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There are 63 Journal Items on 8 page(s) and you are on page number 3

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.

Printer friendly page Permalink Email to a friend 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.

Printer friendly page Permalink Email to a friend Posted by William W. Bedsworth on Thursday, June 28, 2007 at 16:37 Comments Closed

Men Left Panting for Clues

My gender has a hard time with pants.

I don't know why this is. As body coverings go, pants are decidedly low-tech. You would think a gender that can - more or less - cope with shoelaces and French cuffs and four-in-hand knots could manage pants. I mean, once you get out of the way of the zipper, how tough can it be?

And yet, my kind - conquerors of empires, builders of cathedrals, golfers on the moon, architects and successful defenders of a social structure which prefers them over the other gender in the face of overwhelming evidence of contrary worth - cannot manage pants.

You want proof of this inadequacy? Go to a ballgame. Watch the men walking by with their bellies hanging over their belts. Here are hundreds of men who are convinced their pant size, like their pizza preference, was fixed when they were 19 and has never changed. Like my friend the high-school free safety, they are convinced their waist size is still 34, and - while vaguely concerned about the fact their inseam has somehow shortened five or six inches, leaving their pants legs scrunched up around their ankles like some kind of bizarre, wool worsted Slinkies - they see no reason to change their pants-buying habits.

We need a telethon for these people. Somehow pants have clouded their minds and made them unable to employ the minimal technology represented by a mirror. Even a cat figures out eventually that the picture in the mirror is him. But men don't. If they did, they wouldn't dress like this. Pants do this to us.

Pants have always clouded our minds. What is the question that has historically screwed up men's heads more than any other? What question has every family counselor and divorce lawyer and priest had to address more than any other relationship problem? Who wears the pants in the family?

Men are constantly worrying about who wears the pants in the family. This is a remarkable thing, considering the whole planet has been entrusted to us and we're pretty much steering it to hell in a handbasket. You would think we would have more important things on our minds - especially since, considering the ballpark evidence, we should all be walking around in caftans anyway. But this is the power pants have over us.

Studies have repeatedly shown that there is less divorce in countries where men do not wear pants.[1] This just makes sense. If you don't have to figure out who wears the pants in the family, you have a lot more time to address to real issues in the marriage - like who gets custody of the remote and what is the default setting on the toilet seat.

And it's not just relationships. Pants play havoc with our judgment about everything. Anyone within 10 years of my age has known at least a half-dozen authority figures - judges, district attorneys, managing partners - who bent themselves into Gaudi corkscrews, over the issue of whether women should be allowed to wear pants to the office, to court, to depositions, or wherever.

What was that all about? Propriety? Modesty? Bull ... shorts. It was about pants. Pants turn men's mind to okra. Old, overheated, fermenting okra. Always have, always will.

So I was not the least bit surprised to pick up the May 4 issue of The Week[2] and read that "a North Carolina man attempting to pick up his pants from a dry cleaner was arrested for not wearing any pants." Clearly, the man's mind had been overwhelmed by this simplest of pants issues. Clearly, the logic of "I don't have any pants on now, but once the lady at the dry cleaners gives me mine, I will have some" convinced him he was on firm ground. Golden retrievers - who do not wear pants - do better than this.

But for those skeptics amongst you who think the guys at the ballpark and the pantsless North Carolinian[3] are some kind of cretinous aberrations, let me trot out Exhibit AA.[4] Exhibit AA is Roy L. Pearson Jr.

Roy is a judge. Those may be the four most painful words I've ever typed, as you will understand if you read on. If you're already convinced that pants are a bad idea and would like to hold on to whatever illusions you still maintain about the judiciary, turn to the next page and don't give this matter another thought. Not reading my stuff is always a better idea than reading it, and you gotta figure if I'm suggesting it, this is probably worse than most. So stop now and go look at the expert witness ads, which are a lot more entertaining anyway.

And yet, here you are, still reading. Either you've lost three straight summary judgment motions and are looking for reinforcement of your low opinion of the bench, or you're just in the mood for a train wreck. Either way, Roy L. Pearson Jr. fills the bill.

According to the Associated Press, Pearson was appointed as an administrative judge in Washington, D.C., in May 2005. He immediately did what all judges do when they're first appointed: He took several suits in for alteration.[5] He took them to Jin Nam Chung and Ki Chung, and their son Soo Chung, Korean immigrants who own and operate an establishment called Custom Cleaners.

When he went back two days later, one pair of pants was missing.[6] Long story short, Judge Roy and the cleaners have been unable to satisfactorily resolve the missing pants issue, so he has sued them for the customary $65 million.

Yep, that's what it says. $65 million. That's a six and a five, followed by six zeroes and a couple of commas.[7] $65,000,000. American. He sued them for $65 million. Over a pair of pants.

That is probably the biggest price ever put on a pair of pants by someone not employed as a purchasing agent for the Department of Defense.

"How," you might ask yourself, "did Judge Roy come up with that number for his damages- a question you might immediately follow with, "Was peyote involved?" And while you will doubtless be dismayed to learn I do not have the answer to the second question, I do have the answer to the first. When you hear it, I think it will answer the second question to your satisfaction.

Judge Roy does not maintain the original pants were worth $65 million.[8] He says the suit of which the pants were half was worth only something over $1,000. He arrived at the ... somewhat larger figure[9] ... by applying what, for lack of a better term, I'll call "pants logic" to the District of Columbia's consumer protection statutes. Here is how that works.

Judge Roy was so devastated by the loss of his pants that he could no longer use Custom Cleaners. There were no other cleaning establishments within walking distance of his home, so he had to drive to another cleaning establishment. Judge Roy has no car. That necessitated renting a car. In fact, it necessitated renting a car every weekend for the two years since his pants went MIA.

Now, if you're like me,[10] Judge Roy has already lost you. You could summary judgment him right now just for making the lunatic rental car argument, right?

And I've given him the benefit of the doubt. According to all the news reports, Roy wants rental car reimbursement for TEN years. But I figure that has to be a typo. Even if Roy were rolling the pants up and smoking them, he couldn't be asking for 10 years' worth of car rentals for two years of pantslessness.

But that doesn't get us anywhere near $65 million, does it. No, that's where the District of Columbia's consumer protection act comes into play. According to the AP, "The bulk of the $65 million demand comes from Pearson's strict interpretation of Washington's consumer protection law, which imposes fines of $1,500 per violation per day. Pearson counted 12 daily violations on each of 1,200 days, [11] then multiplied that by three defendants."

By my math, that's $64,800,000. The rest I take to be the rental car costs and the $1,000 for the original pants. I tried to double check this with the only two guys I know who have experience with numbers this big but Blaise Pascal is dead and James Sturdevant was pretty busy counting his own money.

This is the mathematical equivalent of three-card monte. Nobody's done math this questionable since Seward convinced the Russians (who were doubtless wearing pants at the time) to sell us Alaska for only $7 million. And Alaska was in mint condition. Pristine. These pants weren't even new!

