WORKMAN, C.J.:
The Petitioner, PNGI Charles Town Gaming, LLC, d/b/a Charles Town Races & Slots (hereinafter "CTR & S"), a non-party in the underlying action,
On March 25 and 26, 2009,
On April 8, 2009, the board of stewards
By letter dated April 14, 2009,
Also on April 14, 2009, Mr. Reynolds filed a "Verified Complaint for a Temporary Restraining Order,
Two days after the complaint was filed, on April 16, 2009, the circuit court heard oral argument from counsel for the jockeys and the Racing Commission regarding the injunction and stay sought by Mr. Reynolds. Thereafter, the circuit court entered an injunction and stayed the sanctions imposed against the jockeys until the conclusion of a hearing
After this ruling by the circuit court, CTR & S took the position that it was not barred by the circuit court's Order from excluding the jockeys from its facility pursuant to its asserted common law authority to exclude patrons from its private property. See, e.g., Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913). Based upon CTR & S's position, on April 16, 2009, the jockeys asked the circuit court to extend the injunction and the stay to include CTR & S. CTR & S was notified of this motion and participated in the hearing on the motion before the circuit court. The circuit court, by Order entered April 16, 2009, found that CTR & S "is in active concert or participation with the Defendant [Racing Commission]" and that "if the Track bars the Plaintiffs from racing at the Track, the irreparable harm that caused the Court to issue the TRO would go unabated. Such conduct would render the Court's TRO a nullity and frustrate the Court's authority to ensure compliance with its lawful orders." The circuit court further stated:
The Order was to expire "upon conclusion of the de novo hearing before the West Virginia Racing Commission, which will occur within thirty days of the filing of the Request for Hearing, unless extended for good cause shown or by agreement of the parties." There are no objections by CTR & S noted in this Order, nor did CTR & S appeal the rulings in the Order.
The administrative de novo hearing before the Racing Commission hearing examiner occurred over five days in August and September of 2009. In the recommended decision of hearing examiner, dated April 22, 2010, the hearing examiner found that the jockeys were guilty of "conniving" with the Clerk of Scales "in the commission of a corrupt... practice" by engaging in "farcical" weigh outs. This decision was adopted by the Racing Commission on May 21, 2010, to take effect on June 1, 2010. The Racing Commission suspended each jockey's occupation permit for thirty days and imposed the maximum fine of $1,000 each. The Racing Commission initially orally agreed to stay its final order pending appeal. By Order issued on May 24, 2010, the Racing Commission retracted its oral grant of the jockeys' motion to stay, finding that West Virginia Code § 19-23-17 precluded the Racing Commission from granting a stay.
Also on May 24, 2010, CTR & S filed a "Motion to Confirm Expiration of Temporary
On June 3, the circuit court heard arguments
The Court further ordered that CTR & S "shall not restrict or impede the rights of the Petitioners to enter the Track and engage in their legitimate racing activities." It is from this Order that the present appeal is brought.
Our standard for reviewing the correctness of preliminary injunctions is as follows:
Syl. Pt. 1, Camden-Clark Mem'l Hosp. Corp. v. Turner, 212 W.Va. 752, 575 S.E.2d 362 (2002). Moreover, interlocutory orders issuing preliminary injunctions are subject to immediate appellate review. See State ex rel. McGraw v. Telecheck Servs., Inc., 213 W.Va. 438, 445-47, 582 S.E.2d 885, 892-94 (2003). Applying these principles, the Court reviews the alleged errors raised by CTR & S.
The crux of the instant appeal is whether a West Virginia horse racetrack has an unrestricted common law right to eject a jockey from its premises.
In contrast, the Racing Commission maintains that CTR & S's ability to eject a jockey is subject to the plenary authority of the Racing Commission as set forth in West Virginia Code § 19-23-6. Further, the ejection of the jockeys by CTR & S is subject to a review by the Racing Commission under West Virginia Code of State Rules § 178-1-4.7, which gives the ejected jockeys the right of appeal to the Racing Commission. Consequently, the Racing Commission argues that CTR & S does not have an unfettered common law right to eject a jockey regardless of any actions taken by the Racing Commission. Lastly, the jockeys argue that CTR & S's appeal was untimely filed and premised upon issues that CTR & S waived below.
