(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued September 10, 2001 -- Decided October 11, 2001
VERNIERO, J., writing for a unanimous Court.
This appeal implicates the standards governing appellate review of administrative actions. Specifically, it
involves the method by which the New Jersey Racing Commission (Commission) measures the level of total carbon
dioxide (tCO2) in race horses. An abnormally high level of tCO2 in a race horse is an indication that the horse has
ingested or been injected with sodium bicarbonate or other substances to enhance the horse's performance during a
race. This process is known in the racing industry as “milkshaking.”
The Commission promulgated certain regulations setting forth standards and procedures by which it would
test for impermissible levels of tCO2 and assess penalties against any trainer of a horse found in that condition. The
regulations provide that the Commission may obtain blood samples of any horse after a race for the purpose of
measuring tCO2 in the blood. They further provide that if the tCO2 level equals or exceeds thirty-seven (37) or
more millimoles per liter (mmol/l), the trainer, “as an absolute insurer of the horse,” shall have his or license
suspended for a 75-day period and pay a $1,000 fine.
On October 25, 1997, Ramses Two (Ramses), a standard-bred horse trained by respondent, won a harness
race at Freehold Raceway. After the race, in accordance with the Commission's regulations, a track veterinarian
extracted a blood sample from the horse to test for impermissible levels of tCO2. The test and a confirmatory test
both detected excess levels of tCO2 in Ramses' blood. Respondent was charged with a regulatory violation.
Respondent disputed the charge. He invoked a procedure that permits the horse whose level of tCO2
exceeded the limit to be placed under quarantine and re-tested to determine whether the excessive level of tCO2 was
physiologically normal for that horse. The results of the re-test confirmed that Ramses' previously-tested level of
tCO2 was abnormal. The Commission sanctioned respondent, who requested a contested case hearing before an
administrative law judge (ALJ).
At the hearing, the parties presented sharply divided expert testimony regarding the method by which the
Commission tests equine plasma for impermissible levels of tCO2. That method involves a machine, the Beckman
EL-ISE instrument. Respondent does not challenge the use of the machine, but rather the method by which the
Commission calibrates the instrument before testing to verify accurate measurements.
The Commission's expert testified that the Commission had arrived at the level of 37.0 mmol/l by testing
231 randomly selected race horses in New Jersey. The mean tCO2 level for those horses was 30 mmol/l, and only
one horse in the experiment had a reading higher than 34.0 mmol/l. The expert testified that the Commission
arrived at the 37.0 mmol/l as the regulatory limit because it was more than three standard deviations above the mean
that the Commission discovered.
The expert also explained how the agency used the Beckman instrument. Before testing, the machine is
calibrated using solutions prepared by the instrument's manufacturer, the Beckman Company. The calibration
solutions contain tCO2 levels of 0, 10, and 30 mmol/l. The manufacturer claims that the machine's readings are
accurate up to 40 mmol/l if its calibration is checked properly. The expert further testified that to demonstrate
quality control in the calibration, solutions from a different company (Casco) must be used to run a linearity check.
Casco solutions of 10, 20, 30, and 40 mmol/l of tCO2 are run through the machine. If the resulting numbers
produce a straight line, the calibration established by use of the Beckman solutions is verified. The instructions that
accompany the Casco solutions state that those solutions are intended for use only as checks on linearity to confirm
calibration readings.
Respondent's expert presented contrary testimony. He stated that the Beckman instrument had to be
calibrated with the 40 mmol/l Casco solution to measure correctly in the 30 to 40 mmol/l range. In rebuttal, the
Commission's expert testified that the Casco solutions have no carbon dioxide traceability and the tCO2
concentrations can only be estimated. He stated that using the Casco solutions to calibrate the Beckman instrument
does not adhere to the more rigorous procedures used in analytical chemistry and forensic science. In support, the
expert cited to a letter he received from a Casco official, confirming that the Casco solutions are intended to
measure the overall linearity of the analytical method employed for the measurement, not to calibrate the
instrument. Finally, the Commission presented a report and testimony from another expert, an equine exercise
physiologist and professor at Rutgers University. He testified that he found the calibration used by the
Commission's laboratory to be “impeccable.”
