Lowering the Bar

I'm Sorry, Doctor, But What Did You Say Your Name Was?

This item has been sitting in my file since I first saw it over a year ago, patiently waiting for me to come up with some legal angle to justify posting it here.  I still don't see how to do that, but I'm just going to go ahead with it since this is the last day it is likely to be relevant for any reason at all.

That's because the conclusion of 2008 also brings to a close the term of the most recent president of the California Medical Association, Dr. Richard S. Frankenstein.

A state in which a "Dr. Frankenstein" can become president of the state's largest medical association is one in which I can happily live.

It's a little disappointing that Dr. Frankenstein is a specialist in pulmonary medicine, not brain surgery, but I still enjoy thinking about a patient's reaction to Dr. Frankenstein striding eagerly into the operating room.  And to the cries of "It's alive!!!  ALIVE!" that surely follow every successful surgery.

Well, thanks for letting me purge that item.  Now that that's done, back to legal humor.

Link: California Medical Association (press release)

Car-Wash Robber Has a Very Bad Day

Times are tough all over, tough enough that some have turned to crime who really have no aptitude for it.

For example, the masked gentleman who tried to rob the Washman Autospa in Portland on December 30  Authorities said that a man wearing a "white skeleton ski mask" walked into the car wash at about 10:45 a.m., pulled a gun on a worker and demanded money.  So far, so good.

But, according to the report, "[t]he robber then dropped the gun and it fell apart."  There's nothing more frustrating than shoddy worksmanship, I always say, especially when it affects your job.  You'd expect a weapon to be able to survive a three-foot fall, or else you would tether it to your wrist, I suppose.  Anyway, having suddenly disarmed himself, the robber then turned to Plan B, "threaten[ing] the worker with his fist as he continued to demand money."

The problem with trying to rob someone by shaking your (now empty) fist at them is that it is much easier for them to one-up you by finding a weapon of their own.  In this case, the worker, since he worked at a car wash, was able to accomplish this by grabbing a power-washer nozzle, with which he sprayed the robber in the face.  This ended the encounter as the unarmed man in the wet white skeleton ski mask fled down the street.

As an added bonus, the robbery was caught on video, available here, showing the man being defeated by a car-wash worker wearing a Santa hat and wielding a hose.

Saddest of all, possibly, was the fact that the man was trying to rob a coin-operated car wash in the first place.  This at best would have gotten him a $*&%load of quarters, but there was no sign that he had brought anything to carry them away with, so the maximum take from this robbery would have been whatever coins he could clutch.  And the potential negatives include jail, injury (possibly from stepping on the shards of your broken gun) and, worst of all, the pity of local residents. "You already got people robbing banks, but now car washes?" said a man who lives nearby.  "Come on, now -- how low can you go?"

As of today, the robber was still at large.  The article tells readers that "At the time of the robbery, he was wearing a black hooded sweatshirt, black pants and a white skeleton ski mask."  (He has probably taken the mask off by now, but still, be on the lookout.)  He was further described as being a white man in his 20s, about 6 feet tall and 180 pounds, with dark eyes "and unusually long arms."

Link: KPTV Portland

Blagojevich Mocked in Furniture Ad

This excellent ad appeared in the Chicago Tribune on Thursday.

   

It's not clear whether this was originally called the "Senate Sofa," or they renamed it to take advantage of the opportunity.  But who cares?

I know Blagojevich insists he can continue to govern, but how can you get any respect from a legislature if you're being openly mocked by furniture dealers?

Link: Cleveland Leader

Your Drinks Made Me Beat My Wife, Says Plaintiff

In December 2006, Yoichi Shimamoto punched his wife in the face not long after they got off a plane in San Francisco.  That, of course, was United Airlines' fault.

The Shimamotos -- puncher and punchee -- have now sued the airline in federal court, claiming that United is responsible for Mr. Shimamoto's actions because its employees served him numerous glasses of wine during the flight from Osaka.  (Presumably, he had asked for them, but the report didn't say.)  According to the complaint, United knew or should have known that the negligent overservice "would have negative consequences," e.g. wife-punching, and so is responsible for those consequences.

There are "dram shop" laws in most states that allow people to sue in some cases for harm caused by intoxicated patrons, but typically these lawsuits are against bars and/or brought by third parties, not the person who caused the injury.  As a professor quoted by the Chicago Tribune put it, "Generally, the courts have not been receptive to people saying, 'I asked for the drink and you gave it to me.'"  There is also a question whether these U.S. laws would apply, given that the serving of the alcohol took place over the Pacific Ocean, though the beating of the wife took place in U.S. territory.

