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.

Phish concert in Mexico leads to disciplinary charges against lawyer

by: Peter J. Gallagher

This is not what I thought happened at Phish shows. I have been to two of them and they were many things – tedious, a little cultish – but not this.

Colorado disciplinary authorities recently issued a public censure to a lawyer for events that arose out of a Phish concert in Mexico. Allegedly, a lawyer, “while naked, shoved [a woman] and other crowd members when [the lawyer] attempted to rush the stage at the concert.” But here is the best part: The naked, stage storming lawyer – let’s call him Runaway Jim – is not the one who received the censure!

No. The alleged victim’s friend, a lawyer, wrote a demand letter to Runaway Jim that caused her to be censured.

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Practice tip: Don’t coach your witnesses . . . during a break at trial . . . on tape . . . after the trial court warns you not to.

by: Peter J. Gallagher

For a while, people enjoyed sharing interesting, and often cautionary, tales from Zoom hearings and trials. (Who can forget Zoom cat lawyer?!?) That doesn’t seem to be as much of a thing anymore, perhaps because we have all become more accustomed to and adept at virtual hearings. But a recent unpublished decision from the Appellate Division shows that there are still lessons to learn.

In Hernandez v. La Fortaleza, Inc., plaintiff sued defendant after she allegedly slipped on an “uneven and raised . . . walking surface” at defendant’s restaurant. The case was bifurcated and proceeded to a virtual trial on liability. Before trial, the judge instructed counsel on the logistics of the virtual trial, including where witnesses could be seated, who could be in the room with them, who could speak with them, and how exhibits would be presented to them. Plaintiff’s counsel indicated that plaintiff would be his first witness and that counsel would not talk to plaintiff about her testimony during her testimony, “even if they broke for lunch.”

During plaintiff’s testimony, plaintiff’s counsel shared his screen with plaintiff to show her a picture of defendant’s property. Counsel asked plaintiff to use the cursor on her computer to identify the location of the fall. Plaintiff had trouble doing so and it appeared to the trial court that someone else was in the room helping her. When asked, plaintiff confirmed that it was her husband. Because he was a co-plaintiff, the trial court allowed him to stay in the room but instructed him to stand where he would be visible on the screen. When plaintiff continued having trouble using the cursor to identify where she fell, the trial court recessed for lunch and instructed plaintiff’s counsel to “straighten out” the issues “with the exhibits and the utilization of the cursor.”

This is when things took a turn for the worse, at least for plaintiff and her counsel.

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If you like your virgin bloody marys with olives, make sure the olives are skewered.

by: Peter J. Gallagher

This was the lesson from Longinetti v. Ocean Casino Resort, a recent unpublished Appellate Division decision.

Plaintiff was playing slots at the Ocean Casino Resort in Atlantic City and drinking a virgin bloody mary. The drink was prepared with ”non-skewered olives stuffed with pimentos.” Unfortunately, one of the olives had a pit. When Plaintiff bit down on that olive, he broke his tooth. He sued the casino for the costs he incurred to repair his tooth.

At trial, plaintiff testified that the casino “normally” served its virgin bloody marys with three or four stuffed olives on a skewer. But this time, the olives were floating in the cup. So he had to “try to drink them out of the cup . . . and eat them that way.” He was surprised when he bit into an olive with a pit because he “probably had thousands of olives and never one with a pit.” (As a side note, if plaintiff consumed all of his olives in virgin bloody marys, then he’s had more than 250 virgin bloody marys in his lifetime, which seems both unlikely and unpleasant.) Plaintiff claimed that the bartender “should have skewered the olives and would have known there was a pit in the olive and thrown it away.”

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NJ Lawyers Can (Ethically) Use And Invest In Cannabis

By: Peter J. Gallagher (LinkedIn)

In a recent opinion, the New Jersey Supreme Court Advisory Committee on Professional Ethics ruled that attorneys may use cannabis and operate/invest in cannabis businesses. The Committee noted that this conduct “remains technically illegal under federal law,” but does not, “as a general matter,” violate the Rules of Professional Conduct.

The Committee analyzed the issue under RPC 8.4(b), which prohibits an attorney from committing a “[1] criminal act that [2] reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.” The Committee briefly recounted the history of cannabis regulation, both in New Jersey and on the federal level. It observed that, while legal under New Jersey law, the production, sale, and use of cannabis is still a “criminal act” under federal law. So the question before the Committee was whether this criminal act “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.”

The Committee held that it does not. This did not appear be a terribly difficult decision for the Committee. Instead, it succinctly concluded that “conduct that fully complies with State law” does not reflect adversely on the lawyer’s character. Moreover, although “technically illegal” under federal law, the Justice Department has “publicly taken the position that it will not enforce the federal law [criminalizing cannabis] in certain situations.” Therefore, the Committee held that “lawyers, like other New Jersey residents, may engage in this conduct.”

But the Committee cautioned that cannabis, “like alcohol, prescription medications, and certain over-the-counter drugs, can affect a lawyer’s ability to provide competent representation of clients.” So a lawyer must be careful “not to use cannabis in a manner that would impair the lawyer in the provision of legal services.”

And, as it relates to owning or investing in cannabis businesses. the Committee reminded attorneys that they must (a) “strictly comply with Rule of Professional Conduct 1.8(a),” which prohibits a lawyer from entering “into a business transaction with a client or knowingly acquir[ing] an ownership, possessory, security or other pecuniary interest adverse to a client unless” certain conditions are met, and (b) be aware of potential conflicts of interest under RPC 1.7(a)(2) if they invest in a client’s business.