The ALJ concluded that the Commission had established that Ramses had a tCO2 level above the
concentration of 37 mmol/l, was in violation of the Commission's regulations, and the level of concentration did not
reflect the horse's normal physiology. The Commission adopted the ALJ's decision as its final decision, but stayed
imposition of penalties until the case could be appealed to the Appellate Division.
In an unreported opinion, the Appellate Division reversed. The court concluded that the evidence does not
show that there is general acceptance within the scientific community for use of the Beckman analyzer in
accordance with the Commission laboratory's procedures to determine concentrations of tCO2 with the precision
required by the Commission's regulations.
The Supreme Court granted the Commission's petition for certification.
HELD: There is ample evidence in the record before the New Jersey Racing Commission to support the
Commission's determination that the testing of Ramses Two for tCO2 yielded a valid measurement in excess of the
regulatory limit. The Commission must be accorded deference because the case involved technical matters that
come within the special province of the agency's expertise.
1. An appellate court does not substitute its judgment of the facts for that of an administrative agency. If the court
is satisfied that the evidence and the inferences to be drawn therefrom support the agency decision, then it must
affirm even if the court feels that it would have reached a different result. The choice of accepting or rejecting
testimony from witnesses resides with the agency, and so long as that choice is reasonably made, it is accorded
deference on appeal. Finally, courts grant deference to agency expertise on technical matters where such expertise
is a pertinent factor. (Pp. 12-13)
2. The Appellate Division erred in concluding that the Commission had not met its burden of demonstrating the
reliability of the Beckman test generally and as applied in this instance. The Commission must be accorded
deference because its laboratory procedures involve technical matters falling within the special province of the
agency's expertise. In doing so, the agency considered evidence from at least two experts supporting the
reasonableness of its choice of method for demonstrating the precision of the Beckman instrument. The Court holds
that there is ample evidence in this record to support the Commission's determination. Under the standards of
appellate review that apply in this setting, the Commission's determination must be upheld. (Pp. 13-14)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, LaVECCHIA, and ZAZZALI join
in JUSTICE VERNIERO's opinion. JUSTICE STEIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
70 September Term 2000
JAMES CAMPBELL,
Petitioner-Respondent,
v.
NEW JERSEY RACING COMMISSION,
Respondent-Appellant.
Argued September 10, 2001 -- Decided October 11, 2001
On certification to the Superior Court,
Appellate Division.
Jeffrey C. Burstein, Senior Deputy Attorney
General, argued the cause for appellant
(John J. Farmer, Jr., Attorney General of
New Jersey, attorney; Mr. Burstein and James
B. McKinney, Jr., on the briefs).
Mark D. Schorr argued the cause for
respondent (Sterns & Weinroth, attorneys;
Mr. Schorr and Nancy A. Natello, on the
briefs).
The opinion of the Court was delivered by
VERNIERO, J.
This appeal implicates the standards governing appellate
review of administrative actions. Specifically, it involves the
method by which the New Jersey Racing Commission (Commission)
measures the level of total carbon dioxide (tCO2) in race horses.
An abnormally high level of tCO2 is an indication that a horse
has ingested or been injected with sodium bicarbonate or other
substances to enhance the horse's performance during a race.
That process of ingestion or injection is known in the racing
industry as “milkshaking.”
In this case, the Commission found that a horse contained
impermissible levels of tCO2 in its blood following a race at
Freehold Raceway. Accordingly, the Commission assessed penalties
against the horse's trainer, James Campbell (respondent),
consistent with the agency's regulations. The Appellate Division
set aside the Commission's actions. We granted the Commission's
petition for certification,
167 N.J. 90 (2001), and now reverse.
On the day of the race, irrespective of the date, time and method of administration, no horse entered to start in or participating in any race shall carry in its body any drug and/or substance foreign to the natural horse . . . [including] . . . [s]odium bicarbonate (baking soda) . . . [and] . . . [m]ixtures, compounds or solutions commonly referred to as “milkshakes” which contain any prohibited drug and/or substance.
