing Board; Thomas J. Garvey,
Ralph M. Gonzales, Farrel J. Griffin, Ray
H. Garrison, and Irwin G. Jann,
individually and in their official capacity
as members of the Illinois Racing Board;
Richard E. Garrett, Robert G. Ward, Timothy
Schmidtz, Frank Deglamine and Robert
Milburn, individually and in their official
capacity as Stewards,

Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Seventh Circuit

APPENDIZ

LAWRENCE JAY WEINER
Counsel of Record

SCARIANO, KULA, ELLCH
AND HIMES, CHTD.

Two Prudential Plaza

180 North Stetson Street

Suite 3100

Chicago, Illinois 60601

(312) 565-3100

March, 1995

TABLE OF CONTENTS
TO APPENDIX

Opinion of the United States Court of
Appeals for the Seventh Circuit,
affirming the dismissal of the second
amended complaint by district court
(Judge Wellford, concurring in part
and dissenting in part), issued
October 27, 1994 ..... App. 1-32

Order of the United States Court of Appeals
for the Seventh Circuit, denying
plaintiff-appellant’s petition for
rehearing with suggestion of rehearing
in banc, entered December 28, 1994

eco ee etn ee) ee Bde

Mandate of the United States Court of
Appeals for the Seventh Circuit,
issued January 5, 1995 . App. 34-35

Order of the United States Court of
Appeals for the Seventh Circuit,
denying plaintiff-appellant’s motion
for stay of mandate, entered January
ee ee a ee

Complaint, filed April 26, 1989
-* * © «2 ££ & &@ &@ © & © & 6 &@ & « o@ DPT

Memorandum Opinion and Order, dated January
18, 1990, entered January 19, 1990 and
docketed January 22, 1990,. dismissing
plaintiff’s original complaint and
permitting plaintiff to file an
amended complaint... App. 73-95

Minute Order, entered January 19, 1990 and
docketed January 22, 1990 dismissing

plaintiff’s original complaint and
permitting plaintiff to file an
amended complaint .... . App. 96

Amended Complaint, filed February 9, 1990
cet es 6 oe 6 * oe eee

Memorandum Opinion and Order, dated and
entered December 20, 1990 and docketed
January 11, 1991, granting defendants’
motion to dismiss plaintiff’s amended
complaint, and dismissing case with
prejudice «<«-e«ees App. 145-184

Minute Order, entered December 20, 1990 and
docketed January 11, 1991, dismissing
case with prejudice ... App. 184

Judgment in a Civil Case, entered December
20, 1990 and docketed January 11,
1991, dismissing Plaintiff’s case with
prejudice ..... . App. 184-185

Order of United States Court of Appeals for
Seventh Circuit (Case No. 91-1166),
dated June 9, 1992, remanding case to
district court for the limited purpose
of allowing Judge Nordberg to clarify
whether he intended to dismiss the
plaintiff’s entire case, including the
claim for injunctive relief against
the defendants in their official
capacity, or, if not, whether he
believes that the remaining claims are
presently appealable under dictates of
Federal Rule of Civil Procedure 54(b).
After the district court has clarified
its position, the case to be returned
to the panel .... -« App. 185-186

ii

Minute Order, entered June 28, 1992 and
docketed June 30, 1992, "as requested by
the United States Court of Appeals,"
Amending Memorandum Opinion and Order of
December 20, 1990. ° © © «© © «© « 187-189

Amended Memorandum Opinion and Order, dated
July 7, 1992 and docketed July 13,
1993, dismissing Plaintiff’s claims
with prejudice except for the
plaintiff’s claim for injunctive
relief against defendants in their
official capacities, which remains for
adjudication ..... App. 190-228

Minute Order, dated July 7, 1992 and
docketed July 13, 1993, amending
Memorandum Opinion and Order nunc pro
tunc to December 20, 1990 pursuant to
Minute Order of June 29, 1992 and as
requested by United States Court of
ss 6 es & » « -« App. 229

Order of the United States Court of
Appeals for the Seventh Circuit (Case
No. 91-1166), dated July 13, 1992,
dismissing Plaintiff’s appeal for lack
Of jurisdiction ... App. 229-231

Judgment of United States Court of Appeals,
for the Seventh Circuit (Case No. 91-
1166), dated July 14, 1992, dismissing
appeal for lack of jurisdiction

as se + ee elf App. 232-233

Request for Admission... App. 234-248

Defendants’ Response to Plaintiff’s Request
for Admission .... App. 249-253

»% & |

Second Amended Complaint, filed
October 9, 1992 .. . .App. 254-276

Memorandum Opinion and Order, dated
April 9, 1993, entered April 12, 1993
and docketed April 13, 1993, granting
Defendant’s Motion to Dismiss with
prejudice . «+s «e-s App. 277-292

Minute Order, dated April 12, 1993 and
docketed April 13, 1993, granting
Defendants’ Motion to Dismiss with
cs 5 Ce App. 293

Judgment in a Civil Case, dated April 12,
1993 and docketed April 13, 1993,
granting Defendants’ Motion to Dismiss
with prejudice ...... App. 294

iv

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 93-2099
STEVEN LeROY,

Plaintiff-Appellant,

Vv.
ILLINOIS RACING BOARD, et al.,

Defendants-—Appellees.

Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.

No. 89 C 3433--John A. Nordberg, Judge.

ARGUED SEPTEMBER 7, 1994--DECIDED OCTOBER
27, 1994

Before POSNER, Chief Judge, and WELLFORD*
and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judae. Since 1958

Steven LeRoy has been licensed by Illinois

as an owner, trainer, and driver of

App. 1

standardbred racehorses. When obtaining
his licenses, LeRoy agreed to comply with
rules established by the Illinois Racing
Board. One of these rules forbids anyone
other than a veterinarian to possess on the
premises of any racetrack “any hypodermic
syringe or needle or any instrument capable

of being used for the injection

* Hon Harry W. Wellford, of the Sixth
Circuit, sitting by designation.

into any horse of any chemical substance."
Rule C9.10(a), codified at 11 Ill, Admin.
Code 509.100. In order to enforce this and
relatea rules the Board requires licensees
to submit to searches on demand. Rule
25.19, 11 111. Admin. Code 1325.190.
During the spring of 1987 the Illinois
State Department of Law Enforcement made

such a demand when LeRoy drove a pickup

App. 2

truck onto the grounds of the Maywood Park
Racetrack. Officers found a hypodermic
syringe and a dirty, clogged needle under
the passenger seat. Finding that the

needle could have been cleaned and used,

the Board suspended LeRoy for 90 days.
Things went downhill from there. The
suspension barred LeRoy from entering any
racetrack in Illinois. Rule 22.3, 11 Ill.
Admin. Code 1322.30. He did not comply,
was caught, and was suspended for 30
additional days. In the process, he swore
at an official of the Board, which led to
a fine plus a suspension through the end of
the 1987 season, followed by probation
until December 31, 1988. (The Board’s Rule
20.1, 11 Ill. Admin. Code 1320.10, provides
that licensees may not use “improper
language to an official, or be guilty of

any improper conduct toward such

App. 3

——————————————————————ee

officers".) Maywood’s disciplinary board
found that, while on probation, LeRoy had
“used threatening and profane language
towards the Association Steward at Maywood
Park." That ended his association with
racing for the rest of the 1988 season,
coupled with an indefinite suspension of
his licenses pending reapplication to the
Board.

Believing that the search violated his
rights under the fourth and fourteenth
amendments, LeRoy filed this suit under 42
U.S.C. §1983 seeking damages and an
injunction requiring the Board and Stewards
to expunge the disciplinary orders.
(Apparently LeRoy has been reinstated; he
does not seek any other prospective
relief.) His principal theory is that all
four suspensions depend on the search and

must stand or fall together, although he

App. 4

a

raises some independent challenges to Rule
20.1. In a series of opinions, the
district court granted the defendants
judgment on the pleadings on one issue
after another, 1990 U.S. Dist. LEXIS 544,
1990 U.S. Dist. LEXIS 17589, 1992 U.S.
Dist. LEXIS 10241, finally dismissing the
suit altogether. 1993 U.S. Dist. LEXIS
4617.

The keystone of the district court’s
approach is its holding that the defendants
possess qualified immunity from damages.
Agents stopped LeRoy’s pickup truck in
April 1987. Four months earlier a panel of
this court had held Rule 25.19
unconstitutional, at least to the extent it
authorizes searches of living cubicles that
some tracks provide for participants in the

races. Sserpas v. Schmidt, 808 F.2d 601

(7th Cir. 1986). In April 1987 this court

App. 5

was considering whether to hear Serpas en

banc. When the petition was denied in July

1987, the panel modified its opinion, and

five judges registered dissents. Serpas v.
Schmidt, 827 F.2d 23 (7th Cir. i987}.
Contemporaneous with the first panel
opinion in Serpas, the Appellate Court of
Illinois issued an opinion concluding that
Rule 25.19 is valid as applied to a pat-
down search of a jockey by agents who
suspected (correctly) that he possessed an

electrical stimulator. People v. Strauss,

151 Ill. App. 3d 191, 502 N.E.2d 1287 (lst
Dist. 1986). The district court held that
an action authorized by a rule recently
given a clear bill of constitutional health
by a state court could not be thought to
violate LeRoy’s “clearly established"

rights, see Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Anderson v. Creighton, 483

App. 6

U.S. 635, 640 (1987), even if a panel of

this court thought the rule
unconstitutional. According to the
district court, not until 1989, when Hansen

v. Illinois Racing Board, 179 Ill. App. 3d

353, 534 N.E.2d 658 (lst Dist. 1989),
disapproved Strauss and held Rule 25.19
unconstitutional “on its face," did a
racetrack search become a basis for
damages. LeRoy believes that the view of
a federal court takes precedence over the
opinion of a state court, but we do not
consider the extent to which aright may be
called “clearly established" when judges
disagree, because the search did not
violate LeRoy’s rights at all. Although
defendants have not sought to defend Rule
25.19, the merits of the constitutional
claim are an antecedent issue whenever the

defendants plead immunity, one we may

App. 7

consider without regard to the litigants’

tactical decisions. Siegert v. Gilley, 500
U.S. 226, 232-33 (1991); cf. Kamen _v.

Kemper Financial Services Inc., 500 U.S.

90, 99-100 (1991).

Serpas dealt with the application of Rule
25.19 to residential searches. The panel
emphasized not only the special privacy
interest in one’s living quarters but also
the lack of statutory support for such
searches. The statute on which the Board
relied in promulgating Rule 25.19 speaks
only of searches at the track and “other
places of business,” 230 ILCS 5/9(c), and
the panel concluded that the state
legislature thus implicitly found that
residential searches are unnecessary, even
if the living quarters are on the premises
of race tracks. LeRoy’s pickup truck was

not his home; searches of automobiles may

App. 8

Se ee ce ee ee

be justified by significantly lesser cause,
given the reduced privacy interests
involved coupled with vehicles’ greater

mobility. E.g., California v. Acevedo, 500

U.S. 565 (1991). and 230 ILCS 5/9(c)
unquestionably authorizes Rule 25.19 to the
extent it applies to vehicular searches on
the grounds of racetracks.

Since Serpas this court has revisited the
subject of searches at racetracks. Dimeo
v. Griffin, 943 F.2d 679 (7th Cir. 1991)(en
banc), holds that racing officials do not
need person-specific cause, or warrants,
before they may conduct drug tests of
persons associated with the sport. We
observed in Dimeo that horse racing is a
tightly regulated business, a fact that
permits searches designed to enforce the

terms of the regulatory regime. Se also,

e.g-, New York v. Burger, 482 U.S. 691

App. 9

(1987) (automobile junkyard); Donovan v.

Dewey, 452 U.S. 594 (1981) (coal mine);

United States v. Biswell, 406 U.S. 311

(1972) (gun dealer); Colonnade Catering
Corp. v. United States, 397 U.S. 72 (1970)

(liquor dealer); Lesser _v. Espy, No. 93-

2826 (7th Cir. Aug. 30, 1994) (rabbitry).
Dimeo concluded that the public interest in
drug testing at racetracks is substantial:
drugs (whether administered to horses or
ingested by jockeys) diminish the safety of
a sport that is already dangerous given the
size and speed of horses, and the potential
for use of drugs to affect races diminishes
public confidence in the races and thus
jeopardizes the revenue obtained from taxes
on wagers. The privacy interest also is
significant (some persons are embarrassed
by the scrutiny that may be necessary to

collect urine samples for drug testing),

App. 10

but not so great, we held, that the state

requires probable cause or a warrant. We

explained Serpas this way:

serpas _v. Schmidt, 827 F.2d 23 (7th
Cir. 1987), rejected Illinois’s claim
to be allowed to conduct’ random
searches of the living quarters of
"backstretchers," who take care of
horses at race tracks but do not
participate in the race. It was not
a drug-testing case but an old-
fashioned search case, and the persons
to be tested were ont actual race
participants. So the intrusion on
privacy was greater and the state
interest weaker.

943 F.2d at 684. Much the same may be said
today. LeRoy is licensed to participate in
races; the search was used to enforce a
rule related to drugs; an automobile search

is less intrusive than a residential

search. McGann v. Northeast Illinois

Regional Commuter R.R., 8 F.3d 1174 (7th

Cir. 1993), on which LeRoy relies, deals
with an attempt to use the public ownership

of real estate as a basis to require all

App. 11

entrants to consent to search; it has
nothing to do with administrative searches
on the premises of tightly regulated
industries. We do not think that the use
of Rule 25.19 to authorize searches of
licensees’ vehicles at racetracks is open
to serious question.

We say this notwithstanding the
conclusion of Hansen that Rule 25.19 is
invalid "on its face" -- that is, in every
possible application. The Appellate Court
of Illinois believed that participants in
horse racing may be subject to
administrative searches. It held, however,
that Rule 25.19 is invalid because it “does
not properly limit the discretion of the
inspecting officers." 179 Ill. App. 3d at
359, 534 N.E.2d at 662. Hansen attributed
the requirement of limited discretion to

our opinion in Serpas and the Supreme

App. 12

Court’s opinion in Burger. If this was
indeed an independent holding of Serpas, it
did not survive Dimeo, for that case
permitted random, suspicionless drug
testing. And our reading of Burger differs
from that of the judges who decided Hansen.
Although the Supreme Court stated that the
rules establishing a program of
administrative inspections “must limit the
discretion of the inspecting officers", 482
U.S. at 703, it also concluded that a
statute authorizing searches during
business hours, and informing participants
in the industry, satisfied this
requirement. id. at 711-12. Se also
Lesser, slip op. at 13-14, concluding that
statutes giving inspectors access to the
business premises of rabbitries on demand
Satisfy the fourth amendment. Rule 25.19,

by limiting searches to licensees on the

App. 13

premises of the tracks, likewise curtails
discretion. The Court rejected in Burger
and argument that the statute must create
criteria for searches or announce 4a
schedule of inspections. Such steps, the
Court held, would render the inspections
ineffectual, because persons with something
to hide could use their knowledge to avoid
detection. 482 U.S. at 710. The Court
believed that “surprise is crucial if the
regulatory scheme .. . is to function at
all.“ Ibid. Just so here.

