The Ruby Laffoon Rule

I try really hard not to throw rocks at legislators.  For one thing, they have a very tough job, a very boring job, a job most of us wouldn't take unless they'd stopped hiring at the steel mill.  For another thing, if you throw a rock at a legislator, you're gonna hit him; they're as defenseless as an animal with opposable thumbs can be. 

Near as I can determine, legislators use up all their instincts for self-preservation during the decennial re-districting process.  Having successfully gerrymandered themselves into impregnable wards and boroughs cut and pasted into shapes previously known only to God and Gaudi, they are just plumb tuckered out.  Their stores of energy and imagination are so thoroughly depleted that when one of their number comes barreling through the Capitol behind the wheel of one of those zombie Cadillac bad ideas they like so much, it never occurs to them to get out of the way.  They just press the aye button and get run down like so many armadillos on a Texas highway.   

It's pitiful, really, and we shouldn't be laughing at them when it happens.  Making fun of legislators for bad ideas is like kicking cockapoos for being tiny and adorable. 

I know that. But, sadly, while my spirit is willing, my flesh is weak.  Try as I might to be nice to these people, they keep serving up column fodder, and I'm just not a good enough person to resist it. 

I would rather not say mean things about them.  They do a lot of good, and they set my salary.  But hey, I got a deadline coming up in three days.  And the folks I'm gonna throw rocks at today have nothing to do with my salary.  So another chance to rise above my own base personal interests "gang aft agley."¹

This time it's Kentucky I can't resist.  Which is really too bad.  I have a reader in New York² who has put together something he calls "The Bedsworth Safety Map."  It shows the United States with a big, red "X" in every state I dare not drive through because I have insulted them in print.  Kentucky was my last remaining corridor to the east coast.  Sigh.  On the other hand, there were only six states left on the east coast I could safely visit, so maybe it's just as well.

The Kentucky state legislature is currently wrestling with a bill that would make Kentucky Fried Chicken, "The Official Picnic Food of Kentucky."  Seriously.  "The Official Picnic Food."  Representative Charles Siler has introduced a bill that would so designate KFC's "Original Recipe."

How could anyone expect me not to tee that up?  Gandhi couldn't resist a straight line like that.³

Neither can PETA.  You remember PETA:  People for the Ethical Treatment of Animals.  They're like the Sierra Club for cockapoos.  They're the kind of organization legislators should have to protect them from us rock-throwers.

PETA's very upset that Kentucky is considering "honoring" Kentucky Fried Chicken.  They loathe Kentucky Fried Chicken.  If PETA were Iran, they would consider KFC "The Great Satan."  So they're on Representative Siler like ugly on a bulldog. 

Their position, I think eloquently expressed, is that, "If the state legislature moves forward with this one, then they should change Kentucky's state bird from the cardinal to the debeaked, crippled, scalded, diseased, dead chicken."  That lovely picture is provided by one Bruce Friedrich, identified by the Lexington Herald-Leader⁴ as PETA's vice president.  If I were a state legislator, with my heretofore referenced diminished capacity for self-preservation, I would not want to run afoul⁵ of Mr. Friedrich.

But with all due respect to the formidable Mr. Friedrich, I think PETA's missing the point here.  The point is, "How has Kentucky gone 216 years without an official state picnic food?"  I mean, I can understand failing to provide health care for its citizens and neglecting the state's infrastructure and not putting up barbed wire all along its borders to protect its citizens from terrorist hordes swarming down from Ohio like so many Buckeye Visigoths . . . but how could Kentucky's legislature have shirked its responsibility to designate an official state picnic food?

Now I know what you're thinking.  You're thinking, "Isn't the mint julep already the official state picnic food of Kentucky?"  Well, apparently not.  It isn't even the official state beverage.  Milk is.  They decided that in 2005.⁶

They got lots of other official stuff.  They got an official state dance (clogging), an official state butterfly (the Viceroy), and an official state locomotive (Old 152).⁷  They've even got an official state silverware pattern, for crying out loud (Old Kentucky Bluegrass:  The Georgetown Pattern) and TWO state mottos (one in English, one in Latin, but they're different; go figure).

Yet they have NO OFFICIAL STATE PICNIC FOOD.  God bless Representative Siler for straightening that out.

Or at least trying to.  There is some opposition to Rep. Siler's bill quite apart from its PETA-antagonizing propensities.  The Ashland Daily Independent, for example, has editorialized that the official state picnic food should just be generic, unbranded fried chicken.  As it cogently points out, "not all chicken served at picnics in Kentucky is from KFC."⁸

Which reminds me, didn't the KFC people become KFC by deleting the words "Kentucky," "Fried," and "Chicken" from their corporate moniker?⁹  Didn't they make a corporate decision they did NOT WANT to be identified with Kentucky, fried foods in general and fried chicken in particular?  Are these really the people the Kentucky state legislature ought to be honoring? 

If California Pizza Kitchen decided to call itself CPK so it could better market itself to Texans, wouldn't we be a little offended?  I would be.  Especially if we'd put a bust of the founder of the company in the state capitol. 

Yep, there is a bust of Harland Sanders in the Kentucky State Capitol building.  I know this because I almost wrote about it when Pamela Anderson tried to get the governor to remove the bust a couple of years ago because of her concern about KFC waterboarding chickens.¹⁰  I spent an hour trying to write the column before deciding it was not worth all the effort just for the Pamela Anderson/Colonel Sanders bust/bust double entendres.¹¹

So I can certainly understand the feeling of some Kentuckians that they've already done enough for a company that jumped ship years ago.

Besides, there are some disturbing questions raised by some of the whereases in Representative Siler's bill.  According to the first whereas,¹² Harland Sanders opened his first restaurant in Corbin, Kentucky¹³ in 1930.  But according to the third whereas, Colonel Sanders's "Original Recipe" fried chicken was first cooked in Colonel Sanders's restaurant in 1940. 

Which means it took ten years for the Colonel to come up with his "Original Recipe?"  I'm sorry, that's a use of the word "original" I - the English major - have a little trouble with.  What fried chicken recipe was used for the ten years before the "original" recipe?  What was the universe like before the Big Bang? 

If I were Kentucky, I would want answers to these questions before I enshrined that finger lickin' good stuff in my codified statutes forever and ever.¹⁴  Can you imagine how embarrassing it would be to have to stand in Costco parking lots gathering signatures for the initiative to repeal your Official State Picnic Food designation?

But the biggest reason not to name Kentucky Fried Chicken the Official State Picnic Food of Kentucky is found in the second whereas of the resolution in support of it.  It says, "Whereas Kentucky Governor Ruby Laffoon made Harland Sanders an honorary Kentucky Colonel in recognition of his contributions to the state's cuisine in 1936 . . ." 

Governor Ruby Laffoon?!?!  That alone should be enough to keep this bill from ever becoming law.  It would violate Bedsworth's Third Law of Statutory Interpretation:  No statute that requires an admission the state once elected a man  named Ruby Laffoon as its governor can possibly be a real law.  Ignore it.

1  That's Robert Burns.  It's from "To a Mouse."  The "gang aft agley" part is Scottish dialect for "go oft awry," which is what the poem tells us happens to "the best laid plans of mice and men."  Every so often, I feel the need to include something for the benefit of those of you who think anybody could write this column - something to make you say, "Oh, jeez, you need to waste three years getting a bachelor's degree in English to write this drivel?  I couldn't do that; my pain threshold is too low.  Maybe I couldn't write this column."

2  Probably only one.  We'd have to appoint attorneys for everyone in the state before questioning them to find out if there are more, so let's just assume there's only one.

 3 Okay, maybe Gandhi could.  Gandhi did not have to fill column space every month.

4  "Spanning the globe to bring you the constant variety of sport."  Me and ABC's Wide World of Sports.

5  Or, in Kentucky's case, a-fowl.

6  And wouldn't you want to hire the lobbyist who was able to get milk declared the official state beverage in the state that invented bourbon?

7  Hell if I know.  It's a locomotive.  What would an English major know about locomotives?

8  Now there's an editorial board not afraid of controversy.

9  Or at least "entucky" "ried" and "hicken."

10  At least I think it was waterboarding.  I know it was torture of some kind.  I tried to double check with the Department of Justice, but they informed me General Mukasey is still working on that one.