You know who I feel sorry for? Oh, sure, I feel sorry for the cleaners. And I feel sorry for ANYBODY who has to deal with Roy L. Pearson Jr. on any level more personal than flipping him off. But I really feel sorry for the defendants' attorney, one Chris Manning.

I have never met Mr. Manning. I have no idea how good a lawyer he is. I have no idea how glib and articulate and intelligent he is. But I know this: I know John Marshall Harlan and Oliver Wendell Holmes[12] working as a tag-team could not explain to Korean immigrants - or anyone else for that matter - how our legal system could allow a $65 million suit over a lost pair of pants to drag on for two years.

Not without first explaining the ability of pants to cloud men's minds.

If I were Mr. Manning, I'd go for an all-woman jury.

Beds' Notes:

[1] I'm not actually aware of any of these studies, but I'm sure they exist, so I see no reason to waste time looking them up. This, by the way, which I like to think of as "confident assertion of the likely" turns out to be a very fruitful method of dealing with inadequate appellate records. But my colleagues - most of whom wear pants - seem resistant to this approach. Still more evidence of the destructive influence of pants.

[2] My favorite magazine next to The Hockey News. By the way, have you ever noticed that hockey players don't wear pants? They wear shorts. This explains why the players' minds are so much clearer than in other sports.

[3] Boy, was I surprised when spell check had no problem with "Carolinian." Lucky guess.

[4] For Absolutely Astonishing.

[5] Contrary to common belief, the head is not the only thing that swells on this occasion.

[6] If, after all I've said up to this point, you can read the word "pants" in this context without wincing in anticipation of ineluctable pain and embarrassment, go back and start reading all over again. You obviously have not been paying attention.

[7] If you were just dealing with me, you could leave out the commas. But Judge Roy L. Pearson Jr. strikes me as a man not likely to look the other way for bad punctuation.

[8] Although he must have been VERY fond of them, since he's since turned down offers of a replacement suit, $3,000, $4,600 and $12,000 for them so far.

[9] The original said "crazy ass number," but my editors prefer that I stay away from technical terms.

[10] Don't worry; you won't be required to admit this. It's really only a rhetorical device. Relax.

[11] No, I don't know how he arrived at 1,200 days. My guess would be the aliens communicating with him through the fillings in his teeth came up with it.

[12] Either of them. Both of them. "And their sisters and their cousins, whom they reckon by the dozens, and their aunts." Doesn't matter how many people you put on this task, it can't be done

Printer friendly page Permalink Email to a friend Posted by William W. Bedsworth on Friday, June 08, 2007 at 14:20 Comments Closed

A Criminal Use of Waste

I don't generally use this space for education.  I'm having enough trouble getting myself educated without worrying about others.

But every so often, a case comes along that includes so much wisdom and information that even I - a hopeless Philistine, generally tone-deaf to cultural values - understand immediately that it deserves a wider audience.  Such a case is Navajo Nation v. U. S. Forest Service (07 DJDAR 3335 (March 13, 2007)).

I don't know how well you keep up with the advance sheets.  I am - sadly - old enough to remember when it was possible to read all the appellate opinions as they were published.  Then, as their number grew, I began concentrating on the criminal ones and skimming the civil.  Then I tried to read the "important ones."  Now I try to read all the ones written by justices whose names end with "Bedsworth." 

But Navajo Nation is like a Springsteen Concert or a Rose Parade:  Even if you're not a fan, this one you oughta see.  After all, how many cases can be summarized by the Los Angeles Daily Journal as, "Government's approval of ski resort to use recycled sewage effluent to make artificial snow on San Francisco Peaks violates Religious Freedom Restoration Act"?

Now isn't that the kinda case you went to law school for?  Freedom of religion, recycled sewage effluent, ski resorts and Native Americans all wrapped up in one case. 

Who says the bar exam is unrealistic?  You throw in the Rule Against Perpetuities and a testator who has Altzheimer's and speaks only Farsi and you've got next summer's Performance Test, right?

This is a great case, and I'm more than a little jealous.  For years, I've kidded my friends on the federal bench[1] that they get the best cases because they somehow got dibs on all the cases that involve treaties and peyote.  But a case that involves BOTH!?  That's like Lawlapalooza 2007.  If this case goes to the Supreme Court, they should get Lynyrd Skynyrd to open and they should provide festival seating for the oral arguments!

Here's what happened:  In 1938, developers built a ski resort (Snowbowl) on Humphrey's Peak in the Coconino Mountains of Arizona.  Humphrey's is one of four mountains known as the San Francisco Peaks that have "longstanding religious significance to numerous Indian tribes of the American Southwest."  In 1938, the idea of building a ski resort on peaks sacred to another religion did not offend the people who played golf with legislators, so it got done.

Times change.  Now those people - or their heirs - are playing golf at resorts owned by Native Americans.  And in seventy years, most folks have come around to the conclusion it is difficult to differentiate a ski resort on San Francisco Peaks from a water park at Lourdes or handball courts at the Wailing Wall.  So when the ski resort's owners sought to expand their facility, the Forest Service[2] scrutinized the project closely before giving their approval.

At least I assume they scrutinized it carefully.  I mean, if it had been me, I sure would have been concerned about a plan to spray "treated sewage effluent" that contained "many unidentified and unregulated residual organic contaminants" onto sacred ground.

Actually, I would have been concerned about a plan to spray this stuff on ANY ground.  Read that phrase again:  "many unidentified and unregulated residual organic contaminants."  You know what that is.  The Recorder would prefer that I not use that particular four-letter word, but when we see phrases like "fecal coliform bacteria" and "detectable levels of enteric bacteria, viruses, and protazoa including Cryptosporidium and Giardia," we grown-ups know what they're talking about, right?

We know what this . . . stuff . . . is.  What we can't figure out is why a ski resort would want to make snow out of it. 

Didn't we all learn, the first time Mom wrapped us up in thirty pounds of snowsuit and galoshes that outweighed us NOT TO EAT YELLOW SNOW?  Wasn't that the first rule of snowplay?  Forget "sacred ground"; I don't want this stuff on any ground where I might do a faceplant.

And if I don't even want to SKI over it, how must the members of the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai Apache Nation, and the White Mountain Apache Nation[3] feel about having it sprayed all over their holy place?  How would you feel about going for services after "1.5 million gallons a day of treated sewage effluent" had been rained down on your church or synagogue for four months?[4]

Well, it turns out the Forest Service took that into account.  So did the ski resort.  Turns out they both had lawyers who explained to them both the National Environmental Protection Act (NEPA) and the Religious Freedom Restoration Act (RFRA).  The Forest Service and the ski resort considered the advice of their lawyers, but felt they should go ahead with the project because of the "compelling governmental interest" at stake.