One final comment about Serpas is in
order. The last page of the panel’s
opinion, 827 F.2d at 30, concluded that the
application of Rule 25.19 to the search of
backstretchers’ persons outside their
quarters stood on the same ground as the
searches of the quarters themselves. This

may have been a consequence of the parties’

App. 14

PEO MERE sn ae eee Ses eo aa nen

litigation strategy: "Appellants have not
Suggested that we should analyze the
personal searches any differently from the
residential searches". Ibid. To the
extent the panel believed that pat-—downs
and automobile searches are indeed subject
to the same rules as residential searches,
subsequent cases (including Acevedo and
Dimeo) have undercut its conclusion. This
portion of Serpas can no longer be
considered authoritative.

Dimeo applied its holding to the parties,
and that decision therefore is fully

retroactive. Harper v. Virginia Department

of Taxation, 113 S.Ct. 2510 (1993). Se

also Lockhart v. Fretwell, 113 S.Ct. 838,

844 (1993). Because the search was
permissible, most of LeRoy’s remaining
arguments collapse. Three other

contentions deserve brief attention,

App. 15

however.

Rule 20.1 forbids “improper language" or
“improper conduct" by licensees toward
regulators. LeRoy suffered two sanctions
under this rule, the first for profanity
and the second for a combination of threats
and profanity. He does not contend that
the Constitution permits him to threaten

public officials (see Watts v. United

States, 394 U.S. 705 (1969); cf. Rankin v.

McPherson, 483 U.S. 378 (1987)) or that the

profanity was a means to make a political

point (contrast Cohen v. California, 403

U.S. 15 (1971)). Instead he contends that
Rule 20.1 is “vague and overbroad.” As 4
norm addressed to the general public for
the conduct of daily affairs, Rule 20.1

would be seriously deficient. Hess _ Vv.

Indiana, 414 U.S. 105 (1973); Gooding v.

Wilson, 405 U.S. 518 (1972). But it is

App. 16

a

addressed instead to licensees, governs
only their relations with regulators
concerning “the administration of the
course, or of any race thereon," and is
administered by an agency that, through a
series of decisions, can add details. The
System Illinois applies to the racing
industry has much in common with civil
service laws, which despite their many

vague terms, were sustained in Broadrick v.

Oklahoma, 413 U.S. 601, 607-15 (1972), and

CSC v. Letter Carriers, 413 U.S. 548, 568-

81 (1973), and with the Uniform Code of
Military Justice, whose prohibitions
against “conduct unbecoming an officer and
a gentleman" and “disorders and neglects to
the prejudice of good order" met approval

in Parker v. Levy, 417 U.s. 733 (1974).

LeRoy does not contend that his own conduct

lay outside the bounds of a properly drawn

App. 17

prohibition. Whatever deficiencies Rule

20.1 may display in application to others
are not salient, for the rule is not
“substantially overbroad” in the sense that
a significant fraction of its applications
would forbid or deter protected speech.

See Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 503-04 (1985).

‘ The threats and profanity led to extended
suspensions. LeRoy attached to his
complaint decisions imposing lighter
penalties on other persons who violated
Rule 20.1. The difference between the
sanctions meted out to him, and those meted
out to others, violates the equal
protection clause of the fourteenth
amendment, LeRoy believes. But the

Constitution does not require similar

penalties for similar wrongs. Chapman v.

United States, 500 U.S. 453, 465 (1991);

App. 18

—

Wayte v. United States, 470 U.S. 598, 607-
10 (1985); FTC v. Universal-Rundle Corp.,

387 U.S. 244 (1967); Falls v. Town of Dyer,

875 F.2d 146 (7th Cir. 1989). LeRoy does
not contend that race, religion, or some
other forbidden consideration accounts for
the difference. More likely the reason for
the stiff penalty is LeRoy’s recidivism, a
perfectly appropriate ground.

Finally, LeRoy throws all of his
arguments into a stewpot and contends that

even if each falls short, the congeries

violates “substantive due process." This
invented doctrine does not authorize courts
to expand constitutional clauses at will.

Albright v. Oliver, 114 S.Ct. 807 (1994);

Graham v. Connor, 490 U.S. 386, 395 (1989).

No concrete constitutional provision
disables a state from Suspending horse

owners and drivers who bring syringes into

App. 19

racetracks or from insisting that licensees
abide by the terms of their suspensions and
behave civilly. Which acts to forbid, and
which penalties to attach to violations,
are fit subjects for decision according to
state law. Federal courts are not
appellate boards within the state’s

administrative hierarchy. Cf. River Park,

Inc. v. Highland Park, 23 F.3d 164 (7th

Cir. 1994). LeRoy could have obtained, but
spurned, review in state court. If he is
looking for review after the fashion of the
Administrative Procedure Act, he has come

to the wrong place.

AFFIRMED

WELLFORD, Circuit Judge, concurring in

part and dissenting in part:
I concur with the majority view that d

plaintiff LeRoy does not establish any

App. 20

"substantive due process" violation. I

also concur that the penalties imposed upon
LeRoy by defendant Board for threats and

profanity have not been shown to violate

constitutional equal protection
requirements.

Respectfully, I cannot agree and,
therefore, dissent to the qualified

immunity issue with regard to the search at
issue.

On April 27, 1987, Steven LeRoy,
plaintiff, drove a pickup truck on the
grounds of the Maywood Park Racetrack.
Plaintiff’s truck was searched pursuant to
Illinois Racing Board ("IRB") Rule 25.19’
A syringe and a needle were found in the
plaintiff’s truck. The syringe was

"clogged," and defendants admit there was

1

of a racing license.

App. 21

Rule 25.19 requires consent to search as
a condition to the obtainment and maintenance

no evidence that the needle was capable of
being used for injection of any chemical
substance into any horse. In addition,
defendants admit that plaintiff’s horses
were tested and found not to have been
administered with any prohibited substance
or medication. Nevertheless, plaintiff and
his horses were excluded by defendant
Stewards.* The Stewards also suspended
plaintiff for ninety days from all racing
tracks licensed by the IRB.

A federal district court in July, 1985,

considered the constitutionality of the IRB
Rule 25.19 in a case dealing with
residential quarters at Arlington Park

Racetrack in Illinois. Serpas v. Schmidt,

621 F.Supp. 734 (E.D. Ill. 1985). The

district court entered a broad injunction,

2 The defendant Stewards included Richard
E. Garret, Robert D. Ward, Timothy Schmidtz,
Frank Deglamine, and Robert Milburn.

App. 22

after a hearing, permanently enjoining the
IRB and its members, among other things,
from “conducting or authorizing searches
and seizures of . . . piaintiffs and the
class they represent without warrants and
probable cause.“ Id. at 744. In addition,
the district court Similarly enjoined
“conducting or authorizing investigatory
stops of plaintiffs and the class they
represent without at least a reasonable
Suspicion, based on specific, articulable

facts, that the person stopped is engaged

in criminal activity.” Id. Finally, this
injunction enjoined "conditioning the

issuance of occupational licenses upon
applicants’ forfeiture of their
constitutional rights. ...”" id.

On appeal, a panel of this court affirmed

the decision of the district court. Serpas

Vv. Schmidt, 808 F.2d 601 (7th Cir. 1986).

App. 23

This decision was issued only a few months

before the episode in question, holding:

The district court also enjoined the
Board and IDLE’s practice of
conducting warrantless stops’ and
searches of the backstretchers ’
persons within the race track
enclosure. Appellants have not
suggested that we should analyze the
personal searches any differently from
the residential searches, and we, too,
think that the same rules apply. Like
searches of property, searches of the
person are generally impermissible
absent a warrant issued upon a
determination of a probable cause.
New York v. Belton, 453 U.S. 454, 457,
101 S.Ct. 2860, 2862, 69 L.Ed.2d 768
(1981); Mary Beth G. v. City of
Chicago, 723 F.2d 1263, 1268 (7th Cir.
1983). The deficiencies we have noted
in the statute and regulatory scheme

apply equally to these personal
Searches. ...

Serpas, 808 F.2d at 607 (emphasis added).
During the plaintiff’s suspension period
after the personal search without warrant
and, allegedly, without reasonable
Suspicion or probable cause, this court
denied rehearing and reissued a similar

opinion regarding personal searches on IRB

App. 24

ee

track enclosures. Serpas v. Schmidt, 827

F.2d 23 (7th Cir. 1987).

Based on these facts alone, defendants
cannot claim qualified immunity for the
April, 1987 search, seizure and suspension.
(The judges who comprise the majority on
this panel, however, vigorously dissented
from denial of an en banc hearing, 827 F.2d
at 34). Presumably, the injunction
remained in effect.

An Illinois appellate court, in the
meantime, on December 31, 1986, issued an
opinion on the constitutional validity of

Rule 25.19, People y. Strauss, 151 Ill.

App. 3d 191, 502 N.E.2d 1287 (1986), based
upon a very different set of facts from
serpas and the instant case. Track
authorities had detected a “suspicious
betting pattern" which involved jockey

Strauss’ horse. Upon a subsequent pat-—down

App. 25

search of Strauss, an illegal device was
found. Upon Strauss’ challenge to the
search under Rule 25.19, the Illinois trial
court declared this rule unconstitutional.
The Illinois Court of Appeals, without any
reference to Serpas or its injunction, held
the rule to be constitutional in the face
of Strauss’ particular challenge. The
holding was based upon the unusual betting
pattern centered upon Strauss and because
“the pat-down search is considered the
least intrusive type." Id. at 198, 502
N.E.2d at 1291.

Strauss held that under the

circumstances, defendant’s "justifiable
privacy expectation is minimal," and that
only "’a minimal showing os suspicions’ be
present to justify a pat-down search,"
which was “not considered an extensively

intrusive search." The holding was

App. 26

apes eennnt ar Naan enema aed

expressly limited to “the warrantless

search . . ., based on the facts of this

case." Id. at 198, 502 N.E.2d at 1292

(emphasis added).

In this case, the district court’s
decision concluded that “the Illinois
Appellate Court declined to follow the
serpas decision." This may be so, but

Strauss made no mention of Serpas or its

injunction; in addition and most important,
there was a reasonable Suspicion in
Strauss, on the basis of which track
authorities made a minimally intrusive
search. The Strauss court also may not
have been aware of serpas, but, in any
event, Strauss limited the effect of its
decision to the distinctive facts of that
case. Serpas, on the other hand, was a
broad class action type of case, involving

track employees’ challenge to

App. 27

—

a
a i nr i i cE
———

Se ee

“investigatory stops and searches of
[their] persons within the race track
enclosure." Serpas, 808 F.2d at 602.
Furthermore, in Hansen v. Illinois Racing
Board, 179 Ill. App. 3d 353, 534 N.E.2d €58
(1989), a person in a similar position to
LeRoy challenged a proposed search of a
pickup truck at a racetrack under Rule
25.19 and was successful in establishing
the Rule’s unconstitutionality once again.
In Hansen, the track stewards, based upon
the party’s refusal to permit a search of

the vehicle in May of 1987, decided that

“the proper procedure was not to search the
truck," but to suspend Hansen’s license.

Id. at 660.° Neither the Illinois trial

3 As to the issue of LeRoy’s consent to
the search in this case, this court held in
McGann v. Northeast Ill. Regional Commuter R.R.
Corp., 8 F.3d 1174, 1184 (7th Cir. 1993), that
“if there was an unlawful seizure, [the issue
was whether ] plaintiff's conduct was
‘sufficiently an act of free will to purge the

App. 28

court nor the Illinois appellate court felt
bound by Strauss and its particular fact
ruling. Instead, these Illinois courts
deemed Serpas to be “instructive and in
accord with constitutional requirements."
Id. at 662-63.

In testing defendants’ claim of qualified
immunity, we look to see if “constitutional
standards [were] Clearly established at the

time in question." Rakovich v. Wade, 850

F.2d 1180, 1210 (7th Cir.), cert. denied,

488 U.S. 968 (1988). Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982), discussed
qualified immunity in the context of
whether the state official involved “could
be fairly said to ‘know’ that the law

forbade conduct not previously identified

as unlawful." (emphasis added). In April

of 1987, I believe that defendants

primary taint’ of the unlawfulness. “

App. 29

reasonably might be said to have known or
deemed to have realized that the conduct
involved in an arbitrary search of LeRoy
was unlawful or unconstitutional.
Defendants were charged with knowledge that
a federal district court had enjoined them
from engaging in this kind of conduct as
unlawful and that this court had affirmed
that decision, and that, again, ratified
those decisions before the suspension of
LeRoy had expired. They knew, or should
have known, the Illinois state trial judge
had agreed with that rationale in Strauss,
but this decision had been reversed on and
limited to the particular (and dissimilar)
facts in that case. They may have been
aware that another Illinois State judge in
Jansen had found Rule 25.139
unconstitutional on its face before the

suspension was lifted.

App. 30

Based on these facts and the state of the
law in 1987, I would find it error for the
district judge to have granted a Fed. R.
Civ. P. 12(b)(6) motion in favor of
defendants on the basis of qualified
immunity. It may be that defendants will
ultimately prevail on this defense, but the
dismissal was premature, I believe, under
the circumstances.

I am mindful that much later, in 1991, a

divided en banc court in Dimeo v. Griffin,

943 F.2d 679 (7th Cir. 1991), held “that
racing officials [in Illinois] do not need
person-specific cause, or warrants before
they may conduct drug tests of persons
associated with the sport." I do not agree

that Dimeo (decided in 1991) may be

retroactively applied in this case to
consideration of a claim of qualified

immunity to a 1987 episode, which claim

App. 31

must take into account the state of the law
as to asserted violation of constitutional
rights in 1987. While Serpas, 827 F.2d at
23, may be deemed “no longer authoritative"
by the majority (as of 1991), for the
reasons I have stated, I believe it was
sufficiently authoritative (and its
injunction binding) to preclude a Rule
12(b)(6) motion in this case.

I, therefore, dissent from the Rule 25.19
holding only and the grant of qualified
immunity under the circumstances.

A true Copy:

Teste:

Clerk of the United States Court _
of Appeals for the Seventh

App. 32

UNITED STATES COURT OF APPEALS
For the Seventh Circuit

December 28, 1994
Before
Hon. RICHARD A. POSNER, Chief Judge
Hon. HARRY W. WELLFORD, Circuit Judge*
Hon. FRANK H. EASTERBROOK, Circuit Judge
STEVEN LeROY,

Plaintiff-
Appellant,

Appeal from the
United States
District Court
for the Northern
No. 93-2099 Vv. District of

No. 89 C 3433
John A. Nordberg,
Judge.

Illinois Racing

Board, et al.,
Defendants-
Appellees.

eee ee ee ee ee ee we wa

Order
Plaintiff-Appellant filed a petition
for rehearing and suggestion of rehearing
en banc on November 10, 1994. No judge in
regular active service has requested a vote
on the suggestion of rehearing en banc, and

all of the judges on the panel have voted

App. 33

to deny rehearing. The petition for

rehearing is therefore DENIED.