So, Mrs. Shimamoto might have a claim, but it seems unlikely a jury would have much sympathy for her husband, who was charged and convicted of the battery.  Plaintiffs, however, are optimistically asking for (among other damages) the costs of Mr. Shimamoto's legal defense, including $100,000 for his bail money, and costs incurred due to his sentence (18 months of probation).

Maybe these two went through a rough patch, but nothing helps a couple reconcile like a good lawsuit.  Against a third party, that is.

Link: Chicago Tribune

No End in Sight to Feud Among Rival Santa Groups

Maybe I haven't been paying enough attention, but it seems like there was a lack of Santa-related legal stories this season (comical ones, anyway), at least compared to years past.  This one may (or may not) make up for that by featuring a very large number of feuding Santas and at least one incident of Claus-on-Claus violence.

This summer, the Wall Street Journal and other sources reported on a "civil war" raging amongst the nation's professional Santas, who had split into at least three rival groups.  The groups have been trading allegations and charges for over a year now, and the disputes were still unresolved as Christmas came and went in 2008.

All the Santas seem to agree that they were spawned at the same source, namely a group established in 1994 by ten founding members (some of them pictured at left), who called themselves "The Amalgamated Order of Real-Bearded Santas."  (All ten had real beards, and insisted that fake-bearded imposters would never be admitted.)  Over the next 12 years, AORBS grew from ten Santas to 700 or more.

But the group fractured in the summer of 2007.  The head Santa at the time, Tim Connaghan, was accused of unethical business dealings involving a potential film project.  He quit, or was expelled (there are conflicting stories as to many of these details), after which vice-president Nicholas Trolli took over.

Trolli also seems to have been controversial, allegedly ruling AORBS "with an iron fist in a white glove."  He reportedly expelled several members for offenses including "maligning fellow Santas on Elf Net," the AORBS Internet chat group.  Trolli then incorporated (or re-incorporated) the group, and his faction now refers to itself as "AORBS, Inc." (www.AORBSinc.com).  It is using that domain under protest, however, because Connaghan still controls (or stole) the domain www.AORBSantas.com, which AORBS previously used.

Connaghan, however, has also set up an entirely different rival organization, "The Red Suit Society" (a subsidiary of "The Kringle Group, LLC").  The RSS is comprised of graduates of Connaghan's Kringle college, the International University of Santa Claus.  (Well, not exactly -- the website says RSS membership after graduation is "almost automatic," and also that it's been expanded recently to include anyone who has purchased the course book or DVDs.  Classes thus appear to be optional at IUSC.)  Connaghan has accused AORBS of a "vindictive and persecutory" attitude, and "engaging in un-Santa-like dialogue."

Then there's Ric Erwin, one of the banned Santas kicked out for maligning people on Elf Net.  He runs yet another group, which he calls "The Fraternal Order of Real Bearded Santas" (FORBS).  Erwin showed up at an AORBS "Meet and Greet" held at Knott's Berry Farm in January 2008, and that's when the scuffling started.  AORBS members claimed that Erwin charged in "like a linebacker," and Erwin claimed that vice president Jeff Germann (who is 6'4"!) "used his elbow to bounce me off the wall."  Having met and greeted Germann's elbow, Erwin was removed by security guards.  Trolli later told the Journal that he and his family have been threatened by rebel Santas (it's unclear whether he meant Erwin).  "My children," he said, "have been instructed that, if anyone looks like Santa, [they should] run."

There was no further violence, as far as I can tell, at the 2008 AORBS Santa convention, when Santas from Canada and Norway joined the American group to enjoy the wintry weather of Kansas City in July.  But neither has there been any resolution of the dispute, at least according to a Christmas check of the group's websites.  AORBS appears to be the largest of the three groups, followed by the RSS.  All of the groups may have been too busy dealing with reduced Santa demand this Christmas to worry about who's in charge.  According to reports, mall Santa bookings were down as much as 50 percent, likely reflecting the general downturn in the economy.

It is impossible to say who's ultimately to blame in this saga, and everyone seems to have had his beard dragged through the mud to some extent.  I will at least give Connaghan credit for conducting a Santa survey in October 2008, so that we finally have some statistics to apply to the Kringle phenomenon.  According to his survey, the average Santa is 59 years old, 5' 8" tall, and is appropriately jelly-filled at 253 pounds.  A full 96.5 percent have a real beard.  Most have been married for over 25 years, and have three grandchildren on average.  Almost all are college graduates.  Nearly four percent actually have a Ph.D.