Pause for a moment, if you will, to consider that use of the phrase "compelling governmental interest."  We're talking about the expansion of a ski resort here.  The Forest Service of the United States of America, an agency that has been around for a hundred years and employs thirty thousand people, thinks expansion of ski resorts is a "compelling governmental interest."[5]

I spent fifteen years as a prosecutor.  I am prepared to admit that fifteen years dealing with rape, child molestation, political corruption and homicide might warp your concept of "compelling governmental interest" a little out of plum, but really . . . seriously . . . expansion of a ski resort?

In 2001, there were four skiable days at Snowbowl and 2,857 skiers showed up.[6]  By contrast, 13 tribes recognized by the Forest Service consider these mountains sacred and have for centuries.  If there's anything compelling about those numbers, it cuts against Forest Service approval.[7]

Keep in mind, we're not talking about eliminating Snowbowl.  The tribes didn't want to remove the ski resort.  They just didn't want it spraying frozen effluent all over the mountain like some kind of bizarre, mechanical, government-approved cat in heat.

Which brings us back to the National Environmental Protection Act.  This is the part of the case that has always commanded my attention.  I belong to a religion that believes flaming shrubberies can talk and that the minimum number of animals necessary to propagate a species is one male, one female, and one ark.  So it can probably be convincingly argued that I have a tin ear when it comes to religious arguments.[8]

But I can hear the environment just fine.  And turning a ski slope into Yellowacre . . . well, that gets my attention.  And it got the 9th Circuit's attention.  As an appellate judge, I can tell you that anytime you find yourself beginning a section of your opinion with the heading, "Human Ingestion of Snow Made from Treated Sewage Effluent," you are going to be completely focused.  At least you are if you have skiers in your family.

The problem was complicated by the fact that the State of Arizona had somehow concluded that frozen sewage effluent was perfectly okay as artificial snow but wholly unacceptable for human ingestion.  I can only conclude these people have never skied, because these two conclusions are incompatible. 

If it can't be swallowed, it can't be skied upon.  When you're rolling ass over teakettle through snow, wondering how you lost your edge, listening for the telltale sound of bones breaking or ligaments snapping, you will not be able to control what goes into your mouth, any more than you can control what comes out of it.

But the Forest Service and the ski resort owners insisted that this particular sewage had been approved for use as artificial snow by the State of Arizona, so how bad could it be?  How to deal with the "no ingestion" component of that approval seemed to them a question for another day.[9]

But in fact, as the 9th Circuit concluded, that is a question that requires an answer before the first day skiers hit the saffron Snowbowl slopes.  As the Havasupai pointed out, that's when "[k]ids and skiers will be getting a mouthful of [the water]." 

That last phrase is a quote from the opinion.  I love the fact the 9th Circuit chose to bowdlerize the Havasupai argument.  Without access to the Havasupai brief, we will never know what word or phrase the euphemistic "[the water]" stands for.[10]

But whatever words the Havasupai used, they were good enough to convince the 9th Circuit that the Forest Service and the developer had managed to violate both RFRA and NEPA in one fell[11] swoop.  Essentially, they said, "You didn't think about this nearly hard enough.  Go back and try it again.  Better yet, don't try this again.  Ever."

That concludes the educational component of today's program.  We hope you've learned not to urinate on other people's property and not to eat yellow snow.  If you have, you are probably no further along than you were when you were eleven, but you are ahead of the United States Forest Service, and that's a start.

Beds' Notes

[1]Actually, the plural here is a little presumptuous.  I know one of them is still talking to me, and I think - given enough time - I could think of another somewhere in the system.

[2]Did I mention that the San Francisco Peaks are federal land?  This should eat up another 20 minutes of the poor bar examinees' time.

[3]AKA, Plaintiffs.

[4]As one Hopi witness put it, "treated sewage effluent is ‘something you can't get out of your mind when you're sitting there praying.'"  Remind me on Sunday to give thanks that I've never had to try.

[5]Yes, this is the same Forest Service that changed Smokey The Bear's name to Smokey Bear and then insisted the rest of us had just hallucinated the middle word all those years.

[6]And once word gets out about what they're making snow out of , those 2,857 are gonna drive up the road to Colorado.

[7]Compare, Wisconsin v. Yoder (1972) 406 US 205, 215 ["[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."]  Better yet, don't go there; it'll be bad for your blood pressure.

[8]Although I can apparently detect a few more notes than the US Forest Service.

[9]As I recall, they suggested April 27, 2093.

[10]I have two guesses, both involving four letters, both words The Recorder would rather I not use.

[11]VERY fell.

Printer friendly page Permalink Email to a friend Posted by William W. Bedsworth on Thursday, May 31, 2007 at 16:04 Comments Closed

Working a Tough Room

The world is turning into a tough room in which to do comedy.

The day after his State of the Union address, President Bush flew in Air Force One - a Boeing 747 - to Wilmington, Delaware - a distance of 98 miles - to give a speech on energy conservation.  Talk about a mixed message.  I don't know how much jet fuel a Boeing 747 burns up going 98 miles, but I suspect that if the President had led a convoy of Humvees to Wilmington and set fire to every gas station he passed along the way, he would have used less energy than he used on Air Force One.   

When real life is this bizarre, it's tough to write a monthly humor column.  In fact, it moved Garrison Keilor to despair.  "It's a tough time to be doing satire," he lamented, "with things like that going on.  How can you top that?"

Well, Al Gore took a run at topping it.  A few weeks after being nominated for a Nobel for his work on behalf of the planet, it was revealed that he runs up electrical bills of $1,080 a month at his home in Tennessee. 

A thousand dollars a month!   A man greener than Kermit the Frog is spending a thousand dollars a month on electricity?!  What, does he never turn out the lights?

He's lucky he doesn't live with my father.  Dad used to follow us around the house turning off everything we turned on.  I'd walk into my room, turn on the light, and be plunged back into darkness before I could get to my desk, three steps away.  If I left the stereo on and went to the bathroom, it'd be off when I came back.  He'd stand behind me while I perused the refrigerator and say, "That's not the television, it's the refrigerator; if you want to stare at something lifeless, go in the other room and watch Ed Sullivan.  Now CLOSE THAT DOOR!"

Apparently things were - and are - different at the Gore house.  Of course, "house" may be the wrong word here.  Al has eight bedrooms and a pool house, which is roughly eight bedrooms and a pool more than my place.  I'm willing to concede that you need more electricity to power a manse than a beach house, but that's fifteen times what I pay.  Hell, for a thousand dollars a month, you oughta be able to light up Mt. Rushmore.

In fact, the last time I heard of a house with electrical costs like Gore's, I was a deputy district attorney, and I was preparing a search warrant for a house where we suspected they were growing marijuana hydroponically.  The outlandish electric bill was part of our probable cause. 

Gore's spokesperson[1], Kalee Kreider, explained that "The Gores' home is ‘carbon neutral,' meaning that the overall household use of carbon-based energy, like coal-fired power plants and natural gas, is offset either by more fuel-efficient technology or through programs aimed at reducing greenhouse gas-producing energy."