* Hon. Harry W. Wellford, of the Sixth
Circuit, sitting by designation
UNITED STATES COURT OF APPEALS
For the Seventh Circuit

NOTICE OF ISSUANCE OF MANDATE

DATE: January 5, 1995

TO: H. Stuart Cunningham
United States District Court
Northern District of Tllinois

219 S. Dearborn Street

FROM: Thomas F. Strubbe, Clerk
RE: 93-2099
LeRoy, Steven v. IL Racing Board

89 C 3433, Judge Nordberg,

App. 34

Chicago, IL 60604
:
|
:
|

Herewith is the mandate of this court
in this appeal, along with the Bill of
Coasts, if any. A certified copy of the
opinion/order of the court and judgment, if
any, and any direction as to costs shall

constitute the mandate.

App. 35

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

January 9,

Before

1995

Hon. FRANK H. EASTERBROOK, Circuit Judge

STEVEN LEROY,
Plaintiff-
Appellant,

No. 93-2099 Vv.

ILLINOIS RACING

BOARD, et. al.,
Defendants-—
Appellees.

Appeal from the
United States
District Court for
the Northern
District of
Illinois, Eastern
Division.

No. 89 C 3433

John A. Nordberg,
Judge.

Upon consideration of the "MOTION FOR

STAY OF MANDATE”, filed January 5, 1995, by

counsel for the appellant, Steven LeRoy,

IT IS ORDERED that the motion is

DENIED.

App.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STEVEN LEROY,
Plaintiff,
No. 89 C 3433

V.

ILLINOIS RACING BOARD, JURY DEMANDED

ee Ne ee ee See See Nee ee ee

et al.,
Defendants.
COMPLAINT
Jurisdiction
1. This action is Drought pursuant

to the Fourth, Fifth and Fourteenth
Amendments to the Constitution of the
United States and 42 U.S.C. 1983.
Jurisdiction is conferred pursuant to 28
U.S.C. Sections 1331 and 1343.

The Parties

2 The plaintiff, STEVEN LeROY

("LeRoy") is and at all times pertinent

App. 37

App.

hereto was a resident of the County of
Kane, State of Illinois, in the Northern
District of Illinois, Eastern Division, and
since 1958 was licensed by the defendant
Illinois Racing Board, as an owner, driver,
and trainer of standardbred race horses
until the exclusions, suspensions, and
revocation complained of herein.

3. The defendant Illinois Racing
Board is an agency of the State of
Illinois, pursuant to Ill. Rev. Stat., ch.
8, par. 37-1 et seq-, and has’ the

authority, inter alia, to issue occupation

licenses to owners, trainers, and drivers,
to promulgate rules (including the rules
complained of herein), and to suspend or
revoke said licenses, pursuant to Ill. Rev.
Stat., ch. 8, pars. 37-15 and 37-16.

4. The defendants Thomas J. Garvey,

App. 38

Ralph M. Gonzales, Farrel] J. Griffin, Ray
H. Garrison, and Irwin G. Jann were at all
times pertinent hereto members of the
Illinois Racing Board pursuant to Ill. Rev.
Stat., ch. 37, par. 4, and rendered the
June 6, 1987, Order complained of herein.

. The defendants Richard E.
Garrett, Robert G. Ward, Timothy Schmidtz,
Frank Deglamine and Robert Milburn, were at
all times pertinent hereto Stewards, who
made the rulings which are complained of
herein.

Cause of Action

6. On April 27, 198°, pursuant to
Rule 25.19 promulgated by the defendant
Illinois Racing Board, a pickup truck
driven, but not owned, by LeRoy was
Searched by agents of the Illinois State
Department of Law Enforcement on the

grounds of Maywood Park Racetrack.

App. 39

7 « “Among a substantial collection

of rubbish and debris” under the passenger
seat of the vehicie, the agents of the
Department of Law Enforcement found a 60 cc
syringe and needle with a plastic cover on
the needle, which syringe and needle
contained no prohibited substances, which
needle was “clogged” and “the plunger was
caked with dry matter”, and with respect to
which there was no evidence of record that
the needle was “capable of being used for
the injection into any horse of any
chemical substance."

8. Irrespective of the aforesaid, on
April 27, 1987, defendants Richard E.
Garrett, Timothy Schmidtz, and Robert G.
Ward issued the Stewards Ruling No. 39,
(attached hereto as Exhibit "A"), excluding
LeRoy under Ill. Rev. Stat., ch. 8, par.

37-9e, pending further investigation and

App. 40

Subsequent Stewards inquiry.

9. On June 2, 1987, the aforesaid
defendant Stewards issued the following
Stewards Ruling No. 149 (attached hereto as
Exhibit "me Os

On April 27, 1987, Ill. Dept. Criminal
Investigation Agents in Maywood Park
Stable area searched a pickup truck
driven by Steven LeRoy and seized 1-60
cc syringe with needle attached.

An inquiry was conducted April 27,
1987 at which time Steven LeRoy was
excluded under the Horse Racing Act of
1975 pending lab analysis of the
needle and Syringe and further
investigation. A subsequent inquiry
was conducted on May 20, 1987.

The following facts were revealed:

i. The truck driven by Steven LeRoy
was owned by the Robt. LeRoy
Construction Co., and was used by
others besides Steven LeRoy.

2. The needle and 60 cc Syringe upon
examination was old, dirty and
the plunger was caked with dry
matter.

3. The Illinois Racing Board lab
analysis found no prohibited

substances in the needle and
Syringe.

App. 41

a
a
tc

ee

4. The syringe and needle was found
under the seat among a
substantial collection of rubbish
and debris.

5. Mr. LeRoy has no prior medication
violations.

After considering the testimony and
evidence in these inquiries, the Stewards
find Steven LeRoy in violation of I.R.B.
Medication Rule C9.10A. Therefore, Steven
LeRoy is hereby suspended for 90 days
(credit given for days served) or until
July 25, 1987 from all tracks license? by
the Illinois Racing Board. This suspension
shall include all horses owned wholly or in
part.

10. On June 6, 1987, after a hearing
pursuant to the request of LeRoy, the
defendants Illinois Racing Board and Thomas
J. Garvey, Ralph M. Gonzalez, Farrel J.
Griffin, Ray H. Garrison and Irwin G. Jann,
individually and in their official capacity
as members of the Illinois Racing Board,
rendered the “Order” (attached hereto as
Exhibit "C"), suspending LeRoy “from all

racetracks under the jurisdiction of the

App. 42

Illinois Racing Board for @ period of 90
days for a violation of Board Rule C9.10(a)
with credit to be Given for all time
served." The defendants Ray H. Garrison
and Irwin G. Jann concurred in part and
dissented in part from the aforesaid Order,

Stating, inter alia:

By a vote of 4 to 1, the Board found
that LeRoy on April 27, 1987 had
constructive possession of a needle on
the grounds of Maywood Park Racetrack,
and that such possession was in
violation of Board Rule C9.10(a). The
license of LeRoy was suspended for 90
days with credit for the exclusionary
period and time served under the June
2d stewards’ ruling but that such
Suspension shall run concurrently with
the suspension for possession of the
Syringe. I respectfully disagree with
this finding by the majority of the
Board.

As indicated by paragraph numbered 9
Of the Board’s Order, the evidence in
the record shows that the neck of the
needle, when seized on April 27, 1987,
was “clogged and that there was a
brown cake material in the plunger."
I find no evidence in the record that
On April 27, 1987 the needle was, in
the words of Rule C9.10(a), “capable
of being used for the injection into

App. 43

i

any horse of any chemical substance."

The finding in Paragraph 10 of the
Board’s Order seems to suggest that
the functional capability of the
needle gleamed by visual inspection at
the time of the Board hearing (June 6,
1987) should be determinative rather
than the evidence in the record as to
the capability of the needle when
possessed by LeRoy. I disagree.

Certainly, the word “needle“ as used
in Rule C9.10(a) must have a frame of
reference. Otherwise, the rule would
include sewing needles. I believe
that the correct frame of reference is
a needle that is “capable of being
used for injection into any horse of
any chemical substance."

11. On July 30, 1987, the aforesaid
defendant Stewards issued the following
Stewards Ruling Nos. 209 and 210 (attached
hereto as Exhibits et and "BE",
respectively):

Stewards Ruling No. 209:

Steven LeRoy is hereby suspended for
the remainder of the 1987 Sportsman's
Park harness meet or through and
including Sept. 8, 1987. Assessed a
civil penalty of $500.00 and placed on
probation through December 31, 1988.
On July 3, 1987 Mr. LeRoy displayed

App. 44

improper conduct by using offensive
and profane language towards an
Illinois Racing Board Official.

Viol. IRB Rule 20.1

Stewards Ruling No. 210:

Steven LeRoy is hereby suspended for
a period of 30 days (August 5, 1987
through and including September 3,
1987). This suspension shall run
concurrently with suspension period
Stated in I.R.B. Ruling #209. on July
3, 1987, Mr. LeRoy was observed on the
premises of Sportsman’s Park Racetrack
in direct violation of the terms of
his suspension as defined in i = P
Rule 22.3.

Note Rule Number 149, Sportsman’s Park.
Viol. IRB Rule 22.3

12. On August 4, 1988, the defendants
Robert Milburn, Frank Deglamine and Robert
G. Ward issued the following Stewards
Ruling No. 192 (attached hereto as Exhibit
“7* )s

In 1987 Steven LeRoy was the subject

of three stewards rulings Suspending

his license for violation of: IRB

Rule C9.10A (Possession of Needle or

Syringe Prohibited), IRB Rule 42.3
(Definition of Suspension), IRB Rule

App. 45

20.1 (Improper Conduct)

In Stewards Ruling #29 dated July 30,
1987, Mr. LeRoy was suspended,
assessed a civil penalty, and placed
on probation thru December 31, 1988
for using offensive and profane
language towards an Illinois Racing
Board Official.

On August 3, 1988 Mr. LeRoy violated
the terms of said ruling and IRB Rule
20.1 when he used threatening and
profane language towards the
Association Steward at Maywood Park.

Wherefore, Steven LeRoy is hereby
suspended for the balance of the year
1988. Any future applications are to
be forwarded to the Board for
consideration. During the period of
this suspension Mr. LeRoy is denied
the privileges and use of the grounds
of all race tracks under the
jurisdiction of the Illinois Racing

Board.
13. Irrespective of repeated
requests, the defendants have failed,

refused and/or neglected to vacate, remove,
expunge or otherwise vitiate the aforesaid
Order and Stewards Rulings, and the
exclusions, suspensions, fine, penalty, and

denial of privileges occasioned thereby.

App. 46

14. The aforesaid actions and conduct
were in violation and derogation of LeRoy’s
rights under 42 U.S.C. 1983 and/or the
Fourth, Fifth and/or Fourteenth Amendments
to the Constitution of the United States.
15. The Rules of the Illinois Racing Board
under which LeRoy was searched, excluded,
Suspended, fined, penalized and denied his
privileges and use of the grounds of all
racetracks under the jurisdiction of the
Illinois Racing Board are unlawful,
Overbroad, arbitrary, capricious,
unreasonable, a denial of the equal
protection of the laws, and/or otherwise
unconstitutional on their face and/or as
applied to the facts and circumstances of
the case.

16. The defendant knew, or reasonably
should have known that their conduct and

actions were in violation of LeRoy’s rights

App. 47

under 42 U.S.C. 1983 and/or the Fourth,

Fifth and/or Fourteenth Amendments to the
Constitution of the United States and that
the Rules of the Illinois Racing Board
under which LeRoy was searched, excluded,
suspended, fined, penalized and denied his
privileges and use of the grounds of all
racetracks under the jurisdiction of the
Illinois Racing Board are unlawful,
overbroad, arbitrary, capricious,
unreasonable, a denial of the equal
protection of the laws, and/or otherwise
unconstitutional on their face and/or as
applied to the facts and circumstances of
the case, by reason, inter alia of the

decision in the case of Serpas V. Schmidt,

621 F. Supp. 734 (N.D. Ill. 1985), affirmed
827 F. 2d 23 (7th Cir. 1987), cert. denied
U.S. , 108 S. Ct. 1075 (1988).

17. By reason of the aforesaid

App. 48

i) i at a a

conduct and actions of the defendants, and
each of then, LeRoy suffered substantial
damage, loss and injury.

18. In addition and alternatively,
the conduct and actions of the defendants
and each of them, were intentional and/or
done with reckless or callous indifference
to and/or disregard of LeRoy’s federally
protected rights, and LeRoy is entitled to
and should be awarded punitive damages
against any and all such defendants who are
found upon trial to have had such
intention, indifference to, and/or
disregard of the aforesaid constitutional
and/or statutory rights.

19. Unless restrained and enjoined,
the defendants will continue to violate the
aforesaid constitutional and/or statutory
rights of LeRoy and other Owners, drivers

and trainers of Standardbred race horses

App. 49

under their jurisdiction in the State of
Illinois.

20. With respect to the injunctive
aspects of this case, LeRoy has no adequate
remedy at law.

Prayer

WHEREFORE, the plaintiff, Steven
LeRoy, respectfully prays that:

i. The Court find, adjudge, and
declare that the conduct and actions of the
defendants were in violation of LeRoy’s
constitutional and/or statutory rights;

2. The Court order that the
defendants rescind, vacate, remove, and
expunge the exclusions, suspensions, fine
and/or penalty involved herein; and that
LeRoy be declared to be in good standing
and reinstated to all rights and
privileges.

3. A judgment be entered in favor of

App. 50

LeRoy and against the defendants, and each
of then, individually and/or in their
official capacity for such compensatory and
punitive damages as are found appropriate
upon the trial of this cause;

4. A preliminary, and upon the trial
of this cause, a permanent injunction be
issued against the defendants, individually
and in their cfficial capacity, restraining
and enjoining them from violating the
constitutional and/or statutory rights
involved herein with respect to LeRoy and
all other Owners, drivers, and trainers of
Standardbred race horses under their
jurisdiction in the State of Illinois;

3. An award be entered in favor of
LeRoy and against the defendants, and each
of them individually and in their official
capacity, for the costs, expenses and

disbursements incurred in the prosecution

App. 51

of this action, and for reasonable
attorneys’ fees; and

6. The plaintiff, Steven LeRoy be
granted such other and further relief as

may be just, equitable and proper.

/s/ Lawrence Jay Weiner

LAWRENCE JAY WEINER

Attorney for Plaintiff Steven
LeRoy

Lawrence Jay Weiner
Schwartz & Freeman

401 North Michigan Avenue
Suite 3400

Chicago, Illinois 60611
312/222-0800

App. 52

STEWARDS RULING
NUMBER #39

DATE__APRIL 27, 1987

MAYWOOD PARK TROTTING
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK
HARNESS [X] THOROUGHBRED [ }
NAME STEVEN LEROY
* 2 «

THE ABOVE, IS HEREBY EXCLUDED UNDER THE
“ILLINOIS HORSE RACING ACT OF 1975" CHAP.
8 § 37-9E

POSSESSION OF HYPODERMIC SYRINGE AND NEEDLE
WITHIN THE CONFINES OF ILLINOIS RACING
BOARD LICENSED TRACK, MAYWOOD PARK.

