A horse is a horse, of course of course . . . that is, of course, unless the horse also raises First Amendment issues

Whether you are a regular at Saratoga or become an instant expert on horse racing in the days leading up to the Kentucky Derby, you have no doubt wondered how owners come up with their horses’ names. A recent decision from the U.S. Court of Appeals for the Ninth Circuit touches on this issue. The decision is mostly about procedural issues but the interesting part to me is the part about naming the horse.

In Jamgotchian v. Ferraro, plaintiffs owned a horse that they named Malpractice Meuser. They wanted to race the horse at California’s Los Alamitos Race Course. California, like other states, requires all thoroughbreds racing in the State to be registered with the Jockey Club of New York. The Jockey Club is a private organization that, among other things, promulgates the “Principal Rules and Requirements of the American Studbook” and sets the rules for naming horses.

In Jamgotchian, the Jockey Club refused to register Malpractice Meuser because the name violated the Principal Rules and Requirements. Specifically, the Jockey Club prohibits horse names that are “designed to harass, humiliate, or disparage a specific individual.” As the Ninth Circuit observed: “The Jockey Club believed that Malpractice Meuser was named for Michael D. Meuser, a Kentucky lawyer specializing in equine law.” So the Jockey Club instructed plaintiffs to register the horse under a different name.

Plaintiffs chose not to take the Jockey Club’s advise and instead sought to enter Malpractice Meuser in a race at Los Alamitos. The track’s stewards refused to allow plaintiffs to enter the horse because it was not registered with the Jockey Club in violation of California law.

Plaintiffs appealed the steward’s decision to the California Horse Racing Board (“CHRB”). They argued that the steward’s “enforcement of the Jockey Club registration requirement . . . resulted in impermissible viewpoint discrimination, contrary to the First Amendment.”

The CHRB affirmed the steward’s decision and “offered commentary on why it believed that [plaintiffs’] constitutional claims were not colorable,” but ultimately concluded that it lacked jurisdiction to decide plaintiffs’ constitutional claims. The CHRB “explained that, because the California Constitution bars state agencies from declaring a statute unconstitutional or refusing to enforce a statute on constitution grounds unless an appellate court has made that determination. [plaintiffs were] required to go to court for resolution of [their] constitutional claims.”

Plaintiffs went to court, but not to the California appellate courts as the CHRB appeared to anticipate. Instead, they went to the federal courts and filed a Section 1983 lawsuit against the individual stewards and CHRB members. (This is where the case takes a turn towards the procedural.) The district court dismissed the complaint, holding that plaintiffs were precluded from raising their constitutional issues in federal court because they had not challenged the CHRB decision in state court.

Plaintiffs appealed and the Ninth Circuit reversed. You will have to read the opinion for the heady procedural discussion. But suffice to say, plaintiffs will get a chance to raise their constitutional claims on the merits. Whether they succeed or not is an open question, but Malpractice Meuser will get his day in court!

A few other interesting facts.

First, in case you were wondering, First Amendment was registered as a thoroughbred with the Jockey Club in 2012 and Malpractice M.D. and Malpractice Mike are also registered.

Second, if you are looking to name your own horse, the Principal Rules and Requirements prohibit the following:

1. Names consisting of more than 18 letters (spaces and punctuation marks count as letters);

2. Names consisting entirely of initials, such as C.O.D., F.O.B., etc.;

3. Names ending in “filly,” “colt,” “stud,” “mare,” “stallion,” or any similar horse-related term;

4. Names consisting entirely of numbers. Numbers above 30 (thirty) may be used if they are spelled out;

5. Names ending with a numerical designation such as “2nd” or “3rd,” whether or not such a designation is spelled out;

6. Names of living persons unless written permission to use their name is on file with The Jockey Club;

7. Names of persons no longer living unless approval is granted by The Jockey Club based upon a satisfactory written explanation submitted to the registrar;

8. Names of racetracks or graded stakes races;

9. Names that in the judgment and discretion of the registrar:

a.         Have clear commercial, artistic or creative significance;

b.         Contain profanity or suggest a vulgar or obscene meaning;

c.         Are considered in poor taste;

d.         Are likely to be offensive or threatening based upon factors including, but not limited to, color, creed, disability, ethnicity, gender, national origin, race, religion, politics, or sexual orientation;

e.         Appear to be designed to harass, humiliate, or disparage a specific individual, group, or entity;

f.          Are inflammatory or are likely to invoke controversy;

g.         Are demeaning to the horse or Thoroughbred breeding or racing.

10. Names that are currently active either in racing or breeding (see Rule6(E));

11. Names of winners in the past 25 years of grade one stakes races;

12. Permanent names. The list of criteria to establish a permanent name is as follows:

a.         Horses in racing’s Hall of Fame;

b.         Horses that have been voted Horse of the Year;

c.         Horses that have won an Eclipse Award;

d.         Horses that have won a Sovereign Award (Canadian champions);

e.         Annual leading Sire and Broodmare Sire by progeny earnings;

f.          Cumulative money winners of $2 million or more;

g.         Horses that have won the Kentucky Derby, Preakness, Belmont Stakes, The Jockey Club Gold Cup, the Breeders’ Cup Classic, or the Breeders’ Cup Turf; and

h.         Horses included in the International List of Protected Names.

13. Names similar in spelling or pronunciation to the classes of names listed in Rule 6(F) 6 – 12 above;

14. Names of horses previously recorded in The American Stud Book by the same sire or out of the same dam as the foal for which the attempt is made; and

15. Names of horses appearing within the first five generations of the pedigree of the foal for which the attempt is made.

So can I call myself a Super Lawyer or not? Either way, can I still wear my cape?