The ability of CTR & S to conduct horse racing at its Charles Town racetrack is derived from a grant of authority by the West Virginia Legislature that allows horse racing to take place in this State. As provided in West Virginia Code § 19-23-1(a):
Id. (Footnote added). As the Court acknowledged in State ex rel. Morris v. West Virginia Racing Commission, 133 W.Va. 179, 55 S.E.2d 263 (1949):
Id. at 192, 55 S.E.2d at 270. Likewise, the United States District Court for the Southern District of West Virginia in Hubel v. West Virginia Racing Commission, 376 F.Supp. 1 (S.D.W.Va.), aff'd, 513 F.2d 240 (4th Cir.1975), stated that
376 F.Supp. at 4.
Horsing racing, therefore, cannot occur in this State unless the association conducting it has been licensed by the Racing Commission. See W. Va.Code § 19-23-1. Further, permits issued by the Racing Commission are required for certain individuals, including jockeys, before they can engage in their trade at a licensed racetrack. See W. Va. Code § 19-23-2.
Additionally, the Legislature has placed with the Racing Commission, "full jurisdiction over and shall supervise all horse racing meetings,
Id.
Incorporated into the legislative scheme regulating horse racing is a recognition by the Legislature that an association can eject a person from its grounds. Specifically, West Virginia Code of State Rules and Regulations § 178-1-4.7 provides:
Id.
The express language of West Virginia Code of State Rules and Regulations § 178-1-4.7 makes clear that a racing association's right to eject a person from its grounds is not an unfettered right as argued by CTR & S. To the contrary, the regulation which permits a racing association to eject a person contains the following restrictive language: "
In providing for an administrative review of the decision to eject, the Legislature has placed the ultimate decision, subject to judicial review, of whether the permit holder should be ejected with the Racing Commission. Pursuant to the West Virginia Constitution, Article VIII, Section 13,
Id. As the Court previously held, "[o]ne of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law." Syl. Pt. 2, Smith v. W. Va. State Bd. of Educ., 170 W.Va. 593, 295 S.E.2d 680 (1982); see also Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 874, 253 S.E.2d 666, 675 (1979) (stating that "the legislature may alter or amend the common law[.]").
It logically follows that the consequence of the Legislature providing a permit holder the right to appeal an ejection to the Racing Commission is that if the Racing Commission disagrees with the ejection and either reverses it or provides for some lesser punishment, such as a thirty-day suspension, then the racing association must abide by the Racing Commission's decision. To allow a racing association, such as CTR & S, to eject a permit holder, such as the jockeys in the instant case, notwithstanding any measures taken by the Racing Commission upon an appeal of the permit holder would render the Legislative rule meaningless. In other words, if the Legislature intended for a racing association to have an unfettered right to eject the permit holder there would have been no reason for the Legislature to add the language "[h]owever, all occupation permit holders who are ejected have the right of appeal to the Racing Commission[.]" W. Va. C.S.R § 178-1-4.7. Thus, by providing the permit holder with a right to appeal an ejection, the Legislature necessarily conditions the racing association's ability to eject a permit holder on a review by the Racing Commission.
Accordingly, based upon the foregoing, the Court holds that an ejection of a permit
In the instant case, CTR & S's basis for ejecting the jockeys was grounded in alleged misconduct by the jockeys, including failure to declare overweight amounts during weigh outs before horse races. CTR & S's decision to eject came several days after the board of stewards imposed a thirty-day suspension and fine. On April 16, 2009, the jockeys filed for injunctive relief in circuit court to stay the suspension of the racing permit until such time as the jockeys received a proper notice and a hearing on the matter leading to the suspension directed by the board of stewards. By Order on the same day, the circuit court extended the injunction and stay to preclude CTR & S's ejection of the jockeys pending resolution of their administrative appeal. According to West Virginia Code of State Rules and Regulations, the jockeys, as permit holders, had the right to appeal the ejection and CTR & S is bound by the Racing Commission's decision, subject to judicial review.