Say what? 

I doubt Ms. Kreider actually thinks those words respond to the question of how the ex-veep manages to spend a grand a month on electricity.  I suspect she's just trying to emit enough carbon-based vapors to provide overall visual acuity reduction approximating a level at or above the threshold numbers for reducing or offsetting comprehension-efficient communication, thereby rendering nugatory the intelligibility quotient of a neutral examiner.[2]

But even if the Gore home is being powered by a herd of hamsters racing through a forest of tiny wheels and generating no greenhouse gases whatsoever, a grand a month for electricity far outstrips my ability to make stuff up.  How in hell am I supposed to charge this publication hundreds of dollars for laughs when the newspapers are providing 'em for a quarter?[3]   

And providing them at Hall of Fame levels.  I picked up the paper and read this from the Associated Press - an organization not, as far as I know, in the business of producing satire:  "TIJUANA, Mexico - The  police department has issued about 60 slingshots to officers in the violent border city of Tijuana, where soldiers confiscated police weapons two weeks ago on allegations of collusion with drug traffickers."

Slingshots.  They've actually taken away their guns and given them slingshots.  How can I compete with that?  If you sat Hunter S. Thompson and Edgar Allan Poe at a table and provided them their drugs of choice for a week, they couldn't make up anything more outlandish than that.[4]

Now don't misunderstand me.  I have no idea whether the corruption in the Tijuana Police Department has gotten so bad they had to take their guns away.  I have no clue whether disarming them was a good plan or a bad one, and I don't know whether Mexican culture will respond to unarmed police the way British culture has.

But I do know this:  A slingshot cannot be operated by human agency without putting out someone's eye.  I'm not quite sure just how that works.  I'm not sure whether it's medical, mechanical, or the product of divine intervention, but my mother made it quite clear to me that if I ever so much as touched a slingshot, some kid . . . somewhere . . . would lose an eye and I would spend the rest of my life feeling bad about it.

And she was right.  Despite her abjuration, I picked up slingshots a time or two.  The result was a couple of hours passed missing birds, missing squirrels, missing trees, missing kids on bikes, missing passing cars, missing parked cars, missing my garage, and wondering where that kid lived who had lost an eye because I had played with a slingshot, and whether it would help if I went over and apologized. 

Just as Mom predicted, I've felt bad about those poor one-eyed kids all my life.

So I was, of course, shocked that the Mexican government cared so little about its children.  I had this vision of an entire generation of monocular Tijuana children playing soccer in the street with eyepatches on.  I felt bad that Mom passed on before she could warn President Calderon of the plague he was visiting upon all those unsuspecting children.

But more than that, I was just astonished by the goofiness of the whole idea.  It seemed to me obvious that passing out sixty slingshots to a bunch of men hired to police a "violent border city" cannot turn out well for anyone but the Mexican optometric profession.

Slingshots!  Think about it.  Isn't that, on its face, just about the goofiest law enforcement idea since L. N. Fowler tried to convince us we could identify "criminal types" by the bumps on their heads?[5] 

Imagine trying to stop a car-jacking by firing off a marble at the perpetrator.  Imagine walking into a bank holdup, loading up your slingshot, and instructing the three men holding AK-47's on the bank patrons, "Drop your weapons or I am gonna give you such a bruise!"

Come on, folks, this gives new meaning to the term, "bringing a knife to a gunfight."[6]  Not only can you not deter criminals with a slingshot[7], you can't deter vandals, drunks, or mildly delinquent ten-year-olds.  They're all going to continue with whatever they were doing before the police stumbled upon their nefarious activity, only now they're going to do it with an occasional ball bearing zinging off a wall behind them, or a lamppost beside them, or the forehead of a lady sitting in her living room watching Al Rojo Vivo con Maria Celeste a block away.

And for those seriously in need of a few laughs and not able to come up with the cost of a newspaper, the gods provided The Anna Nicole Smith Fiasco, the worst dramatic production since Springtime for Hitler.  This, as near as I can determine, was televised on the off-chance there might still be a few dozen people in our country who had not yet lost all respect for our judicial system.

What, did they just drive a clown car up to the courthouse in Florida, and all the participants in this case poured out? 

So help me, if my phone worked on household current[8], I would have eclipsed Al Gore's monthly usage every night.  My non-lawyer friends were calling constantly, begging me to reassure them that this was a show like Judge Judy or Dr. Ruth or SpongeBob Squarepants, and not a real court case. 

Had we passed out slingshots to every American, Judge Larry Seidlin would have come away with so many bumps on his skull that Fowler would have diagnosed him as a serial murderer.          

But my favorite example of life imitating comedy comes out of Lodi.  That's right, Lodi, California.  Seems the Lodi Nut Company has decided to close its factory gift shop because the cost of complying with homeland security regulations would be prohibitive.

According to the Lodi News-Sentinel, the Department of Homeland Security has informed Lodi Nut that the plant must employ surveillance cameras and electronic gates and all employees must wear identification badges.  Honest.  At a small town nut factory.

I am greatly reassured that the United States Department of Homeland Security has ferreted out Al Qaeda's nefarious strategy of targeting U. S. cashew outlets as likely poison distribution centers.[9]  I'm especially impressed by their requirement that anyone seeking to purchase nuts at the gift shop would be required to first register at the plant office.  Can you imagine having to walk a hundred yards and fill out a form to buy a bag of peanuts? 

Lodi Nut couldn't.  They decided there weren't enough people who wanted the factory discount on filberts bad enough to get a federal security clearance, so they decided just to close down the gift shop.

I know I will sleep better tonight, knowing this hole in our otherwise impermeable cloak of protection has been patched.  Al Qaeda's plan to poison all the fat people first scared the living daylights outta me.

But I am a little concerned about Lodi Nut's wholesale business.  I'd hate to think this Homeland Security dustup might affect their exports.  My understanding is they just landed a big contract providing walnuts to the Tijuana Police Department. 

See what I mean.  It's hard to make the news any funnier than it already is these days.  

Beds' Notes

[1] If I had a spokesperson, I'd probably need a pool house, too.

[2] Obviously, Ms. Kreider didn't know some of us out here are fluent in spokespersonese.

[3] Yeah, I know it's 35 cents now, but "a quarter" sounded better.  I can't come up with better material than the newspapers, so I have to try to make it up on style points.  Sad.

[4] And, after providing them the drugs of their choice for a week, you would have to declare bankruptcy.

[5] The thing I always loved about phrenology was that it seemed to me to fail utterly to take into account the bumps on the head the suspect often suffered during arrest.  "Either this man has the knob above the temporal lobe indicative of a murderous disposition, or that's where the cop hit him with the baton," just didn't seem to me to advance the ball much.

[6] It also makes it sound like a reasonable option - at least by comparison.

[7] At least not beyond the time it takes them to stop laughing.

