Cobb v. Delaware Thoroughbred Racing Commission ( 2021 )

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.
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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
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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.
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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).
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