Lowering the Bar

Coin-Toss Decision Not the Weirdest Thing abut Alaskan Election

Those of you who have been closely following the race for school-board seats in the Aleutian Islands know that the two candidates for the open seat in Adak, Alaska, were tied after the October 3 election.  (Each woman had nineteen votes.)  But you may not know how this finally came out.

Under state law, a tie vote results in an official recount, and if it is still tied after the recount, the result is settled by lot -- somebody draws straws or flips a coin or (my personal favorite) does "rock, paper, scissors" to see which candidate will serve.  In this case, Whitney Brewster, the local Director of Elections, flipped a coin, and candidate Dona Highstone called "heads."  It was "tails," so the incumbent, Katherine Dunton, won the election and another three-year term.

I forgot to mention: Dunton has been dead for almost a month.

Dunton actually died on the day of the election, but there does not seem to be an exception under Alaska voting laws for this kind of a situation.  So, rather than declare the winner to be the only remaining candidate who was actually alive, they held a ceremony resolving the election by chance and ultimately awarding Dona Highstone the dubious honor of membership in the John Ashcroft Club for Candidates Beaten by a Dead Opponent.

Said Director Brewster, "This is the first [school-board election ending in a tie and then resolved by a coin flip that a dead person won] that I have ever heard about, not only in our state but in any other."  The AP analyzed the result and concluded that, "since the winner is dead, the school board must find a replacement for the three-year term."  No kidding.  Hm.  I wonder if there is anybody else around there who might be interested in the job.

Link: Reuters via My Way News
Link: Anchorage Daily News

German Love Witch Loses Appeal

In 2006, a court in Munich, Germany, confirmed that a local woman described as a "love witch" would have to pay back the 1,000 euros that she had charged another woman for various spells designed to get her ex-boyfriend to come back. The love witch, who was not identified, was also ordered to pay several hundred euros in court costs.

The plaintiff apparently claimed that the witch's services came with a money-back guarantee, something that the witch disputed (don't they always?). In the end the guarantee issue was irrelevant because the court ruled that the service was "objectively impossible" to render in the first place.  "A love ritual is not suited to influence a person from long distance," stated the court.  I don't know about that.  I can think of lots of love rituals that can influence a person from long distance: making phone calls, sending flowers, repeatedly running over her ex-boyfriend in the parking lot outside her office window, things like that.  Regardless, the court concluded that "[a]s the promised service could not be rendered, the plaintiff is not obligated to pay."

Whether the witch would pursue yet another appeal was not clear, but ask again when the moon is full.

Court of Appeal Hears Case of The Taster's Choice Guy's Face

Yesterday I argued an appeal in California's Court of Appeal for the Second District, which covers Los Angeles, and I was just getting ready to leave after the argument when they called the next case, Christoff v. Nestle USA. That stopped me in my tracks because I recognized that case from one of my previous reports.  Here's what I wrote about it in February 2005:

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How to Turn a $250 Job Into $15.6 Million

Sue in L.A. County, that's how. In the latest (relatively) monstrous verdict from that jurisdiction, an L.A. jury awarded Russell Christoff $15.6 million dollars for the unauthorized use of his face on Taster's Choice jars for seven years. Christoff had been paid $250 for a photo shoot in 1986 but did not know Nestle had actually used his likeness until he saw himself on a jar in a drug store in 2002. "I looked at it and said, 'expletive, that's me!'" he recalled.

I hope he really does go around saying, "expletive!" but I bet he doesn't.

Lawyers for Nestle claimed that a Canadian employee of the company had unknowingly pulled the photo, thinking they had consent to use it, and that Nestle USA had brought it back to the States in 1997. The amount of damages was likely the only issue in the case. Christoff was paid $250 and was promised $2000 if the image were used in Canada, as it eventually was. The company offered him $100,000 to settle, to which he countered with $8.5 million. The jury's $15.6 million verdict apparently represents 5 percent of Nestle's entire profits from Taster's Choice while Christoff's face was on the jars, which certainly seems like a reasonable valuation to me.