[8] It doesn't; it's hooked up to the battery of my Prius.

[9] Obviously, Creedence Clearwater Revival was a terrorist front organization:  "Oh Lord, strike in Lodi again!"

Printer friendly page Permalink Email to a friend Posted by William W. Bedsworth on Thursday, May 03, 2007 at 14:27 Comments Closed

Luckless in Lansing

My life is so good it is undermining my belief in a just God.

I've done what I can to reassure myself about the dissonance between what I have and what I deserve.  I've tried to convince myself that the brain surgery, heart surgery, knee surgery, kidney stones, lifelong asthma, bad eyesight, Bell's Palsy (x3), sub-acute bacterial endocarditis (x2), third-rate gall bladder, two divorces and absolute inability to hit a curve ball have evened things out.  I've tried to construct an argument that, on balance, I've paid at least the wholesale price for the wonderful life I've been given.  But I always end up admitting it's a pretty feeble argument considering all the blessings showered upon me.

I was so concerned about the cosmic injustice of it all that I began dabbling in eastern philosophy, looking for justification.  I ran by my pastor my theory that perhaps I had been a very good spider in my last life, and that coming back in this life as an appellate court justice was the next step up, the re-incarnation payback.  He was not especially receptive to that idea.  Apparently sansara is not a part of mainstream Presbyterian thought. 

Pity.  Because today I've come across even more information that makes me wonder how I got this lucky.  Today I find myself giving thanks that I wasn't dropped from my home planet into the Michigan Supreme Court instead of the one I'm on.

Today I read a column from the Detroit Free Press, headlined "Oyez, Oyez, Oyez; God Help this Dysfunctional Court." In it, Brian Dickerson laments the fact that the seven high muckety-mucks who make up the Michigan Supreme Court "are locked in a blood feud that makes the sniping between Rosie O'Donnell and Donald Trump seem downright collegial." [1]

Wow.  Excuse me while I spend a few minutes counting my blessings.

I may have to call my pastor to inquire whether there are any "non-mainstream" Presbyterian denominations that might buy into my spider theory.  Because from what I read about life in the Michigan Supreme Court these days, somebody there is making some heavy karmic paybacks.

To begin with, the position of Chief Justice in Michigan is voted on.  By the justices. 

Bad idea.  Real bad.  The inmates should not be allowed to choose the warden.  Reason number 68 on the Interstate-Highway-length list of reasons why is that they all think they should be the Chief.[2]

Personally, I can't imagine why anyone would want to be a chief or presiding justice of an appellate court.  Who would want to deal with all the administrative details, personnel headaches, and general cat-wrangling nightmares that entails? 

I asked our own PJ, Dave Sills, and he smiled sagely and pointed out that, "I wasn't given a choice; PJ is the only job they offered me." 

I think that's the only sane answer.[3]  Because being "first among equals" is the kind of euphonious claptrap that can only bring you grief.

Sure enough, back in 2001, the Michigan Supreme Court inmates dis-elected their warden and voted in a new one.  This appears not to have increased their collegiality quotient.  The new Chief and the old one have been firing shots across each other's bows that make you glad they studied torts instead of target acquisition and trajectory.

The ex-chief, a woman named Elizabeth Weaver, is, depending upon which ox you're interested in goring, either a crusader for honesty and transparency or a "very angry, sad woman."

This latter description is offered up by the present Chief Justice, who went so far as to suggest IN AN OPINION[4] that she should continue her vendetta with a hunger strike because "that seems to have the potential for everyone to be a winner."  He described her as acting "like a petulant only child."

She responded by posting these canards on her website, www.justiceweaver.com, for the benefit of anyone who might have missed the chief's nuclear lapse in judgment.  That prompted a brouhaha over whether she had violated confidentiality rules, during which Justice Weaver described the court's rule on keeping internal court proceedings confidential as a "gag order."

Jeeminy!  Where's Buford Pusser when you need him?!  It's too bad John Belushi's dead because he would definitely have a role in the food fight scene that would have to be a part of this movie.   [5]                       

Folks, serving on an appellate bench is a lot like buying real estate, only instead of "Location, location, location," you have to live by the mantra, "Collegiality, collegiality, collegiality." 

It's nice if you're smart.  It helps if you can write.  And if you actually know some law . . . well, that's extremely constructive.  But if you can't play nicely with the other children . . . well . . . I'm sorry, we just can't use you.

I mean, think about what we do.  This is the job description for an appellate court judge:  1) Sit down every month across a table from a person who actually thinks his/her intellect is at least equal to and probably superior to your own.  2) Tell that person he/she is wrong - not about who is the greatest left-hander of all time or which of two pinots is superior, but about his/her ability to understand the discipline to which he/she has devoted his/her entire adult life.  3) Somehow convince that person - or yourself - to change his/her mind about something you both regard as important.  4) Repeat as many times as there are panel members.  5)  Sit down the next month and do it all over again - maybe more than once.

You cannot do that on any kind of regular basis if you insist on being the only person on the All-Star team.  You have to be able to get along with other - lesser - beings.

That is the hard part of the job.  Yeah, I know, you've read my opinions and you think it's pretty obvious the "smart," "ability to write," and "knowledge of the law" parts of the job are giving me some trouble, too.  But those are a cakewalk compared to the "playing nicely with the other children" part.

And that's the part that's absolutely essential.  There are only eight members of my court.  I have seven other people I work with every day and that's it.  That is my entire professional universe. If I tick them off, I lose my effectiveness.  Without at least one other vote, "I am become as sounding brass or a tinkling cymbal."[6]

That's pretty much the nature of appellate work everywhere.  Heck, some courts are made up of only four justices, and they work in panels of three.  Do the math on that and tell me how important collegiality is.

That means every time you start a dissenting opinion with, "Jane, you ignorant slut . . . ," it has a significant statistical impact on your ability to cobble together a majority in the future.  Two or three snarky exchanges at conference and you can find yourself contemplating a future as The Great Dissenter.

That's one of the reasons I feel so lucky.  I am blessed with colleagues whose patience exceeds my own.  While I would be the obvious target were someone to make a "hunger strike" reference in our court, no one ever has.  While the content of my dissents[7] may have sometimes concerned my colleagues, they have generally swallowed their bewilderment.  They appear to have adopted the motto that, "Reasonable minds will differ.  So will Beds."

And so, while most of our court's dissents are probably a little bland by some measures, they seldom leave marks, much less lingering resentment.  When I send around a dissent, the justices in the majority will tell me if there's anything in it they think crosses the line.  And I tell them if I think they've been unduly harsh.  We pretty much hash it out before it gets into print.  That's how we do things here.