11  And because at that time there were still east coast states I wanted to visit and I was hoping to keep Kentucky open on "The Bedsworth Safety Map."

12  This word apparently can only be printed in boldface fonts.  I went out and looked at a couple of documents I have that contain whereases, and, sure enough, boldface.

13  Which, lo and behold, is in Rep. Siler's district.

14   Well, at least the first one.  Maybe it is asking a little much to expect the Kentucky State Legislature to explain the Big Bang thing.  At least right now while they're gearing up for re-districting.

Posted by William W. Bedsworth on Tuesday, May 20, 2008 at 18:34 Comments Closed

Schaddenfreude a la Spitzer

My wife and I work together. This means I get to spend pretty much every minute of my life with her. This sometimes gets in the way because, of course, it means I have to spend so much time giving thanks to a higher power for my incredible good fortune. Other than that, it is the unalloyed blessing everyone who knows Kelly imagines it to be.¹

For one thing, it makes for some terrific conversation on the way to work. One morning in March, for example, we spent the entire 35 minutes talking about then New York Governor Eliot Spitzer and the holocaust he now inhabits.

It was a lively and candid discussion marked by the kind of perceptive sagacity and insightful, evenhanded deliberation you've come to expect from your courts of appeal. There were elements of history and moral philosophy and sociology and religion and politics and a fair sprinkling of psychology. There was serious analysis and impressive consensus-building.

The upshot of that discussion? I am not allowed to spend more than $150 on a prostitute.

Part of this is based on the fact that if I hire a prostitute, I will need the rest of my money for a good divorce lawyer and a nice, furnished apartment at the Oakwood Gardens.²  The rest is based on our agreement that the $4400 ex-Governor Spitzer is alleged to have paid is just way out of line when the math is done conscientiously.

As to this latter point, Kelly and I figure that when you factor in the actual time of usage, the cost of one of the ex-Governor's prostitutes to me would be approximately $176,000 an hour. Which seems high.

Actually, even $4400 an hour is high when you figure that if I took the entire hour, we'd be spending most of it doing a sudoku and watching an episode of House Hunters (two episodes if we tivoed them and fast-forwarded through the commercials).

Yet somehow the governor of New York, a smart man with a graduate degree, a product of two of the finest universities in the world, a man who has spent almost fifty years on the planet and has proved repeatedly that he can both divide and multiply, considered this a good deal. Even though he was doing it on a greased high-wire suspended over a flaming pit of hungry alligators.³

What gets into people? I mean, hiring a prostitute is risky business for even the most anonymous Joe Average. You can be the manager of an auto parts store, faceless to everyone you meet, barely able to get a waitress to come to your table, but you solicit a prostitute and suddenly there will be searchlights and sirens, helicopters and news vans, and your booking photo will be fed-exed to every member of your church congregation. Guaranteed.

Ask any john who's ever been busted for it. It's a low percentage play.

But if you hire a prostitute when you're the governor of the most famous place in the solar system, you go beyond the realm of the bad idea and ascend to the level of transcendental lunacy. For crying out loud, you're a guy who's on the six o'clock news every night. You're being watched and listened to constantly. Everybody knows your face. Your chances of escaping notice are absolutely nil. You've gone from a snowball in hell to a snowflake.⁴

And I'm sure the erstwhile governor would identify with the hell metaphor right now.

So it's time for the Jay Leno question. Remember when English actor Hugh Grant, one of the most attractive and urbane men on the planet, was caught in flagrante backseato with a transvestite prostitute? At the time, he was dating Elizabeth Hurley, a woman so beautiful I would have paid her $4400 to pound on my instep with a claw hammer.⁵  So help me, everything about Grant's transgression was inexplicable.

Well, a few nights later, he appeared on the Tonight Show with Jay Leno and Leno asked him what I've always considered the single best question in the history of television journalism. Leno looked at him for about twenty seconds without saying anything and then asked the question everyone in America wanted asked, "What were you THINKING?" 

And Grant had no answer. He had the grace to admit he had no answer. But he had no answer.⁶

Nor, of course, does Spitzer. 

The talking heads do. Television is already full of pop psychologists trying to explain the inexplicable, trying to find some intellectual explanation for supremely anti-intellectual behavior. According to Slate.com, Dr. Laura tried to blame it on Mrs. Spitzer. Honest.           

Dr. Laura's theory is "When the wife does not focus in on the needs and the feelings sexually, personally, to make him feel like a man, to make him feel like a success, to make him feel like her hero, he's very susceptible to the charm of some other woman, making him feel what he needs." 

This, of course, is absolute rubbish. This might be an explanation for cheating⁷, but we're not talking about cheating. We're not talking about falling for another woman's "charm." We're talking about hiring another woman's body. This isn't an emotional faux pas, it's a commercial transaction. Blaming his wife is like blaming the trailer park operator for the tornado.

Others have suggested resort to prostitutes might indicate the governor had some issues with his mother. So now we're blaming the tornado on the trailer manufacturer. I'm sure that there are dozens of journalists doing background on the governor's mother even as I write this. Has to be Freudian, right?

No.  It doesn't.  It might or might not be Freudian, but it doesn't have to be anything - except stupid.

You want someone to blame? Blame the tornado.

You want an explanation? Here's an explanation: My gender does stupid things.

Spectacularly stupid things.

Sure, the other gender does stupid things, too. But they seem to lack my gender's sublime capacity for the sex-driven, complete double-twisting, triple axel, "Look, Ma, both hands behind my back," flaming, somersaulting, breaking-every-bone-and-crushing-your-spleen catastrophe.

Exhibits A & B:  Messrs. Grant and Spitzer. Exhibits C, D, E & F: Charlie Sheen, Eddie Murphy, Rob Lowe, Dodger pitcher Dave Stewart.⁸  Exhibit G: My own experience AS A PROSECUTOR.⁹

Having spent fifteen years in the district attorney's office, I can vouch for the fact prostitution gives prosecutors fits. It's a misdemeanor, but it's one of those third rail misdemeanors. Legally, it's a 30 watt misdemeanor; politically, it's a 20,000 volt exposed wire.

The offenders are usually sad, often sympathetic, waifs eking out a miserable substitute for a living by pitilessly demeaning themselves.¹⁰  But the voters seem to have an interest in their punishment that far outstrips the crime. They'll go to church and pray for them on Sunday, but on Tuesday, in the voting booth, they'll crucify any prosecutor perceived as not throwing the trick book at them. The result is and always has been prosecutorial schizophrenia.

My first job as a lawyer was prosecuting misdemeanors for a great district attorney named Cecil Hicks.¹¹  Cecil had a rule: Prostitutes go to jail. End of story, end of discussion, end of inquiry. No prostitution case could be dealt for a fine or community service¹² or anything else. Prostitutes had to go to jail.

It wasn't that Cecil was a rigid moralist. We weren't working for Elmer Gantry. As far as I know, he didn't consider the crime itself any more reprehensible than the dozens of other misdemeanors he did allow his deputies to plead out for less than jail time. But he was convinced prostitution would be a perfect entrée into the county for organized crime, and he was determined to keep organized crime out of Orange County. So prostitutes did jail time.

I don't know if he was right. But I know prostitutes would plead to almost anything in Los Angeles County if they could get the judge to wrap up their Orange County cases as part of the deal. Fines were merely a cost of doing business for them, but jail time was hugely counterproductive.

And I know there is virtually no organized crime presence in Orange County today.¹³  And Cecil Hicks could be elected District Attorney tomorrow if he were still alive. Which puts him considerably ahead of Governor Spitzer on at least four fronts. 

First, Cecil, rest his soul, is dead. Spitzer only wishes he were.

Second, even dead, Cecil is more electable right now than Spitzer.

Third, Cecil is buried. Spitzer will be radioactive for a thousand years; they'll have to launch his body into space in a lead-lined trash barrel.

And fourth, everybody I've ever talked to about Cecil Hicks respected him as a prosecutor and remembers him as a good and decent, fair and honorable man.  Everyone has a Cecil Hicks story, and they all involve laughter.  But even if you spend the rest of the week trying, you will be unable to find anyone who remembers ever sharing a meal with Eliot Spitzer.

So what does this have to do with you? I hope nothing. I hope you didn't need to be reminded of any of this.  But, like all cautionary tales, it has an audience - often one that nobody suspects. Maybe you're it.