CTR & S makes several other assignments of error regarding the circuit court's issuance of an injunction and stay of the imposition of sanctions by the Racing Commission.
(Footnoted added).
CTR & S argues that it did not waive its objections to the injunction because it objected to the later June 3, 2010, Order and, therefore, preserved its rights. It appears from CTR & S's motion submitted to the circuit court in May of 2010 that CTR & S
CTR & S further acknowledges that even though it received a favorable ruling from Judge King in September 24, 2009, it "did not take any action to exclude the jockeys from its property."
CTR & S decided not to challenge the lower court's ruling imposing the injunction and stay, notwithstanding the law providing that interlocutory orders issuing preliminary injunctions are subject to immediate appellate review. Telecheck Servs., Inc., 213 W.Va. at 445-47, 582 S.E.2d at 892-94. CTR & S's decision not to challenge the Order enjoining CTR & S and staying the imposition of sanctions against the jockeys at the time the Order was originally entered was at CTR & S's own peril. Not only was this decision inapposite to the law providing for an immediate appeal, but also this Court consistently has held that "[a] litigant may not silently acquiesce to an alleged error ... and then raise that error as a reason for reversal on appeal." Syl. Pt. 1, in part, Maples v. W. Va. Dep't of Commerce, Div. of Parks and Recreation, 197 W.Va. 318, 475 S.E.2d 410 (1996); see State v. Lively, 226 W.Va. 81, 92, 697 S.E.2d 117, 128 (2010) ("The Court consistently has held that `silence may operate as a waiver of objections to error and irregularities at the trial which, if seasonably made and presented, might have been regarded as prejudicial.' State v. Grimmer, 162 W.Va. 588, 595, 251 S.E.2d 780, 785 (1979), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). The raise or waive rule is designed `to prevent a party from obtaining an unfair advantage by failing to give the trial court an opportunity to rule on the objection and thereby correct potential error.' Wimer v. Hinkle, 180 W.Va. 660, 663, 379 S.E.2d 383, 386 (1989)."). CTR & S waived its assigned errors regarding the injunction and stay.
Based upon the foregoing, the decision of the Circuit Court of Kanawha County, West Virginia, is affirmed.
Affirmed.
BENJAMIN, Justice, with whom Justice KETCHUM joins, dissenting:
In its decision, the majority reasons that the Racing Commission's power to issue licenses to jockeys deprives PNGI Charles Town Gaming, LLC, d/b/a Charles Town Races & Slots (hereinafter "CTR & S") of its right to run its business in the manner it believes is necessary to protect its business interests and exercise its property rights. Specifically, the majority's holding establishes that the Racing Commission may, by its granting of licenses to jockeys, determine not only the minimum protections for horse racing and gaming customers at CTR & S, but also effectively the maximum protections. In doing so, the majority relies on an incomplete and selective reading of applicable statutory and administrative authority. Further, the majority applies this selective authority in a manner which not only exceeds the constitutional authority of the Racing Commission, but also deprives CTR & S of its business and property rights.
At the outset, I agree with the majority that the Racing Commission may properly, pursuant to the police powers of the state, issue licenses to jockeys to race at tracks within West Virginia and that through this licensing process the Racing Commission may afford to race track customers certain minimum protections for horse racing and gaming. I also do not dispute that the jockeys have a property right in the permits they receive from the Racing Commission vis-a-vis the state. However, the police powers of the state are not absolute, being limited strictly by the language of the constitution and by the jurisprudence of this Court. Further, the provision by the State to certain private persons of certain property or due process rights with respect to the State by means of a state license does not destroy or in any way minimize the full legal and natural rights already enjoyed by another private person, in this case a business and property owner. A constitutional "end run" is impermissible in our system of governance. The State cannot through its statutory licensing process attempt to create statutory rights for one individual which necessarily destroy the natural rights already enjoyed by another individual.