THIS EXCLUSION SHALL REMAIN IN EFFECT
PENDING FURTHER INVESTIGATION AND

SUBSEQUENT STEWARDS INQUIRY.

App. 53

STEWARDS:

/s/ RICHARD E. GARRETT
STATE
/s/ TIMOTHY SCHMIDTZ
STATE
/s/ ROBERT G. WARD
ASSOCIATION
Exhibit "A"

STEWARDS RULING

NUMBER #149

DATE__JUNE 2, 1987

CHICAGO DOWNS
NAME OF ASSOCIATION

SPORTSMAN ’S_ PARK
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
4

NAME STEVEN LEROY

2 © @

On April 27, 1987, Ill. Dept. Criminal
Investigation Agents in Maywood Park stable

area searched a pickup truck driven by

App. 54

—————
ee

Steven LeRoy and seized 1-60 cc

Syringe with needle attached.

An inquiry was conducted April 27, 1987 at
which time Steven LeRoy was excluded
under the Horse Racing Act of 1975 pending
lab analysis of the needle and syringe
and further investigation. A subsequent
inquiry was conducted on May 20, 1987.
The following facts were revealed:

Exhibit "B"

i. The truck driven by Steven LeRoy was
Owned by the Robt. LeRoy Construction
Co.»
and was used by others besides Steven
LeRoy.

yo The needle and 60 cc Syringe upon
examination was old, dirty and the
plunger
was caked with dry matter.

3. The Illinois Racing Board lab analysis
found no prohibited substances in
the needle and syringe.

4. The syringe and needle was found under
the seat among a substantial
collection of rubbish and debris.

S. Mr. LeRoy has no prior medication
violations.

After considering the testimony and

App. 55

evidence in these inquiries, the Stewards
find Steven LeRoy in violation of I.R.B.
Medication Rule C9.10A. Therefore, Steven
LeRoy is hereby suspended for 90 days
(credit given for days served) or until
July 25, 1987 from all tracks licensed by
the Illinois Racing Board. This suspension

shall include all horses owned wholly or in

part.

STEWARDS:

/s/ RICHARD E. GARRETT
STATE

/s/_ TIMOTHY SCHMIDTZ
STATE

/s/ ROBERT G. WARD

ASSOCIATION

Exhibit "B" (cont. )

App. 56

STATE OF ILLINOIS
ILLINOIS RACING BOARD
June 6, 1987, Board Meeting

In the Matter of )
) 87 H 012

Steven LeRoy )

ORDE

a

This cause came to be heard on the
request filed by Steven LeRoy ("Leroy") for
a hearing before the Illinois Racing Board
("Board"). On June 2, 1987, the stewards
at Maywood Park Racetrack ("Maywood")
Suspended LeRoy for possession of a
hypodermic needle and Syringe on the
grounds of Maywood in violation of the
Board’s medication rules. LeRoy had been
excluded by the Stewards on April 27, 1987
from all racetracks under the supervision
of the Board, for the possession of the
needle and syringe.

Pursuant to Section l4a of the

App. 57

Illinois Horse Racing Act of 1975
Ill.Rev.Stat. (1985) ch. 8, par. 37-14a
("Act"), 4a hearing was held before 4a
Hearing Officer appointed by the Board.
Steven LeRoy was present and represented by
counsel. The record made at the hearing,
including the transcript of the
proceedings, the exhibits admitted into
evidence and the closing arguments of
counsel, have been carefully reviewed by
the Board.
Exhibit "C"
WHEREFORE, the members of the Board
being fully advised in the premises hereby
make the following findings of fact and
conclusions of law:
1. We find the issue of LeRoy’s
prior exclusion to be moot and will address

here only the issue of the suspension.

App. 58

ae LeRoy, dob 07/5/27, SS 127-24-
4824, is a 60 year old resident of Elgin,
Illinois who has been licensed by the Board
Since 1958 as an owner/trainer/driver of
Standardbred racehorses.

. On April 27, 1987, LeRoy drove a
1974 blue Chevrolet pickup truck, license
plate number 49477b, onto the grounds of
Maywood. Upon his entrance to the backside
of the track, LeRoy was confronted by
members of the State Department of Law
Enforcement ("DLE") requesting that he
consent to a search of his vehicle. LeRoy
consented to said search.

4. The agents of the DLE searched
the back of the vehicle first and then
searched the cab. Under the passenger seat
of the vehicle, they found a 60cc syringe
and needle with a plastic cover on the

needle.

App. 59

5. Board Rule C9.10(a) reads as
follows:

a) Possession of a Hypodermic
Needle or Syringe
Prohibited

No person, except a veterinarian,
shall have in his possession
within any racetrack enclosure
any hypodermic syringe or needle
or any instrument capable of
being used for the injection into
any horse of any chemical
substance.

6. Leroy denied any knowledge of the
existence or ownership of the needle and
syringe. LeRoy testified that he has used
the truck to transport horses and horse
equipment from his farm to Illinois
racetracks for approximately five years.

7. LeRoy testified that he is aware
that needles and syringes are not allowed
on the backside of racetracks and that he
did not clean the interior of the truck

before driving on tne backside of the

racetrack. In addition, he did not look

App. 60

sree ee
a ee en AR AR RN ROR a

under the seat of the truck for any
possible prohibited items before he drove
on the backside of the track. However, he
has advised the Board that he will follow
that practice in the future.

8. the Board finds constructive
Possession on behalf of LeRoy as it
relates to the needle and Syringe found in
the vehicle driven by him on the day in
question.

9. LeRoy presented evidence at the
hearing that the neck of the needle was
clogged and that there was €@ brown cake
material in the Plunger and the needle and
Syringe were dirty. While the hypodermic
needle and syringe may have been dirty, all
that would be required to make it useable
would be for one to clean the needle and
Syringe. Rule C9.10(a) does not require a

completely sanitized and sterilized needle

App. 61

and or for a violation of the Rule.

10. We find that the needle and
syringe through a visual inspection is
functional and useable for injection into
a horse and _ therefore sufficient to
establish a violation of the rule.

WHEREFORE, IT IS HEREBY ORDERED that
Steven LeRoy is hereby suspending from all
racetracks under the jurisdiction of the
Illinois Racing Board for a period of 90
days for a violation of Board Rule C9.10(a)
with credit to be given for all time

served.

/s/_ Thomas J. Garvey
Thomas J. Garvey

/s/_ Ralph M. Gonzalez
Ralph M. Gonzalez

/s/ Farrel J. Griffin
Farrel J. Griffin

Concurring in part and dissenting in

part:

App. 62

On April 27, 1987, the stewards at

Maywood Park Racetrack excluded Steven
LeRoy from all racetracks in Illinois.
Under the stewards’ ruling, the exclusion
was to “remain in effect pending further
investigation and subsequent stewards’
inquiry" concerning his alleged possession
of a hypodermic Syringe and needle. He was
not charged at the time of the exclusion
with any violation of any Board rule or
racing law and there was ao evidence or
finding by the stewards that LeRoy ’s
presence on a racetrack might call into
question the honesty and integrity of
racing in Illinois. LeRoy riled with the
Board a timely request for hearing in which
he challenges the legality and propriety of
the exclusion order.

Testimony was taken before a hearing

officer of the Board and the matter came

App. 63

before the Board for a decision on June 6,

1987. It was learned during the hearing on
June 6th that the stewards had completed
their investigation of LeRoy and that a
ruling had been issued on June 2nd
suspending LeRoy’s license because of his
possession of a syringe and needle on April
27, 1987 in violation of Board Rule
c9.10(a).

Under the terms of the exclusion
order, the period of the exclusion expired
on June 2nd, which was prior to the Board’s
hearing on June 6th, the Board, by a vote
of 5 to 0 held that the exclusion issue was
moot at the time of the hearing. I join in
that decision. However, I would also find
that the exclusion under the circumstances
present here, was clearly improper.

By a vote of 5 to 0, the Board found

that LeRoy on April 27, 1987 had

App. 64

a

constructive possession of a Syringe on the
grounds of Maywood Park Racetrack, and that
such possession was in violétion of Board
Rule C9.10(a). The Board Suspended the
license of LeRoy for 90 days (with credit
for the exclusion period between April 27
and June 2nd and credit for time already
served under the Stewards’ ruling of June
2nd) because of the violation. I join in
that decision.

By a vote of 4 to 1, the Board found
that LeRoy on April 27, 1987 had
constructive possession of a needle on the
grounds of Maywood Park Racetrack, and that
Such possession was in violation of Board
Rule C9.10(a). The license of LeRoy was
Suspended for 90 days with credit for the
exclusionary period and time served under
the June 2nd concurrently with the

Suspension for possession of the syringe.

App. 65

I respectfully disagree with this finding

by the majority of the Board.

As indicated by paragraph numbered 9
of the Board’s Order, the evidence in the
record shows that the neck of the needle,
when seized on April 27, 1987, was "clogged
and that there was a brown cake material in
the plunger." I find no evidence in the
record that on April 27, 1987 the needle
was, in the words of Rule cC9.10(@),
“capable of being used for the injection
into any horse of any chemical substance."

The finding in Paragraph 10 of the
Board’s Order seems to suggest that the
functional capability of the needle gleamed
by visual inspection at the time of the
Board hearing (June 6, 1987) should be
determinative rather than the evidence in
the record as to the capability of the

needle when possessed by LeRoy. I

App. 66

disagree.
Certainly, the word “needle” as used
in Rule C9.10(a) must have a frame of
reference. Otherwise, the rule would
include sewing needles. 1 believe that the
correct frame of reference is a needle that
is “capable of being used for injection
into any horse of any chemical substance."

[S/ Ray H. Garrison
Ray H. Garrison

/[S/ Irwin G. Jann
Irwin G. Jann

Action taken by the Illinois Racing
Board at its July 6, 1986 Board Meeting.

/S/ William J. Bissett
William J. Bissett
Executive Director

Order Published/Mailed:

September 22, 1987

Date

App. 67

STEWARDS RULING
NUMBER #209

DATE__ JULY 30, 1987

FOX VALLEY TROTTING
NAME OF ASSOCIATION

SPORTSMAN ’S PARK
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK
HARNESS [X] THOROUGHBRED
C J
NAME STEVEN LEROY
* * *

STEVEN LEROY IS HEREBY SUSPENDED FOR THE
REMAINDER OF THE 1987 SPORTSMAN’S PARK
HARNESS MEET OR THROUGH AND INCLUDING SEPT.
8, 1987.

ASSESSED A CIVIL PENALTY OF $500.00 AND
PLACED ON PROBATION THROUGH DECEMBER 31,
1988.

ON JULY 3, 1987 MR. LEROY DISPLAYED
IMPROPER CONDUCT BY USING OFFENSIVE AND

PROFANE LANGUAGE TOWARDS AN ILLINOIS RACING

App. 68

> Sate lel

BOARD OFFICIAL
IRB RULE 20.1

STEWARDS:

{s/ RICHARD E. GARRETT
STATE

{s/ TIMOTHY SCHMIDTZ
STATE
Ls/ ROBERT G. WARD
ASSOCIATION

Exhibit "Dp"
STEWARDS RULING

NUMBER #209
DATE__ JULY 30, 1987

FOX VALLEY TROTTING
NAME OF ASSOCIATION

SPORTSMAN’S PARK
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK
HARNESS [X] THOROUGHBRED
2
NAME STEVEN LEROY
kk &

STEVEN LEROY IS HEREBY SUSPENDED FOR A
PERIOD OF 30 DAYS (AUGUST 5, 1987 THROUGH
AND INCLUDING SEPTEMBER 3, 1987) THIS
SUSPENSION SHALL RUN CONCURRENTLY WITH
SUSPENSION PERIOD STATED IN I.R.B. RULING
#289. ON JULY 3, 1987, MR. LEROY WAS
OBSERVED ON THE PREMISES OF SPORTSMAN ’S
PARK RACETRACK IN DIRECT VIOLATION OF THE
TERMS OF HIS SUSPENSION AS DEFINED IN
I.R.S. RULE 22.3 NOTE RULING NUMBER 149,
SPORTSMAN’S PARK.

VIOL. IRB RULE 22.3

STEWARDS:

/s/_ RICHARD E. GARRETT
STATE

/s/_ TIMOTHY SCHMIDTZ
STATE

/s/_ ROBERT G. WARD
ASSOCIATION

Exhibit "E"

STEWARDS RULING

App. 70

oe FIED) -

NUMBER #192
DATE__AUGUST 4, 1988

ASSOCIATES RACING ASSN.
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK
HARNESS [X] THOROUGHBRED
=
NAME STEVEN LEROY
& & &

IN 1987 STEVEN LEROY WAS THE SUBJECT OF
THREE STEWARDS RULINGS SUSPENDING HIS
LICENSE FOR VIOLATION OF:

IRB RULE C9.10A (POSSESSION OF NEEDLE OR
SYRINGE PROHIBITED) IRB RULE 22.3
(DEFINITION OF SUSPENSION)

IRB RULE 20.1 (IMPROPER CONDUCT) IN
STEWARDS RULING #29 DATED JULY 30, 1987,
MR. LEROY WAS SUSPENDED,

ASSESSED A CIVIL PENALTY, AND PLACED ON

PROBATION THRU DECEMBER 31, 1988 FOR USING

App. 71

OFFENSIVE AND PROFANE LANGUAGE TOWARDS AN
ILLINOIS RACING BOARD OFFICIAL.

ON AUGUST 3, 1988 MR. LEROY VIOLATED THE
TERMS OF SAID RULING AND IRB RULE 20.1 WHEN
HE USED THREATENING AND PROFANE LANGUAGE
TOWARDS THE ASSOCIATION STEWARD AT MAYWOOD
PARK.

WHEREFORE, STEVEN LEROY IS HEREBY SUSPENDED
FOR THE BALANCE OF THE YEAR 1988. ANY
FURTHER APPLICATIONS ARE TO BE FORWARDED TO
THE BOARD FOR CONSIDERATION. DURING
THE PERIOD OF THIS SUSPENSION MR. LEROY IS
DENIED THE PRIVILEGES AND USE OF THE
GROUNDS OF ALL RACE TRACKS UNDER THE
JURISDICTION OF THE ILLINOIS RACING BOARD.

STEWARDS:

/s/ ROBERT MILBURN
STATE

/s/ FRANK DEGLAMINE
STATE
/s/ ROBERT G. WARD
ASSOCIATION

Exhibit "F"

App. 72

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN LEROY,
Plaintiff,
Vv. No. 89 C 3433

ILLINOIS RACING BOARD,
et al.,

Defendant.

MEMORANDUM OPINION AND ORDER
SE MESRIUN AND ORDER

Steven LeRoy, licensed since 1958 by
the Illinois Racing Board as an owner,
driver and trainer of Standardbred race
horses, brings suit under 42 U.S.C. § 1983
against the IRB, its members and five
racing stewards. LeRoy’s complaint accuses
the defendants of violating his rights
under the fourth, fifth and fourteenth
amendments.