Oddly, Nestle's lawyers said the company plans to appeal.

AP via SFGate.com

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Nestle did appeal, and I would like to thank the Court for scheduling the oral argument to coincide with my case. "Expletive, that's the case I wrote about!" I said to myself. I stayed to take careful notes (on my own time, of course). Mr. Christoff and his whole family were there in the courtroom, so it promised to be entertaining.

I was wrong that the amount of damages was the only issue in the case. It was an issue, certainly, but the main issue on appeal was whether the statute of limitations barred Christoff's claim even though there was no evidence he had any idea that his face was being used. (He had moved to Canada by the time he unknowingly became the Taster's Choice Guy for millions of Americans.) I think the argument was that the "single-publication rule" that applies in defamation cases would have barred Christoff's claim, but to be honest I was paying closer attention to trying to figure out which guy in the audience was Christoff, and more importantly which of the female heirs to the $15.6 million Taster's-Choice-Guy fortune might be single.

The Christoff extended family group was easy to pick out. Most of them were female, and of the men one was too old, one was too young, and the two in the back were way too ugly. That left just one guy, who did turn out to be Christoff as I later confirmed by digging up the picture below.

As you can see, Christoff now looks something like the guy who played J. Peterman on "Seinfeld," but back when he was looking for coffee-jar modeling jobs he looked something like a cross between Mandy Patinkin and Ricardo Montalban. The perfect man to become the new "Taster," as the company apparently refers to whoever is on their label. It seems that Nestle argued in part that Christoff was not entitled to damages (or only to a smaller amount) because it had really not used his own personal image, but rather had incorporated his face into what it called the "icon" of the Taster's Choice Taster.  ("Taster" doesn't seem accurate if only because the guy on the label is not in fact tasting, just gazing sensually at the coffee in the cup that he has been denied for so long, but is hoping, even longing, to taste sometime very, very soon. But I guess they have to call him something.) Justice Cooper wanted to know why Christoff should be entitled to all of the profits earned during the time his face was used, as opposed to whatever profits might have been attributable to the use of his own face. Presumably, that would be a much smaller amount, although Justice Cooper pointed out (several times) that she did of course think The Taster was a very attractive man.

Frankly, the debate over the single-publication rule in this context, while probably very important especially in Los Angeles, was less interesting to me than the various examples of celebrity-likeness cases or hypothetical cases that everybody kept mentioning.  I kept a list of celebrities mentioned:

• Bela Lugosi
• Arnold Schwarzenneger
• Lance Armstrong
• Ronald Reagan
• Walt Disney
• Aunt Jemima
• "a KISS band member" (unidentified)

The most comical thing I learned from the argument was that not only did Nestle use Christoff's face without express permission on millions of coffee jars in the U.S., they also apparently used it in other countries, and actually tinkered with his appearance to make it more palatable.  According to Justice Cooper, when they used his image in Mexico "they made it darker and gave him sideburns."

Link: AP via SFGate.com (coverage of the verdict in 2005)

Judge Queries Whether Defendant Wants a Piece of Him; Is Censured

Earlier this month, the New York Commission on Judicial Conduct voted to censure an Albany city judge for inappropriate conduct.  Actually, I guess they described it as "deplorable" and "utterly inexcusable," but you decide.

The censure is based on two incidents involving Judge William Carter. In November 2004, a defendant who was being arraigned in the judge's courtroom got angry and said he did not want to continue because he thought the proceeding was illegal. According to the report, Judge Carter then "left the bench, threw off his glasses, dropped his judicial robes and rushed toward the defendant, records show."

"You want a piece of me?" he asked the defendant. Whether the defendant did want a piece of him is unknown, as officers separated the two.