But even if you're not, there's a definite bright side to this for you. Ours is a stressful profession. Sometimes it flat out beats us up. You may have had a day like that today... or a week... or more. You may have lost a summary judgment motion... or a trial... or a witness... or a partnership. You may be headed home right now with your head down.

But take heart. No matter how bad your day was. No matter how bad your week, your month, your year... it's better than Eliot Spitzer's. 

Count your blessings.

1. Did I mention Kelly reads every column?

2. Assuming, that is, that my needs cannot be met quite nicely by the nearest available funeral home.

3. Yeah, that's a bad deal for the alligators, but an even worse one for Spitzer.

4. The operative word here being "flake."

5. Now, of course, my limit would be $150.

6. He also had no Elizabeth Hurley. Ever again.

7. Or it might not be.

8. And that list, I'm embarrassed to admit, took only three minutes and no resort to the internet to compile.

9. I thought that phrase needed to be shouted in case a train happened to be going by when my wife read it.

10. Governor Spitzer's associates in The Emperor's Club notwithstanding, prostitutes are the stoop laborers of crime (no pun intended).

11. "I knew him, Horatio; a fellow of infinite jest, of most excellent fancy." And, like Hamlet's Yorick, he carried me on his back until I gradually turned into a lawyer.

12. They were already servicing the community; that's what got them in trouble.

13. There are also very few elephants - a fact I attribute to Cecil's "Elephants Go to Prison" rule. 

Posted by William W. Bedsworth on Friday, May 02, 2008 at 17:12 Comments Closed

Gorilla Warfare

I must admit I was startled. I had not expected to see a gorilla when I left the golf course. And I certainly hadn't expected to be within 20 feet of one.¹ Yet there he was, standing on a street corner in Irvine, swaying rhythmically from side to side, listening to his iPod.

He was holding a large, arrow-shaped yellow sign that said, "Homes for Sale." At the risk of sounding anthropomorphic, I had the distinct impression he was smiling, despite the stultifying boredom of standing on a street corner for hours on end waggling a large yellow arrow. I assume he was either an illegal gorilla or had fallen on hard times, since this is precisely the kind of work I'm told we need gorillas to do because humans won't.²

I watched him until the signal changed. The whole concept of this kind of advertising eludes me. I mean, it's not like seeing a gorilla with a big yellow arrow is likely to remind me that I meant to buy a home while I was out. "Oh, that's right; Kelly wanted me to stop and pick up a new home after I finished golfing. What a break: This guy's got some!"

And even if I were the one guy in a million who would roll down his window and enter into negotiations with a gorilla, nobody ever goes through with those purchases. Sure, people will talk to a gorilla about a new house, people will act like they're interested in what the gorilla has to sell, but our society is still way too specist for anyone to ever close the deal. I talked to three different real estate boards and none of them is aware of a single home sale by a gorilla last year.³

Apparently large-animal-with-arrow-sign advertising works in other areas of marketing. I know this because it is generating more litigation nationwide than the Americans with Disabilities Act. Judging from the number of lawsuits reported in the popular press, people find large-animal-with-arrow-sign advertising almost as offensive as sexy-women-without-clothes-on dancing.

It seems a lot of places consider the arrow the key part of the act and consider it a violation of their sign ordinances. This seems to me to completely miss the truly remarkable significance of employing a gorilla. I'm afraid most municipalities have focused way too much on signage and way too little on underemployed species. And, of course, the result of such short-sightedness is always tragic.

In Woodland Park, Colorado, for example, a rare giant chicken has been ordered to stop walking along Highway 24 brandishing a sign urging passersby to eat at Wild Wings ‘n Things.⁴ The City Manager says the chicken⁵ violated the city's sign ordinance and threatened Woodland Park's "mountain grandeur."

As I understand it, the ordinance in question says nothing about "mascot signage," but includes a provision that "All signs not expressly permitted or exempted from this regulation are specifically prohibited."  Since there is nothing in the ordinance about giant chickens . . . well, you went to law school; construct your own syllogism here.  And while you're at it, construct a new sign ordinance for Woodland Park; the one they've got sucks.

While the Colorado Springs Gazette does not explain why PETA is not holding torchlight parades over this injustice, it does quote several townspeople who recognize the shortsightedness of the City Manager's decision. My favorite is, "It's a funky town; he's a funky chicken." This is the kind of straightforward, cohesive logic I strive for every day.⁶

Eleven hundred townspeople have signed a petition to save the Wings ‘n Things⁷ chicken, who, for reasons I cannot explain other than by reference to the townspeople's affection for him, is referred to as The Chicken Man. I thought at first that might mean he wasn't a REAL chicken.  But the owner of Wings ‘n Things is quoted as explaining the chicken's silence by pointing out, "He does not talk; he's a chicken," so I know that's not it.

And it probably wouldn't matter if it were. There seems to be resistance to this kind of advertising no matter who does it. According to my friend Kevin Underhill, who writes Loweringthebar.net, "Police in Searcy, Arkansas, have no leads in repeated attacks against Steven Turnage, who wears a chicken suit on local city streets to promote a fast-food restaurant."  Someone went so far as to shoot bottle rockets at that poor guy, setting his chicken suit on fire.⁸

In McHenry, Illinois, they banned a woman who dressed as the Statue of Liberty to promote a tax-preparer. Then they decommissioned a guy who dressed as a mattress to remind people their wife told them to pick up a mattress on the way home after they bought the new house and picked up the chicken wings.⁹

You know how Robert Frost said, "Something there is that does not love a wall"? Well, whatever that something is, it has nothing on the forces of the universe that converge against mascot advertising.

Take New Jersey. Please.¹⁰

According to the Associated Press, "The New Jersey State Supreme Court [will decide] whether a town can ban a 20-foot inflatable rat." Honest.

Apparently some unreported natural disaster wiped out all the trial courts in New Jersey. Why else would their Supreme Court be deciding issues like this?

Seems the International Brotherhood of Electrical Workers decided the best way to draw attention to their grievances against Gold's Gym was to post a 20-foot inflatable rat outside the gym. While the significance of that might not have been readily apparent in Newport Beach or Villa Park, it was clear in New Jersey.  According to the New Jersey Appellate Division's opinion, a rat "is a well-known symbol of protesting unfair labor practices."¹¹

Anyway, the IBEW was ordered to take down the rat on the ground it violated a local sign ordinance that prohibited "balloon signs or other inflated signs (excepting grand opening signs)." They did, but when they put it back up 45 minutes later¹², union official Wayne DeAngelo was cited.

He was convicted of violating the ordinance and fined $133. He appealed. The state appellate court ruled against him, BUT THERE WAS A DISSENT. Sing hallelujah, brothers and sisters, there was a dissent!

The dissenting judge pointed out the possibility of unequal treatment of similarly situated 20-foot inflatable rats. Relying on the statute's exception for grand openings, he expressed concern that had a new Disney store opened up right next to Gold's Gym, it could have displayed an identical rat right next door, to advertise the Disney film "Ratatouille,"while the IBEW's rat was being hauled off to the pokey.¹³ That's trouble with a capital "T" and that rhymes with "D" and that starts "Dissent."

This is important because there is an AUTOMATIC right of appeal to the state Supreme Court in any case in which a dissent is filed. Mr. DeAngelo is champing at the bit. His lawyer says of the upcoming appearance before the Supreme Court: "That's the silver lining."

I dunno. I have a feeling the state Supreme Court may not be that thrilled about hearing a $133 inflatable rat case. They may wonder why the IBEW didn't just paint "GRAND OPENING" on their rat and save them a lot of trouble. Appellate counsel might be well-advised to forget the silver lining and see about getting one made of asbestos for his suit. 

Fortunately, our own Supreme Court's docket will not be similarly sullied.¹⁴ The 9th Circuit ruled in Ballen v. City of Redmond (2006) 466 F.3d. 736, that the Blazing Bagels bagel shop could have an employee stand outside with a sign urging people to come in and buy bagels. Seems to me a shop that describes their bagels as "blazing" might be better off if they sent an employee outside with a gun to steer people into the store; a sign might not be enough.

But that wasn't the issue. The issue was whether Redmond's sign ordinance restricting purely commercial speech was drawn narrowly enough to pass constitutional muster.¹⁵ The Ninth Circuit said it was not.