There is absolutely no law, constitutional or otherwise, which gives to jockeys in West Virginia the right to race at any track of their choosing regardless of the rights of the property owner. None. The licenses of the Racing Commission provide jockeys with the privilege of racing and are a means of ensuring minimum protections to the public for horse racing and gaming. They do not provide jockeys with the right to race wherever and whenever they desire. By finding otherwise, the majority has erroneously elevated a state agency-issued privilege to a right superior in nature and effect to the established property and business rights of CTR & S.
While the Racing Commission certainly can establish minimum racing safeguards at racetracks through its licensing pursuant to the police powers of the state, there is absolutely no legal basis for the majority to limit the property owner, here CTR & S, from imposing more stringent racing safeguards for the protection and assurance of its customers. In prohibiting CTR & S from exercising its prerogative to engage in stricter diligence of fairness in horse racing and gaming at its race track, the majority has improperly denied to CTR & S the full measure of its business and property rights and interfered with CTR & S's ability to determine how best to serve and protect its customers beyond the minimum requirements established by state authority.
The majority quotes the introduction to § 19-23-6 which reads, "The Racing Commission has full jurisdiction over and shall supervise all horse race meetings, all dog race meetings and all persons involved in the holding or conducting of horse or dog race meetings and, in this regard, it has plenary power and authority...." Eighteen sections then proceed after this language listing the ways by which the Racing Commission may
The majority also argues that the West Virginia Code of State Rules and Regulations supports its position. It refers to W. Va. C.S.R. § 178-1-6.1 which reads:
The majority also states in a footnote that the meaning of appeal in § 178-1-6.1, while defined in § 178-1-2.7 as "a request for the Racing Commission or its designee to hold a hearing and review any decisions or rulings of the stewards" (emphasis added), "has been expanded to include an appeal of ejection by the stewards or by an association as well." It supports this conclusion by referring to § 178-1-2 which allows the meaning of a defined word to take on more than its definition in the W. Va.C.S.R. where "the context clearly requires a different meaning." In concluding that the context of § 178-1-6.1 requires "appeal" to take on a meaning above and beyond that delineated in § 178-1-2.7, the majority errs. "[A]ppeal," as used in § 178-1-6.1, plainly means only an appeal from a decision of the stewards.
In its opinion, the majority also places emphasis on the last sentence of § 178-1-6.1, but it completely glosses over the language in the preceding sentence. The first sentence of that section requires that for a person ejected by the stewards or the association to regain admittance, that person must obtain permission for reentry from the Racing Commission and the association. To read the two sentences of § 178-1-6.1 in the way that the majority does makes the section discordant, especially in light of the limits of the State's police power. Here, the clear language of the drafters of this portion of the West Virginia C.S.R. should be given effect and should be read as written: appeals may only be taken by persons ejected by the stewards, and when a person is ejected by an association, permission must be received from the association before that person may regain admission. The majority erred in not
The Racing Commission derives its authority to regulate from the police powers of the state:
State ex rel. Morris v. West Virginia Racing Commission, 133 W.Va. 179, 192-93, 55 S.E.2d 263, 270 (1949). This authority is therefore limited to that actually conveyed by the police power of the constitution and to the actual and natural rights of those affected by actions of the Racing Commission. This Court has also established that the premise of the police powers of the state is to protect and promote the general welfare of the public:
Syl. pt. 5, Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). The Court has described the general welfare, in the context of the police power as:
Farley v. Graney, 146 W.Va. 22, 35, 119 S.E.2d 833, 841 (1960) (quoting 4 M.J., Constitutional Law, Section 66, pages 158-59).
The majority holds that the Racing Commission has the authority to require CTR & S to allow jockeys onto its private property so that the jockeys may participate in horse races. From where the majority gleans this authority is unclear. As this Court has recognized, the state's police power is "broad and sweeping"; however, the police power is confined by the requirement that it be used to create laws that preserve and promote the general welfare. The police power is not unlimited.