Four months later, while he was still under investigation for the first incident, Judge Carter suggested to police officers that they should "thump the sh*t out of" a defendant who they claimed had made an offensive gesture toward the court.  "If you are so upset about it," said the judge, "why don't you just thump the sh*t out of him outside the courthouse, because I'm not going to do anything about it."  There was some suggestion that this comment was made sarcastically, but that does not always come across well in print.

Judge Carter was supported by a number of attorneys who said he was a thoughtful and caring judge who had simply made a mistake.  The commission voted to censure rather than remove the judge from the bench.

Link: Yahoo! News
Link: Carter Decision -- NY Commission on Judicial Conduct

Wisconsin Spa Bandit Strikes For Sixth Time

In one of the more unlikely serial-criminal stories that I've seen, police in Brookfield, Wisconsin, said this week that the Spa Bandit had struck again, ordering $400 worth of treatments at a local salon and spa, and then fleeing without payment after the services had been provided.

The Spa Bandit, who has allegedly followed the same modus operandi in at least five other incidents in the area, visited the Azana Salon and Spa and scheduled the following treatments:

• eyebrow wax
• back wax
• chest wax
• underarm wax
• Brazilian bikini wax
• 75-minute massage
• something called a "body quench"
• manicure
• pedicure

The waxes and massage appear to have been the Bandit's main interests, however, because after they were completed the Bandit stated an intention to work on some papers during the pedicure, and went out to the car to "get the papers," but never returned. After the story was reported on local news, at least five other spa owners came forward to report that the Bandit, who has also been described as a "serial waxer," had struck there as well.

But here's the most unlikely fact about this story: the Spa Bandit is a man.

He called himself "Scott Kendry" in the most recent incident, but has used other aliases elsewhere.  Spa owners describe "Kendry" as "very charming," "a loud, boisterous man, very nice and [unsurprisingly] very knowledgeable about the spa."  Before fleeing the Azana Salon, "[h]e said, 'you can just tell the pedicurist to run the water,'" according to owner Tami Swaine.  "That's how I knew he had done this before, because it's not a sentence you would typically say."

Swaine also confirmed that waxing seemed to be the Bandit's primary interest.  "He likes the Brazilian bikini waxes [!], and when he got his massage here he asked the girls to spend a lot of time on his glutes."  My question is, having struck in this way five times before, how did "Scott Kendry" have any hair left to get waxed?  Is he a werewolf or something?

Capt. Phil Horter of the Brookfield Police Department said that the case was still under investigation and that no arrests had been made, despite the fact that the Bandit's entire four-hour Azana treatment was apparently recorded by the spa's security camera.

Link: CourtTV via FindLaw.com

Boston Primary School Becomes Latest to Ban Tag

Joining at least three other elementary schools across the nation, Willett Elementary School in Attleboro, Massachusetts (south of Boston) has banned tag, touch football and other other "unsupervised chase game" during recess.  School officials cited concerns that children might get hurt and their parents would try to hold the school liable.

Parents seem to be split over whether this is a good idea or not.  Heroic mother and true American Debbie Laferriere said, "I think it's unfortunate that kids' lives are micromanaged and there are social skills they'll never develop on their own.  Playing tag is just part of being a kid."  But Celeste D'Elia, who won't let anyone into her basement for some reason, is suspected of Communist affiliations, and may possibly be a hunchback, said her son feels safer because of the rule.  "I've witnessed enough near collisions," she said, as her cowardly son trembled nearby.

Personally, I'm completely neutral on this one.

According to the AP, there are no districtwide bans on contact sports (yet) anywhere in the country, but a number of schools have imposed local bans, including other schools in the Boston area that banned dodgeball, saying it was "exclusionary and dangerous."

Link: AP via My Way News

DA Sticks With Witness Who Says He Sees Horned Aliens

See, this is what I mean -- I already have a stack of material, and then I see a headline like the above in the Daily Journal this very morning.  The hits just keep on coming.  It's hard to do better than that headline, and this in a week that has also featured the gems "Andy Griffith Decides to Run for Sheriff" and "Spanish King Denies Shooting Drunk Bear."