I could spend several more paragraphs explaining why Redmond's ordinance was flawed, but if I did, you'd stop reading. I have not a clue why you've read this far, but I'm reasonably certain it wasn't for scholarly exposition of recent Ninth Circuit cases.

All you need to know about the Redmond case is that the court awarded the flaming bagel guy fees and costs and the City of Redmond ended up out of pocket $165,508. Now I don't know how much disposable cash the City of Redmond has jingling around in its figurative jeans, but I'm pretty sure the next time they take umbrage over a sign, they'll be a tad more reluctant to make a federal case out of it.

And I'm pretty sure all the City Managers in California know about the Blazing Bagels Case. I can't see them advising their clients to risk $165,508 over a sign unless it's pretty obnoxious.

2. Apparently, we are the only primates frightened by the prospect of "dehumanizing work."

3. Perhaps "talked to" is a bit of an exaggeration, since no one said a single word to me after I asked the question.  But I think three hang-ups in three calls are enough to establish a negative response.

4.  Shouldn't there be a second apostrophe after the "n," as in "Wild Wings ‘n' Things?  After all, we're apostrophizing both the "a" and the "d".  That's the kind of problem MY sign ordinance would address.  Give thanks I'm not on YOUR city council.

5.  Obviously a free-range chicken.

6.  And, according to many, achieve.

7.  I'm still bugged by that missing second apostrophe.  Do you think maybe they only need one because what they were going for was Wings On Things?

8.  Let's just hope no one does that to real chickens, like the one in Woodland Park.

9.  Wings IN Things?

10.  Henny Youngman, gone but not forgotten.

11.  See how much we miss out here on the left coast?

12.  Somewhere is a union lawyer who can lay claim to one of the most unusual billable hours in history:  "Research and analysis re propriety of rat display."

13.  Appellate work appeals to a very special kind of individual.

14.  Actually, I have nothing against the rat case, but I couldn't pass up a chance to use a phrase like "similarly sullied."  I just know I'm not gonna get that chance in an opinion.

15.  Please pass the muster; my hot dog's getting cold.

Posted by William W. Bedsworth on Thursday, March 27, 2008 at 16:48 Comments Closed

The Korean Alien Penumbra Conundrum

On October 5th of last year, I spoke to the American Bar Association's International Law Section in London. On October 19th, I spoke to the Nebraska State Bar Convention in Lincoln.

In between, I spent a week in a decompression chamber to keep from getting the bends.

I had a great time in both venues. I officiated two NHL games in London and took in the Nebraska-Texas A&M football game in Lincoln. I was a pig in slop.

In many ways, the two experiences were much the same. In London, I had great food (I could live for a long time on steak and ale pie, and they do nice things with venison) and went to the British Museum, where I saw some of the Chinese terra cotta soldiers on exhibit. In Lincoln, I had great food (you are not allowed to leave Memorial Stadium without eating at least one runza(1) and went to the National Museum of Roller Skating where I saw "the colorful history and the promising future of one of America's favorite sports."(2) In both places I met really nice people.

So, as you can see, there is not much to choose between these two places except that London has part of an ocean protecting it from the maniacal French, while Nebraska is chockablock next to the maniacal Kansans and you pretty much live in constant fear that they might pour across the border at any moment and take your science textbooks away from you. Other than that, I think you could have a great weekend in either place.

But I must admit I'm starting to think Nebraska, even given its terrifying juxtaposition with the newest state in the Union,(3) might be a safer bet than England. In fact, I'm starting to distrust any place that requires me to fly over a larger body of water than the Great Salt Lake.

So help me, folks, at the risk of sounding chauvinistic,(4) I'm starting to think governments in the rest of the world are smoking even more weed than ours is.

Let's start with the Brits. According to Reuters, a panel made up of "three of Britain's most senior judges" has discovered an inalienable human right not to live in France. Imagine. Eight hundred years since the Magna Carta and nobody in Britain had previously noticed that there was this innate human right lying around. Remarkable.

This will be an interesting precedent - especially for people like my wife, who tends to develop strong feelings about places we visit.(5) And employment lawyers will be especially interested in this case when the head office orders their client transferred from Newport Beach to Burundi.(6)

The Brits detected this inalienable right during a family law case. You knew it would be family law, didn't you. Family law makes everybody crazy.

Seems British dad and French mom split up. Mom took their two sons, ages 11 and 16, with her to France. But after a visit with Dad in England, the boys refused to return to France, on the basis that in England they could "walk to school, could have their own key and would not have to do as much homework."(7)

The court, citing the boys' "Britishness"(8), said they had "an inherent right to refuse to live in France." It's not exactly "life, liberty and the pursuit of happiness," or even "Liberte, egalite, fraternite," but it's the first inherent human right discovered since Justice Douglas wandered into a penumbra while on a camping trip in 1965 and wrote about it in Griswold v. Connecticut, so it's nothing to be sneezed at.

Inalienable human rights don't pop up every day. I really think it should have gotten a lot more attention from the legal press than it did.

Probably, though, it was overshadowed by the decision of the South Korean Court of Appeals to suspend a prison sentence on the basis that the defendant was too important to the national economy to be locked up for three years. That's right.  Go back and read it again. It says exactly what you think it says. He was too important to do the time.

Chung Mong-koo, the 69-year-old Chairman of Hyundai Motor Company, was convicted of embezzling $100 million from his company. For this he was sentenced to three years in prison.(9) But the appellate court suspended his sentence ON THE BASIS HE WAS TOO IMPORTANT TO GO TO JAIL.(10)

Honest. According to the Los Angeles Times, quoting the Associated Press, two organizations not on the list of the world's largest importers of hallucinogenic drugs, "In reversing Chung's sentence, presiding Judge Lee Jae-hong told a packed courtroom in Seoul, ‘I was unwilling to engage in a gamble that would put the nation's economy at risk.'"

And they're clearly right. I mean, I saw a picture of him and he had a tie on and everything. He sure looked important to me. And there were a bunch of people shoving microphones in his face like he was announcing the discovery of a cure for psoriasis - or a newly discovered inherent human right.

Which, come to think of it, he was.  He was announcing the right to do whatever you damn well please if you're really rich and live in Korea.  It's a lot like Britishness only it comes with a get-out-of-jail-free card instead of a get-out-of-France-free card.

Nor is this some kind of bizarre fluke. According to the Times, "Chey Tae-won, the chairman of another conglomerate, energy giant SK Corp., had his three-year prison sentence suspended by an appeals court last year after he was convicted of fraud."  In fact, the Times says 83% of suspects in embezzlement and breach of fiduciary duty cases have been set free by South Korean courts since 2001. Keep that in mind next time you feel like griping about American courts being soft on crime.

But as bad as these two are, the one that really worries me is the Italian decision that space aliens are testing secret weapons in Sicily. According to The Week, Sicilian villagers in Canneto di Caronia had reported that refrigerators and toasters and things have been spontaneously bursting into flames in their town. The Italian government investigated and concluded that "aliens testing secret weapons" are probably responsible.

I just don't know what to add to that. How can you read that and not think that maybe you want to postpone your trip to Venice for a year or two?(11)

Here is what the Malaysia Sun(12) had to say about it: "Dozens of experts, including a scientist from the US space agency NASA, were sent to investigate the bizarre blazes, in a two-year probe which cost the exchequer a whopping one million pounds. Now a leaked Italian report has said that aliens were a likely cause of the fires in the remote village of Canneto de Caronia in Sicily."

Makes Lincoln, Nebraska look pretty good to you, doesn't it?

Just be sure to approach Lincoln from the north or the west. You don't wanna come in through Kansas. They'll arrest you on suspicion of being a biologist and you'll have to invoke your inalienable human right to rip off Koreans in France.(13)

1. This is a beef and cabbage pie, not all that unlike the British pasties, only surrounded by screaming people wearing red.

2. Not to mention a gasoline-powered roller skate (you gotta go to their website and see this bad boy (http://www.rollerskatingmuseum.com/), although, as you can imagine, it's much more impressive in person).

3. This would be Kansas.  True, they were admitted to the Union in 1861, but according to their school system, they were created only 6,000 years ago, which makes them much newer than any of the other states.