Creating laws and rules that regulate horse racing and the "great evil [which] attends its practice," protects the public from, inter alia, the dangers inherent in gambling and protects gamblers from potential fraud. See West Virginia Racing Commission, supra. I fail to see how the general welfare of the people of West Virginia is promoted by forcing CTR & S to admit onto its premises jockeys whose presence it deems harmful to its business. In no way does this action secure the general comfort, health and prosperity of the state, preserve public order, prevent offenses, or prevent a conflict of right. Instead, the action tramples on the property rights of a private business concerned that its customers be worried that "cheating" might be possible at the track. In reaching its decision, the majority has allowed the Racing Commission to exceed its constitutional authority, in direct disregard for the business and property rights of CTR & S.
The majority reasons that because CTR & S can only do business because of a license it
I respectfully dissent to the majority opinion. I am authorized by Justice Ketchum to state that he joins in this dissent.
W. Va.Code § 19-23-16(e); see W. Va.C.S.R. § 178-1-68.1 to -68.6 (setting forth regulations governing the appeal and review of a board of stewards suspension of an occupational permit).
Louk v. Cormier, 218 W.Va. 81, 86, 622 S.E.2d 788, 793 (2005) (quoting State v. Greene, 196 W.Va. 500, 505-06, 473 S.E.2d 921, 926-27 (1996) (Cleckley, J., concurring)).
W. Va.Code § 19-23-2(a).
Contrariwise, there is legal authority from other jurisdictions that have rejected a racetrack's right to unilaterally eject racing permit holders without consequence. See Cox v. Nat'l Jockey Club, 25 Ill.App.3d 160, 323 N.E.2d 104, 108 (1974)("We ... are of the opinion that with the benefit of receiving a quasi-monopoly comes corresponding obligations one of which is not to arbitrarily exclude a jockey who desires to participate in a racing meet. The arbitrary exclusion of the plaintiff meant that he was deprived of the opportunity to engage in his chosen occupation within a reasonable geographic area and for a significant period of time."); Jacobson v. N.Y. Racing Assoc., 33 N.Y.2d 144, 350 N.Y.S.2d 639, 305 N.E.2d 765, 768 (1973)(racetrack may not with impunity exclude a state-license racing participant as such action "may infringe on the State's power to license horsemen"); see also Liebman, supra at 458 (stating that "many states have sought to protect licensees in horse racing... by making changes in the statutes and rules governing the powers of race tracks. A number of states have enacted statutes that require that race tracks have just cause to exclude a licensee from a race track. Others allow excluded licensees an appeal to the state racing commission to contest the exclusion, and some specify the grounds required for any exclusion.")(Footnotes containing citations to statutory authorities omitted).
Syl. Pt. 2, State ex rel. Miller v. Stone, 216 W.Va. 379, 607 S.E.2d 485 (2004). There is no alleged error concerning the pertinent rule being ambiguous.
As the Court consistently held under the former appellate rules:
Syllabus, Smith v. Hedrick, 181 W.Va. 394, 382 S.E.2d 588 (1989); see Stone, 216 W.Va. at 382 n. 3, 607 S.E.2d at 488 n. 3. Consequently, contrary to CTR & S's argument, there was no implicit ruling by this Court regarding its alleged right to exclude the jockeys.
Syl. Pt. 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). The errors regarding the injunction and stay issued by the circuit court do not rise to the level necessitating the application of the plain error doctrine.
Perhaps the majority decided to rely on § 178-1-6.1 because CTR & S's communication with the jockeys used the word "ejection." However, what CTR & S calls its action is irrelevant; what matters most is whether its actions amounted to an ejection, exclusion, or suspension. Nowhere in the applicable sections of the W. Va.C.S.R. or the W. Va.Code are the terms "ejection," "exclusion," or "suspension" defined, and the majority takes no steps in explaining why "ejection" applies in this case.
It is unquestionable that under §§ 178-1-6.2 and 6.3, there is no right to appeal to the Racing Commission. Under these sections, a person who is excluded or suspended may only regain access to the association's property with the permission of the association. If § 178-1-6.1 does in fact apply as the majority asserts, because it is the only section that is construed by the majority to provide support for its conclusion, I find it unnecessary to explore §§ 178-1-6.2 and 6.3 in any more depth.
