When we last saw Ernie Chambers, his lawsuit against Almighty God accusing said deity of causing a variety of natural disasters, and seeking injunctive relief to prevent same, had just been dismissed. He has not given up, however.
Chambers, who was then a Nebraska state senator, had sued God in Douglas County, Nebraska, in 2007, but immediately ran into problems with service of process. Chambers argued to the judge that serving God with notice of the lawsuit was unnecessary because He knows everything anyway, and that the Defendant would be subject to transient jurisdiction because of His presence in the area. "If God is omnipresent," Chambers argued, "then he is here in Douglas County." Maybe so, said Judge Marlon Polk, but you still have to prove you served Him, and you have not. Case dismissed.
The First Process Server
Chambers appealed. In briefs filed with the Nebraska Court of Appeals on February 9, he argued that it was inconsistent for courts to "take judicial notice of God" for purposes of (for example) administering an oath to witnesses, and yet refuse to take notice of His omniscience when considering whether He needed to be served. In other words, Chambers was saying, it is ironic that a court will notice God but refuse to assume that God would notice it.
It appears that Chambers may have failed to file a statement of jurisdiction as part of his appeal, since the report states that he has been given until February 24 to do so. He is also required to provide proof that he has given notice of the appeal to John DeCamp, a local attorney who has filed papers seeking to represent God. "If they want to go to court," DeCamp said, "we're willing to take God's side." DeCamp has apparently been on God's side since about 1989, when he registered something called the "Church of the Golden Rule" as a legal entity in Nebraska.
DeCamp was not the only person who wanted to get on the Lord's legal team. A Texas attorney filed a response on God's behalf in the lower court, and a Swedish man wrote to the appeals court asking to intervene there. His letter, though, referred to a "Bjorn the Omnipresent," so he may have his cases confused.
Though no one ever actually dropped it, the "F-Bomb" was the main topic of conversation during Supreme Court arguments Tuesday in FCC v. Fox Television Stations.
The case is on appeal from a Second Circuit decision that the FCC acted arbitrarily when it cited networks that had broadcast "fleeting" expletives, for example when Bono decided to call his Golden Globe "really f*cking brilliant." In the past, the FCC had not punished single, unscripted uses of such terms.
Much of the discussion during oral argument had to do with administrative law, and makes it sound like the Court may send the case back on those grounds, allowing it to avoid the First Amendment questions. But at argument the constitutional questions did come up, of course, which provided a reason for everyone to debate the use of expletives.
Defending the new policy, the Solicitor General said the agency had good reasons for deciding to classify "fleeting expletives" as indecent, at least depending on context. As an example, he said that there was "an element of pandering" in the Paris Hilton-Nicole Richey exchange in 2003 in which both the F-Bomb and the somewhat less powerful S-Bomb were dropped. "Pandering" appeared to mean that they had set out to be provocative. Justice Stevens asked whether it was different if the F-Bomb was used with no reference to its sexual connotations, but the SG argued that the word "inevitably conjures up a core sexual image." "Which is, indeed, why it's used," chimed in Justice Scalia helpfully.
The SG painted a terrifying picture of how the world might look if the Court ruled in favor of the networks, saying they would be free to broadcast expletives 24 hours a day, "going from the extreme example of Big Bird dropping the F-Bomb on Sesame Street, to the example of using that word during Jeopardy . . . ." I'll take Stupid F*&#ing Arguments for $1000, Alex. Those are strange examples for a number of reasons, not the least of which is that if anybody on Sesame Street would do that, obviously it would obviously be Oscar the Grouch, not Big Bird. I guess it's been a while since the Solicitor General saw an episode of Sesame Street. Or maybe it's changed quite a bit since I saw one, but I doubt it's changed that much since last week.
There was an exchange as to whether it was okay to be indecent if the indecency was sufficiently funny. "Maybe I shouldn't ask this," began Justice Stevens, which is the kind of statement that makes everybody lean forward to hear what it is somebody shouldn't be saying:
but is [it] ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny?
Some of these things you can't help but laugh at. Is that -- is that a proper consideration, do you think?
[Solicitor General]: Yes, insofar as the Commission takes into account whether it's shocking, titillating, pandering --
JUSTICE SCALIA: Oh, it's funny. I mean, bawdy jokes are okay if they are really good.
The Legal Times described Scalia's tone as "sarcastic," but his meaning still seems a little unclear. The answer to Stevens's question, of course, is "yes, it matters."
