Decision waits on lawsuit to get Muth in Kentucky Derby

Louisville, Ky.

A ruling on owner Amr Zedan’s lawsuit to get his colt Muth and trainer Bob Baffert into Kentucky Derby 2024 will not come until a judge hears from the state attorney general over a constitutional question that has been raised in the case.

During a 71-minute hearing Monday in Jefferson County Circuit Court, judge Mitch Perry said he was prepared to rule on Zedan’s motion to allow Muth into the May 4 classic and on Churchill Downs Inc.’s call to dismiss the case altogether. But he said he had to wait until attorney general Russell Coleman offered his opinion about the constitutionality of a law designed to prevent the filing of what amount to frivolous lawsuits.

“The end of the story for me is I’d like to do whatever I’m going to do this week or before the end of the week, frankly, so you can take whatever steps are necessary with other courts or other venues,” Perry told four lawyers for Zedan and five for CDI.

Even after Perry asked Zedan’s attorney John Quinn what took so long to file this case, and after he asked CDI lawyer Tom Dupree why Baffert’s suspension was extended past the end of last year, the constitutional question still loomed as a linchpin to moving forward.

That question came into play when CDI argued that Zedan’s case fell under Kentucky’s uniform public-expression protection act that went into effect in 2022. Known by its acronym UPEPA, it could prevent Perry from issuing a preliminary injunction that would allow Zedan to bring Muth and Baffert into the Derby in less than three weeks.

As Zedan’s side put it in writing, “Its unilateral and frivolous invocation of UPEPA bars this court from ruling on Zedan’s temporary injunction motion until the court rules on CDI’s pending motion to dismiss. ... In no event can UPEPA bar this court from timely addressing and potentially granting Zedan’s request for a temporary injunction as and if the court sees fit.”

In short, the UPEPA could slam the brakes on any further action in Zedan’s lawsuit. That was why Perry wanted to get Coleman in his courtroom Wednesday afternoon.

“There’s no way to do that electronically,” Perry said near the end of Monday’s hearing. “We’re going to do it just by an order. I’ll ask you folks (CDI attorneys) to literally call Mr. Coleman in his office.”

Right after Perry called it a day, those lawyers gathered to place that telephone call from the courtroom, and they left messages asking Coleman to respond.

Keenly aware there were only 19 days until the Derby and 12 days until competing horses have to be at the Churchill Downs stables barely five miles south of his downtown Louisville courtroom, Perry left lawyers and 20 observers hanging as he said he was prepared to make his rulings after his pointed questions to the lead attorneys from both sides.

Quinn, a high-powered Los Angeles lawyer who flew in to represent Zedan, defended the wait until only 12 days ago to file the suit. CDI argued that legal action could and should have been brought in July, when Baffert’s original, two-year suspension was extended for another 1 1/2 years.

If, however, Zedan had sued before Muth finished first in the Grade 1 Arkansas Derby, normally a win-and-you’re-in qualifier for the Kentucky Derby, Quinn said CDI lawyers would have branded the case as “entirely speculative” and premature.

“When (Muth) won the Arkansas Derby,” Quinn said, “I think within 24 to 48 hours, we sent over to them our demand. The claim is now ripe.”

Quinn doubled down by saying CDI’s extension of Baffert’s suspension through 2024 exacerbated the time crunch Perry faces in making a decision.

“It’s a function of the fact the ban was (two years),” Quinn said. “We relied on it. We waited until we actually had a ripe controversy, and we acted immediately when we did have a ripe controversy.”

If Muth were to get into the Derby through a court ruling, another horse who qualified would have to be knocked out. Quinn said that was not Zedan’s problem.

“It doesn’t really behoove (CDI) to say that we set this train in motion, and there’s other horses that have now qualified,” Quinn said. “Notwithstanding the fact (CDI) made a mistake, we can’t stop the train because some other horse won’t be able to race. That’s a problem that Churchill Downs has created.”

Zedan made his case based on his $10.8 million investment in six horses that he bought and sent to Baffert, for whom he has been a longstanding client. He said he assigned those horses to the six-time Kentucky Derby winner and Hall of Famer because next month’s classic fell after the announced end of Baffert’s original suspension for Medina Spirit’s failed drug test nearly three years ago.

Asked by Perry why the suspension was extended, CDI’s Washington-based attorney Dupree said it was Baffert’s “refusal to accept responsibility for the Medina Spirit incident,” which led to the colt’s notorious disqualification as the 2021 Derby winner.

“(It) triggered an international firestorm,” Dupree said. “The fact is he said if he could do it all over again, he’d do the same thing. Mr. Baffert’s comments not just on that occasion but throughout the term of his suspension gave us no confidence that he was prepared to respect the rules of racing.”

Quinn already had said and later countered that since the Medina Spirit case, Baffert has had his horses make 669 starts “without a single violation.”

Dupree also argued that Zedan could have sent Muth to another trainer as he did two years ago with Taiba. Quinn countered that in the best interest of Muth, “We shouldn’t have to change trainers. We shouldn’t be required to do that.”

Near the end of a session that was snappier than most of the court and administrative hearings that came with the Medina Spirit case, Perry said, “I have enough to make a ruling one way or another. I intend to do that this week.”

Perry’s presumably will make his ruling electronically in writing and not necessarily from the bench. And not before another hearing Wednesday that presumably will include Kentucky’s attorney general.