If they only had better management and conflict-resolution skills, I'd suggest putting a Dr. Claus or two in charge of Wall Street and/or the bailout money.  Actually, I suggest it anyway.

Link: Daily Telegraph (UK)
Link: The Amalgamated Order of Real-Bearded Santas
Link: The Fraternal Order of Real Bearded Santas
Link: The Red Suit Society

Amish Object to Putting "Mark of the Beast" On Cattle

The U.S. Department of Agriculture recently moved to dismiss a lawsuit filed by a group of Amish farmers who object to putting the "mark of the Beast" on their cattle.  The specific "mark" they are worried about is a radio-frequency ID tag that is being required by the state.

The plaintiffs are Michigan residents who are mostly members of the Old Order Amish Church.  While most of their claims are based on administrative law, they also say that being forced to use "an electronic numbering system for their animals constitutes some form of a 'mark of the beast' and/or represents an infringement of their 'dominion over cattle and all living things' in violation of their fundamental religious beliefs."  They argue that forcing them to accept the mark (or go out of business) would therefore violate the Religious Freedom Restoration Act.

Plaintiffs cited about a dozen Bible verses on which their beliefs are founded.  The Book of Genesis -- sort of the Marbury v. Madison of Biblical precedent -- says that man was granted dominion over "the fish of the sea, the birds of the air, and the cattle, and over all the wild animals and all the creatures that crawl on the ground."  Genesis 1:26 (New American Bible).  I think there might be a few things missing from that list, but it's probably a translation issue.  I would still suggest going with the broader King James Version, which gives dominion over "the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth."  (Emphasis added.)  Personally I think it's especially important that we get ahold of the creeping things that creepeth, which is another reason I like this one better.

The other problem is that the Beast, when he showeth up, shall provide that "no one will be able to buy or to sell, except the one who has the mark, either the name of the Beast or the number of his name."  Revelation 13:17 (NAB).  And accepting the mark is said to have somewhat more serious consequences, too, like being killed and then thrown into a lake of fire to burn for eternity.  See, e.g., Revelation 14:9-11, 16:2-16, 19:20, 20:4 (NAS).  This the Amish would prefer to avoid.

Sincerely held religious beliefs, of course, are protected by the First Amendment and federal law.  RFRA prohibits any substantial burden on a person's exercise of religion unless the governmental interest is compelling and the government has chosen the "least restrictive means" of furthering it.  42 U.S.C. sec. 2000bb-1.  Plaintiffs say that the government's stated interest (limiting disease) may be compelling, but requiring RFID tags is not the least restrictive means of furthering that.

In its motion to dismiss, the U.S. Department of Agriculture argued that its provisions are "voluntary," and that it's the state that actually requires them.  Thus doth it place the Land of Michigan in league with Satan, at least for purposes of the U.S. Code.

Link: Wired's Threat Level Blog (Nov. 13, 2008)

Court Approves Serving Lawsuit Via Facebook

Better take a close look at all those "friend" requests you've been getting.  One of them might be a process server.

This week, an Australian court approved a lawyer's request to serve two defendants with a lawsuit by sending them a message through Facebook.  Mark McCormack said he had been trying for weeks to serve Gordon Poyser and Carmel Corbo with a foreclosure notice after they defaulted on a home loan.  Courts have previously approved service by email and even text messages, if a plaintiff can show that regular measures have not succeeded.  Having noticed that defendants had Facebook profiles, McCormack persuaded the court to authorize service that way.

The order attracted publicity immediately, however, and by the time McCormack's documents were ready to go, the Facebook profiles were no longer public.

An Associated Press reporter was able to find Poyser at home (and somehow get him to answer the door).  He declined to comment, except to say that the couple was despondent about possibly losing their home, and to insist that he had restricted the Facebook pages only because he knew media attention was likely.  Otherwise, he said, "I'd get every man and his dog having a look."

Facebook itself was quite pleased with the ruling.  "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication," the company said, obviously through a trained spokesbot.  "The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives."  Yes indeed -- once Facebook was merely helping people stay in touch with friends, but now it's helping evict people from their homes during the Christmas season.

Happy Holidays, from Facebook!

Link: MSNBC.com

Legislation Breaks Out During Brawl in South Korean Assembly

I love a good legislative fight.  Not the kind where they debate stuff -- the kind where everybody ends up involved in an actual bench-clearing brawl.