Fox was represented by Carter Phillips of Sidley Austin. Phillips had said prior to argument that he would be using the actual expletives before the Court "unless otherwise instructed," as did the attorney in the famous "F*ck the Draft" case years ago. As it turned out, though, everyone chickened out and used euphemisms instead. The best exchange during Phillips's time was the argument over exactly why the F-Word is considered shocking:
MR. PHILLIPS: Well, all that [prior case law] says is that you cannot immediately jump -- you -- it wouldn't even remotely strike you that the reason the language is being used is for its particular sexual meaning.
CHIEF JUSTICE ROBERTS: Then why -- why do you think the F-Word has shocking value or emphasis or force?
MR. PHILLIPS: The same reason the S-Word does; it's because in some circles it is inappropriate.
CHIEF JUSTICE ROBERTS: Because it is associated with sexual or excretory activity. That's what gives it its -- its force.
MR. PHILLIPS: I mean, I -- to say that, I suppose you can say it, but I don't understand on what basis. There is no empirical support for that. There's no --
JUSTICE SCALIA: Of course there is.
MR. PHILLIPS: -- anything in the record that remotely suggests that.
JUSTICE SCALIA: Don't use golly waddles instead of the F-Word.
Scalia seems to have coined the term "golly waddles." Whether it will help or hurt his record as Funniest Justice is hard to say.
On June 25, the Seventh Circuit affirmed the conviction of Conrad Black, one of several former newspaper executives found guilty last year of defrauding their company out of millions of dollars. In a bad sign for the defendants, the opinion was issued just 20 days after oral argument. In a good sign for us, it was written by Judge Posner.
Among other things, the defendants argued that the jury should not have been given the "ostrich instruction," which, it turns out, is an instruction that says a defendant who lacked certain knowledge can still be found guilty if the evidence shows he intentionally avoided knowing the truth -- so, claiming you saw nothing because you had your head in the sand won't work. For example, Posner wrote, "[i]f you receive a check in the mail for $1 milllion that you have no reason to think you're entitled to, you cannot just deposit it and when prosecuted for theft say you didn't know you weren't entitled to it." So much for the "I thought some billionaire liked me" defense, unfortunately.
While he thought it was "too late" to matter, Judge Posner still valiantly took a shot at rescuing the reputation of the ostrich, which, he noted, does not actually stick its head in the sand:
The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego, Birds: Ostrich (visited June 12, 2008) ("When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible"). It is too late, however, to correct this injustice.
Here's an important tip: the Court of Appeal for Ontario, Canada, has ruled that lawyers who notice that their trial judge is sleeping must awaken him or her at the time and object, rather than waiting to raise the issue on appeal.
The case, Leader Media Productions v. Sentinel Hill Alliance, involved a complex financing arrangement, the details of which are neither relevant nor, obviously, very interesting. After Sentinel Hill lost, it argued on appeal that the judge had not sufficiently explained his decision, that he had not heard oral argument, and, in an argument raised for the first time on appeal, that he "was unable to follow much of the trial evidence" because he was often sleeping.
The appellate panel said it would accept the new evidence showing that "the trial judge fell asleep frequently but for only very brief periods of time." But it also ruled that this evidence did not help Sentinel because its counsel had done nothing at the time for tactical reasons:
Instead of confronting the trial judge, after discussions among appellants’ counsel . . . they made a deliberate decision not to raise the issue[, but rather] to "wait and see how things played out". Presumably, if the trial result was in their favour they would do nothing; if not, they would have this additional evidence to use as a basis for appeal arguing that they were denied the right to a fair trial.
The court held that this was not appropriate and that, instead, parties must wake up sleepy judges and raise an objection at the time.
The parties apparently found only two prior cases involving sleeping judges, which is a little surprising since there have been many others, as they would have known had they only been readers of Lowering the Bar. For example, respondents could have found a 2007 decision that repeated "nodding off" did not warrant a retrial because for a judge, being "constantly attentive is not a fundamental requirement." And appellants could have found a study reported in Sleep magazine analyzing 15 similar cases, finding that "[in] 10 cases, judicial sleepiness resulted in a retrial . . . ." SeeGrunstein & Banerjee, "The Case of 'Judge Nodd' and other Sleeping Judges - Media, Society, and Judicial Sleepiness," 30 Sleep No. 5 at 625 (2007). But they didn't.
The study is absolutely worth reading. The title case involved Judge Ian Dodd of New South Wales, who had repeatedly fallen asleep during civil and criminal trials. This included a drug-smuggling case in which the jurors said they had nicknamed him "Judge Nodd," and commented on his loud snoring. Other reported cases of judicial sleepiness included:
A Nigerian judge on the International War Crimes Tribunal who had "regular sleep episodes" during a 2001 prosecution.
An Indiana case rejecting a defendant's appeal because the only evidence of sleeping was one exchange in the transcript: "Am I boring you today, Your Honor?" "No, just resting my eyes."