LeRoy makes the following allegations.

App. 73

On April 27, 1987, at Maywood Park
Racetrack, agents of the Illinois State
Department of Law Enforcement searched a
pickup truck driven, but not owned, by
LeRoy. The search, conducted pursuant to
IRB Rule 25.19, resulted in the discovery
of a 60 cc syringe and needle amidst "a
substantial collection of rubbish and
debris" under the passenger seat.
Complaint q 7. three of the defendant
stewards (Richard E. Garrett, Timothy
Schmidtz and Robert G. Ward) issued a
ruling immediately “excluding” LeRoy from
further racing activity pending
investigation into whether LeRoy violated
IRB Rule 9.10A, prohibiting the possession
of needles or syringes; this was followed
on June 2, 1987, by a steward’s ruling that
suspended LeRoy from all tracks licensed by

the IRB. Id. W@ s-9. On June 6, 1987,

App. 74

Renee ee

after a hearing, the IRB confirmed LeRoy’s
Suspension. Id. q 10.

Next, on July 30, 1987. the same three
stewards issued a pair of Rulings, Nos. 209
and 210. Ruling 209 imposed a civil
penalty of $500, placed LeRoy on probation
through December 31, 1988, and suspended
LeRoy for the remained of the Sportsman’s
Park harness meet (or through and including
September 8, 1987); the charge was
“dispiay{ing] improper conduct by using
offensive and profane language towards an
Illinois Racing Board official," in
violation of IRB Rule 20.1. ag. @ ii.
Ruling 210 suspended LeRoy for thirty days,
to run concurrently with the Ruling 209
Suspension; the charge under Ruling 210
that LeRoy had been observed on the grounds
of Sportsman’s Park in violation of his

previous suspension, thus further violating

App. 75

IRB Rule 22.3.

Finally, on August 4, 1988, another
group of stewards (defendant Ward as well
as defendants Frank Deglamine and Robert
Milburn) suspended LeRoy for the remainder
of 1988 on a charge of having the day
before once more used “threating [sic] and
profane language towards the Association
Steward at Maywood Park" in violation of
Ruling 209 and Rule 20.1. All suspensions
had been served by the time this complaint
was filed. The complaint also attaches
several exhibits documenting the
proceedings against LeRoy.

LeRoy requests 4 declaration that the
defendant’s conduct was unlawful, an
injunction against further such activity,
a cleansing of his record, and costs,
attorneys fees and money damages, both

punitive and compensatory.

App. 76

The defendants move to dismiss

pursuant to Fed. R. Civ. P. 12(b) (6),
arguing several grounds in Support of their
motion. In considering this motion, the
Court accepts as true all well-pleaded
factual allegations and draws all
reasonable inferences in plaintiff’s favor.

Marmon Group, Inc. v. Rexnord, Inc., 822

F.2d 31, 34 (7th Cir. 1987). Because the
complaint stumbles on a combination of
qualified immunity, failure to allege
substantive constitutional violations and
lack of specificity in pleadings, the Court
orders it dismissed.

The doctrine of qualified immunity
shields government officials from liability
for civil damages "“‘insofar as their
conduct does not violate clearly
established statutory or constitutional

rights of which a reasonable person would

App. 77

Se

have known.’" Rakovich v. Wade, 850 F.2d

1180, 1205 (7th Cir.) (en banc) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982), cert. denied, 109 S. Ct. 497

(1988)). As Rackovich made clear, a civil
rights plaintiff bears the burden of
showing that the law violated was clearly
established at the time of the alleged
constitutional violation. Id. at 1209.

Accord Hannon v. Turnage, No. 88-2130, slip

op. at 5 (7th Cir. Jan. 4, 1990).

In his memorandum opposing the motion
to dismiss, LeRoy identifies several
purported constitutional violations.
Primarily, LeRoy contends that the search
of the truck was conducted pursuant to the
consent extracted under IRB Rule 25.19, and
that searches under this rule have been
held unlawful under the fourth amendment by

Serpas v. Schmidt, 621 F. Supp. 734 (N.D.

App. 78

Ill. 1985), aff'd, 827 F.2d 23 (7tR Cis.

1987) (see 827 F.2d at 26 for the text of
IRB Rule 25.19). He also appears to argue
that this search constituted a denial of
equal protection and a deprivation of
substantive due process. He also raises
the latter claims with respect to the
disciplinary proceedings related to Rules
22.3 and 20.1. And with respect to Rule
20.1, LeRoy argues that it is vague,
overbroad or both.

The allegations made concerning the
lawfulness of the search are contradicted
by the exhibits attached to the complaint.
LeRoy implies that the search was made
pursuant to the “statutory consent”
required by Rule 25.19. But a copy of the
IRB Order of June 6, 1987 (attached to the
complaint as Exhibit C), states that police

officers received LeRoy’s consent before

App. 79

searching his truck. Under Fed. R. Civ. P.
10(c), “{wjhen a4 disparity exists between
the written instruments annexed to the
pleadings and the allegations in the
pleadings, the written instrument will
control." 5 C. Wright & A. Miller, Federal

Practice and Procedure §1327, at 492-93

(1969). Thus, the complaint effectively
alleges that the truck was searched with
LeRoy’s consent. It does not violate the
fourth amendment to search a vehicle with

the owner’s consent. See United States v.

Rodriguez, No. 88-2952, slip op. at 5-6
(7th Cir. Nov. 1, 1989). Naturally, if the
complaint does not allege a violation of
the fourth amendment, the defendants are
entitled to qualified immunity on this

ground.’

1 Byven if LeRoy had adequately pleaded a
search performed solely pursuant to the consent
extracted by Rule 25.19, defendants might well

App. 80

Regarding the equal protection Claim,
LeRoy apparently argues in his memorandum
that he received more severe punishment
than other horsemen have received. But
there are no factual allegations in the
Pleadings to support this contention.
Although LeRoy “respectfully submits that
the defendants will, through discovery, be
reminded of the facts upon which this equal
protection claim is based," Memorandum, at

14, he takes the rules of notice pleading

have been entitled to qualified immunity. The
law relevant to the question of qualified
immunity is the law that was extant at the time
of an alleged constitutional violation.
Rackovich, 850 F.2d at 1209. According to the
complaint, the search was made on April 27,
1987. The IRB hearing that confirmed the
Suspension was held on June 6, 1987. By this
time, the Illinois Appellate Court and the
Court of Appeals for the Seventh Circuit appear
to have taken strongly differing views
concerning’ the constitutionality of such
action. Compare People v. Strauss, 502 N.E.2d
1287, 1289 (ill. Ap. lst Dist. 1986) (declining
to follow district court decision in Serpas )
With Serpas, 827 F.2d at ro The Court,
however, need not pass on this issue.

App. 81

to be far more elastic than they actually
are. As the Seventh Circuit has held
repeatedly, plaintiff must"’ se out
sufficient factual mater to outline the
elements of his cause of action or claim,
proof of which is essential to recovery.’"

Sutliff, Inc. v. Donovan Companies, 727

F.2d 648, 654 (7th Cir. 1984) (quoting

Daves v. Hawaiian Dredging Co., 114 F.

Supp. 643, 645 (D. Haw. 1953)).-

LeRoy has simply alleged nothing in
his complaint concerning treatment
violating the equal protection clause. It
is a@ifficult to make out an equal
protection claim absent discrimination on

invidious grounds. See Vukadinovich v.

Bartels, 853 F.2d 1387, 1392 (7th

Cir. 1988) (To make out selective
prosecution claim, “‘(plaintiff] must

provide evidence that persons similarly

App. 82

situated have not been prosecuted. Second,
[plaintiff] must show that the decisions
were made on the basis of an unjustifiable
standard ...’ such as race, religion, or
other arbitrary classification.’’")

(quoting Government of the Virgin Islands

v. Harrigan, 791 F.2d 34, 36 (zu «CSF.

1986)); D’Acquisto v. Washington, 640 F.

Supp. 594, 625 (N.D. Ill. 1986) ("[T)he
mere failure of those who administer [a law
or regulation] to treat all persons who
have violated it with complete equality
does not of itself infringe the
constitutional principle of equal
protection."). Because the complaint fails
to allege facts to support a claim of
differential treatment violative of equal
protection, LeRoy has failed to state &
cause of action. It follows that the

defendants would be qualifiedly immune on

App. 83

this ground.

Regarding due process, LeRoy ’s
memorandum expressly disavows reliance on
procedural due process, but contends that
he has alleged a claim for violation of
substantive due process. He invokes an old

Seventh Circuit case (see Jeffries v.

Turkey Run Consolidated School District,
492 F.2d 1, 3-4 (7th Cir. 1974)) and two
recent cases from outside the Seventh

Circuit (see Newman v. Commonwealth of

Massachusetts, 884 F.2d 19, 24-25 (1st cir.

1989), and Wood v. Ostrander, 879 F.2d 583,

489 (9th Cir. 1989)). In an area as
amorphous as substantive due process, it is
essential that plaintiff find the latest
cases on point (as well as those cases
describing the law at the time of an
alleged violation), and not only that, but

find them from the Seventh Circuit.

App. 84

The Seventh Circuit’s most recent

decision on substantive due process is
Polenz v. Parrott, 883 F.2d 551 (7th Cir.
1989). In Polenz the court of appeals
interpreted the doctrine this way: "[T)he
Standard implies that a Substantive due
process claim based on a state-created
property interest is cognizable where a
plaintiff claims either a violation of some
other substantive constitutional right or
that the state law remedies are
inadequate." Id. at 558. That statement
of the law is controlling here. Having
examined the complaint, the Court concludes
that it alleges neither a violation of a
separate constitutional right nor that the
State law remedies were inadequate. The
complaint therefore fails to state a cause

of action, and defendants thus are also

App. 85

lillie ii,

-_—-

a

entitled to qualified immunity.®

LeRoy also attempts to invoke
doctrines protecting the free exercise of
speech, arguing that the prohibition of
“improper language" or “conduct” does not
“provide adequate warning of the type of
conduct within its scope." Memorandum, at
20. But the complaint relates none of the
factual circumstances concerning the
language that resulted in the Rule 20.1
suspensions. It does not state what LeRoy
is alleged to have said, to whom he is
alleged to have said it, or the details of
the incidents leading to the suspensions.
The Court cannot consider LeRoy’s arguments
outside the context of the facts of the

case. Cf. Landstrom v. Illinois Dep’t of

2 Moreover, the law appears to have
been far from settled at the time of the
actions complained of. See Polenz, 883 F.2d
at 557-58.

App. 86

Children and Family Services, 699 F. Supp.

1270, 1277-80 (N.D. Ill. 1988), aff’d, No.
88-3206 (7th Cir. Jan. 9, 1990).
Overbreadth challenges are not

favored. See Massachusetts v. Oakes, 109

S. Ct. 2633 (1989) ("We have therefore
referred to overbreadth as ‘manifestl[y]
strong medicine’ that is employed
‘sparingly, and only as a last resort.’")

(quoting Broadrick v. Oklahoma 413 U.S.

601, 613 (1973)). "{Wjhere conduct and not
merely speech is involved, we believe that
the overbreadth of a statute must not only
be real, but substantial as well, judged in
relation to the statute’s plainly

legitimate sweep." Broadrick, 413 U.S. at

615. Rule 20.1 forbids both “improper
language" and “improper conduct" directed
toward state racing officials; the stewards

ruling of July 30, 1987 (Exhibit D) charged

App. 87

LeRoy with “improper conduct by using
offensive and profane language towards
(sic] an Illinois Racing Board official,"
while the ruling of August 4, 1988 (Exhibit
F) charged LeRoy with using “threating
[sic}\] and profane language towards the
association steward at Maywood Park." The
complaint does not describe whether merely
speech was involved, or whether it was
accompanied by conduct. Moreover, the
Supreme Court has indicated that statutes
with otherwise excessive scope can be
upheld if they can be given a proper

limiting construction. See Frisby v.

Schultz, 108 S. Ct. 2495, 2501 (1988). As
for the vagueness challenge, a description
of the alleged incidents is indispensable.

See Village of Hoffman Estates v. Flipside,

455 U.S. 489, 495 (1982) ("A plaintiff who

engages in some conduct that is clearly

App. 88

proscribed cannot complain of the vagueness
of the law as applied to the conduct of
others. A court should therefore examine
the complainant’s conduct before analyzing

other hypothetical applications of the

law."). The pleading is therefore
deficient in this respect. See Sutliff,

727 F.2d at 654.

A further difficulty is the question
whether LeRoy spoke out on a Matter of
public concern, or merely uttered his

“purely personal complaint[{]." Landstrom,

699 F. Supp. at 1280, aff'd, No. 88-3206,

Slip op. at 16-18. Landstrom teaches that,

to invoke the first amendment in a § 1983
case, both private citizens and public
employees must have “adequately alleged
statements which, among other things,
“tough upon a matter of public concern’ and

thus implicate the first amendment." ig.,

App. 89

Oooo

slip op. at 17. For that matter, LeRoy’s
status as a licensed horseman may more
nearly place him the category applicable to
public employees than in the category of
purely private citizens. There is no
reason apparent to the Court why the
disciplinary concerns governing the public
employment cases would not be applicable to
the state’s interests in regulating the
behavior of its licensed horsemen.
Whatever be the case, LeRoy’s complaint has
failed to allege sufficient facts for a
consideration of these issues.

Plaintiff having failed to plead
sufficient facts to state a claim upon
which relief can be granted under the first
amendment, defendants are accordingly
entitled to qualified immunity as well.

As for the fifth amendment challenge

pleaded in the complaint, LeRoy has not

App. 90

attempted in his memorandum to explain the

basis of this allegation. Its relevance to
this case is certainly not apparent.

A final problem is the nature of this
lawsuit as a mixed official-capacity,
individual-capacity lawsuit. The
defendants moved to dismiss the action
against the IRB on the ground that, as a
state agency, it is in fact the state of
Illinois, and actions for money damages
against a state are barred under the
eleventh amendment. This argument finds

Support in the cases. See, e.g., Cannon v.

University of Health Sciences, 710 F.2d

351, 356-57 (yen Car. 1983) (state
universities are the state for purposes of
eleventh amendment). While LeRoy asserts
his right to bring an official capacity
Suit for money damages against the state

and its officials, he cites only cases

App. 91

supporting suit against state officials in
their official capacities for injunctive
relief. Based on the pleadings and
argument, the IRB is entitled to dismissal
as a party defendant and the individual
officials in their official capacities are
entitled to dismissal insofar as the

complaint seeks money damages. Will v.

Michigan Dep’t of State Police, 109 S. ct.

2304 (1989).

The Supreme Court’s development of the
qualified immunity doctrine is intended to
spare government officials from the burden
of defending unnecessary lawsuits. See

Anderson v. Creighton, 107 S. Ct. 3034,

3042 (1987). “For this reason, we have
emphasized that qualified immunity
questions should be resolved at the
earliest possible state of litigation."

