Cobb v. Delaware Thoroughbred Racing Commission

• Court: Superior Court of Delaware
• Decided: August 17, 2021
• Docket: N21A-07-005 CEB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMBER COBB, ) ) Appellant, ) ) v. ) C.A. No. N21A-07-005 CEB ) DELAWARE THOROUGHBRED ) RACING COMMISSION, ) ) Appellee. )

Submitted: August 12, 2021 Decided: August 17, 2021

Appellant’s Motion for Stay and for Emergency Hearing. DENIED.

Andrew G. Ahern, III, Esquire, JOSEPH W. BENSON, P.A., Wilmington, Delaware. Attorney for Appellant.

Andrew Kerber, Deputy Attorney General, DEPARTMENT OF JUSTICE, Wilmington, Delaware. Attorney for Appellee.

BUTLER, R.J. The Court has received a “Motion for Stay and Emergency Hearing” from

counsel for Amber Cobb (“Appellant”). The Appellee Delaware Thoroughbred

Racing Commission is represented by the Dept. of Justice and it has responded by

conference call.

The allegation by the Appellant is that she is a horse trainer and is licensed in

Delaware to do so. According to the Appellant, in January of 2021, while training a

horse in New Jersey, an employee filmed her, unbeknownst to the Appellant. Her

motion states: “Cobb was teaching an unraced horse that was extremely unruly. The

horse flipped over after Cobb prodded it with a rake. The horse was not injured.” 1

Since the record has not yet been transmitted to the Court, we know little more about

the incident.

Months later, the employee and Appellant had a falling out and by then,

Appellant was working in Delaware. The employee brought the filmed event to the

attention of the Stewards at Delaware Park, who obviously took a much dimmer

view of what happened. The Stewards imposed a substantial suspension of her

license to train in Delaware. After an appeal to the Racing Commission, those

sanctions were reduced to a two-month suspension of her license in Delaware.

Appellant claims that due to various reciprocal agreements among state racing

1 Appellant’s Mot. to Stay ¶ 4. 1 commissions, Ms. Cobb is effectively suspended everywhere from practicing her

trade.

Ms. Cobb is currently suspended until September 20, 2021. She asks the

Court to issue a stay pending review in this Court.

A stay of an agency sanction is controlled by 29 Del. C. § 10144, which

provides that the decision may be stayed by the Court “only if it finds, upon a

preliminary hearing, that the issues and facts presented for review are substantial and

the stay is required to prevent irreparable harm.”

Appellant claims that the Commission lacks jurisdiction to impose a sanction

against Ms. Cobb for behavior occurring in New Jersey. The argument is that only

the New Jersey Racing Commission had jurisdiction to sanction conduct in New

Jersey and that any other construction of Commission jurisdiction encourages forum

shopping and effectively nationalizes what has traditionally been a subject of state

control. While no authority for this position is cited in her moving papers, there is

at least a superficial appeal to an argument about federalism, state’s rights and the

like.

But it was her Delaware license that was directly affected by the Delaware

Racing Commission. Whether other states choose to recognize the sanction and give

it collateral effect is a decision of the other states. Certainly, a licensed Delaware

attorney cannot expect to cross the State’s border, engage in unprofessional conduct

2 there, and not suffer a Delaware consequence with his Delaware license. Appellant’s

construction of the administrative agency’s authority would unnecessarily limit its

ability to police the behavior of licensees.

Appellant bears the burden of showing that her arguments are “substantial”

within the meaning of the statute. While Appellant has made an argument, the

argument lacks the muscle required to be considered substantial. Appellant may

ultimately prevail on the jurisdictional issue, but the Court is not prepared to

conclude that the issue is substantial in the absence of further development of the

argument in her pleading.

Understanding that the “substantiality” of the question raised may have more

weight than presented in her pleadings, the Court also considers the question of

preventing irreparable harm.

The problem here is identifying what harm is sought to be prevented. Counsel

for Ms. Cobb tells us that the video has now been widely disseminated and is

available on Facebook. Assuming the depiction is quite unflattering to Ms. Cobb,

the Court cannot prohibit its dissemination or alleviate the harm to Ms. Cobb’s

reputational interests that may be attendant to its publication. That harm may well

be irreparable, but it cannot be prevented through a simple stay of the suspension by

the Court.

3 The Court has held that suspension or loss of licensure is not, standing alone,

an irreparable harm.2 This conclusion aligns with common sense: if all license

suspensions were considered irreparable harm, then every licensing action taken by

administrative agencies regulating those licenses would be subject to stay for that

reason alone. Administrative agencies’ ability to act quickly to impose

consequences for inappropriate behavior would be undermined.

And in this case, Appellant’s interests are far more likely harmed by

widespread dissemination of the video than they are by the Commission’s relatively

short suspension. She is already 30 days into a 60-day suspension. It is difficult to

perceive what more harm will be visited upon Appellant by an additional 30 days’

suspension.

Appellant has failed to convince the Court that she has a substantial issue for

review or that a stay will avoid causing irreparable harm. The Motion for Stay and

Emergency Hearing is therefore DENIED.

IT IS SO ORDERED.

Resident Judge Charles E. Butler

2 See, e.g., Denham v. Delaware Bd. of Mental Health & Chem. Dependency Pros., 2017 WL 1505225 (Del. Super. Ct. Apr. 20, 2017); Munir v. Delaware Examining Bd. of Physical Therapy, 1999 WL 458800 (Del. Super. Ct. May 25, 1999). 4