A prior Ontario case in which a criminal defendant got a new trial after showing that the judge had fallen asleep during his cross-examination. His defense lawyer had boldly "dropped a 2136-page copy of the Criminal Code onto the judge's desk to get his attention," later noting that "His Honour was visibly stirred from his slumber."
A report that Justice Ginsburg fell asleep during oral argument in a 2006 redistricting case. Justices Souter and Alito reportedly "looked at her, but did not give her a nudge."
The study reported that sleepy judges are often treated deferentially. For example, Justice Roderick Meagher (also of New South Wales), was said to be "known for his ability to nod off on the bench," but apparently his competence was never questioned. In a speech in honor of the judge's retirement in 2005, the local bar association's president referred to this by saying that Justice Meagher "brought colour to the Court of Appeal, but not, if I may say so, . . . much movement." He also claimed that the justice had once warned him, "Mr. Harrison, I'm going to sleep now, and I don't want you to be here when I wake up."
On November 29, the Ninth Circuit again applied the Slubby Mass Rule to reject an appellant's brief and dismiss the appeal. In case you did not learn this one in law school, this rule provides that any pleading presented to an appellate court that constitutes "a slubby mass of words rather than a true brief" will be rejected. See, e.g., N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997). The Slubby Mass Rule is apparently a corollary to Federal Rule of Appellate Procedure 28, which governs briefing requirements, and the corresponding Ninth Circuit rules.
The court was considering the appellant's brief in Sekiya v. Gates, a disability-discrimination case originally filed in Hawaii. And that seems to have been about all the court could glean about the case from Sekiya's brief, which:
made "virtually no legal arguments" (not a good start);
did not state the applicable standard of review;
did not include a table of contents;
did not include a table of authorities -- not that surprising since it
did not cite any authority;
did not include accurate citations to the record; and
didn't explain why Sekiya thought she should win. (She did say she "disagree[d]" with the lower court's ruling, but the court was looking for something more.)
Each of those violates a specific part of FRAP 28, but the court also invoked the Slubby Mass Rule. In the N/S Corp. case, in which the Rule was developed, the Ninth Circuit declared that "[i]n order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief." N/S Corp., 127 F.3d at 1146 ("the violations are legion); see also id. ("Enough is enough"). The rule was next applied five years later. See In re O'Brien, 312 F.3d 1135, 1136-37 (9th Cir. 2002) (declaring brief "inadequate" and partly "unintelligible"). In all three cases the court proceeded to address the merits of the case, to the extent it could tell what they were, but ruled against the appellant anyway. It published its opinions "as a reminder that [crappy legal work] undermine[s] the administration of justice and cannot be tolerated."
The remaining question you may have is "what the hell does 'slubby' mean?" And you are right to ask. The only other report I've seen try to answer this question first speculated that "slubby" was a combination of "sloppy" and "stubby," but found through further research that a "slub" is a "lump or thick place in yarn or thread." The only problem with these definitions is that they make no sense. Since you read Lowering the Bar, you don't need to bother with that pointless trivia because here you get accurate pointless trivia. A "slub" is also defined as "thick sludgy mud; mire, ooze," as in:
1610 W. FOLKINGHAM Art of Survey I. x. 24 Ouer-flowing them with Fords or Land-flouds, affording a fatte and slimie substance or slubbe.
Similarly, something that is "slubby" is "muddy; sticky or slippery with mud." So, a "slubby mass of words" is a thick, muddy, sludgy, fatte, slimie mass of words that is difficult to trudge through and instead should be avoided; for if one is on the "slub . . . his situation is not to be envied."
About a month ago I mocked Jeff Skilling's appellate team, not for the quality of what they said to the court but because it took them 239 pages to say it. (I enjoyed the fact that the word count made the brief roughly half the length of Huckleberry Finn.) Today it was reported that prosecutors managed to nearly match the titanic output of the wordsmiths at O'Melveny.
The government's brief is just 218 pages long, according to its numbering, although if you count up all the tables and everything it comes out to 238 pages, a remarkable coincidence. But this probably overstates the size of the brief, since the word-count certificate says that the brief weighs in at a puny 49,830 words, a full 9,000 fewer than the defense used.
The Legal Times reported today that Judge Roy Pearson, who lost a bench trial in June in his $54 million lost-pants lawsuit against Custom Cleaners, has appealed.
Pearson, who shed actual tears during the trial and yet seems to have garnered no sympathy, filed on Tuesday with the D.C. Court of Appeals despite the fact that the defendants withdrew their pending motion for attorney fees. The Chung family said it had been forced to spend $82,000 in fees to defend against Pearson's claims, but in an effort to "extend an olive branch" -- and probably also because they have already collected nearly $100,000 via fundraisers and donations -- they withdrew their fee motion on Monday. Pearson appealed anyway.