Id. at 3042 n.6. This may entail dismissal

App. 92

of an action prior to discovery, id., and

upon a motion to dismiss, see Landstron,
supra. While pleadings standards in
federal court are not rigorous, a civil
rights plaintiff must at least state the
factual circumstances giving rise to his
Claim. Plaintiff has failed to do so here,
making only the barest statement that he
was wronged, but completely failing to
plead facts to Support this contention. He
has therefore has not stated a Claim upon
which relief can be granted. It follows
that, based upon the pleading, the
defendants in their individual Capacity are
qualifiedly immune from suit for damages as
well.

For the reasons stated above, the
complaint is dismissed. Because dismissal
is not a favored means of terminating

litigation, the Court will permit LeRoy to

App. 93

file an amended complaint by February 9,
1990, addressing the concerns discussed in
this memorandum opinion.* Any proffered |
complaint must, of course, comply with
plaintiff and counsel’s duty to the Court
under Fed. R. Civ. P. 11. If no amended
complaint is filed, the Court will enter a
final judgment dismissing this case with

prejudice.

ENTER:

3 plaintiff should not read this
Court’s lenience as encouragement. It does
not appear at this time that even an
amended complaint could surmount’ the
qualified immunity defense to plaintiff’s
claim for money damages. Plaintiff will,
in any event, have to make a drastically
better showing as to the clearly
established nature of the law than he made
in his response to defendants’ motion to
dismiss.

App. 94

Judge

DATED:

January 18,

fs/_ John A. Nordberg

JOHN A. NORDBERG
United States District

1990

App.

95

MINUTE ORDER

UNITED STATES DISTRICT COURT,
NORTHERN DISTRICT OF ILLINOIS, EASTERN

DIVISION

JUDGE: JOHN A. NORDBERG

CASE NO.: 89 C 3433

DATE: JANUARY 19, 1990

CASE TITLE: LEROY V. ILLINOIS

RACING BOARD et al.
JUDGMENT IS ENTERED AS FOLLOWS:

Enter memorandum opinion and order
dismissing the plaintiff’s case with
prejudice. Plaintiff is permitted to file
an amended complaint by February 9, 1990.
If no amended complaint is filed, the Court
will enter final judgment dismissing this

case with prejudice.

App. 96

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN LEROY,
Plaintiff,
Vv. No. 89 C 3433

ILLINOIS RACING BOARD,

et al.,
Defendants.
AMENDED COMPLAINT
Jurisdiction
3. This action is brought pursuant

to the Fourth, Fifth and Fourteenth
Amendments to the Constitution of the
United States and 42 U.8.C. 1983.
Jurisdiction is conferred pursuant to 28
U.S.C. Sections 1331 and 1343.

The Parties

a. The plaintiff, STEVEN LeROY

App. 97

("LeRoy") is and at all times pertinent
hereto was a resident of the County of
Kane, State of Illinois, in the Northern
District of Illinois, Eastern Division, and
since 1958 was licensed by the defendant
Illinois Racing board, as an owner, driver,
and trainer of standardbred race horses
until the exclusions, suspensions, and
revocation complained of herein.

3. The defendant Illinois Racing
Board is an agency of the State of

Illinois, pursuant to Ill. Rev. Stat., Ch.

8, par. 37-1 et seqd., and has’~ the

authority, inter alia, to issue occupation

licenses to owners, trainers, and drivers,
to promulgate rules (including the rules
complained of herein), and to suspend or

revoke said licenses, pursuant to Ill. Rev.

Stat., Ch. 8, part. 37-15 and 37-16.

App. 98

4. The defendants Thomas J. Garvey,
Ralph M. Gonzales, Farrel J. Griffin, Ray
H. Garrison, and Irwin G. Jann were at all
times pertinent hereto members of the

Illinois Racing Board pursuant to Ill. Rev.

Stat., Ch. 37, par. 4, and rendered the

June 6, 1987, Order complained of herein
and are sued individually and in their
official capacity as members of the
Illinois Racing Board.

S$. The defendants Richard E.
Garrett, Robert G. Ward, Timothy Schmidtz,
Frank Deglamine and Robert Milburn, were at
all times pertinent hereto Stewards, who
made the rulings which are complained of
herein, and are sued individually and in
their official capacity as Stewards.

Cause of Action

6. On April 27, 1987, pursuant to

App. 99

Rule 25.19 promulgated by the defendant
Illinois Racing Board, a pickup truck
driven, but not owned, by LeRoy was
searched by agents of the Illinois State
Department of Law Enforcement on the
grounds of Maywood Park Racetrack. LeRoy
“consented” to the search solely by reason
that Rule 25.19 required him to give hi
consent as a condition to the obtainment
and maintenance of his racing license.

7. “Among a substantial collection
of rubbish and debris” under the passenger
seat of the vehicle, the agents of the
Department of Law Enforcement found a 60 cc
syringe and needle with a plastic cover on
the needle, which syringe and needle
contained no prohibited substances, which
needle was "clogged" and “the plunger was

caked with dry matter" and with respect to

App. 100

which there was no evidence of record that
the needle was “Capable of being used for
the injection into any horse of any
chemical substance."

8. In addition, the defendants
tested the horse LeRoy was driving on said
date, and the results of that test revealed
that the horse was not administered any
prohibited substances or medication.

9. Irrespective of the aforesaid, on
April 27, 1987, defendants Richard Ek.
Garrett, Timothy Schmidtz, and Robert G.
Ward issued the Stewards Ruling No. 39,
(attached hereto as Exhibit "A"), excluding

LeRoy under Ill. Rev. Stat., Ch. 8, par.

37-9e, pending further investigation and
subsequent Stewards inquiry.
10. On June 2, 1987, the aforesaid

defendant Stewards issued the following

App. 101

Stewards Ruling No. 149 (attached hereto as
Exhibit "B"):

On April 27, 1987, Ill. Dept. Criminal
Investigation Agents in Maywood Park
stable area searched a pickup truck
driven by Steven LeRoy and seized 1-60
cc syringe with needle attached.An
inquiry was conducted April 27, 1987
at which time Steven LeRoy was
excluded under the Horse Racing Act of
1975 pending lab analysis of the
needle and syringe and further
investigation. A subsequent inquiry
was conducted on May 20, 1987.

The following facts were revealed:

1. The truck driven by Steven LeRoy
was owned by the Robt. LeRoy
Construction Co., and was used by
others besides Steven LeRoy.

2. The needle and 60 cc syringe upon
examination was old, dirty and
the plunger was caked the ary
matter.

3. The Illinois Racing Board lab
analysis found no prohibited
substances in the needle and

syringe.
4. The syringe and needle was found
under the seat among a

substantial collection of rubbish
and debris.

App. 102

S. Mr. LeRoy has no prior medication
violations.

After considering the testimony and
evidence in these inquiries, the
Stewards find Steven LeRoy in
violation of I.R.B. Medication Rule
C9.10A. Therefore, Steven LeRoy is
hereby suspended for 90 days (credit
given for days served) or until July

25, 1987 from all tracks licensed by

the Illinois Racing Board. This

Suspension shall include all horses

owned wholly or in part.

11. On June 6, 1987, after a hearing
pursuant to the request of LeRoy, the
defendants Illinois Racing Board and Thomas
J. Garvey, Ralph M. Gonzalez, Farrel J.
Griffin, Ray H. Garrison and Irwin G. Jann,
individually and in their official capacity
as members of the Illinois Racing Board,
rendered the "Order" (attached hereto as
Exhibit “C"), suspending LeRoy “from all
race tracks under the jurisdiction of the

Illinois Racing Board for a period of 90

days for a violation of Board Rule C9.10(a)

App. 103

with credit to be given for all time
served." The defendants Ray H. Garrison
and Irwin G. Jann concurred in part and
dissented in part from the aforesaid Order,
stating, inter alia:

By a vote of 4 to l, the Board found
that LeRoy on April 27, 1987 had
constructive possession of a needle on
the grounds of Maywood Park Racetrack,
and that such possession was in
violation of Board Rule C9.10(a). The
license of LeRoy was suspended for 90
days with credit for the exclusionary
period and time served under the June
2a stewards’ ruling but that such
suspension shall run concurrently with
the suspension for possession of the
syringe. I respectfully disagree with
this finding by the majority of the
Board.

As indicated by paragraph numbered 9
of the Board’s Order, the evidence in
the record shows that the neck of the
needle, when seized on April 27, 1987,
was “clogged and that there was a
brown cake material in the plunger”.
I find no evidence in the record that
on April 27, 1987, the needle was, in
the words of Rule C9.10(a), “capable
of being used for the injection into
any horse of any chemical substance."

App. 104

The finding in Paragraph 10 of the
Board’s Order seems to Suggest that
the functional capability of the
needle gleamed by visual inspection at
the time of the Board hearing (June 6,
1987) should be determinative rather
than the evidence in the record as to
the capability of the needle when
possessed by LeRoy. I disagree.

Certainly, the word “needle" as used
in Rule C9.10(a) must have a frame of
reference. Otherwise, the rule would
include sewing needles. I believe
that the correct frame of reference is
a needle that is “capable of being
used for injection into any horse of
any chemical substance".

12. On July 30, 1987, based upon the
aforesaid

unconstitutional conduct and actions, the
aforesaid

defendant Stewards issued the following
Stewards Rulings

No. 209 and 210 (attached hereto as Exhibit
“eo” Ge *e*,

respectively):

Stewards Ruli No. 209:

Steven LeRoy is hereby suspended for
the remainder of the 1987 Sportsman’s
Park harness meet or through and
including Sept. 8, 1987. Assessed a

App. 105

civil penalty of $500.00 and placed on
probation through December 31, 1988.
On July 3, 1987 Mr. LeRoy displayed
improper conduct by using offensive
and profane language towards an
Illinois Racing Board Official.

Viol. IRB Rule 20.1
Stewards Ruli No. 210:
Steven LeRoy is hereby suspended for
a period of 30 days (August 5, 1987
through and including September 3,
1987). This suspension shall run
concurrently with suspension period
stated in I.R.B. Ruling #209. On July
3, 1987, Mr. LeRoy was observed on the
premises of Sportsman’s Park Racetrack
in direct violation of the terms of
his suspension as defined in I.R.B.
Rule 22.3.
Note Rule Number 149, Sportsman’s Park.
Viol. IRB Rule 22.3
13. On August 4, 1988, based upon the
aforesaid unconstitutional conduct and
actions, the defendants Robert Milburn,
Frank Deglamine and Robert G. Ward issued
the following Stewards Ruling No. 192
(attached hereto as Exhibit "“F"):

App. 106

In 1987 Steven LeRoy was the subject
of three stewards rulings suspending
his license for violation of: IRB
Rule C9.10A (Possession of Needle or
Syringe Prohibited), IRB Rule 22.3
(Definition of Suspension), IRB Rule
20.1 (Improper Conduct)

In Stewards Ruling #29 dated July 30,
1987, Mr. LeRoy was suspended,
assessed a civil penalty, and placed
On probation thru December 31, 1988
for using offensive and profane
language towards an Illinois Racing
Board Official.

On August 3, 1988 Mr. LeRoy violated
the terms of said ruling and IRB Rule
20.1 when he _ used threating and
profane language towards the
Association Steward at Maywood Park.

Wherefore, Steven LeRoy is hereby
suspended for the balance of the year
1988. Any future applications are to
be forwarded to the Board for
consideration. During the period of
this suspension mr. LeRoy is denied
the privileges and use of the grounds
of all race tracks under the
jurisdiction of the Illinois Racing
Board.

14. Irrespective of repeated
requests, the defendants have failed,
refused and/or neglected to vacate, remove,

App. 107

expunge or otherwise vitiate the aforesaid
Order and Stewards Rulings, and _ the
exclusions, suspensions, fine, penalty, and
denial of privileges occasioned thereby.
15. The aforesaid actions and conduct
were in violation and derogation of LeRoy’s
rights under 42 U.S.C. 1983 and/or the
Fourth, Fifth and/or Fourteenth Amendments
to the Constitution of the United States.
16. The Rules of the Illinois Racing
Board under which LeRoy was searched,
excluded, suspended, fined, penalized and
denied his privileges and use of the
grounds of all racetracks under the
jurisdiction of the Illinois Racing Board
are unlawful, overbroad, arbitrary,
capricious, unreasonable, a denial of the
equal protection of the laws, and/or

otherwise unconstitutional on their face

App. 108

and/or as applied to the facts and
circumstances of the case.

17. The defendants denied LeRoy the
equal protection of the laws by reason that
defendants’ conduct and actions were
effected for an invidious purpose, namely
to punish LeRoy for the exercise and
assertion of his constitutional rights,
and/or deliberately based upon an
unjustifiable standard, i.e., the "consent"
based upon the same regulatory program
promulgated by the same defendants held by
this Court and the Seventh Circuit United
States Court of Appeals to have been
unauthorized and unconstitutional prior and
subsequent to the actions contained herein.
Serpis v. Schmidt, 621 F.Supp. 734 (N.D.
Ill. July 11, 1985), affirmed 808 F.2d 601,
606-607 (7th Cir. December 19, 1986),

App. 109

amended 827 F.2d 23, 29030 (7th Cir. 1987)
cert. denied 108 U.S. 1075 (1988), wherein
the Seventh Circuit held 827 £.2d at 29-
30):

The race track employees consented to
the searches based on a regulatory
program that required them to give
their consent as a condition of
employment. As we have already found,
however, the regulations were not
authorized by statute and were
unconstitutional because neither the
regulations nor the governing statute
confined the discretion of the state
officials conducting the searches.
Thus, the validity of the employees ’
consent was vitiated by the fact that
it was premised on the existence of
the otherwise unauthorized and
unconstitutional regulation.

Moreover, the sanctions imposed by
defendants against LeRoy were substantially
disparate and differential to those imposed
against other horsemen similarly situated,
as evidenced by the Stewards’ Rulings
attached hereto as Group Exhibit “G" and

incorporated herein by this reference, and

App. 110

the failure of the defendants to impose any
Sanctions upon either the owner of the
vehicle involved herein or upon the
passenger of the automobile under whose
seat the unusable needle and Syringe were
located in a pile of rubbish and debris.
18. The defendant knew, or reasonably
should have known that their conduct and
actions were in violation of LeRoy’s rights
under 42 U.S.C. 1983 and/or the Fourth,
Fifth and/or Fourteenth Amendments to the
Constitution of the United States and that
the Rules of the Illinois Racing Board
under which LeRoy was searched, excluded,
Suspended, fined, penalized and denied his
privileges and use of the grounds of all
racetracks under the jurisdiction of the
Illinois Racing Board are unlawful,

overbroad, arbitrary, Capricious,

App. 111

unreasonable, a denial of the equal
protection of the laws, and/or otherwise
unconstitutional on their face and/or as
applied to the facts and circumstances of
the case, by reason, inter alia of the

decision in the case of Serpas v. Schmidt,

supra. Defendants were “on notice" that
their actions violated clearly established
law. Rakovich v. Wade, 850 F.2d 1180, 1211
(7th Cir. 1987).

19. By reason of the aforesaid
conduct and actions of the defendants, and
each of them, LeRoy suffered substantial
damage, loss and injury.

