Lowering the Bar

Court Ruling Will Force Employers to Spank Employees Equally

If they are to spank at all, anyway (which this attorney does not recommend).

In 2006, a jury in Fresno, California, awarded Janet Orlando about $1.7 million for her claims that she had been spanked at work.  Orlando alleged that her employer, Anaheim-based Alarm One, held "contests" for its sales teams and that members of the losing team were deliberately humiliated.  Workers allegedly were hit with pies, forced to wear diapers and eat baby food, and paddled with the signs of rival companies.

The company described the events as "camaraderie-building exercises."

The jury found for Orlando on claims that included sexual harassment, but that verdict was reversed this week.  The Court of Appeal held on January 14 that the jury had not been instructed that an essential element of the sexual harassment claim was proof that the conduct was directed at a woman because of the fact she is female.

The court noted the company's argument that it had not based the spankings on whether any employee was male or female, but on the "misguided notion that spanking employees who performed poorly in front of their peers . . . would motivate them (or all the employees) to perform better."  Saying there was at least some evidence in the record to support the view of each side (though there was also evidence Orlando was a spanker and not just a spankee), the court found that the instructional error probably affected the verdict and it remanded for a new trial.

Orlando's attorney, "Butch" Wagner, said that they would take the case to trial again and might "get more this time."  Alarm One's attorney, Poncho Baker, wished Wagner "good luck" collecting on any judgment, which (you won't be surprised to know) he meant sarcastically because, he said, the company has since gone bankrupt.

Link: AP via MSNBC.com
Link: Orlando v. Alarm One, Inc.

New Addition to Case Law Hall of Fame: The Case of the Stuffed-Bear Donation

Whatever you're working on right now, wouldn't you rather be working on a case where the only material issue was who owned the big stuffed bear?

Me too.  See Pardue v. Turnage, 383 So. 2d 804 (La. App. 1980).

The dispute arose in Tangipahoa Parish, in eastern Louisiana.  Mr. Turnage owed Mr. Pardue $3,000, and when Turnage could not pay the judgment Pardue had some of his property seized.  Said property included one "large stuffed bear."  Before the bear could be sold, however, Ronald and Celestine Lessard intervened, claiming the bear was theirs.  After a trial on the issue of bear ownership, the trial court found against them.  Apparently heartbroken, the Lessards appealed.

The appellate court reversed, citing evidence supporting the Lessards' claim.  At trial, apparently, "no less than six witnesses testified that Kenneth Turnage had, or they heard he had, given the bear to the Lessards."  Id. at 805 (emphasis added).  Setting aside the hearsay problems with that testimony, it seems that the bear's whereabouts were a topic of great interest in Tangipahoa.  Also, the Lessards had "dominion over the bear," as "evidenced by its display at the Sportsman, a sporting goods store in Ponchatoula."  Dominion is nine-tenths of the law of bear possession, as you know.  For those and other reasons, the court held, it was their bear.  "An exhaustive reading of the entire record convinces this court that Kenneth Turnage did give his stuffed bear to the Lessards.  For the trial court to find otherwise was manifest error."  Id. at 806.

The only remaining issue was whether the donation of the bear was fraudulent (to escape a creditor) or "omnium bonorum" (meaning "of all the goods").  The latter is a Louisiana provision intended to prevent someone from giving away all his or her belongings, something that I guess is or was not uncommon down there.  Personally, I think a man should be able to do with his bear what he will, even if it be his only remaining possession.  But In any event, the court found the transfer was neither fraudulent nor omnium bonorum, because there was evidence Turnage did have other assets besides the bear, namely a home up north (where he seems to have fled).

"While it is true," the court noted, "that he gave his household effects and the bear to the Lessards, these were simply things he could not conveniently take with him to Alaska."  That settled, the case was remanded.

The bear's current whereabouts are unknown.

Link: Pardue v. Turnage, 383 So. 2d 804 (La. App. 1980).

Debate Over Free-Speech Rights of Chicken Man Rages in Colorado Town

While Europe debates whether animals are entitled to constitutional rights like human beings, here in America we are debating the constitutional rights of human beings dressed like animals.  The latest dispute over advertising in the form of "mobile signs" or "mascots" is taking place in Woodland Park, Colorado, where the city council is threatening to outlaw Chicken Man.

Chicken Man is the mascot for Wild Wings 'n' Things, a restaurant chain based in Colorado Springs.  For years, free-range Chicken Men have roamed Colorado streets, alerting motorists and others to the availability of wings (and, apparently, things) as well as beer or another beverage of their choice.  And one also patrols beside U.S. Highway 24 in Woodland Park -- for now.

Saying that Chicken Man violates a local sign ordinance, the city council told restaurant owner Lisa Branden that she would have to bring him indoors.  (Allegedly, city manager David Buttery said that the laws are designed to maintain the town's "mountain grandeur" by prohibiting "signs" like Chicken Man, although he has since denied saying that.)  Branden has refused, saying it would harm her business which is located some distance from the highway.  The city has said it will not enforce the ban for now, while it works to revise the law.  Currently, the law says nothing about mascots but does say that "All signs not expressly permitted or exempted from this regulation are specifically prohibited."  That may very well be specifically unconstitutional.  In the meantime, Branden has equipped Chicken Man with an American flag instead of the sign he normally waves, but he is still out there.