In Michigan, on the other hand, they appear ready to go to war over the lunch entrée.  When they re-elected their present Chief Justice this month Justice Weaver filed an 18-page dissent!  A dissent!  To an election! [8] 

She included in it a history of backstage dirt that was titillating even to someone who didn't know any of the principals.  She also expressed her opinion that the court neither had nor deserved the respect of the public, and - best of all - her complaint that the court's press release about the election did not mention that the vote was 4-3 and that she would be preparing a dissent.[9]

Now I'm willing to admit that perhaps I am not the best judge of the Michigan Supreme Court's travails.  I am, after all, the guy who considers the job of Boss Hog in a judicial pigpen to be the equivalent of a mild case of ebola.  But I think I'm qualified to comment on this:  You have to be a pretty . . . original . . . mind to come up with the idea of writing a dissenting opinion to your court's election of a chief justice.[10]  And you have to entertain a pretty . . . original . . . definition of the world "collegial" to urge a hunger strike upon a colleague in print.

And we are all very fortunate to be two thousand miles from this conflagration.

[1] As the Associated Press describes it, "Decorum takes a hit as disorder reigns in state supreme court."

[2] There are eight members of my court.  While I've never discussed it with them, I am confident I am the only one who does not consider himself PJ material.  And as near as I can determine, we're all right.

[3] No, this will not offend Ron George, because he will consider the source.

[4] I use caps when italics seem inadequate.  For me, this is the equivalent of shouting the words, and when you read what he said, you can understand why I thought the fact it was in an opinion was so significant.  The New York Times describes it as a "draft opinion," so apparently cooler heads prevailed . . . temporarily.

[5] This is the Michigan Supreme Court, for crying out loud.  "How the mighty have fallen."

[6] Don't get me wrong.  Some of my best work has been on dissents; another division recently picked up one of my old dissents and spun the law around with it.  But that's once in a decade stuff.  You can't make a career out of that.

[7] See, "smart," "knowledge of law," supra.

[8] They re-elected the guy who ousted Justice Weaver six years ago and wrote all the lovely sobriquets that showed up on her website.  Too bad Ralph Nader or Ross Perot didn't get into this one.

[9] She also grumbled that when the present chief was campaigning to keep his place on the court in 2000, he and his wife (who she points out was legal counsel to the governor who appointed him) repeatedly "pressured" her to campaign for him - which she did not do because she considered it "inappropriate."  I tell you, this is a very entertaining document in its own way.  If you like "Real Housewives of Orange County," you'll love "Real Justices of Lansing, Michigan."

[10] I, for example, do not have the imagination to conceive of a dissenting opinion where there is no majority opinion

Printer friendly page Permalink Email to a friend Posted by William W. Bedsworth on Thursday, April 05, 2007 at 14:02 Comments Closed

Name That Loon

My full name is William Wiley Bedsworth, II.  That is technically erroneous in terms of naming rules.  I am technically not a "second."  Since I was given the same name as my father, the rules say I should be a "junior."  The Roman numeral two is supposed to be reserved for those named outside the direct line, such as for an uncle.

But my family (both sides) is from the South and my mother was scared to death that if she hung that "Jr." on my name, the family would replace my first name with it and just call me "Junior" - a fate she correctly considered far more stigmatic than ugliness, stupidity, or a career on the bench.

So she went with the Roman numeral and hoped for the best.[1]  I trust she received her reward in heaven, because nothing I could do down here could adequately repay her for saving me from that.  I'm convinced if I had gone through life as "Junior Bedsworth," I would today be installing aluminum siding in East Carwash, Mississippi.

I mention this now because my chosen profession is currently struggling with name issues.  Name issues!  Isn't that amazing?  Who could have called that one?  One of the things I like most about life on this planet is that the crises seem to pop up where you least expect them.

Three weeks ago, I would have told you my colleagues and I would have more work generated by SLAPP motions this year than by robberies.  That's where I thought the next crisis was brewing.

Instead, it looks like name usage is going to be this year's hot issue.  Name usage?  Who knew?

Certainly not Diana Bijon.  According to the Los Angeles Times, Diana and her fiancé, Mike Buday, had agreed they would take her last name, and become Mr. and Mrs. Bijon after their wedding.  Seems Diana and her sister are the last in her family line, and she thought it would be a nice gift for her father if she found a way to keep the family name alive.

A nice gesture, right?  A little unusual, a little avant garde perhaps, but, hey, as the groom said, "No big deal."  I mean, he's in love with the woman.  He'd probably call himself Engelbert Humperdinck if it would get her to the altar.[2]  They figured, what the hell - if she could take his name, why shouldn't he be able to take hers?

Well, it turns out that is not a rhetorical question.

It turns out if Diana wanted to become "Mrs. Buday," the County of Los Angeles was willing to oblige her.  No charge.  Just mark that box on the marriage license application.

But If Mike wanted to become Michael Bijon, he had to file a petition, pay a $320 fee, advertise his intention for four consecutive weeks in a newspaper of record, dye his hair green, stand on one foot for three hours, and appear before a judge.  While only the last raised Eighth Amendment issues, the whole thing just reeked of a denial of equal protection.

So Mike and Diana[3] have filed suit in federal court to force the State of California to let Mike stop using his . . . well, his maiden name . . . and allow future couples to choose which name they want to adopt.

That should keep one or two judges busy who might otherwise be deciding which of my phone calls to terrorists can be monitored.

And when those judges are done, they can move on to Andy Griffith v. Andy Griffith.  Honest, another name problem.  Trust me, folks, these name cases are the wave of the future.  If the feds are smart,[4] they'll find some way to assign this case to the same judges who handled the little ditty ‘bout Mike and Diana.  They can establish a Court of Names to go with the Court of Claims, thus establishing a rhyming symmetry lacking in the federal court system lo these many years.

Griffith v. Griffith, aka "The Sheriff Andy Lawsuit" is a classic in much the same sense that the old Andy Griffith show is:  Better to look back on than to go through again.  But, be that as it may, some poor federal district judge[5] is going to have to preside over it before she can get to a real case, so let me explain what's going on.

Seems one William Harold Fenrick decided he wanted to be elected sheriff in Grant County, Wisconsin.  Seems he decided William Harold Fenrick did not sound sheriffy enough.  So he changed it to the name of the most famous sheriff in America:  Andy Griffith.

Not only were the citizens of Grant County not impressed (Ersatz Andy came in third), Opie's dad was seriously ticked off.  So seriously, he filed suit against the unsheriff for invasion of privacy and copyright and trademark infringement.  He wants disclaimers published all over Grant County, he wants a public apology, and he wants Andy Griffith 2.0 to have to spend the rest of his life referring to himself as William Harold Fenrick!

This one's gonna take years to sort out.  For one thing, Andy Griffith wasn't the most famous sheriff in America:  Andy Taylor was.

We all knew Andy Griffith was just an actor portraying the true-life adventures of the real Andy Taylor, just as we knew Fess Parker wasn't the real Davy Crockett, raised zombie-like out of a hundred year old grave by Walt Disney and Marie LeBeau.