Unfortunately for C-SPAN's ratings, these things only seem to happen overseas.  Last May, I reported on a dramatic but also typical battle in the Taiwanese legislature, in which people punched each other, climbed onto the speaker's podium, and threw things around the room.  That one was distinguished by the desperate tactics of one legislator, who, rather than allow a bill to be introduced, grabbed the paper copy and actually started eating it.  I got called out for making fun of that by a professor from Taiwan who told me this: "By eating the bill, which there was no way to stop legislatively, that woman put a stop to a major effort to undermine governance on the island. Simple, effective, and brilliant."  Simple, yes.  Effective and brilliant?  If nobody had another copy.  "Nobody made a copy?  Are you kidding me?!  Curses!!  Until next year, then!"

Anyway, this week's brawl took place in Seoul, South Korea, as that party's National Assembly "descended into chaos" over a free-trade agreement.  You wouldn't think that a trade dispute would lead to violence (I guess it did in Star Wars: The Phantom Menace, but then that was stupid, too), but this one did.

Apparently, the chaos was triggered by the ruling party's move to send the controversial agreement to committee, the next step in getting it passed.  According to the report, the committee's meeting chamber was the only place where the bill could be officially introduced -- and so that would be the place to disrupt it (or, possibly, eat it).  But when it looked like there might be trouble, the committee chair invoked a provision allegedly allowing him to "use force to 'keep order' in parliamentary proceedings," and had the door sealed.

Fights immediately broke out as members of the opposing parties tried to break in.  According to the report, "TV footage showed people from both sides shoving, pushing and shouting in a crowded hall . . .  amid a barrage of flashing cameras."  Blood trickled down one man's face.  It did not take long before punching escalated to power tools, as the legislators took a sledgehammer and even an electric saw to the door, eventually forcing it open only to have security guards spray fire extinguishers in their faces (left).  Suddenly, the stained-glass window overhead shattered as dozens of heavily armed ninja commandoes rappelled in from helicopters, circling dragons swooped in to eat several legislative aides, and a vast pit filled with blazing sulfur opened up to swallow half the building.

And if you think that sounds bad, just wait until the actual floor vote.

Link: MSNBC.com

Court: Pearson's Claim "Not Supported by Law or Reason"

I've now had a chance to skim the D.C. Court of Appeals' opinion in Pearson v. Chung (PDF copy at the link below).  It is surprisingly light on mockery or outrage about Pearson's pointless legal quest, although it is, unsurprisingly, unanimous.

The court notes that there is "ample support" for the proposition that a person's reliance on an allegedly fraudulent or misleading statement must be reasonable. It also finds that the trial judge simply showed "basic common sense" in rejecting Pearson's contrary (and unsupported) position, namely that posting a "Satisfaction Guaranteed" sign means that a merchant has to unconditionally meet a customer's demands for satisfaction, even if the customer demands an outrageous amount of money and even if the merchant knows the customer is mistaken or lying.

Pearson also had the even more basic problem that the trial judge just didn't believe him, or at least found his opponent "much more credible."  The court cites from her opinion, in which she wrote:

The Court agrees with the plaintiff that the pants in the defendant’s possession do not appear to match the jacket to this burgundy and blue pinstriped suit. The Court will also accept that Mr. Pearson does not like cuffs on his pants. [He had argued that they couldn't be his pants because he doesn't like cuffs.]  The plaintiff may well believe that he brought the pants to his burgundy and blue pinstriped suit to the defendants, but there also is strong evidence that he did not. The Court found Soo Chung to be very credible and her explanation that she recognized the disputed pants as belonging to Mr. Pearson because of the unusual belt inserts was much more credible than his speculation that she took a pair of unclaimed pants from the back of the store and altered them to match his measurements.

Affirmed.

Link: Pearson v. Chung, No. 07-CV-872 (D.C. App. Dec. 18, 2008) (slip op.)

D.C. Court of Appeals Rejects Appeal in $54 Million Pants Case

With great sadness I must report that the D.C. Court of Appeals has ruled against former judge Roy Pearson, so there will be no new trial on his claim that his dry cleaners lost a pair of his pants.  Pearson had valued this claim at $54 million.

There is hope, however, because Pearson can (and based on his past history, almost certainly will) seek en banc review, and if necessary appeal to the U.S. Supreme Court, the International Court of Human Rights, and/or the High Tribunal of the Galactic Council of Races, if and when that body is created and/or discovered to exist.  (He may have even greater difficulty in that court, however, since he may first have to explain to at least some of them the whole concept of "pants.")

Link: MSNBC.com