By: Peter J. Gallagher (LinkedIn)

You know it’s “award season” – at least the legal world’s version of it – when your social media starts to fill up with posts that sound like this: “So honored to be included as one of the ‘Worlds Most Awesome Patent Lawyers’ with 43 other members of my firm.” The question for New Jersey lawyers is whether otherwise innocent humblebrags like this actually run afoul of our Rules of Professional Conduct. Somewhat surprisingly, most of these posts do.

Under RPC 7.1, lawyers cannot make false or misleading statements about their services. It used to be that any statements comparing one lawyer’s services to other lawyers’ services were deemed false and misleading. And since superlatives like “best,” “super,” “preeminent,” “distinguished,” “top,” “leading,” and “top-rated” are inherently comparative, this meant that no lawyer could advertise that they were included on a list of, for example, “New Jersey’s Best Lawyers.”

This changed about a decade ago when RPC 7.1 was amended to allow attorneys to advertise about winning comparative/superlative awards like this, but only if: “(i) the name of the comparing organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the communication includes the following disclaimer in a readily discernible manner: ‘No aspect of this advertisement has been approved by the Supreme Court of New Jersey.’”

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Zoom! Zoom! Zoom! Only One Witness In The Room (For Remote Trial Testimony)

By: Peter J. Gallagher (LinkedIn)

Just before the pandemic turned nearly all New Jersey courtrooms virtual, the Appellate Division issued its decision in Pathri v. Kakarlamath, which dealt with the standards trial courts should use to assess a party’s request to appear remotely for trial. I wrote about it here “Before Applying a 30-Year Old Decision to Modern Technology, A New Jersey Court References A Musical From the 1890’s.” Who knew at the time how timely that decision would become?

Now the Appellate Division has revisited the issue (minus theatrical references). In D.M.R. v. M.K.G., the Appellate Division acknowledged the issues courts have faced since Pathri , and addressed the challenge of ensuring that remote hearings are as fair as possible:

Little did we know that within two months our entire court system would begin to rapidly transform from in-person to virtual court proceedings, utilizing various remote video and telephonic platforms, in an effort to continue operations amid the social distancing measures necessitated by the COVID-19 pandemic. Since that time, New Jersey Courts have operated primarily remotely via platforms like Zoom, Microsoft Teams, and telephone conferences, with the goal of preserving the quality of justice our courts have traditionally striven to provide when court was conducted in-person. Trial courts and staff have undertaken a herculean effort in rising to this unprecedented challenge. However, despite their efforts, the formality of the courtroom can fall away. Everyone may not have the same access to technology. These proceedings often involve unrepresented litigants unfamiliar with court proceedings, which presents its own challenges now amplified by the virtual proceeding. Moreover, judges do not have the same mechanisms to control the proceeding that they would have in a live courtroom

It was “through this lens” that the Appellate Division addressed the issues in D.M.R.

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“This case is about the mattress and a pen”

by: Peter J. Gallagher (LinkedIn)

Maybe it is because I was a journalism major in college, but I am a sucker for a good lede. The district court’s decision in West v. Emig has a great one. It begins:

Christopher H. West is an inmate who has frequently ingested inedible objects. During his incarceration, he has eaten the foam from inside his mattress, and he has also swallowed writing instruments, including pens. This case is about the mattress and a pen.

I was hooked, but then it got even more interesting.

Plaintiff claimed that, at two different prisons, employees removed the mattress from his cell “after he ingested foam from inside [the] mattresses.” Instead of following the grievance policy, which is typically required before an inmate can sue, West sued two former prison employees in federal court in Delaware, seeking $5 million in damages from each. He argued that he could not pursue his administrative remedies because, you guessed it, “the prisons denied him a pen needed to complete the prison grievance form – albeit for his own safety.” In other words, they removed his mattress because he ate the mattress foam, but he could not file a grievance about that because they previously removed his pen because he had a habit of eating his pens.

When plaintiff sued, defendants moved for summary judgment. They raised four defenses, including failure to exhaust administrative remedies. The district court only addressed that defense, and granted defendants’ motion based on it. Plaintiff appealed, and the Third Circuit reversed.

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Third Circuit Answers The Question: Can a Texan Living In Georgia Sue Two Dozen Florida Defendants In New Jersey Federal Court?

by: Peter J. Gallagher (LinkedIn)

I don’t usually write about personal jurisdiction because it is . . . well . . . a little boring. But I do enjoy creative legal arguments (including creative arguments about jurisdiction), so I am going to make an exception here.

The Third Circuit recently issued its decision in in Robinson v. Section 23 Property Owner’s Association, Inc., which is the latest in what appears to be a running battle between plaintiff and more than two dozen defendants arising out of the foreclosure of defendant’s mother’s home. The district court described the various lawsuits plaintiff filed as follows:

The subject of all of [plaintiff’s] cases, including this case, arises out of his residence at his mother’s home in Florida. Beginning with disputes over the enforcement of deed restrictions, such as parking and property maintenance, Plaintiff’s cases have evolved into claims against essentially every person or entity that has been involved either directly or indirectly in the ultimate foreclosure of the . . . house and his resulting eviction from the property. The main thrust of Plaintiff’s claims is that all the Defendants have conspired to illegally purchase his mother’s home and steal all of his personal and intellectual property inside. Plaintiff alleges that Defendants have done so to quash his investigation of their international money laundering and fraud scheme.

If this sounds like a Florida-centric dispute, it is. None of the defendants had any meaningful connection to New Jersey, so they all moved to dismiss plaintiff’s lawsuit for lack of jurisdiction. In response, plaintiff made several, traditional jurisdictional arguments, including that defendants were subject to jurisdiction in New Jersey because his mother currently lived in New Jersey and because she had filed for Chapter 7 bankruptcy in New Jersey and listed the Florida property as an asset in her bankruptcy petition.

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