20. In addition and alternatively,
the conduct and actions of the defendants
and each of them, were intentional and/or
done with reckless or callous indifference

to and/or disregard of LeRoy’s federally

App. 112

protected rights, and LeRoy is entitled to
and should be awarded punitive damages
against any and all such defendants who are
found upon trial to have had. such
intention, indifference to, and/or
disregard of the aforesaid constitutional
and/or statutory rights.

21. Unless restrained and enjoined,
the defendants will continue to violate the
aforesaid constitutional and/or statutory
rights of LeRoy and other owners, drivers
and trainers of standardbred race horses
under their jurisdiction in the State of
Illinois.

22. With respect to the injunctive

aspects of this case, LeRoy has no adequate

remedy at law.

WHEREFORE, the plaintiff, Steven
LeRoy, respectfully prays that:

1. The Court find, adjudge, and
declare that the conduct and actions of the
defendants were in violation of LeRoy’s
constitutional and/or statutory rights;

2. The Court order that the
defendants rescind, vacate, remove, and
expunge the exclusions, suspensions, fine
and/or penalty involved herein; and that
LeRoy be declared to being good standing
and reinstated to all rights and
privileges.

3. A judgment be entered in favor of
LeRoy and against the defendants, and each
of them, individually and/or in their
official capacity for such compensatory and
punitive damages as are found appropriate

upon the trial of this cause;

App. 114

4, A preliminary, and upon the trial
of this cause, a permanent injunction be
issued against the defendants, individually
and in their official capacity, restraining
and enjoining them from violating the
constitutional and/or statutory rights
involved herein with respect to LeRoy and
all other owners, drivers, and trainers of
Standardbred race horses under their
jurisdiction in the State of Illinois;

$. An award be entered in favor of
LeRoy and against the defendants, and each
of them individually and in their official
capacity, for the costs, expenses and
disbursements incurred in the prosecution
of this action, and for reasonable
attorneys’ fees; and

6. The plaintiff, Steven LeRoy be

granted such other and further relief as

App. 115

may be just, equitable and proper.

/s/ Lawrence Jay Weiner

LAWRENCE JAY WEINER
Attorney for Plaintiff
Steven LeRoy

Lawrence Jay Weiner
Schwartz & Freeman

401 North Michigan Avenue
Suite 3400

Chicago, Illinois 60611
312/222-0800

(EXHIBITS "A" THROUGH "F", INCLUSIVE, OF
THE AMENDED COMPLAINT ARE OMITTED BECAUSE
THEY ARE THE EXHIBITS SAME TO ORIGINAL
COMPLAINT) .

THE FOLLOWING CONSTITUTE GROUP EXHIBIT "G"

TO THE AMENDED COMPLAINT WITH THE STEWARTS’
SIGNATURES OMITTED)

STEWARDS RULING

NUMBER #4
DATE AUGUST 4, 1988

MAYWOOD TROTTING ASSOC.
NAME OF ASSOCIATION

YWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

App. 116

pee y ~
att te

HARNESS [X] THOROUGHBRED
C J

NAME DAN SHETLER, JR.

2 ¢& @

ON MAY 12, 1983, THE STEWARDS AT MAYWOOD
PARK CONDUCTED AN INQUIRY CONCERNING A
REPORT BY THE ILLINOIS RACING BOARD LAB.
THAT THE URINE SAMPLE #85370 LAB. 2, DATED
APRIL 28, 1983, MAYWOOD PARK, FROM THE
REVEALED THE PRESENCE OF IYRILAMINE
ANALOGLE HORS "KING CIDO"“ TRAINER, DAN
SHETLER, OWNERS: B. SHETLER AND LESLIE
MILLER, “KING CIDO" FINISH IN A DEAD HEAT
FOR WIN.

DAN. SHELTER WAS PRESENT AT THE INQUIRY BUT
WAS NOT REPRESENTED BY COUNSEL. MR.
SHELTER DID REQUEST THAT “KING CIDO"
RESERVE SAMPLE BE TESTED. ON JULY 7, 1983
THE I.R.B. LAB NOTIFIED THE STEWARDS THAT
THE REFEREE SAMPLE INDICATED THE PRESENCE
OF PHENYLPROPANOLAMINE. THE
PHENYLPROPANOLAMINE WAS NOT INDICATED AS
BEING PRESENT IN THE INITIAL REPORT OF
POSITIVE FINDING. AFTER HEARING ' THE
EVIDENCE AND CONSIDERING THE FACTS IN THIS
CASE, OWNER, TRAINER, DRIVER DAN SHELTER IS
HEREBY ASSESSED A 10 DAY FULL SUSPENSION.

GROUP EXHIBIT "G"
STEWARDS RULING

NUMBER #4
DATE__MARCH 10, 1983

App. 117

MAYWOOD PARK TROTTING

NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
tJ

NAME PHILIP N. FARONE JR.

& 2 @

THE ABOVE IS HEREBY FINED THE SUM OF $50.00

AND
PLACED ON PROBATION FOR THE REMAINDER OF

1983.
IMPROPER CONDUCT TOWARDS SECURITY AT
MAYWOOD PARK.
VIOL. IRB RULE 20.1
STEWARDS RULING

NUMBER #38

DATE JUNE 29, 1983

CHICAGO DOWNS
NAME OF ASSOCIATION

App. 118

SPORTSMAN’S PARK
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
C J

NAME JIM DOUGLAS (GROOM)

x k& &€

IS HEREBY FINED THE SUM OF $50.00 FOR HIS
ACTION OF IMPROPER CONDUCT TOWARDS A
SECURITY OFFICER IN THE STABLE ARE WHEN
SAID SECURITY WAS IN THE PERFORMANCE OF HIS
DUTIES.

FURTHER, MR. DOUGLAS IS PLACED ON PROBATION
FOR THE BALANCE OF 1983 SPORTSMAN’S PARK
MEET.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #112

DATE__AUGUST 10, 1983

WESTERN ILLINOIS TROTTING, ASSN.
NAME OF ASSOCIATION

App. 119

QUAD CITY DOWNS

NAME OF RACE TRACK

EAST MOLINE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
{ ]

NAME EARNEST J. MILLER

x * &

FINED $100.00
ERNIE MILLER IS HEREBY FINED THE SUM OF
$100 FOR IMPROPER CONDUCT TOWARD A PERSON
SERVING UNDER THE ORDERS OF STEWARDS.
VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #61

DATE AUGUST 19, 1983

FOX VALLEY TROTTING
NAME OF ASSOCIATION

SPORTSMAN’S PARK
NAME OF RACE TRACK

CICERO , ILLINOIS

App. 120

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
=

NAME JEFFREY A. NORTHRUP

: @& @¢

THE ABOVE IS HEREBY FINED THE SUM OF $50.00
FOR USING

IMPROPER LANGUAGE TOWARDS AN OFFICIAL
DURING THE 10th RACE ON AUGUST 15, 1983.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #9

DATE__10/18/83

EGYPTIAN TROTTING ASSOC.
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
eS

App. 121

NAME MARSHALL THOMPSON

x & &

Hereby fined the sum of $200.00 and placed
on probation for the remainder of 1983.
Improper conduct and verbally abusive
towards security.

I.R.B. 20.1

STEWARDS RULING

NUMBER #56

DATE DECEMBER 14, 1983

EGYPTIAN TROTTING ASSOC.
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
i 4

NAME MICHAEL FLABERTY

—

OWNER/TRAINER MICHAEL FLABERTY IS HEREBY
FINED THE SUM OF TWENTY-FIVE ($25) DOLLARS,
"OR IMPROPER CONDUCT TOWARD A SECURITY
OFFICIER.

VIOLATION I.R.B. RULE 20.1

FINE TO BE PAID WITHIN (48) HOURS

STEWARDS RULING

NUMBER #73

DATE__12-29-83

SOUTHERN ILL. TROT.
NAME OF ASSOCIATION

FAIRMOUNT PARK
NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
ra

NAME JEFFREY SALMON

*® &£ ©

Owner-trainer Jeffrey Salmon (dob 9-23-50)
(SS No. 488-52-4438) is hereby suspended 13

App. 123

days (December 19 thru December 31, 1983)
and ineligible for licensing for an
additional 17 days (thru January 17, 1984)
for being involved in an altercation in the
barn area on December 18, 1983, which
resulted in Mr. Salmon verbally and
physically assaulting a security guard and
Collinsville,

Illinois, police officer.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #74

DATE__12-29-83

SOUTHERN ILL. TROT.
NAME OF ASSOCIATION

FAIRMOUNT PARK
NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
=

NAME WILLIAM DOWNS

Owner-trainer William Downs (dob 12-13-53)
(SS No. 401-74-9308) is hereby suspended 13
days (December 19 thru December 31, 1983)
and ineligible for licensing for an
additional 17 days (thru January 17, 1984)
for being involved in an altercation in the
barn area on December 18, 1983, which
resulted in Mr. Downs verbally and
physically assaulting a security guard and
Collinsville,

Illinois, police officer.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #76

DATE__12-29-83

SOUTHERN ILL. TROT.
NAME OF ASSOCIATION

FAIRMOUNT PARK
NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
[ ]

NAME BRENDA POE

App. 125

x *« *

Groom Brenda Poe (dob 1-9-58) (SS No. 429-
15-9181)

is hereby suspended 13 days (December 19
thru December 31, 1983) and ineligible for
licensing for an additional 17 days (thru
January 17, 1984) for being involved in an
altercation in the barn area on December
18, 1983, which resulted in Miss Poe
verbally and physically assaulting a
security guard and Collinsville, Illinois,
police officer.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #110

DATE 2-4-86

OGEDEN-FAIRMOUNT, INC.
NAME OF ASSOCIATION

FAIRMOUNT PARK
NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
3

App. 126

NAME REGINALD BAKER

*& & @

Owner Reginald Baker (Ss No. 312-74-5812)
(dob 3-27-61)

is hereby suspended 30 days (February 4,
thru March 4, 1984) for being involved in
an altercation in the barn area on December
5, 1983, in which he physically assaulted
a security guard. During the term of this
Suspension, Mr. Baker is denied access to
and the privileges of the grounds of all
race tracks under the jurisdiction of the
Illinois Racing Board.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #35

DATE JULY 18, 1984

CHICAGO DOWNS ASSOC.
NAME OF ASSOCIATION

SPORTSMAN ’S PARK
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

App. 127

[3

NAME KYLE E. KLUTE

x * *

KYLE KLUTE IS FINED THE SUM OF $50.00 AND

PLACED
ON PROBATION FOR THE BALANCE OF THE YEAR

(1984) FOR
FORBIDDEN CONDUCT IN THE STABLE AREA

VIOL. IRB RULE 20.1

FINE TO BE PAID WITHIN 48 HOURS.

STEWARDS RULING

NUMBER #161

DATE SEPTEMBER 21, 1984

WESTERN ILLINOIS TROTTING ASSN
NAME OF ASSOCIATION

QUAD CITY DOWNS
NAME OF RACE TRACK

EAST MOLINE , ILLINOIS
LOCATION OF RACE TRACK

App. 128

HARNESS [X]
C4

THOROUGHBRED

NAME DUNCAN PRICE

x * *

DUNCAN PRICE IS HEREBY FINED THE SUM OF
$100.00 FOR USING IMPROPER LANGUAGE TO AN

OFFICIAL AFTER THE 5TH RACE, SEPTEMBER 20,
1984.

VIOLATION 20.1 IRB

STEWARDS RULING

NUMBER #35

DATE FEB. 7, 1985

SUBURBAN DOWNS
NAME OF ASSOCIATION

HAWTHORNE RACE COURSE
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X]

THOROUGHBRED
C ]

App. 129

NAME KYLE E. KLUTE

x* *« *

KYLE KLUTE IS FINED THE SUM OF $50.00 AND

PLACED
ON PROBATION FOR THE BALANCE OF THE YEAR

(1984) FOR
FORBIDDEN CONDUCT IN THE STABLE AREA

VIOL. IRB RULE 20.1

FINE TO BE PAID WITHIN 48 HOURS.

STEWARDS RULING

NUMBER #55

DATE FEB. 7, 1985

SUBURBAN DOWNS
NAME OF ASSOCIATION

HAWTHORNE RACE COURSE
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
C J

App. 130

r

NAME__MIRELLO MAZZULLA-DR. TR. OWNER

x« * &

THE ABOVE IS HEREBY FINED THE SUM OF
$200.00.

FOR IMPROPER CONDUCT TOWARDS THE RACING
SECRETARY ON FEB. 6, 1985.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #11

DATE MAY 28, 1985

CHICAGO DOWNS ASSOC.
NAME OF ASSOCIATION

SPORTSMAN’S PARK
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
{ ]

NAME __ JAMES P. BUSCARINI

App. 131

x * *
THE ABOVE, IS HEREBY ASSESSED A CIVIL

PENALTY OF $25.00 FOR IMPROPER CONDUCT
TOWARDS A SECURITY OFFICER ON MAY 27, 1985.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #55

DATE FEB. 7, 1985

SUBURBAN DOWNS
NAME OF ASSOCIATION

HAWTHORNE RACE COURSE
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
( J

NAME MIRELLO MAZZULLA-DR. TR. OWNER

* *&
THE ABOVE IS HEREBY FINED THE SUM OF

App. 132

$200.00.
FOR IMPROPER CONDUCT TOWARDS THE RACING

SECRETARY ON FEB. 6, 1985.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #118

DATE JULY 6, 1985

QUAD CITY DOWNS, INC.
NAME OF ASSOCIATION

QUAD CITY DOWNS
NAME OF RACE TRACK

EAST MOLINE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
C ]

NAME __MIRELLO MAZZULLA-DR. TR. OWNER

* * *

Terry Vincent is hereby fined the sum of
$100.00 for using improper language to an
official.

App. 133

Violation IRB Rule 20.1

STEWARDS RULING

NUMBER #118

DATE JULY 6, 1985

QUAD CITY DOWNS, INC.
NAME OF ASSOCIATION

QUAD CITY DOWNS
NAME OF RACE TRACK

EAST MOLINE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
C ]

NAME MIRELLO MAZZULLA-DR. TR. OWNER

x * *

Terry Vincent is hereby fined the sum of
$100.00 for using improper language to an
official.

Violation IRB Rule 20.1

STEWARDS RULING

App. 134

NUMBER #25

DATE__ JANUARY 23, 1986

SUBURBAN DOWNS
NAME OF ASSOCIATION

HAWTHORNE RACE COURSE
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
( J

NAME HOMER HOCHSTEILER

x k*« &

HOMER HOCKSTEILER IS HEREBY ASSESSED A
CIVIL PENALTY OF $50.00 FOR IMPROPER
LANGUAGE TO AN OFFICIAL.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #76

DATE__OCT. 2. 1986

CHICAGO DOWNS

App. 135

i

NAME OF ASSOCIATION

SPORTSMAN ’S PARK
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
ae

NAME MICKEY RODRIGUEZ

x * &

TRAINER, MICKEY RODRIGUEZ IS HEREBY
ASSESSED A CIVIL PENALTY OF $250.00. FOR
IMPROPER CONDUCT TOWARDS A RACING OFFICIAL
IN THE PADDOCK AREA ON SEPT. 23, 1986.