Further, N.J.A.C. 13:71-23.3A(a) states in relevant part:
An excess level of total carbon dioxide
[tCO2] in the race horse is deemed adverse to
the best interests of harness racing, and
adverse to the best interests of the horse in
that such condition alters its normal
physiological state. Accordingly, . . . on
the date of the race and following a minimum
one-hour standing at rest period for the
horse subsequent to the conclusion of the
race within which it competed, a State
Veterinarian representing the Commission may
obtain blood samples from the horse for the
purpose of the testing of said samples by the
Racing Commission laboratory for [tCO2] level
on a Clinical Auto Analyzer that applies an
ion selective electrode method (ISE) for
measuring [tCO2] in blood. Where the [tCO2]
level, based upon such testing equals or
exceeds the following levels, the judges
shall order the relief authorized pursuant to
(b) . . . :
1. Thirty-seven (37) or more millimoles
per liter[.]
As a penalty for a first violation, subsection (b) provides that
the trainer, “as the absolute insurer of the horse[,]” shall have
his or her license suspended for a 75-day period, be ordered to
pay a $1000 fine, “and be denied the privileges of all grounds
subject to the jurisdiction of the Commission during the
suspension period.” N.J.A.C. 13:71-23.3A(b)1.
On October 25, 1997, Ramses Two (Ramses), a standard-bred
horse trained by respondent, won a harness race at Freehold
Raceway. After the race, and in accordance with the procedures
set forth in the Commission's regulations, a track veterinarian
extracted a blood sample from the horse to test for impermissible
levels of tCO2. The test indicated a level of tCO2 in Ramses
that exceeded the regulatory limit of 37 millimoles per liter
(mmol/l). (A “mole” is a measure of molecular weight. A
“millimole” is one one-thousandth of a mole.) The initial
testing consisted of a screening test and a second confirmatory
test, both of which detected excess levels of tCO2 in Ramses'
blood.
Based on that initial testing, the Commission's board of
judges charged respondent with a regulatory violation.
Respondent disputed the charge. He invoked a provision of the
Commission's procedures that requires a horse whose level of tCO2
has exceeded the permissible limit to be placed under guarded
quarantine and re-tested to enable the animal's owner or trainer
to demonstrate that such level is “physiologically normal for the
particular horse[.]” N.J.A.C. 13:71-23.3A(c). The results of
the re-test administered during the quarantine period confirmed
that Ramses' previously-tested level of tCO2 was abnormal.
The Commission sanctioned respondent as a first-time
violator. Respondent then requested a hearing before an
administrative law judge (ALJ), and the matter proceeded as a
contested case in accordance with statutory procedures. See
N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.
The ALJ conducted a seven-day hearing during which the
parties presented sharply divided expert testimony regarding the
method by which the Commission tests equine plasma for
impermissible levels of tCO2. That method involves a machine,
the Beckman EL-ISE instrument, used by the Commission as the
Clinical Auto Analyzer noted in N.J.A.C. 13:71-23.3A. Respondent
does not challenge the use of the machine but rather the method
by which the Commission calibrates the instrument before testing
to verify accurate measurements.
The Commission's expert, Philip Lorimer, the Supervising
Forensic Scientist for the New Jersey State Police, presented to
the ALJ an overview of the milkshaking problem in North America.
Lorimer explained that the introduction of bicarbonated
substances into the bloodstream of a race horse theoretically
improves its performance by increasing its blood's hydrogen ion
concentration. He also stated that the Commission had arrived at
the level of 37.0 mmol/l as its regulatory limit by testing the
tCO2 levels in 231 randomly selected race horses in New Jersey.
The mean tCO2 level for those horses was 30 mmol/l, and only one
horse in the experiment had a reading higher than 34.0 mmol/l.
Lorimer testified that the Commission had arrived at 37.0 mmol/l
as the regulatory limit because it was more than three standard
deviations above the mean that the Commission had discovered.
Although some horses receive residual bicarbonates in their feed,
Lorimer stated that the threshold value of 37.0 mmol/l is high
enough to ensure that a “non-milkshaked” horse would not exceed
it.
