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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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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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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In California, a bee is a fish. (At least for purposes of California’s endangered species act.)

By: Peter J. Gallagher (LinkedIn)

In a recent decision, Almond Alliance of California v. Fish and Game Commission, a California court was asked to determine whether bumble bees fall within the definition of a “fish” in the California endangered species act. The issue arose when California attempted to classify four types of bumble bees as endangered species. Under California law, “fish” can be classified in this manner, so if the bees qualified as “fish” then they could be protected. Seems like an easy question to answer, right? But remember, this is California.

The court held that a bee is a “terrestrial invertebrate” and all invertebrates – not just ones that spend at least some of their time in the water – are included under the definition of “fish” in California’s endangered species act. Good news for bees; bad news for the English language.

In Almond Alliance, the court acknowledged that “[a] fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments.” But the California legislature defined “fish,” for purposes of its endangered species act, as a “wild fish, mollusk, crustacean, invertebrate, [or] amphibian.” According to the legislative history, this expanded definition would “permit closer control and monitoring of the harvest of species such as starfish, sea urchins, sponges, and worms,” and would allow the state to protect “amphibians (frogs) and invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.” No mention of bees or insects anywhere in the definition or legislative history, but the court nonetheless held that a bee is “terrestrial invertebrate” and the definition of fish includes “invertebrate,” so a bee is a fish.

Of course, the court did not hold that a bee is a fish for all purposes. It just held that a bee satisfies the definition of “fish” in the California endangered species statute, so it can be protected. But still, it seems odd to acknowledge that a fish is, “of course,” “commonly understood” to mean an aquatic creature, then review legislative history that references full-time aquatic creatures like mollusks (snails, clams, squids) and crustaceans (crabs lobsters, shrimp) and part-time aquatic creatures (amphibians), only to then conclude that an insect that, as far as I know, avoids the water entirely, is a fish. I am all for reading the terms of a statute literally, but this seems a bit much for me.