4. In the original sense of the term.  Nicolas Chauvin.  "My country right or wrong."  That kinda thing.

5. Kelly cannot understand, for example, how Houston, Texas, can be anything but a penal colony.

6. Or Houston.

7. Considerations which have inexplicably not made their way into any reported California custody cases.

8. I'm guessing this was established either by sophisticated DNA analysis or the fact the boys found Benny Hill funny, which is not possible for anyone who is not British.

9. As I understand the South Korean sentencing system, embezzlement of less than the gross national product of Gambia, the maximum punishment is three years.  Chung just made it under the wire.

10. I don't resort to all-caps often, but this seemed to be a clause that merited them.  In the first place, they gave him only 3 years for embezzling $100 million.  Let me go on the record right here:  For $100 million, I would go to prison for three years tomorrow.  That isn't a sentence, it's a power forward's contract demand.  But then they decided he didn't have to go to prison AT ALL because THEY SAID HE WAS TOO IMPORTANT, FOR CRYING OUT LOUD! That's all caps stuff, if you ask me.

11. Don't do it.  Don't EVER postpone a trip to Venice.

12. Yeah, I know, not exactly the New York Times, but probably a lot more reliable than Fox News.  What can I tell you?  Except for The Week, very few mainstream news organizations covered this.  Nobody wants to report on a major world government going absolutely loonytunes.  It's too disturbing.

13. No, it doesn't make sense, but if you say it loud, it may confuse them long enough for you to hightail it across the border into Nebraska.  Nice people in Nebraska.  Wear red.

Posted by William W. Bedsworth on Friday, January 04, 2008 at 15:07 Comments Closed

Heir of the Dog

I had three dogs as a boy.  All were named Trouble.  This was because my dad named all the dogs and he was not entirely convinced by my mom's "A boy should have a dog" argument.

In fact, Dad disliked pretty much everything about dogs.  And cats.  And ferrets and hamsters and birds and... well, let's just say the concept of pets was one Dad never fully bought into.  He was not only a flaming specist, he was a little paranoid about it:  He seemed convinced all the planet's small animals were in league against him, and hell bent on his personal aggravation.

The whole time I was growing up, I was not allowed to own a bb gun.  But Dad always had one with which he threatened to shoot any bird, cat or neighborhood child who strayed into his backyard.¹  Mostly he just threatened, mainly because Mom usually responded by threatening to leave him if he ever actually shot anything.

So Dad spent a lot of his leisure time, of which there was very little²,  mumbling under his breath about Mrs. Adams' cat or Mr. Chavez' parrot or Mr. Ortlieb's "yapping throw dog."³  And my brother and I spent a great deal of time trying to make sure none of the Troubles - or any of the neighbors' pets or children - got underfoot.⁴

We were the only people I knew whose dog was named Trouble.  And we were the only people I've ever known whose dogs all had the same name.  Dad didn't say much, but he certainly knew how to make a point.

So you can imagine how shocked I was to learn that another Trouble had shown up on the national news.  It turns out the late Leona Helmsley's dog is named Trouble.  And she's got some.

This Trouble is an 8-year-old Maltese, a killer cute little white throw dog.  She lives on the late Ms. Helmsley's Connecticut estate, the only occupant of the 28-room mansion other than the servants.  I don't know how many servants Trouble has, but I shouldn't think she has much trouble finding good help, what with the $12 million her late mistress left her when she passed into the celestial Land of Milk and Money.

That's right.  TWELVE MILLION DOLLARS.  Trouble's owner⁵ left her twelve million dollars.  You wouldn't think a dog with twelve million dollars would have any... well... troubles, but this one does.

This might be a good time to discuss Trouble's owner.  Tough call for me here:  Which is the reader more likely to want more information about right now:  multi-millionaire dog or looneytoon owner?  Let's go with looneytoon owner.

You may be old enough to remember Leona Helmsley.⁶  She was a real estate mogul.  Her ruthless business methods, including some fairly heartless evictions, earned her the nickname, "The Queen of Mean" back in the seventies.  In 1987, when she was convicted of tax evasion, one of her housekeepers testified she had once said, "We don't pay taxes; the little people pay taxes."

With that attitude, it's not surprising she seems to have been one of those people who inspires unanimity of opinion.  No one had a good word for her.  You know how some people you might cross the street to avoid talking to?  Well, Leona Helmsley would make a train take a dirt road.

All of which apparently worked really well for her.  She was seriously rich.  The 12 million the dog got was chump change.  She was worth something like five billion dollars.  Five billion.  That's the number five followed by a parade of zeroes and commas and floats and marching bands.

She once owned the Empire State Building, for crying out loud.  That's rich.

And she seems to have been the opposite of my dad.  While Dad was perpetually plotting the imminent demise of the next sparrow he saw, he loved people.  Leona Helmsley left twelve million dollars to her dog and disinherited two of her grandchildren.  Completely.  She said they would "know why."

True, she left her brother 15 million, but it was conditioned on him taking care of the dog!  Honest!

That's why I say Trouble has trouble:  The brother says he won't do it.  According to the Associated Press, "The New York Post, citing an unidentified source, reported that [her brother, Alvin] Rosenthal, 80, expressed no interest in caring for Trouble.  Whether her grandson David Panzirer, Helmsley's second choice, would step in was not known."

David might want to give this some serious thought.  True, he was not one of the disinherited grandchildren.  He got five million.  But the five million is conditioned on him visiting his father's grave at least once every year.⁷  A chance to triple your money by spooning some kibble into a dish twice a day might be a pretty sweet deal.⁸  Especially since Trouble is gonna be pushing a hundred in dog years by 2013.  It's not like he has to marry J. Howard Marshall,⁹ he just has to walk the dog.

But it's not all sunshine and chewbones.  Ms. Helmsley's will specified that when Trouble passes on to the Big Dog Park in the Sky, her earthly remains are to be buried with Ms. Helmsley.  That would be fine, except that New York law does not allow animals to be buried in human cemeteries.¹⁰  So a big chunk of Trouble's money figures to go to the lawyers - and or legislators - hired to fix that little snafu.

And a lot more will probably have to go to the lawyers charged with defending Trouble in the civil suit.  That's right, Trouble is being sued.  David might want to consider whether he really wants to buy a Maltese that comes with a leash, a collar, a bowl, several servants, and two lawsuits.  Maybe a nice golden retriever would be a better choice.

Seems one of Helmsley's former housekeepers claims Trouble often bit her during her three-month job with the billionaire, and she wants a chunk of Trouble's inheritance to assuage her pain and suffering.  According to the AP, "Amfira Sfara, 48, had sued her employer in 2004 over one of those bites, but lost the case when a judge ruled Helmsley was protected from liability under the Worker's Compensation Law."

Now Amira's son, Remus Pop, says his mother is entitled to a big bite of that 12 million dollars.  Remus Pop?  The woman's son is named Remus Pop?  Who's writing this story, Charles Dickens? ¹¹

According to AP, Remus says, "That dog got money.  That money is going to be taken away from that dog."  Frankly, it sounds like Remus and Leona would have gotten along famously.  What a shame they ended up on opposite sides of this dispute.

Okay, class, let's review.  Housekeeper sues multibillionaire over dog bites.  Gets thrown out of civil court into worker's comp arena.  Now dog has more money than the entire New York Worker's Comp system, so housekeeper is suing dog directly (and the trust set up for the dog).  Remus Pop is on the case.  Discuss the following issues:  Liability, assumption of the risk, agency, res judicata and/or collateral estoppel, trust liability for torts committed by a beneficiary before it was formed, federal diversity jurisdiction,¹² computation of punitive damages against a dog, name change for Remus Pop, and whether the points and authorities for your demurrer should say more than, "Gimme a break, Judge; it's a DOG!"

Get that into me in two weeks.  I won't be here for next week's class.  I have to spend that time researching pedigrees.  I have to figure out whether any of my Troubles were related to Leona's.  I mean, it IS an unusual name.

2  In fairness to Dad, he worked 70 hours a week at two jobs; there wasn't much time to cuddle with the Troubles, or throw sticks for them to chase.  He missed out on the good parts of pet ownership.

3  Dad felt the only thing Mr. Ortlieb's Pekingese was good for was to "throw at any burglar who breaks in."  Hence, "throw dog."

4  As near as we could determine, Dad was all talk, but it was pretty scary talk.

5  Yeah, I know that term has fallen out of favor in some quarters.  The PETA people say it's smacks of interspecies slavery.  But the alternative seemed to me to be "mistress" and I'm pretty sure Ms. Helmsley, who was 87 when she died last month, would not like being referred to as anybody's mistress.