For another, the plaintiff's name is Andy Samuel Griffith.  The defendant took the name Andrew Jackson Griffith.  The names are not the same.  This is like Muhammad Ali suing someone for boxing under the name Moe "Hamhead" Ali.[6]

And, finally, Fenrick is quick to point out that he was unsuccessful.  His defense - besides the two lovely ones I've just pointed out for him - is that "During this campaign I never sold or profited even one nickel from the use of the name Andy Griffith or any item bearing the name Andy Griffith. Everything was a promotional item, and everything was given away for free."

Well, in that case, no problem.  Infringe and violate all you want.  That oughta resolve that once and for all.

Which allows me to get to my favorite name usage dispute:  Brees v. Brees' Mom.

Sadly, this one never actually reached the level of a lawsuit.  Which is really too bad, because it woulda been a hatful of snakes the likes of which you just can't put together anywhere but Texas.

Seems one Mina Brees, an Austin attorney, campaigned for the Texas Court of Appeals using, inter alia, a television commercial[7] that featured her son, NFL quarterback Drew Brees.  Seems innocuous enough, right?  I mean it's not like she wanted to change her name or his name or her husband's name or anybody else's as near as I can determine.  She just wanted to use his picture in his football uniform because, as the daughter of a successful high school football coach, and the sister of a University of Texas quarterback, and the mother of a professional quarterback, she said she had "through sports, [learned] a strong work ethic that she would bring to a career as a judge."[8]

But Drew objected.  Vociferously.  He complained that since he had refused to use his mom as his NFL agent six years ago, their relationship had "crumbled."  According to the Austin American-Statesman,[9] he was tired of the "lies and manipulation" and felt they had no relationship.  He threatened to sue unless Mom stopped using his likeness.

Mom, pointing out that everything in her ad was true (she WAS after all, his mom) nonetheless pulled the ad and ran a different one.  The lawsuit was averted.

This is, obviously, a very sad case.  No, not the mother/son dispute, not the prospect of a grown man threatening a lawsuit against his mother for telling people he was her son.  That's not the sad part.  The sad part is that we didn't get to see it played out in court. 

This was a chance for the rest of the country to watch the Texas court system try to deal with a lawsuit by an NFL quarterback (a position several rungs higher than a governor or cancer doctor in Texas society) against his mother (who might soon be elected to the appellate court bench) in which his complaint alleged that her lies and manipulations had gotten so bad that she had now sunk to the point where she was telling the truth about his parentage.

Now that's entertainment.

They woulda made a bloody fortune!  They would have to have held court sessions in the Cotton Bowl during prime time.  Forget Lost and Desperate Housewives, this would have been like Hockey Night in Canada - it would have driven everything else off the air.

Just imagine!  The quarterback retains Racehorse Haynes.  Not to be outdone, Mom hires Andy Griffith to play Leon Jaworski and Fess Parker to play Davy Crockett.[10]  And William Harold Fenrick to play Stephen F. Austin.[11]

Drew demands a DNA test and Mom responds that if he keeps throwing interceptions, she'll STIPULATE that he's someone else's kid.

Texans are forced to choose sides between motherhood and football.  Heads are exploding all over the Lone Star State.

It would have been glorious.  Glorious.

But Mina Brees chose the high road and deprived us of all that.  She withdrew the ad.  Elected, hell, she shoulda been disbarred for selfishness.

Nonetheless, it's obvious name usage is the first hot practice area of the 21st century.  These three cases are just the tip of the proverbial iceplant.

Forget mergers and acquisitions, name usage is what your kid should be studying.  That's the lesson I get out of all this.  And that's what I'm gonna tell my daughter Junior.

Beds' Notes

[1] Despite the suggestion of my Uncle Floyd that if she used the Roman numeral, he would always refer to me as "Number 2," a suggestion that was met by my mother's promise that if he did so even once,  she would see to it that he would never have children of his own.

[2] Okay, maybe that's going a little far.  I mean, nobody with a blood alcohol level below .20 would choose to be known as Englebert Humperdinck, right?  It's one thing if you're a composer of operas born with that name in Germany in 1854 and your mother accepted it because otherwise they were  going to name you "Junior."  Then you're just stuck with it.  But no one with a perfectly acceptable name like . . . say . . . Arnold George Dorsey would willingly adopt the name, right?

[3] And the ACLU.  I mean, this case fairly shouts ACLU, don't you think?

[4] Insert your own footnote here; I don't have the nerve.

[5] This column is the only place you ever see the words "poor federal district judge" combined in a sympathetic sense.  I sure hope they're appropriately grateful for my attempts to humanize them - especially after the last footnote..

[6] Yeah, I know the analogy's imperfect because that is obviously a WRESTLER'S name, not a boxer's.  But a few minutes ago, when I could remember my point, I thought this analogy made it, so I'm gonna stick with it.

[7] Even appellate elections are bigger and better in Texas.  Next time you question the wisdom of retention elections, imagine having to watch commercials for "Junior Bedsworth" in the middle of Gray's Anatomy.

[8] Despite this irrefutable premise, she lost.  Texas voters inexplicably chose someone else.

[9] That's the name of  a newspaper, not a candidate.  But I'll bet William Harold Fenrick would be sheriff today if he'd changed his name to Austin American-Statesman.

[10] Always a good name to have on your side in Texas.

[11] Or Austin Herald-Statesman.  Either one gets you points in Texas.

Printer friendly page Permalink Email to a friend Posted by William W. Bedsworth on Thursday, February 08, 2007 at 17:59 Comments Closed

Judge Has a Moving Story

I've lived just about all my life in southern California.

I figure that explains a lot.  I figure that's about 2/3 of an insanity plea, right there.

The simple fact is that life is different here.  We tend to think other people are just like us only they live in Alabama or Minnesota or Massachusetts.  But that's wrong.  We're different.  Way different.

Other people live in places where there are seasons and weather and animals and water.  We live in a giant plastic bubble constructed by Jesus in seven days 5886 years ago.  Jesus was 14 when he did this and had been explicitly ordered by his Father not to do it; that's why he was punished by being sent to live on our planet, but not allowed to enter the plastic bubble and had to wander around in the desert with no AC and a wardrobe wholly unsuited to hot weather.1

I didn't even leave the state for college.  I went to northern California for law school, and - make no mistake - while changing your residence from Los Angeles to San Francisco is comparable to changing it from Santa Monica to Pluto, it's STILL California.  It's the same air2, the same water3 the same indigenous goofiness. 

As near as I can determine, the difference between north of the Tehachapis and south of the Tehachapis is pretty much the difference between a porcupine and a platypus:  The two aren't strictly related, but they were both rather clearly put on this planet by mistake.4

So imagine my surprise when I found out another state had produced this year's winner of the "Elections Always Prove Evolution is a Crock" Award for bizarre electoral behavior.

No, I'm not referring to the Mark Foley Watch-Me-Turn-The-Two-Party-System-Into-One-Party-and-a-Wake debacle.  Floridians are not eligible for this competition.  We pretty much just retired the trophy to Florida six years ago, and we no longer let them take part.  Letting Florida participate in a contest for the most lunatic election behavior just turns everybody else into also-rans.