The Commission's expert also explained how the agency used
the Beckman instrument. Lorimer stated that before testing a
blood sample the machine is calibrated using solutions prepared
by Beckman, the instrument's manufacturer. The calibration
solutions contain tCO2 levels of 0, 10, and 30 mmol/l. The
machine analyzes the content of the calibrating solutions to
verify that its readings are proper. The manufacturer claims
that the machine's readings are accurate up to 40 mmol/l if its
calibration is checked properly. Lorimer further testified that
to demonstrate quality control in the calibration, solutions from
a different company (Casco solutions or standards) must be used
to verify the calibration. Casco solutions of 10, 20, 30, and 40
mmol/l of tCO2 are run through the machine as a linearity check.
Lorimer explained that the Casco 40 mmol/l solution was necessary
to ensure the reliability of the blood sample measurements up to
40 mmol/l because the Beckman company did not make calibrating
solutions of that concentration. The ALJ summarized Lorimer's
testimony as follows:
The Casco standards are the focus of much of
the expert debate which is at the heart of
much of this case. The standards are
solutions, purportedly containing 10, 20, 30,
and 40 mmol/l of tCO2. According to Lorimer,
they are sampled in the machine and the
operator uses the readings in order to
determine whether the readings obtained from
the sampling of these solutions produce a
linear readout. If the resulting numbers
produce a straight line, within a degree of
tolerance, then the calibration of the
instrument established by use of the Beckman
standards is verified. If the line becomes
curvilinear the machine is not properly
calibrated and must be adjusted.
The instructions accompanying the Casco solutions state that
those solutions are intended for use only as checks on linearity
to confirm calibration readings. Lorimer also testified that the
ion-specific-electrode method used by the Commission has gained
general scientific acceptance, and other jurisdictions have
adopted it. (In response to this Court's request for
supplemental briefs, the Attorney General confirmed that “the
Illinois Racing Board Lab, the Maryland Racing Commission Lab,
and the Michigan Department of Agriculture Lab all use the
Commission's technique[.]”) New Jersey began using the method in
March 1997.
Respondent's expert, Dr. Jonathan Foreman, an Associate
Professor of Equine Internal Medicine at the University of
Illinois, presented contrary testimony. He stated that
calibrating the Beckman instrument with the Beckman solutions
cannot “necessarily verify that the calibration is correct.”
Foreman testified that the Beckman instrument had to be
calibrated with reference to a 40 mmol/l standard solution (a
solution not supplied by Beckman) to measure correctly in the 30
to 40 mmol/l range, the relevant range of interest for equine
blood testing as set forth in the Commission's regulations.
In respect of the specific test performed on Ramses, Foreman
expressed the view that the results from those tests over-
reported the tCO2 concentration by about 1 mmol/l. He testified
that if the readings on the confirmatory test had been adjusted
based on a calibration using the Casco standards, the tCO2 value
would have been 36.3 or 36.4 mmol/l, within the permissible
range.
In rebuttal, Lorimer, the Commission's expert, disagreed.
He testified that the Casco solutions have no carbon dioxide
traceability and, therefore, the tCO2 concentrations can only be
estimated. He stated that using the Casco solutions to calibrate
the Beckman instrument “does not adhere to the more rigorous
procedures used in analytical chemistry and forensic science,”
and that no authoritative body of science has established or
recommended the Casco standards for calibration. In support of
his conclusion, Lorimer cited a letter that he had received from
a Casco official, Dr. John Nagle, confirming that the Casco
solutions were intended to establish the linearity of the
measurements, not to calibrate the instrument. Wrote Dr. Nagle:
“The [Casco] product is intended to measure the overall linearity
of the analytical method employed for the [carbon dioxide]
measurement; it is not a calibrator.”
The Commission also presented a report and testimony from
Dr. Kenneth McKeever, an equine exercise physiologist and
professor at Rutgers University. He testified that he had found
the calibration of the instrument by the Commission's laboratory
to be “impeccable.” Dr. McKeever explained that the laboratory's
results were reliable because they were based on calibrations
using the Beckman standards, which are certified traceable
standards. (To establish certified standards, a company must
comply with rules established by the National Institute of
Standards and Technology.) Dr. McKeever stated that the Casco
standards are not mixed with the same degree of accuracy or
certainty as the Beckman standards, and thus are not suited to
calibrating the instrument. Dr. McKeever testified that it was
not necessary to calibrate the Beckman instrument at the top and
bottom of the range of interest, so long as the machine's
linearity was reliably established. He concluded that the
Commission's laboratory results were “highly repeatable [and]
accurate.”