6  Fortunately for you, that is NOT one of the questions on the MCLE quiz that follows this column.

7  Didn't I see this movie?  It's New Year's Eve and millionaire playboy grandson is out partying when he suddenly realizes he has to get to the cemetery before midnight or he'll lose all his money, and goes racing through Manhattan only to trip over a small white Maltese and have to crawl the last hundred yards with the assistance of the good-hearted cocktail waitress who doesn't know he's rich?  Dudley Moore and Goldie Hawn, right?  1985 or thereabouts?

8  It certainly makes me want to re-negotiate the agreement I have with my cats.

9  Don't know the name?  Neither did I, which is amazing because he was almost as rich as Leona Helmsley.  Do what I did:  Google Anna Nicole Smith.

10  How do we get laws like that?  What's the constituency for "no dead dogs in the human cemeteries" laws?  Other than my father, that is.

11  Who plays Remus Pop in the movie?  Snoop Dogg?  I mean, there's gotta be a part for him somewhere, right?

12  Did I mention Trouble is not a citizen?

Posted by William W. Bedsworth on Wednesday, November 21, 2007 at 19:36 Comments Closed

Railroaded

My first year criminal law class spent very little time on the elements of crimes and a lot on the "philosophy of punishment." I griped about the curriculum and complained that we should spend less time studying the music of the spheres and more time learning how to distinguish battery from bottomry.1    I was twenty and knew a lot.

Forty years later, I know considerably less - a fact you may previously have had the occasion to remark upon. I've learned how tough it can be to figure out the elements of crimes (See, e. g., People v. Williams (2001) 26 Cal. 4th 779 [arcane mysteries of assault]; People v. Hobbs (2007) 152 Cal. App. 4th 1 [wrestling with what crime is committed by surreptitious videotaping of girls' locker room]), and I've also - reluctantly - come to the conclusion humans are very bad at figuring out appropriate punishment for transgressions. 

It begins to appear to me that we should be spending a lot more time on the "philosophy of punishment.2

Take Amtrak.3 Amtrak's true name is the National Railroad Passenger Corporation. It is wholly owned by the federal government.4 Its directors are appointed by the President of the United States, which probably explains why it feels the necessity to operate under a pseudonym, but I think you have to give them some credit for coming up with the portmanteau "Amtrak" as the pseudonym. After all, they correctly divined that no one would entrust their vacation to an outfit whose acronym was "Nerpsie." As railroad names go, "Amtrak" has a lot more panache than Short Line or B & O.5

And my own experiences with Amtrak have generally been favorable. They're not as good as the Canadian railroads I've traveled, but, hey... they don't have Gordon Lightfoot. That gives the Canucks a big advantage. Take Vlad Guerrero out of the Angel lineup and they wouldn't be as good as a Canadian railroad either.

The only other railroads I have personal experience with are the French and the Spanish, and I wouldn't trust either of them to get me to Bakersfield, so I'm reluctant to criticize Amtrak.

But their philosophy of punishment needs some work. Just ask Roosevelt Sims.

Mr. Sims retired from his factory job in June at the age of 65. He decided to take a train trip to Los Angeles to celebrate.

This is hard for me to understand. L.A. is my home town, and I will always feel a certain allegiance to it, but it's hard for me to understand someone in St. Louis wanting to come here on a vacation. I think L.A. is like a bad magician: the farther away you are, the better the act looks to you.

Anyway, for whatever reason, Mr. Sims decided to take a train to L. A. But, a few hundred miles from his destination, near Williams, Arizona, railroad personnel took it into their collective head that he was drunk. So they put him off the train. 

In a forest. In the middle of nowhere.6 In the middle of the night.

They threw a 65-year old man they thought was drunk off the train and into a pine forest, at 8,000 feet elevation, five miles from the nearest town and eight hours before daylight. There was no water where they left him and the nearest road was two miles away. 

That strike you as over-reaction? 

Does me.

In fact, Mr. Sims' family says he is a non-drinker and was in fact not drunk, but going into diabetic shock. If they're correct, Amtrak's response makes Molokai look positively enlightened.

Somebody at Amtrak was not paying attention during Philosophy of Punishment 101. The punishment for drunkenness is not being marooned on a desert island or dropped on Denali without shoes. It is a fine.7 We save the burial in anthill punishments for more severe infractions.

Mr. Sims is 65 years old. As I approach 60 myself, I'm a lot more willing to see 65 as the new 45, but I don't know too many 45 year olds I'd expect to do well drunk at night in a national forest.8

In my own case, dropping me five miles from Williams with no road and nothing to guide me but a quarter moon would be a death penalty whose disproportionality I would expect Amnesty International to complain about unless I had murdered a family of missionaries.

I mean, the guy is 65 years old. It's not like he's gonna overpower the train personnel and attack the engineer. It's not like they found him with a bomb and they're afraid he might have confederates in the club car. They couldn't have waited until there was a town? 

How about this? You put him into an empty compartment, station a conductor there to keep him from leaving, and call ahead to the next town to have the sheriff take him into custody. The guy's a drunk, for crying out loud.9 My 20-year old daughter can handle an obnoxious drunk, and she doesn't weigh 120 pounds soaking wet. 

I mean, this isn't the Trans-Siberia Express; you're not gonna have to wait until Tuesday for another town to come up. Williams was only five miles away when they dumped him. You telling me they didn't have anybody who could handle this man for the 10 minutes it was gonna take to get to Williams?

Yeah, it's more bother - and probably less entertaining for the train staff - holding onto him than it is putting him off two miles from a road in the middle of the night, but doesn't it seem a punishment better suited to the crime?

Certainly it did to the law enforcement officers sent out to try to find Mr. Sims. The lieutenant who spoke for the City of Williams Police Department put it pretty well: "You don't put anyone off in an area like that." 

That's how you get to be a spokesman - by leaving out phrases like, "What are you, crazy?!"

Amtrak got lucky. Coconino County sheriff's deputies found Mr. Sims. FOUR DAYS LATER. He was, miraculously, alive. Barefoot, dehydrated and disoriented. He'd spent four days wandering in the wilderness, and I have no idea how long it will take him to recover, but he's alive.

 So the lawsuit, which I would handle for free if the state would let me, will not be for wrongful death, but merely victimization with outrageous stupidity compounded by a complete lack of perspective.10 

Now, to borrow from the great legal philosopher Harry Callahan, "I know what you're thinkin'." You're thinking I'm being too hard on Amtrak. You're thinking the stupid mistake of one or two conductors should hardly be allowed to tarnish the entire Amtrak leviathan.

And I'd agree with you... if only they'd kept their mouth shut. But they didn't. Neither did they immediately issue a statement that it was all a horrible mistake for which they were truly sorry. If they had, I'd still be looking for a story with which to fill this space.

No, their official position is that they "followed company policy." That's it. They think that's enough. They think that should resolve the matter. They followed company policy.

Apparently, company policy is to hire only lawyers who did not study the philosophy of punishment. Be interesting to see how that works out for them in this case. 

1 Look it up; it's not what you think.

2 Professor Kadish, I apologize for doubting you.

3 Go ahead. You know you're thinking it. Go ahead and say it. The Henny Youngman line: "Please."

4 Although, at the rate the present administration is driving up the deficit, it could belong to Rupert Murdoch before Christmas.

5 Personally, I would have gone with "Midnight Flyer" or "Wabash Cannonball" or "Occident Express." I guess that's why I'm not invited to sit on many boards.

6 Technically, it was the middle of Arizona, but the distinction is too fine for me to understand.

7 Indeed, in California, it's often a civil commitment to a specialized facility mandated by the legislature almost forty years ago because they felt public drunks needed more help than they were being given. (See, Penal Code section 647 (g); Welfare & Institutions Code section 5170.)

8 With the possible exception of Chris Day, who could be expected to kill a few bears for food (and for their booze, if they had any) and show up for breakfast the next morning, complaining that he was not provided with catsup.

9 At least Amtrak better HOPE he was drunk. If the family is right, that he was going into diabetic shock, the people who threw him off the train are liable to find themselves facing an arrest warrant from The Hague for human rights violations.

10 Remember, you sue Amtrak, it's a federal case. I'm pretty sure victimization with extreme stupidity is a cause of action under the Federal Rules.