Anyway, this story involves the DA's office in Santa Barbara, California, already under attack for two recent incidents in which deputy DAs were removed from cases because it was revealed that they were involved in book and movie deals related to those cases.  The case reported today is a prosecution of Greka Energy Corp. for alleged health-and-safety violations at its refining operations.  Most of the suit has been settled, but six counts remain to which (happily) the testimony of Gary Lowrey appears to be relevant.

Lowrey is the company's former public safety officer, and is expected to testify that he warned about certain dangers but was ignored.  At Lowrey's deposition, Greka's attorneys did ask about that testimony, but according to the report, "focused much of their questioning on his claims that alienlike creatures emerge from his closet and put pinholes into his chest and those of his family members."

How'd you like to defend that deposition?  (By the way, if anybody out there might have a copy of the transcript, I'd greatly appreciate getting one.)

The company's research had uncovered the fact that Lowrey is a "regular" on websites dealing with alleged alien visitations, and so its attorneys were understandably eager to find out the details.  Apparently, Lowrey objected to some extent to the term "aliens," saying: "I'm not sure that they're -- you know, [that] you'd call them aliens.  I know they're not human-looking."  He continued, "I don't remember a lot of it because, you know, you're asleep when it's happening to you."  You know.  Chief District DA Tom Snedden accused the other side of leaking the facts as a distraction and in order to smear his office.  The "bigger issue," he said, was that the company "continues to snub [sic] its nose at the safety of the community."

It is not yet clear that the horned-alien testimony will be admissible.  Greka will have to show the judge that the alien topic is relevant, but experts said the DA might have little choice but to call the former safety officer to the stand and that his nocturnal experiences could then very likely be used to undermine his credibility.  If that happens, Deputy DA Jerry Lulejian says he's ready to defend his witness.  Lulejian says he has videotaped what he called a "phenomenon" at Lowrey's house, and that he intends to play that tape in court "to prove his witness is not insane."  It may prove something, but I'm not sure that's what it'll prove.

In yet another twist, I have seen reports that Lowrey is represented in the case by Bela Lugosi, son of the famous actor. I haven't been able to confirm yet whether that's true, but Lugosi's son is in fact an attorney who practices in Los Angeles in the field of intellectual property and entertainment law. Lugosi has extensive experience especially in the latter field, his primary clients including (not surprisingly) Lugosi Enterprises and (more surprisingly) the estate(s) of the Three Stooges.  Lugosi's victories for the Stooges have included the favorable verdict in DeRita v. Scott (I believe that's "Curly Joe" DeRita) and another successful Stooge defense in Comedy III Prods., Inc. v. Saderup, which reached the California Supreme Court in 2001.

I can tell you that finding out that a witness who has a closet full of horned space aliens that have allegedly been filmed by a deputy district attorney is represented by Bela Lugosi, Esq., who has also represented the Three Stooges, has certainly made my Friday complete.

"DA Sticks With Witness Who Says He Sees Horned Aliens, San Francisco Daily Journal, Friday, Oct. 20, 2006, pp. 1 and 9.

Andy Griffith Running for Sheriff in Wisconsin

In what seems like an unfair move -- how could you not vote for "Andy Griffith" to be your sheriff? -- a music store owner in Grant County, Wisconsin, changed his name from "William Fenrick" to "Andy Griffith" upon entering the race as an independent. He is running against incumbent "Keith Govier" and Democratic challenger "Doug Vesperman," each of whom has over a decade of experience but are stuck with boring, non-famous names that probably leave them with no chance at all against the pseudo-Griffithian juggernaut.

Griffith, 42, said his goal was to draw attention to a race that would otherwise get little of it.  "Nobody knows who's running or what the issues are, if there are any issues, or how the people differ," Griffith said. I note that the AP report did not say what the issues are, if there are any issues, or how the people differ, but at least we do now know who's running for sheriff in Grant County, Wisconsin.