Public opinion seems to be firmly in favor of Chicken Man.  He has appeared on the front page of the local newspaper twice and Branden has collected 1,100 signatures on a petition in support.  Nearby businesspeople clearly supported the Man.  "He's not a threat to anything," said the owner of PDQ Mail and More.  "He's not a danger to anybody.  Leave the Chicken Man alone."  Tom at Great Clips for Hair thought the council was being "ridiculous" and that Chicken Man suited the town.  "It's a funky town.  It's a funky chicken."

About 80 citizens showed up for a city planning commission meeting last week, at which the proposed new sign ordinance (featuring 18 pages of regulations) was to be discussed.  Many wore T-shirts saying "Don't Choke Our Chicken."  Chicken Man, who also attended, needed no T-shirt but brought his American flag along.  Apparently, the new proposal, among many other things, specifically defines costumed characters as "temporary signs" and says they would only be permitted for 90 days a year.

Lowering the Bar's section on "Mascot Law" contains other examples showing that this kind of debate is raging all across our country, with varying results.  In September, New Jersey's appellate division upheld a fine imposed for displaying an inflatable rat at a union rally.  In 2006, the Ninth Circuit affirmed a declaratory judgment in favor of "Blazing Bagels," saying the First Amendment protected its right to put an employee outside wearing a sign.  A similar dispute in McHenry, Illinois, which threatened the livelihoods of Mattress Man and Lady Liberty, was reported in the Chicago Tribune earlier that year.  And in July 2006, another Chicken Man (no relation), this one operating in Arkansas, reported that he had been repeatedly assaulted by local residents.  The attacks included thrown cans of Skoal, various frozen-drink assaults, and finally a salvo of bottle rockets that set fire to part of his suit.  (The rocketeer was later arrested.)

If the new regulations are approved by the committee, a decision is expected from the city council by late February.  If they outlaw Chicken Man, they will be made fun of here shortly thereafter.

Link: Colorado Springs Gazette.com
Link: Colorado Springs Gazette.com (update about the meeting)
Link: The Mountain Jackpot (Woodland Park, CO, local paper)

UPDATE: Monkey Denied Person Status

As I reported last October, an Austrian court refused to grant Matthew H. Pan legal standing on the grounds that he is a chimpanzee, and it appears that the Supreme Court of Austria has now affirmed that decision.

An animal-rights group had sued on Mr. Pan's behalf after the shelter where he had lived for 25 years declared bankruptcy.  Pan had been shipped to Austria illegally for use in experiments but was found and turned over to the shelter.  The group sought to represent him, or alternatively to have him declared a legal "person" for purposes of preventing someone from buying him and shipping him elsewhere where laws against animal cruelty may not be as strong (such as Michael Vick's backyard).

It was unclear from this report whether or not the court had finally rejected the claim, but the court did deny a petition to appoint a trustee for the chimp and said it would be contacting the European Court of Human Rights.  That is not as far-fetched as it might seem, at least in Europe, where at least two countries have amended their constitutions to provide some level of "human rights" to animals.

In America, of course, there is no such constitutional provision, which may not be that surprising since it sadly took us quite a while even to give all humans human rights.  My understanding is that we currently deal with the animal-rights issue on a species-by-species basis, generally according to the cuteness and/or tastiness of the species involved.  But I'm not an expert in this field.

Link: AP via Law.com
Link: Wikipedia's "Animal Rights" article (surprisingly, but not entirely, neutral)

What Not to Use as a Disguise, #3: Drywall Compound

I think we have enough failed-disguise posts now to consider starting a new category, or at least a sub-category of The Criminal Mind.  This does not quite rise to the level of What Not to Use as a Disguise #1 (tree branches) and #2 (duct tape), but it makes the list.

Robert Lavery was convicted last week of robbing the New Cumberland (Pennsylvania) Federal Credit Union in 2006, along with compadre Robert Miller.  Robert L. robbed the bank while Robert M. waited in the getaway car.  Unfortunately for the Roberts, each of them was distinctive in a way that made them fairly easy to identify.

For Lavery, this was because he chose drywall compound as a disguise, apparently smearing it all over his face.  According to the article, this was a problem because when police found the two they also found clothing with drywall compound smeared on it, and more drywall compound in the passenger side of the car.

It might also have been a problem because it would seem to me that this "disguise" wouldn't obscure your facial features, just turn them a different color, but the article didn't mention this issue.  I suppose it's possible that Lavery used several inches of the stuff on his face, or encased his head in a block of it.  That would have solved the identity problem but made it pretty difficult to carry out the robbery, so it seems unlikely.

If Lavery could not be identified, and the only evidence was the presence of drywall compound in the car, that would have been circumstantial evidence of guilt but not damning.  They might have only been guilty of home improvement.  But Miller was also identified by witnesses who were familiar with his car, and in particular the NASCAR vanity license plate on the front, which Miller had failed to remove.  That led police to Miller, who confessed.

Link: AP via FindLaw.com