By Bruce C. Spizler, Esquire
When SECRETARIAT won the 1973 Kentucky Derby – the first “jewel” of the coveted, but elusive, Triple Crown – contested over a mile and a quarter at Churchill Downs (Louisville, KY), he broke both the stakes record and the track record. And, when SECRETARIAT won the 1973 Belmont Stakes – the third “jewel” of the Triple Crown – contested over a mile and a half at Belmont Park (Elmont, NY) – by a jaw-dropping 31 lengths, he broke both the stakes record and the track record. Yet, when SECRETARIAT won the 1973 Preakness Stakes – the middle “jewel” of the Triple Crown – contested over a mile and three-sixteenths at Pimlico Race Course (Baltimore, MD), there was controversy over the timing of the race – a controversy which remained unresolved for 39 years.
Immediately following the running of the 1973 Preakness Stakes, the Stewards at Pimlico recognized there was a problem. The electronic timing device – installed by the racetrack, and approved by the Maryland Racing Commission (hereinafter, “Commission”), for the purpose of accurately recording the fractional times of all races – recorded the time of the race at 1:55; however, the “Timer” (a human clocker approved by the Commission with a hand-held timing device) recorded the time at 1:54 2/5. Further exacerbating the problem was the fact that two independent human clockers, employed by the Daily Racing Form, each with a hand-held timing device but from different vantage points, both recorded the time as 1:53 2/5 – a time which would have established a new stakes record and new track record. Based upon these unusual circumstances, the Stewards determined that a “power or mechanical malfunction or other extenuating circumstance” had occurred with the electronic timing devise. Accordingly, applying the applicable Commission regulation then in place (set forth below, in pertinent part), the official time of the race was deemed to be the one recorded by the “Timer” (the human clocker approved by the Commission); i.e.,1:54 2/5.
09.10.01.46 – Timing of Races.
A. Each racing association shall install an electronic timing devise for the purpose of accurately recording the fractional times of all races…. The time shall be considered as the official time of each race.
B. There also shall be a timer approved by the Commission. If a power or mechanical failure or some other extenuating circumstance occurs in the electronic timing devise, then the time of the timer shall be used as the official time of the race. (emphasis added). Code of Maryland Regulations (COMAR).
Appeal to the Maryland Racing Commission (1973)
Mrs. Helen “Penny” Chenery, the owner and breeder of SECRETARIAT, filed an appeal with the Maryland Racing Commission (a State Administrative Agency) challenging the winning time assigned to SECRETARIAT in the running of the 1973 Preakness Stakes. Accordingly, after providing proper notice to all interested parties, the Commission conducted a “contested case” administrative hearing during which it considered the testimony of nine witnesses and the voluminous evidence presented through them. In a written Memorandum and Order, dated July 10, 1973, the Commission concluded:
Although the testimony before this Commission today was sometimes confused, it would appear that Secretariat might have run the 1973 Preakness somewhat faster than Canonero II ran the same race in 1971 (when Canonero II set the stakes record and the track record at 1:54). This Commission, however, is bound by its rules and regulations which provide that the official time of any race is that which is clocked by the (official) Timer (1:54 2/5). (parentheses and emphasis added).
Repeal of COMAR 09.10.01.46 – Timing of Races / Enactment of COMAR 09.10.04.23 – Timing of Races
In 1999, as part of its periodic “regulatory review”, the Commission repealed COMAR 09.10.01.46 – Timing of Races and, in its stead, enacted COMAR 09.10.04.23 – Timing of Races which provides, in pertinent part:
.23 Timing of Races
A. A racing Association shall have, and maintain, an electronic timing devise for the purpose of accurately recording the fractional times of all races.
B. The time recorded by the electronic timing devise is the official time of the race unless there is a power failure, mechanical malfunction, or other extenuating circumstance.