Posted by William W. Bedsworth on Monday, September 10, 2007 at 19:42 Comments Closed

Skidding Through the Learning Curve

Years ago, when my daughter Megan was in high school, I made the mistake of mentioning that when I was her age, I didn't have to learn about the Vietnam War because it hadn't yet started.  She was, understandably, outraged about the unfairness of having to learn 30 more years of history than I had to.  We got into quite a debate about how a just God could allow something so unfair in Her universe, but I was at something of a disadvantage, since I was pretty busy being embarrassed that I had not recognized this inequity when I was in high school.

But Megan got over it.  Not a contentious soul by nature,[1] she eventually accepted this as one of the cosmic unfairnesses of teenage life and moved on.   Years later, when I decided to mess with my youngest's head by mentioning  this academic disparity to her, she merely looked at me with the condescension only a 17-year-old can muster and patiently tried to explain time to me.  It was like Steven Hawking trying to explain the universe to a chipmunk.[2]  I mention this now because I don't think I realized at the time how lucky I was to have inspired merely exasperation and pity in my daughters.  I could have inspired lawsuits.  Modern students seem to be as comfortable in court as they are at prom.  And they have a . . . heightened . . . sense of entitlement to personal fairness.

Take Lindsay Hay.  Lindsay, a member of her Sissonville [Georgia] High School student council, went on a school approved trip and was not at school on the day her "leaf project" was due in biology class.  She turned it in a day late.  The teacher only gave her half credit. 

When I was in school, this was standard operating procedure.  Now it's some kind of cataclysmic abomination, a desecration of student - if not to say, human - rights whose effects reach far beyond Sissonville High and probably threaten the galactic balance.  Boy, do I feel old.           

According to Lindsay, this academic atrocity lowered her biology grade from an A to a B and "wrecked her 4.5 grade point average."[3] She saw in this "an arbitrary and capricious" intention to "deliberately ruin" her GPA.  She sued.

SHE SUED!  She didn't get the grade she wanted on her leaf project so she sued.  Her LEAF PROJECT, for crying out loud.  She turned in her homework late, got only partial credit, and decided this was a matter which required the intervention of the American legal system.[4] 

First came Brown v. The Board, then Gideon v. Wainwright, and now In re Lindsay's Leaf Project.  We keep this up, we could get off Amnesty International's list of rogue states.

Okay, I know this is a sure sign of geezerhood, but - as you have doubtless noticed - I find myself wholly unable to understand, much less sympathize with, someone who feels a diminished grade on a late homework assignment is something you take to court.  Who represented her on this, her cousin Vinny?

Can you imagine?  You walk into the calendar court and sit down next to a couple of lawyers you know.  They're talking about their cases: 

"Yeah, blew right through the light.  Blood alcohol was .19.  Mom and Dad died instantly, but my client was in the back seat.  Her surgeries were successfully, and she's gonna be okay, physically, but for a 10-year-old to lose both parents . . ."

"Boy, that's a heartbreaker.  Makes my water pollution injunction look like a day at the beach - no pun intended.  But we really need to do something about this river.  We tried for years to get them to stop voluntarily, but we just couldn't get anywhere.  A lawsuit seemed like the only answer."

One of them turns to you.  "So what have you got?"

"Uh, half-credit on a high school biology project."

"What?  I can hardly hear you.  Why are you whispering; court's not in session.  What's your case?"

"Uh . . . it's kind of an environmental thing.  Complicated.  State intervention in a leaf project.  Takings clause.  Oh, look, there's my client.  Gotta run, guys; see ya." 

Can you imagine having to explain that you decided an appropriate use of your legal degree was to argue that the biology teacher shouldn't have been allowed to deduct credit for a late assignment?  You might as well be suing the dog who ate the child's homework.  Or the boy who didn't ask her to prom.

This girl sued the teacher and the Kanawha County School Board for "emotional stress, loss of enjoyment of life, [and] loss of scholarship potential."[5]  She sought damages.  A Georgia judge - God bless him - threw her case out of court.  He should have ordered her to re-take her civics class. 

But in fairness to Ms. Hay, she's a high school student.[6]  She's barely had time to develop secondary sexual characteristics, much less perspective.  That will come in time and, given her obvious book smarts, she'll doubtless be very successful, right?

Well, not necessarily.  Adrian Zachariasewycz is considerably older, has the advantage of college and law school behind him, and wasn't able to show any more judgment than Ms. Hay.  Or a fencepost, for that matter. 

Adrian sued Michigan Law School for initiating "a system of course examination and grading [that] disadvantaged students that could not type at a sufficient speed to produce the volume of text required to produce competitive examination responses."[7]  That's right, the old I-Woulda-Gotten-An-A-On-The-Test-But-I-Couldn't-Type-Fast-Enough argument.

According to "LoweringtheBar.com," Kevin Underhill's wonderful legal website, Zachariasewycz sued the University of Michigan, various law school employees, the law firm where he had worked as a summer associate[8], and employees of that firm, alleging that they conspired to deny him employment.[9]

Just how that conspiracy worked is not made clear by the complaint.  The allegation is that Plaintiff "believes there is some nexus between the actions" of all these people.

I don't know; that seems like enough to me, but my colleagues Bill Rylaarsdam and Ray Ikola both say you need to be somewhat more specific.  And they can both type like demons, so they're probably right.

Ikola most likely would have to recuse himself (he was a Wolverine undergrad and still bleeds blue and maize), but even allowing for a certain bias in that regard, I think I have to share his skepticism about Zack's allegation[10] that his "borderline failing grades" were the result of "the low volume of prose Mr. Zack could type in the time allotted as compared with other students." Ikola insists he knew lots of guys in law school who could produce a "high volume of prose," and did not do especially well in law school. He says many of the "high volume of prose" guys were the kind who would think "I believe there is some nexus between the actions of all these people," would be an adequate allegation of civil conspiracy.[11]

I think Ikola's right about this. I've been on the bench twenty years, and I can't recall once thinking, "That's a pretty good argument; if he'd been more verbose, I might have ruled in his favor, but - given the low volume of prose associated with the contention - I think I'll have to reject it."

In fact, I've found the best arguments can usually be made rather succinctly.  So my rule of thumb is almost exactly the opposite from Mr. Zack's approach.  My rule is, "If my eyes glaze over before the next Roman numeral, the argument's a loser."

Maybe not as big a loser as the ones advanced on behalf of Lindsay and Adrian, but at least as big as the Denial-of-Equal-Protection-Due-to-Different-Amounts-of-History-to-be-Learned one.  But, then again, no one's brought that one to court.  Yet.

Beds' Notes:

[1] Her mom's genes.

[2] "Playing the role of ‘Chipmunk' in today's performance will be William Bedsworth, who has played this role often in the course of raising three children."

[3] I'll pause here so you can take out another box of tissues.  For me, this was like the last ten minutes of Mr. Holland's Opus:  I was unable to stop crying.

[4] I'm sure it would have called for troop deployment if we had any left.

[5] I wonder if the statute of limitations has passed on the coach who made us run laps after we lost to Crespi High.

[6] And apparently an orphan, since no responsible parent would have allowed this lawsuit.

[7] I'm just guessing here, but I suspect the grading system also disadvantaged students who used the pronoun "that" to refer to human beings.

[8] But was inexplicably not extended a permanent offer.

[9] My understanding is that his motion to amend the complaint to add the Kanawha County School Board and Lindsay Hay's biology teacher was denied.

[10] Zachariasewycz, shrewdly recognizing that he could use his complaint to illustrate the unfairness of his typing disability, shortened his name in the complaint with the parenthetical, "(hereinafter, Adrian Zack), so I don't think he'll be upset by this rather familiar reference.

[11] He also asked how fast I type.  I took the Fifth.

Posted by William W. Bedsworth on Wednesday, August 01, 2007 at 19:25 Comments Closed

Start Spreading the News

My career on the bench has now reached twenty years, but it includes very little family law work.  Turns out if you deny just one divorce, they stop sending them to you.

But that is apparently not the rule in other states.  Or at least one state.  According to the Associated Press, "New York is the only state that won't allow the speedy dissolution of a marriage without proof that one spouse is somehow at fault."  God bless those New Yorkers.  They know that eliminating fault from divorce takes all the fun out of it.