VIOLATION I.R.B. RULE 20.1

STEWARDS RULING

NUMBER___87-30-49

DATE 1-30-87

OGDEN-FAIRMOUNT, INC.
NAME OF ASSOCIATION

App. 136

FAIRMOUNT PARK
NAME OF RACE TRACK

COLLINSVILLE, , LLLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
C ]

NAME FRED FINN, JR.

kx kek &

Fred Finn, Jr., (dob 11-20-52) (SS No. 307-
60-8574)

is hereby assessed a civil penalty of
$100.00 for improper conduct towards an
official on January 22, 1987.

Illinois Racing Board 20.1

STEWARDS RULING

NUMBER__876214

DATE__ SEPTEMBER 24, 1987

QUAD CITY DOWNS, INC.
NAME OF ASSOCIATION

QUAD CITY DOWNS
NAME OF RACE TRACK

App. 137

ee

EAST MOLINE , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
{ J

NAME BRIAN CARPENTER

x & &

Brian Carpenter is hereby suspended for a
period of fifteen (15) days (September 25,
1987 through October 9, 1987 inclusive) and
assessed a civil penalty of two hundred
fifty ($250.00) dollars for improper
conduct. Mr Carpenter used language and
displayed conduct that was

improper toward 4a racing official on
September 17, 1987.

During the period of this suspension, Brian
Carpenter is denied the privileges of the
grounds of all race tracks under the
jurisdiction of the Illinois Racing Board.

Violation IRB Rule 20.1

STEWARDS RULING

NUMBER__ #133

DATE__OCT. 13, 1987

ARLINGTON PARK
NAME OF ASSOCIATION

App. 138

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
C J

NAME CATRINA HUNT

x * *

TRAINER, CATRINA HUNT IS HEREBY ASSESSED A
CIVIL PENALTY OF $50.00 FOR IMPROPER
CONDUCT TOWARDS A SECURITY GUARD.
VIOL. IRB RULE

STEWARDS RULING

NUMBER___ 876160

DATE__AUGUST 13, 1987

QUAD CITY DOWNS, INC.
NAME OF ASSOCIATION

QUAD CITY DOWNS
NAME OF RACE TRACK

EAST MOLINE , ILLINOIS

App. 139

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
. a

NAME DANA W. ANDERSON

* * ®

Dana Anderson is hereby assessed a civil
penalty of fifty ($50.00) dollars for using
improper language to a security guard on
August 10, 1987.

Violation IRB Rule 20.4

STEWARDS RULING

NUMBER__ #42

DATE FEB. 1, 1988

SUBURBAN DOWNS
NAME OF ASSOCIATION

HAWTHORNE RACE COURSE
NAME OF RACE TRACK

CICERO , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
C ]

App. 140

NAME STANLEY K. BANKS

= ® #@

STANLEY K. BANKS IS HEREBY ASSESSED A CIVIL
PENALTY OF $50.00 FOR IMPROPER CONDUCT
TOWARDS AN ILLINOIS RACING BOARD SECURITY

PERSON.

IRB RULE 20.1 ;

STEWARDS RULING

NUMBER__ #176

DATE__ JULY _30, 1988

ARLINGTON PARK, LTD.
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
( ]

NAME BRUCE KRAUSE

ee

BRUCE KRAUSE IS HEREBY ASSESSED A CIVIL
PENALTY OF $50.00. FOR IMPROPER LANGUAGE
TO AN OFFICIAL ON JULY 28, 1988.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER__ #177

DATE JULY 30, 1988

ARLINGTON PARK, LTD.
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
( J

NAME GREG L. HENDERSON

& & ®

GREG L. HENDERSON IS HEREBY ASSESSED A
CIVIL PENALTY OF $50.00. FOR IMPROPER
CONDUCT TOWARDS TRACK SECURITY PERSONNEL.

App. 142

+ cities

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER_.-#187

DATE__AUG. 3, 1988

ASSOCIATION RACING ASSOC.
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK
HARNESS [X] THOROUGHBRED
( ]
NAME DARCY FLETCHER
*x* * *&

DARCY FLETCHER IS HEREBY ASSESSED A CIVIL
PENALTY OF $50.00. FOR IMPROPER CONDUCT
TOWARDS A STABLE GATE OFFICER ON JULY 29,
1988.

IRB RULE 20.1

STEWARDS RULING

App. 143

cma iia aaa ia

NUMBER__#184

DATE AUG. 3, 1988

ASSOCIATION RACING ASSOC.
NAME OF ASSOCIATION

MAYWOOD PARK
NAME OF RACE TRACK

MAYWOOD , ILLINOIS
LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED
( ]

NAME MELISSA J. SEALE

x * &

MELISSA J. SEALE SCHEDULE TO APPEAR FOR A
STEWARDS INQUIRY REGARDING IMPROPER CONDUCT
TOWARDS SECURITY ON JULY 29, 1988, FAILED
TO APPEAR FOR SAID INQUIRY.

WHEREFORE, MELISSA J. SEALE IS HEREBY
ASSESSED A CIVIL PENALTY OF $50.00

VIOLS. IRB RULE 6.11 F - 20.1

App. 144

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STEVEN LeROY,

Plaintiff,

ILLINOIS RACING BOARD,

)

)

)

)

Vv. ) No. 89 C 3433

)

)

et at., )
)

Defendants.

MEMURANDUM OPINION AND ORDER

In April of 1989, plaintiff filed a
claim alleging constitutional violations by
the Illinois Racing Board ("IRB") and
against certain members and stewards of the
IRB in their official and _ personal
capacities. In this court’s opinion and
order of January 18, 1990, the plaintiff’s
initial complaint was dismissed without
prejudice for failure to state a claim, and

leave was granted to file an amended

App. 145

—————

complaint before February 9, 1990. Before

the court is defendant’s motion to dismiss
plaintiff's amended complaint.
STATEMENT OF FACTS

For the sake of simplicity, the court

adopts the statement of facts as set forth

in the courts memorandum opinion and order

of January 18, 1990.

DISCUSSION

As in plaintiff’s initial complaint,
his amended complaint alleges violations of
the fourth, fifth and fourteenth amendments
of the United States Constitution and 4
u.8.C § 1983. To withstand defendants’
motion to dismiss, plaintiff must have
corrected the problems underlying his first
effort; these were a failure to plead with

sufficient specificity, a failure to allege

App. 146

sical

substantive constitutional violations and
a failure to overcome defendants’ claims to
immunity. In considering the defendants’
motion to dismiss, the court accepts as
true all well-pleaded factual allegations
in the complaint, drawing all reasonable

inferences from them. Marmon Group, Inc.

v._Rexnord, Inc., 822 F.2d 31, 34 (7th Cir.

1987).

Although the court granted the

plaintiff leave to file an amended
complaint and explained in fairly explicit
terms what factual allegations were needed
to survive a motion to dismiss, the amended
complaint adds little to the initial
pleading. Thus, three of plaintiff’s
claims, his substantive due process, equal
protection and free speech claims, may be

dismissed outright for a failure to state

App. 147

cri ii,

cognizable substantive violation of
plaintiff’s rights. Plaintiff’s claims
against the individual defendants may be
dismissed, because plaintiff has failed to
rebut their claims to a defense of
qualified immunity. Finally, some of

plaintiff's claims for relief against the

defendants in their official capacity, in
addition to the claims against the IRB, are
contrary to the dictates of the eleventh
amendment and must be dismissed on those
ground.

Due Process.

In his amended complaint plaintiff
reasserts his claim, dismissed by this
court in its opinion of January 18, 1990,
that the defendants violated his right to
due process. Rather than reframing the

arguments he made earlier, however,

App. 148

plaintiff has seen fit to merely
incorporate the claim as it was set forth
in his memorandum in opposition to the
defendants’ original motion to dismiss. In
his earlier memorandum, plaintiff
explicitly stated that his due process
claims were not of a procedural, but were
instead of a substantive nature.
Plaintiff’s Memorandum in Response to
Motion to Dismiss, p. 15. Plaintiff argued
that his occupational license is a property
interest subject to due process protection.

see Kurtzworth v. Illinois Racing Board, 92

Ill. App.3d 564, 588 (1981). He then
alleged that this property interest had
been denied in an “arbitrary, capricious
and unreasonable manner in violation of his
substantive right to due process.”

In Kauth v. Hartford Insurance Co. of

App. 149

ee

Illinois, 852 F.2d 951, 957 (7th Cir.
1988), the seventh circuit enunciated the
principle that state-created property

rights are not protected by substantive due

process. To support a claim that
substantive due process rights have been
violated, a plaintiff must do more than
assert an unreasonable deprivation of a
state-created property interest; “without
alleging a violation of some other
substantive constitutional right or that
the available state remedies are
inadequate, the plaintiff has not stated a
substantive due process claim." Id. at

958; see also Polenz v. Parrott, 883 F.2d

551, 558 (7th Cir. 1989). Without
expressly addressing the issue in his
amended complaint, plaintiff appears to

rely on his assertion that the search of

App. 150

his truck was undertaken pursuant to an
unconstitutional IRB Rule to buttress his
claim that he has been deprived of the
property interest in his license in
violation of due process principles. he
would appear to be urging this court to
find the defendants’ treatment of him
pursuant to the scheme regulating licensed
harness racers to be “outrageous conduct"
in violation of the due process clause.

United States v. Miller, 891 F.2ad 1265,

1267 (7th Cir. 1989).

Plaintiff’s claim can be reduced,
however, to an assertion that his fourth
amendment rights were violated by the
search undertaken pursuant to the allegedly
unconstitutional rule and that he was
denied equal protection by the nature of

the punishment and fines imposed upon him.

App. 151

The seventh circuit has advised that

“(s]jubstantive due process, a judicial
invention, is least applicable when 4
provision of the Constitution directly

addresses the subject." United States Vv.

Marshall, 908 F.2d 1312, 1320 (7th Cir.

1990); cert granted Chapman _v- United

States, 1990 U.S. Lexis 6317. In light of
the applicability of the search and seizure
clause of the fourth amendment and the
equal protection clause of the fourteenth
amendment to plaintiff’s claims, the court
declines to apply the nebulous principles
of substantive due process. Therefore, the
court grants defendants’ motion to dismiss
plaintiff’s due process claim.

Equal Protection.

In plaintiff’s most substantive

amendment in light of this court’s

App. 152

dismissal of his original complaint,
plaintiff has attempted to elucidate his
claim that he was denied equal protection.
Attached to his amended complaint as Group
Exhibit G, plaintiff has included a
multitude of stewards’ rulings regarding
other horsemen who have violated the IRB
Rules. Plaintiff has demonstrated that
persons punished under the rules have been
treated differentially. He has not,
however, given this court sufficient detail
to establish on what basis--legitimate or
otherwise-such decisions were made. Equal
protection does not mandate that all people
charged with violating regulations be

treated identically. D’Acguisto v.

Washington, 640 F. Supp. 594, 625 (N.D.

Ill. 1986). To reach a constitutional

dimension, differential treatment must be

App. 153

based on invidious grounds such as race,
religion or other arbitrary

classifications. Vukadinovich v. Bartels,

853 F.2d 1387, 1391 (7th Cir. 1988).
Plaintiff has done no more than to state in
a conclusory fashion that his treatment was
invidious, leaving the court with no means
of assessing how this was so. The series
of stewards rulings demonstrating often
much lighter punishments and fines than
those imposed on plaintiff could quite
possibly be explained by such

constitutionally innocuous factual

differences as the fact that by the time of
the third ruling against plaintiff, he had
violated his suspension and the probation
imposed on him.

To the extent that plaintiff is

arguing that his suspension and probation

App. 154

were based on the search of his truck,
which was allegedly unconstitutional under
the fourth amendment, his argument lacks
the specificity required by this court in
order to properly assess his claim. The
stewards rulings provided by the plaintiff
as exhibits do not provide sufficient
detail to enable the court to determine
whether LeRoy, unlike the other harness
racers, was punished “for the exercise and
assertion of his constitutional rights."
Amended Complaint. p. 8.

First Amendment.

Because plaintiff has not rectified
the problems from his original complaint
regarding the claimed violations of his
first amendment rights, this court can do
little more than dispose of those claims as

it did in the opinion of January 18, 1990.

App. 155

LeRoy claims that the Rules of the IRB,
pursuant to which the defendants’ actions
were taken, are “unlawful overbroad,
arbitrary, capricious, unreasonable and/or
otherwise unconstitutional..."

As in his initial complaint, plaintiff
has given this court no factual basis upon
which to assess his claims that his right
to free expression was impinged. Plaintiff
contends that the stewards and officials of
the IRB unconstitutionally sought to
prohibit his right to free speech by
sanctioning him pursuant to IRB Rule 20.1,
which governs acceptable conduct and speech
in the presence of IRB officials. The only
factual details provided by the plaintiff
are contained in the wording of the
stewards rulings. The ruling of July 30,

1987 found that “Mr. LeRoy displayed

App. 156

improper conduct by using offensive and
profane language towards an Illinois Racing
Board official,” and the ruling of August
4, 1988 charged LeRoy with using
“threatening and profane language towards
the Association steward at Maywood Park."
Amended Complaint pp. 6-7.

As this court stated in its opinion of
January 18, 1990, to survive the
defendants’ motion to dismiss, plaintiff
“must have adequately alleged statements

which, among other things, ‘tough upon a

matter oof public concern’ and _ thus
implicate the first amendment." Landstrom

v. Illinois Department of Children & Family

Services, 892 F.2d 670, 678-79 (7th Cir.

1990). If plaintiff registered a purely
personal complaint as to the disciplinary

actions taken against him, the tenets of

App. 157

the first amendment may not be at issue.
Such a situation is analogous to the one

faced by the Supreme Court in Connick v.

Meyers, 461 U.S. 138, 147 (1983), in which
the court stated that “absent the most
unusual circumstances, a federal court is
not the appropriate forum in which to
review the wisdom of a personnel decision
taken by a public agency allegedly in
reaction to the employee’s behavior."
Whether first amendment concerns were
implicated in the disciplinary action taken
against plaintiff is dependent upon the
“content, form, and context" of the speech,
none of which has been provided to the

court. Phares v. Gustafsson, 856 F.2d

1003, 1007 (7th Cir. 1988).

Overbreadth and vagueness.

In addition to framing a general first

App. 158

amendment challenge to his treatment
pursuant to IRB Rule 20.1, plaintiff has
challenged the rule on the grounds of
overbreadth and vagueness.’ In Village of

Hoffman Estates _v. Flipside, Hoffman
Estates, 455 U.S. 489, 494 (1982), the

Supreme Court articulated an approach to
challenges of this nature:

In a facial challenge to’ the
overbreadth and vagueness of a law, a
court’s first task is to determine
whether the enactment reaches a
substantial amount of constitutionally
protected conduct. If it does not,
then the overbreadth challenge must
fail. The court should then examine
t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1577%3A2. Public record. Not legal advice.