And I'm not referring to whatever state comes up with the tired old Electing-a-Dead-Guy routine this year.  That's been done to death5.  And besides, ever since Missouri elected the deceased Mel Carnahan over incumbent John Ashcroft in 2000, we've all come to the realization that the dead guys are usually a better choice anyway. 

Given my choice between an incumbent and a recumbent, I will always assume I can save myself a lot of grief by going with the guy who can't put his hand out and won't make a pass at the externs.  I not only would have voted for Carnahan, I would have taken time off to work on his campaign.  I think this century would be going a lot better if we had elected NOTHING BUT dead guys.

So in my book this is no longer bizarre behavior.

But I digress.  Back to the Stupid Human Election Tricks.

This year's prize goes to Oregon.

Now I know this will cause griping about favoritism in the other states.  Oregon is, after all, pretty much California Lite.  Their famously misguided decision to open their southern border to immigration between 1975 and 1985 has turned the whole state into a cross between Walton's Mountain and the Haight Ashbury.  They oughta change the name of the place to Ore-ganja.

In the 2000 census, 31% of the adult population of Oregon listed their occupation as "retired hippie."  They will doubtless be the first state in the Union to have a governor named "Crystal" or "Evening Star."

Their affinity for and proximity to Californian lunacy thus gives them a clear leg up in the contest.  But until they actually get enough votes on the petition to change the state capital's name from Salem to Wicca, we have to let them compete.  And this year, they competed at a level that is truly remarkable for a state that is still two movie star governors and two movie star airports behind us.

I refer, of course, to the judicial election fiasco extraordinaire between Leslie Roberts and Youlee Yim You. 

This one is complicated.  Explaining this one is like trying to diagram a sentence with three indirect objects, two subordinate clauses and a gerundive.  You're gonna need three sheets of paper and a protractor.  Go ahead; I'll wait.

Okay, sharpen your pencils; here's what we've got.  Youlee Yim You and her husband lived next door to the Robertses in Portland.  Then, in 1998,  the Yous sold the Portland house and moved - first to New York and then to California.6

But the Robertses missed them.  When the You home in Portland came back on the market in 2003, Mr. and Mrs. Roberts7 sent the Yous emails urging them to move back.

And they did.  In January, 2004, the Yous bought their old house back and once again moved in next door to Justice Armstrong and his wife, Ms. Roberts.8

Shortly thereafter, Youlee Yim You applied for a judgeship.  So did Leslie Roberts.  The SAME judgeship.9 

When they were interviewed for the position, Ms. Roberts suggested the governor's office might want to CAREFULLY look into whether ALL the candidates met the state's THREE YEAR residency requirement.  THREE YEARS.  Nudge, nudge.  Wink, wink.

Somehow the governor's staff failed to take the hint.  Apparently,  when they checked, they saw that Ms. You was living at the same address now that she had lived at a dozen years earlier and didn't realize she had been wandering in the desert like Jesus10 and only recently returned to Portland. Governor Ted Kulongoski11 gave the position to Youlee Yim You.

Oregon's system is apparently like ours12:  Ms. You was required to run for the judgeship to which she'd been appointed at the next general election.  That's this year.  But when she filed for the seat, in August, she STILL hadn't been living in Oregon continuously for three years.  She was still five months short of complying with the residency requirement.

But, as you might expect in a judicial election, no one caught it.  No one, that is except the neighbor lady who knew EXACTLY how long Ms. You had lived in the house in Portland because she had watched from her front porch as they unloaded Ms. You's sofa and her refrigerator and her dishes two years and seven months earlier.

Leslie Roberts knew. 

Ms. Roberts filed for the same seat eight days later, two days before the filing period closed, and sent a complaint to Oregon's secretary of state complaining that the other candidate - HER NEXT DOOR NEIGHBOR, whom she'd begged, pleaded, cajoled and importuned to return to Portland - did not meet the residency requirement for the position and was therefore ineligible to run. 

Leaving Ms. Roberts the sole candidate for the office.

Howdy, neighbor!

And sure enough, the Secretary of State conducted a 48-hour investigation13 and then ordered Youlee Yim Yee removed from the November ballot.  Ms. Roberts, who, according to the Associated Press, "has run for judge several times" and been rejected for appointment at least once that we know of, is expected to win the seat unless Mel Carnahan somehow gets into the race.

You can put away your protractor now; we're done. 

So whaddya think we've got here?  Is this the worst betrayal since Cain and Abel14 or a clever conspiracy in which Ms. Roberts and Ms. You outsmarted the State of Oregon and got Ms. Roberts the judgeship she'd always wanted? 

I don't know.  But I figure Sandra Oh for Ms. You and Christine Lahti for Ms. Roberts.  Justice Armstrong, like all appellate court judges, should be played by Tom Selleck.

Beds' Notes:

1 Even our religions are different in southern California.

2 Although you go from chunky style to creamy.

3 Only in San Francisco, you don't feel like you're receiving stolen property every time you drink it.

4 Along with Tom Cruise.

5 So to speak.

6 Everything truly crazy requires a California connection.  It can't be genuine "private reserve" nutso if California isn't involved somehow.

7 Actually, there is no Mr. Roberts.  Leslie Robeerts is married to Oregon Court of Appeals Justice Rex Armstrong, but denominating the parties in this case is already way too complicated without all of them insisting on individual names.  One of them has a last name indistinguishable from a second person singular or plural pronoun, for crying out loud.  You gotta cut me some slack here.  Justice Armstrong and Ms. Roberts will just have to share a name until I become a better writer.

8 There, now you see how awkward that is?  I'm sticking with "the Robertses" from now on.

9 Anytime one of the main protagonists has initials that are pronounced, "Why, why, why?" you know things are likely to go from bad to worse.

10 Although, unlike Jesus, she had spent some time in the plastic bubble He was not allowed to enter.

11 This is how liberal and laid back Oregon is:  They elected this man despite his conviction as the Unibomber.  Now that is some pretty heavy baggage for a gubernatorial candidate.  Say what you will about Schwarzenegger . . .

12 In some respects, that is.  Let's not be libelous, here.  No system not devised by  drunken carpenter ants is exactly like California's.

13 "Investigation" may overstate it a little.  "Have you lived here for the last three years?"  "No."  "Okay, thank you," may not technically qualify as an investigation.

14 According to the Gospel of Clive, Abel, one of Jesus' 12 apothecaries, broke into the plastic bubble and returned with a boyfriend.  His brother Cain was so jealous that he slew Abel and stole the boyfriend, Mark, for himself.  Hence the term, "Mark of Cain."  People raised in churches outside California might not be entirely conversant with this story.

Printer friendly page Permalink Email to a friend Posted by William W. Bedsworth on Wednesday, January 24, 2007 at 13:31 Comments Closed
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