While the pop standard "New York, New York" celebrates the virtues of making "a brand new start of it in old New York," that does not apply to marriage.  If you want a brand new start to that, somebody has to take the blame. 

There are only six grounds for divorce in New York.  Adultery or cruel and inhuman treatment are the first two, but they tend to be literal about the "cruel and inhuman treatment" part.  "You don't bring me flowers anymore," apparently doesn't cut it.

It's the other four grounds I find most interesting.  They consist of:  (1) living apart for a year, (2) living apart for a year, (3) living apart for a year, or (4) going to prison for three years.

Honest, that's what the statute provides.  I don't know why.  I'm 3,000 miles from New York and there is no one I want to divorce there, so it would be wrong for me to spend a lot of time researching this, but four of the six grounds for divorce in New York are: abandonment for a year, living apart under a court-approved separation agreement for a year, living apart under contract for a year, or one of the parties being imprisoned for three years.

I can only conclude from this that the New York State legislature decided, "If we only make ‘em go to prison for a year to get out of their marriage, we'll have to hire thousands of additional police; make it three years."

I mention all this so you can appreciate the dilemma of Simon and Chana Taub.  Simon and Chana Taub are 57 years old.  They are married.  They hate each other.  

They both want a divorce.  But there has been no provable adultery, no cruel or inhuman treatment[1], and neither is willing to live apart from the other because neither is willing to move out of the family residence.

So they have been fighting for three years over who has to move and who has to take the blame for the divorce and who should pay the lawyers' fees and what color the sky is and what sound cows make and what day comes before Thursday.

I personally feel they should both be sent to prison for three years and then given their divorce, but that is not the solution the New York courts have come up with.  The solution they came up with was to divide the Taub's three-story, million-dollar Brooklyn row house down the middle WITH A WALL. 

That's right.  A wall.

A trial court, unable to grant the parties - no, that's not the right word - unable to grant the combatants a divorce, ordered that they be separated by building a wall through the house.  Chana appealed that order.[2]  But an appeals panel affirmed the lower court's solution,[3] and last December the wall went up.[4]

Chana and THREE OF THE COUPLE"S CHILDREN live on the top two floors.  Simon and THE FOURTH CHILD live on the first floor.  Dry wall and large boards block the doors and halls between the two sections.  The Associated Press did not describe the living arrangements of the five Social Services caseworkers who must be assigned to this family around the clock.

I mean, picture this.  Here is a family of six, living with a wall separating the two halves of their home.  Simon gloats about the fact that when the wall was built, 300 pairs of Chana's shoes were trapped on his side.  Chana says that's a lie.  Simon says maybe it was only 299; he was just approximating.  So help me, if it weren't for the four kids and the homeless shoes, this would be a pretty entertaining affair.

Instead, it swings wildly between Henrik Ibsen and The Three Stooges.  It's like watching the crips and the bloods fight with nerf hammers.

You wanna know the best part?  These people own another house.  TWO DOORS DOWN.  Either one of them could have moved into that house three years ago when this all started and they'd be divorced and watching Lifetime today.  But they'd rather do battle.

That has caused some to speculate that they might actually still be in love.  One therapist was quoted as saying it was clear that if they were willing to go to these lengths, "there's still far too much connection" for a divorce. 

Right.  This is the kind of thinking that has worked out so well over the years in Bosnia and Kosovo.  Tell the Serbs and the Croats and the Bosniaks and the Turks there is "too much connection for a divorce."

Or tell it to a jury.  That's what the Taubs did.  They had a jury trial.  Six strangers were chosen by the state of New York to decide whether Mr. and Mrs. Taub could have a divorce.  They said no.

NO?  THEY SAID NO?!  ARE YOU KIDDING ME?!?! 

How could they possibly have said no?  Did they not know about the wall?

If we were only willing to allow two people on the planet to have a divorce, the Taubs would get my vote.  Hell, if we were only willing to allow two people on the planet to have euthanasia, they'd get my vote.  How could six people not previously identified as serial killers force these two wretches to go on being married?

I don't know.  They apparently concluded Mrs. Taub's lamentations about having to flush the toilet after her husband and her complaint that he "made her put on his shoes and socks"[5] did not rise to the level of cruel and inhuman treatment. 

Personally, I think the video cameras were the stronger argument.  Simon has installed video cameras so he can peer into her side of the house.  I might be willing to view that as "cruel and inhuman"[6], but Chana's argument in that regard was probably weakened by the fact that SHE'S DONE THE SAME THING![7]

Maybe they should have just argued the case differently.  Had Chana been my client I would have told the jury, "The synonym for ‘inhuman' in this context is not ‘cruel.'  The statute already covers that with the word ‘cruel.'  So it must be referring to something else when it refers to conduct that is "inhuman."  In fact, when the statute refers to ‘inhuman' conduct, it is referring to conduct that is NON-HUMAN.  And since no other humans in the history of the planet have ever conducted themselves like these two, this is clearly NON-HUMAN conduct, even if it isn't cruel.[8] 

But that was - sadly - not argued.  And, equally sadly, the Taubs remain united in holy deadlock.

So let's recap.  We have two people, 57 years old, and with all the accumulated wisdom of a fencepost.  They have four long-suffering and doubtless psychologically endangered children.  After 21 years of marriage, they have descended into a marital maelstrom so grotesque that they have divided their house - and their children - with a wall, on either side of which they have installed video cameras to monitor each other's activities.  Their complaints have dwindled to things like, "He doesn't flush the toilet," and "She owns too many shoes."  And a jury of six citizens of the great state of New York have decreed that these two people must stay together.

Oyez, Oyez, Oyez!  All persons having business before the Honorable, the Supreme Court of the State of New York[9], are admonished to draw near and give their attention, for the Court is now sitting. God save the State of New York and it's amazing divorce laws.  

Can you imagine what this jury trial must have been like?  It lasted ten days.  Ten days of what Chana's attorney called "a colossal waste of judicial time."  All four of the Taubs' children testified for Mom.  She said Simon attacked her with everything from a telephone to a treadmill.[10]  He said he was a pussycat and she was just trying to squeeze cash from a turnip[11].

And at the end, the jury said no.  Somehow Simon's lawyer managed to find the only six strict constructionists in Brooklyn, and they voted to keep the couple "together" - or whatever the correct adverb is for this living arrangement.

So they went home, still married, where - according to Chana - Simon punched her in the eye.  Yep.  Punched her in the eye.

I will pause here so you can recover from your jaws-agape astonishment and actually close your mouth.

So help me, less than 24 hours after being denied a divorce, they were BOTH back in court:  He was claiming she had embarked upon a smear campaign by falsely claiming he hit her, and she was trying to get a judge to look at her shiner.  They were both seeking restraining orders in different departments of the same courthouse.

You probably find this case somewhat disturbing, but to me, it's very reassuring.  To all those people who didn't think I was smart enough to handle a divorce case, I say, "See, turns out I was EXACTLY smart enough."  This is precisely the kind of outcome I would have provided on a daily basis.

Beds' Notes: 

[1]               Remember, just being a world-class schmuck doesn't qualify.

[2]               In fairness, I think, had I been her lawyer, I would have advised an appeal, too.

[3]  They called it "novel."  I think the talent of New Yorkers for understatement is perhaps not fully appreciated.

[4]  "And a peaceful and joyous holiday season to you and yours."

[5]  I've quoted this as it appears in the New York Daily News.  I'm afraid I cannot tell whether this means he forced her to help him dress or to wear his shoes and socks.  Either way, it seems to me that these people are kinda hung up on footwear.  Is there such a thing as a shoe/divorce/foot fetish?

[6]  At least as long as "stupid and creepy" is not grounds for divorce.

[7]  Sorry about all the caps, but this story seems to me to call for a lot of shouting.

[8]  All the presiding judges who did not assign family law cases to me are reading this and nodding sagely.

[9]  I suppose a good argument can be made that this mess is no more than you can expect from the only place in the world whose trial court is known as the "supreme" court.  In New York, you can appeal from the rulings of the Supreme Court to the Court of Appeal.  Come to think of it, maybe we should adopt that system here.

[10]  The kitchen sink was apparently on her side of the wall.

[11]  Even the metaphors are scrambled in this case.

Posted by William W. Bedsworth on Thursday, June 28, 2007 at 16:37 Comments Closed

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