In addition to the testimony of those three experts, the ALJ
considered numerous exhibits and documentary evidence. Based on
that record, the ALJ concluded that the Commission had
established that Ramses, with its level of tCO2 above the
concentration of 37 mmol/l, was in violation of N.J.A.C. 13:71-
23.3A(a), and that the level of concentration did not reflect the
horse's normal physiology. More specifically, the ALJ stated:
Based upon the record as it stands, the
Commission has demonstrated that the use of
the Beckman instrument is a scientifically
accepted method for analyzing [tCO2]
concentrations in blood plasma. In addition,
the greater weight of the scientific
testimony and evidence presented establishes
that the use of the Beckman standards for
calibrating the Beckman instrument is the
generally accepted procedure, and that the
use of Casco standards to demonstrate
linearity is within the intended use advised
by the manufacturer and also generally
accepted. The record does not support any
conclusion that the use of the Casco
standards as primary calibrators is generally
accepted within the scientific community, or
that the scientific community rejects the
calibration of the Beckman instrument with
Beckman standards even where the value for
the analyte [is] expected to be in excess of
30 mmol/l.
The Commission adopted the ALJ's decision as its final decision
in May 1999, and stayed the imposition of penalties until the
case could be appealed to the Appellate Division.
In an unreported opinion, the Appellate Division reversed.
In essence, the panel concluded that it did not have to decide
which solutions, the Beckman or the Casco, should be used to
calibrate the instrument. Instead, the court stated that “the
critical question in this case is whether the Beckman instrument
as used by the Commission can measure the tCO2 in equine blood
plasma with the precision required for enforcement of the 37
mmol/l regulatory standard.” In addressing that question, the
panel concluded that “the evidence does not show that there is
general acceptance within the scientific community for use of the
Beckman analyzer in accordance with the Commission laboratory's
procedures to determine concentrations of tCO2 with the precision
required by the wording of N.J.A.C. 13:71-23.3A.”
The court also cited the results of testing performed on
another horse that measured tCO2 levels at 36 mmol/l in an
initial screening test and 38.3 mmol/l in a confirmatory test.
The panel concluded overall that “the test results are subject to
random errors of magnitudes which are significant for regulatory
purposes[.]” Accordingly, the court held that the Commission had
failed to carry its burden of demonstrating that the level of
tCO2 in Ramses exceeded the regulatory limit.
Stated differently, if the agency's finding “'is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then, [the appellate court] should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.'” Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In the same vein, the choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal. Renan Realty Corp. v. State Dep't of Cmty. Affairs, Bureau of Hous. Inspection, 182 N.J. Super. 415, 421 (App. Div. 1981).
Lastly, courts grant deference to agency expertise on technical matters, “where such expertise is a pertinent factor.” Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). When resolution of a legal question turns on factual issues within the special province of an administrative agency, those mixed questions of law and fact are to be resolved based on the agency's fact finding. Boss v. Rockland Elec. Co., 95 N.J. 33, 42 (1983).
Respondent's expert suggested that different solutions, the Casco solutions, should have been used to verify the precision of the instrument. The Commission's expert, Lorimer, contested that position using support from Casco's own company representative, Dr. Nagle. Similarly, the Commission's other expert, Dr. McKeever, disputed the explanation proffered by respondent's expert on the use of the Casco standards.
In sum, two qualified experts and documentary evidence supported the Commission's laboratory procedures. Accordingly, we hold that there is ample evidence in this record to support the Commission's determination that the testing of Ramses for tCO2 yielded a valid measurement in excess of the regulatory limit. Under the standards of appellate review that apply in this setting, the Commission's determination must be upheld.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, LaVECCHIA and ZAZZALI join in JUSTICE VERNIERO's opinion. JUSTICE STEIN did not participate.
NO. A-70 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JAMES CAMPBELL,
Petitioner-Respondent,
v.
NEW JERSEY RACING COMMISSION,
Respondent-Appellant.
DECIDED October 11, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice Verniero
CONCURRING OPINION BY
DISSENTING OPINION BY