He will lose. But not for a while -- the Legal Times noted that the average overall time necessary to resolve an appeal to the D.C. court is 575 days, so Pearson will be entertaining the world for at least another year, and of course could still appeal to the U.S. Supreme Court. And I wouldn't rule out the International Court of Justice after that. All for a case that really belonged before Judge Wapner, if anywhere at all.
Chris Manning, the Chungs' attorney, said yesterday that Pearson had chosen "desperate irrationality over common sense" in deciding to appeal. I feel sorry for his clients, of course, but you know, if people didn't choose desperate irrationality over common sense on a fairly regular basis, I wouldn't have nearly as much to write about.
According to a report on Monday, a Pennsylvania architect challenging the license of a rival architect recently appealed his case to the state's highest court. This means Mark Altman is still trying to get Michael Molnar's license revoked even though Molnar is not likely to be doing any more architecting, given that he died in May.
Neither report I found on this case explained exactly how this dispute got started. Molnar seems to have worked briefly for Altman's father decades ago, becoming licensed here in 1960 after fleeing the Soviet invasion of Hungary. He said he had studied architecture in his home country but had been unfairly denied a license by the communist regime. The state examiner accepted his testimony, and Molnar got a license and then practiced without incident for 46 years.
But at some point Mark Altman, still suspicious, and really pissed about something, followed Molnar's trail to Budapest and found that the college there had no records of him. He challenged Molnar's license, but it appears that the state board again accepted Molnar's testimony that he had earned his degree and that the Communists had lost the records. That was affirmed on appeal.
Altman's counsel (his brother Gary) said that their family still believed that Molnar had lied, and was stunned by the result. He said, "You mean, if I'm a brain surgeon for 50 years, and after all these years they learn I'm an auto mechanic, I still can keep operating? That's fascinating to me." Well, if an auto mechanic has successfully done brain surgery for 50 years, then yes, I think I might rather have him working on me as opposed to some brand-new guy who happens to have a license. I might ask him what the jumper cables were for, but I'd be prepared to listen. Oh, also, Mr. Molnar can't keep operating now because he's DEAD.
And, again, neither report I found explained exactly why the Altmans were still going after Molnar's license now that he is an ex-architect. No one else seemed to know, either. "If the goal of the
litigation is to stop Mike Molnar from practicing architecture, the
good Lord has done that," a local attorney was quoted as saying.
Largely for that reason, the attorney for Molnar's estate has filed a motion to dismiss the appeal as moot. "Petitioner is, it seems, motivated by some unexplained quest for revenge that he simply cannot end," wrote Robert Hoffman. He called Altman "heartless" for suggesting that, if Molnar's license wasn't valid in the first place, the estate should give back all the fees he ever collected, which would likely be unpleasant for Molnar's widow. Hoffman compared the complaint to "Inspector Javert's hunting of Jean Valjean in Victor Hugo's 'Les Miserables,'" which, translated, seems to be something like how Magneto won't leave the X-Men alone.
Reuters News reported today that a German man had ended his ten-day protest of a fraud conviction by coming down out of a treehouse-like box that he had built on top of a 72-foot-tall pole. As the report put it, Fred Gregor, 45, "was bidding to have his 15-month conviction for fraud overturned by squatting in his tiny cubicle atop a converted television mast."
I don't have any experience with European law, but it seems their requirements for appeal are fairly difficult to meet. In the US, we would just file a motion for new trial or a notice of appeal. I suppose that does tend to involve squatting in a tiny cubicle at least for some period of time, but we don't have to build it ourselves.
It's not clear why Gregor thought his pole squat would convince the court or anyone else that his conviction should be overturned, but he told Reuters in a phone interview last week that he would not come down until he got a new trial. The phone was likely hoisted up in the same bucket that his wife was using to send his meals up, which is the same bucket that she ultimately used to end his futile protest today. Gregor's wife, a 25-year-old former stripper (and mother of their five children), sent up a topless picture of herself in Gregor's lunch box in an effort to encourage him to come down. He did.
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:
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.
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:
"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."
"My wife stole [it] and took it to work with her. Appparently a big hit in the ER.... Highly recommended." —Keith Lee, author of The Associate's Mind and The Marble and the Sculptor
"[H]ysterically funny.... I was unable to make it through the Introduction without ...annoying all around me with my loud laughter.... Buy this book." —Scott Greenfield, Simple Justice
"As a writer, I get a lot of books. My husband usually [just] glances at them .... This one, he hasn't put down. I can't get it out of his hands. Every time I look over, he's reading and laughing.... [C]heck out this awesome book." —Allison Leotta, novelist and author of The Prime-Time Crime Review