C. If the stewards … determine that one of the exceptions under Sec. B of this regulation occurred, the official time of the race is the time … recorded by the official timer… or provided by method considered reliable and accurate by the Commission. (emphasis added)
Following this regulatory amendment, the majority owner of Pimlico Race Course requested that the Commission review the tape of the 1973 Preakness Stakes “to verify the time” in which the race was run by the winner, SECRETARIAT. Thereafter, as an agenda item at a regularly-scheduled Commission meeting, but not as a “contested case” administrative hearing, the majority owner of Pimlico Race Course made an oral presentation to the Commission, absent any testimony or evidence, as to why the time in which SECRETARIAT won the 1973 Preakness Stakes should be changed. The Commission did not find this presentation to be a valid basis upon which to amend its 1973 Order; and the official time of the running of the 1973 Preakness remained unchanged.
Appeal to the Maryland Racing Commission (2012)
In June, 2012, Mrs. Chenery (owner and breeder of SECRETARIAT), together with the President and Chief Operating Officer of the Maryland Jockey Club (owner of Pimlico Race Course and Laurel Park), filed a joint request with the Commission seeking a new hearing “… to address the accuracy and propriety of the official time for the running of the 1973 Preakness Stakes, won by Secretariat”; noting there was new evidence (based upon advanced technology) which convincingly would demonstrate that SECRETARIAT had broken both the stakes record and the track record when winning the 1973 Preakness Stakes (as SECRETARIAT had done when winning the 1973 Kentucky Derby and the 1973 Belmont Stakes).
In order to conduct a new hearing, the Commission first needed to consider and resolve three distinct legal issues – any one of which potentially could serve as a bar to the Commission granting the requested hearing:
1. The propriety of re-opening a 39 year old case
An administrative agency, such as the Maryland Racing Commission, has broad discretion to re-open a case; and, only a showing of the grossest abuse of discretion justifies the interference of a Court. Moreover, such action by an administrative agency ordinarily is not subject to judicial review unless the re-opening of a case violates regulations, statutes, due process or other constitutional requirements.
The Commission concluded that, while the re-opening of a case 39 years after the fact may be unprecedented, under these particular circumstances, such discretionary action by the Commission is not “abusive”.
2. The doctrine of res judicata
The principles of the doctrine of res judicata do not apply where the earlier decision, as well as the later decision, are made by an administrative agency (as opposed to a Court). This does not mean, however, that an administrative agency is completely free to disregard its prior rulings; for it is well-settled that a mere change of mind is not an adequate or valid reason for reversing a previous finding. On the contrary, there must be evidence of fraud, surprise, mistake, inadvertence, or some change in fact or in law in order to justify reversal.
Here, as noted above, a change in the law had occurred in 1999 when the Commission adopted a new regulation regarding the timing of races in the event of a power failure, mechanical malfunction, or other extenuating circumstance regarding the electronic timer. Moreover, there was a change in fact; for, as proffered by the moving parties in their request for a new hearing, there was “… compelling testimony, garnered through advances in modern video technology, together with both new and existing evidence, [which] will clarify and substantiate the accurate time of this long disputed historical racing event …”
3. The retroactive application of a regulation
Where the effect of a new statute, or regulation, does not impair existing substantive rights, but instead alters the procedural measures or remedial measures involved in the enforcement of those rights, such legislation or regulation usually is construed as being applicable retroactively and prospectively in the absence of express language to the contrary or an infringement upon constitutional guarantees.
Here, the regulation adopted by the Commission in 1999 sets forth a procedure, or method, to determine the time of a race in the event of a power or other mechanical failure, or some other extenuating circumstance; i.e., a remedy. As such, the Commission determined that the regulation could be applied retroactively to an event which occurred prior to its adoption.
Having affirmatively resolved these three legal issues, and having provided proper notice to all interested parties, the Commission held a new “contested case” administrative hearing on June 19, 2012.
4. The new evidence
Testimony and evidence were presented through qualified experts in their respective fields including: (1) a network producer/director who has overseen multiple broadcasts of the Triple Crown races including the 1973 Triple Crown, 10 Super Bowls, NBA All-Star games, NHL Stanley Cup finals, and the Olympic Games; (2) forensic film experts (both imaging and editing); (3) a video technology expert; (4) an engineer designer and developer of sports-related timing systems utilized by the United States Olympic Committee; and (5) an award-winning executive producer of horse racing programming for the four major television networks, as well as a horse racing network, including the Triple Crown races and the Breeders Cup.