New Griffith may or may not be aware that the fictional sheriff of Mayberry, R.F.D., was actually named "Andy Taylor," although of course the show was called "The Andy Griffith Show" after the star. I was hoping there would be another layer here resulting from "Andy Griffith" being a pseudonym in the first place, but "Andy Samuel Griffith" appears to have been his real name.

I guess it was a simpler time.

Federal Appeals Court Affirms Right to Call Outfielder a "Fat Ass"

In September, the U.S. Court of Appeals for the Sixth Circuit reinstated a lawsuit brought by a Cleveland Indians fan, Jeffrey Swiecicki, who had been ejected from a game and later convicted of resisting arrest after he loudly referred to the size of the buttocks possessed by outfielder Russell Branyan.  "Branyan, you have a fat ass," Mr. Swiecicki was heard to say.

Swiecicki also opined that Branyan "suck[ed]," according to witnesses.

Branyan did not care, if he even heard, and he actually had three hits that night.  But an off-duty policeman who was working security objected, and when Swiecicki refused to quit he was escorted from the stadium.  The two then got into an altercation and Swiecicki (and that's the last time I'm typing that name) was arrested.

His conviction was later overturned, and he then sued the arresting officer for, among other things, violating his First Amendment rights to free speech.  That lawsuit was dismissed, but the Sixth Circuit's ruling reinstating the case guaranteed that it would continue to consume tax dollars as it has since it began in 2001.

In the 2-1 ruling, the court held that baseball fans are expected to be exuberant (even in Cleveland, I guess) and have a long history of hurling insults at players. These particular insults, the majority found, were protected because of that context and because they did not amount to "fighting words," which are not constitutionally protected.

Since false statements are not entitled to any First Amendment protection at all, I infer from the outcome that Branyan's ass is, in fact, big.

Link: Cleveland Plain Dealer

Chinese Entrepreneur Sues for Right to Sell Special Air

Li Jie is suing the Chaoyang Industry and Commerce Bureau, angry that the CICB has undermined his business by denying him a permit to sell bags of air to consumers.  (Not "air bags," just "bags of air.")  Li pointed out that this was not just any air, it was "special air from special places."  At the heart of Li's business plan was the idea of selling "World Cup air" collected in Germany to soccer fans who might be unable to make the trip.  Fans could hang the green plastic air bag around their necks and breathe in that World Cup air while watching the matches on television.

It's good to have the Chinese back in the capitalist system, isn't it?

The stodgy old CICB denied Li's permit application on the grounds that "special air from special places" did not fit any of the recognized "industrial categories."  Li sued, and earlier this week he breathed the special air of Chaoyang District No. 3 Court.  Li argued that the CICB had unfairly denied him the right to sell World Cup air, which also puts his plans to sell 2008 Olympic air in some jeopardy, and so he complained that the bureau had robbed him of a "once-every-four-years" sales opportunity.  (You see, once the event is over, the air moves on and is no longer special in any way.)

This is a major blow because the Li air business is virtually unlimited in scope, it appears.  "The 'special air from special places' I am talking about," he told the court, "includes the Olympics, Tiananmen Square, Mount Everest . . . the moon, a pigsty, a horse paddock, a sheep pen -- even Chaoyang District No. 3 Court."  You may object that the moon, at least, has no air, special or otherwise, but Li knows what he's talking about.  As he told the court, he is chief executive of the Lunar Embassy to China and has extensive land holdings on the Moon, so he would know whether there's air or not, don't you think?

As further proof, Li presented the court with a primary-school text book containing the story "Little Fox Sells Air," about a fox who sells air in a polluted city.  "A textbook could not possibly advocate breaking the law, could it?" he asked the court.  Can't argue with that.  Whatever it says in a primary-school text book -- as long as it doesn't teach we are descended from monkeys, of course -- must not only be true but also legally binding.

I say, let the man sell, although I personally will not be ordering any bags of special pigsty air.

Link: CNN.com