'Indian Charlie' publisher sues to get on track
Lawyers for Eddie Musselman, publisher of the irreverent newsletter-type publication known as Indian Charlie, have filed suit in U.S. District Court in Louisville to prevent Churchill Downs and the Kentucky Horse Racing Commission's executive director for indefinitely denying him access to the Louisville racetrack.
Musselman has not been allowed on Churchill property since shortly after getting in a fistfight with trainer Dale Romans and Romans' life partner, Tammy Fox, on June 26. The genesis of the widely publicized fight apparently was Musselman's disparaging commentary about Romans.
The suit, filed Tuesday by Louisville attorney Bob Heleringer and Las Vegas attorney Alan Pincus, alleges Churchill (with its director of security Robert King also a defendant) and the KHRC are violating Musselman's constitutionally protected property interests, including his right to utilize his commission-approved vendor's license, without due process. It charges that Musselman is being "improperly and unlawfully ejected" and is suffering irreparable harm to his sole livelihood without access to the backsides of Churchill and the state's other thoroughbred tracks. The lawyers say that access is necessary for Musselman to collect material for his stories.
According to the suit, Keeneland barred Musselman from its property in the wake of Churchill's formal ejection, including preventing him from attending its famed horse sales. Advertising from sales consignors is a mainstay of the Indian Charlie revenue, which is handed out for free and available online. The suit also claims that the racing commission directed Kentucky Downs to eject Musselman "even though they didn't necessarily want to eject him."
Musselman was suspended 30 days by the Churchill stewards and ordered into anger management for his role in the fight. Fox received a 15-day suspension and was ordered into anger management, while Romans wasn't sanctioned. The stewards at the time said Musselman received the heaviest penalty because he was determined to have thrown the first punch.
The suit says Musselman's license was restored to good standing on Aug. 11 after fulfilling the terms of the stewards' ruling. Last month, Louisville attorney Bob Heleringer asked KHRC executive director John Ward and the commission for a hearing to challenge the validity of Churchill's indefinite ejection beyond the suspension Musselman had already served.
In documents filed as part of the suit, KHRC counsel responded that Churchill's ejection of Musselman is separate from the stewards' action, made by the track as a private company independent from the commission. The KHRC also contended there is no provision under Kentucky law for the commission to stay Churchill's ejection of Musselman or to hold an administrative hearing on the matter.
Racetracks long have been considered to have a common-law right to exclude individuals from their property as undesirables as long as the ejection is not for discriminatory reasons. While there is standard reciprocity among states in honoring the suspension or license revocation of a racing participant in another jurisdiction, it is up to individual racetracks if they chose to honor another track's ejection of a person.
The suit says Musselman's concern is that if he remains ejected by Churchill on Jan. 1, when his 2014 license expires, that the commission can use that as reason to deny him a 2015 license.
Lawsuits give only one side of a story. Spokesmen for both Churchill Downs and the racing commission said they do not comment on pending litigation as a matter of policy.
The Indian Charlie publication was banned last spring from distribution at Churchill, Keeneland, the New York Racing Association and tracks owned by the Stronach Group over a satirical essay considered offensive to Mexicans. Musselman continued to be allowed on Churchill property until after the fight.
Contact Jennie Rees at 502-582-4042. Follow her on Twitter @CJ_Jennie and Facebook.com/CJJennie.