A digital copy of the running of the 1973 Preakness, with a digital frame counter as well as a digital stop watch superimposed over each frame, revealed the time in which SECRETARIAT ran the 1973 Preakness to be 1:53 (not 1:55 as recorded by the electronic timer, nor 1:54 2/5 as recorded by the Official Timer with his stop watch).
A digital copy of the running of the 1985 Preakness (won by TANKS PROSPECT), with a digital frame counter as well as a digital stop watch superimposed over each frame, revealed the winning time as 1:53 2/5 – the precise time as recorded by the electronic timer in 1985. A digital copy of the running of the 1996 Preakness (won by LOUIS QUATORZE), with a digital frame counter as well as a digital stop watch superimposed over each frame, revealed the wining time as 1:53 2/5 – the precise time as recorded by the electronic timer in 1996. And, a digital copy of the running of the 2007 Preakness (won by CURLIN), with a digital frame counter as well as a digital stop watch superimposed over each frame, revealed the winning time as 1:53 2/5 – the precise time as recorded by the electronic timer in 2007.
A simultaneous showing of these digital tapes, each with a digital frame counter as well as a digital stop watch superimposed over each frame, shows SECRETARIAT crossing the finish line approximately one to one and half lengths before any of the other Preakness winners.
A comparison of the fractional times in which the 1973 Preakness was run as recorded by the electronic timer with the fractional times recorded by the above-referenced digital tape reveals that the respective times recorded at the ½ mile marker, the ¾ mile marker, and the mile marker all were precisely the same. However, at the ¼ mile marker, the electronic timer recorded the time as :25; while the digital tape recorded the time as :23.
Based upon the above “Findings of Fact”, the Commission concluded:
“… although not definitive, it appears that the electronic timer had been started inadvertently by someone, or something, two seconds prior to a horse crossing the electronic beam.
… [T]he evidence presented demonstrates, in a compelling and overwhelming manner, that SECRETARIAT ran the race in 1:53 flat.
With the 2012 Order of the Commission in place, it now is unequivocal that, in 1973, SECRETARIAT not only won the Triple Crown, but, in so doing, broke both the track record and the stakes record (at different racetracks and at different distances) in each of the three “jewels” of the Triple Crown – an extraordinary and remarkable feat which never will be equaled – further demonstrating that, arguably, SECRETARIAT was the greatest thoroughbred race horse of all time.
 As an Assistant Attorney General, the author served as legal counsel to the Maryland Racing Commission from 1988 through 2013.
 Neither Mrs. Chenery nor any other interested party petitioned for a judicial review of the Commission’s Memorandum and Order.
 For the purposes of this article, supportive case citations have been omitted.
 The doctrine of res judicata prohibits parties from re-litigating a claim of something that already has been decided.
 Expert testimony revealed that the video frame rate of all recordings, both analogue and digital, is 29.97 frames/second; thus, each frame equals 0.0334 seconds. This has been the industry standard since 1953. Absent this standard, images cannot be viewed via television broadcast, nor can “color reference signals” be maintained which requires a video frame accuracy of + or – 0.000000445 seconds. The digital stop watch was calibrated at 29.97 frames per second – its accuracy validated by The National Clock to within 0.0001 seconds. Thus, each frame of the digital tape had a “frame number”, together with the cumulative fractions of a second, superimposed upon it.
 The official start of a race is established upon the first breaking of an electronic beam (part and parcel of the electronic timing device) by a horse coming out of the starting gate; as opposed to the opening of the starting gate itself.
 All of the track record-setting times, as well as all of the stakes record-setting times in which SECRETARIAT won the Triple Crown races remain in place to this date; except for one. In the running of the 1991 Pimlico Special, contested over 1 3/16 miles at Pimlico Race Course, FARMA WAY ran the distance in 1:52 2/5 – breaking SECRETARIAT’s track record-setting time by 1/5 second.