Can You Serve Legal Documents Via Pigeon?

It's been a while, but I'm back to answer the important questions. Today's pigeon-themed inquiry is not inspired by any news stories or current events. Instead, it popped into my head and demanded an immediate answer. Those who would like to know the answer, and learn some trivia about pigeons and related laws should read on.

As a bit of background, carrier pigeons (or homing pigeons) are pigeons that have been bred to find their way back to a fixed point even after being transported over long distances. Pigeons may be trained to carry small packages containing messages or other items. Because pigeons can only return to a fixed point, the person sending the message must have a pigeon that will return to the recipient's location. As this New York Times article details, pigeons have been used for sending messages, samples of blood, and other items over long distances, and have been employed in multiple wars to send communications from the field. In the John Wick universe, the Bowery King uses pigeons to send messages and small objects.

Naturally, this prompts the question of whether pigeons may be used to effectuate service of pleadings or documents in litigation. Case law on whether sending a document by pigeon constitutes valid service is limited. From what I could find in a cursory search, no US court has directly addressed a situation where a party has attempted to serve a legal document on someone using a pigeon. A couple courts have considered pigeon-service as a hypothetical scenario, but both appear to disapprove of the practice. 

In Geiling v. Wirt Financial Services, Inc., No. 14-11027; 2014 WL 8473822 (E.D. Mich. Dec. 31. 2014), the plaintiffs took issue with documents that had been produced in discovery that contained the plaintiffs' social security numbers, claiming that the mailing of these documents violated a Michigan state law against transmitting full social security numbers through the mail. The court noted an exception to this rule for documents sent by mail pursuant to legal discovery or process. The plaintiffs argued that this exception should not apply and the court disagreed, noting that the Michigan Court Rules envisioned that parties would produce documents in discovery through first-class mail. The court further suggested that "parties sending documents by untrustworthy means, carrier pigeon for example, could be faulted for operating outside normal discovery bounds," but not parties using standard methods to mail documents. (emphasis added). This suggests that the court would view service by carrier pigeon as a method of service outside of normal discovery practices, but a direct ruling on the issue must wait for another day.

In Seibold v. Commissioner of Dept. of Motor Vehicles, No. HHBCV136019840S; 2014 WL 565905 (Ct. Sup. Ct., Jan. 9, 2014), the court addressed whether a party had properly served an appeal by fax on the Office of the Attorney General, even though the rules required service by certified mail or personal delivery. The party claimed that because the Attorney General had actual notice of the appeal and had not been prejudiced by the failure to make proper service, her case should not be dismissed. The court rejected the plaintiff's argument, noting that at "its logical extreme" the argument would allow "service of the appeal on the agency by any means, including by a carrier pigeon, as long as the agency actually receives the appeal and is not prejudiced." (emphasis added). This, the court concluded, was not supported by statute or case law.

In summary, while courts have not directly addressed a situation where a party has attempted service using a pigeon, the disapproval of the method expressed by the few courts that have contemplated such a scenario means that it is probably is not advisable to do so.

Practically, service by pigeon is unlikely to catch on. The most apparent barrier to wide usage of homing pigeons is the fact that the person sending a document via pigeon must already have a pigeon in their possession that will return to the recipient. This suggests that a network of homing pigeons trained to deliver documents to law firms and courts must be supported by a secondary network of delivery personnel who take the pigeons from the recipients to the senders. Pigeons may be seen as redundant if a system for their physical delivery is already in place.

Another potential criticism of the practice is that even the smallest filing or item of correspondence is too large to be carried by a pigeon. The answer to this, however, is that these documents could be loaded onto tiny flash drives that could, in turn, be deposited into a pack that the pigeon can carry.

States considering permitting service via pigeon may be encouraged to learn that there are already legal barriers in place to prohibit interference with homing pigeons. In Pennsylvania, for instance, it is a summary offense to shoot, maim, or kill a homing pigeon. Similar restrictions exist in Michigan, Virginia, and Wisconsin. Laws like these may assuage concerns that interlopers will interfere with pigeons used for legal service.

Impossibility, What

If you're looking for inspiration in the California Civil Code this weekend, look no further than section 1597:

IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is impossible in the nature of things.

The first two words of the statute appear to have been dictated by someone who had expected an impossible contract to be performed, but just learned that the entire contract was void under California law.

I prefer the statute standing alone with no further explanation. But readers interested in learning more can start by knowing that it is not legally impossible to build and operate a sawmill, while ensuring that no sawdust or debris from the mill fall into a stream. Peterson v. Hubbard, 9 P. 106, 107 (1885). It is, however, impossible to grade and level a parcel of land on which there are many trees without removing some of those trees. Greathouse v. Daleno, 57 Cal. App. 187, 190 (1922).

The Flawed Ideal of the Unfazed Lawyer: A Response to Volokh

Yesterday I saw this series of tweets by Matthew Stiegler regarding Professor Eugene Volokh's decision to use the n-word in class, and Volokh's arguments for doing so. Stiegler refers to Volokh's post here where he notes that the dean of UCLA Law School had issued an apology for Volokh's behavior, which states:

Earlier in the year, Professor Eugene Volokh used the "n-word," both in class—in teaching a First Amendment case—and outside of class when recounting the incident to a colleague. As you may know, Professor Volokh has strong views about why he chooses to use incendiary language—even when vile—in his classroom, without euphemism or alteration. While he has the right to make that choice as a matter of academic freedom and First Amendment rights, so long as he is not using this or other words with animus, many of us—myself included—strongly believe that he could achieve his learning goals more effectively and empathetically without repeating the word itself. That is equally true in casual settings outside the classroom. Slurs, even when mentioned for pedagogical purposes, hurt people. The n-word is inextricably associated with anti-Black prejudice, racism and slavery; it is a word that carries with it the weight of our shameful history and the reality of ongoing anti-Black racism. I am deeply sorry for the pain and offense the use of this word has caused, and I very much respect the important work our Black Law Students Association undertook, using speech to counter speech, in the flowchart they distributed around the building.

Volokh's reply?

I want to respond here by explaining why I think I was right, and why I will continue to accurately quote things in class and outside it.

Volokh offers five (5) justifications for his use of the word. Stiegler took particular issue with one of them:

[4.] Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be. They need to read cases that contain nasty words and describe nastier actions.

. . .

And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material. They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down.

. . . 

I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else. I think that, as law students and law professors, we should follow this example.

Volokh's argument relies on an inaccurate view legal practice and the ideal attorney, does not account for the dynamic between professors and students, and fails to acknowledge the impact that his words have on his audience.

Does Quartering Troops in Hotels Implicate the Third Amendment?

With protests sweeping the nation, various cities have called on the National Guard to provide support for law enforcement officers. The District of Columbia is one such city, and among the soldiers sent to DC were National Guard Soldiers from Utah. An NPR report quotes a National Guard spokesperson, who stated that the National Guard soldiers had been quartered at the hotel and paid "government rates" for the housing.

Fast forward to today, where continued protests and criticism of the presence of troops has started to take a toll. The Salt Lake Tribune reports:

Utah National Guard soldiers and other forces from states deployed to the nation’s capital were forced out of their hotels on Friday morning in what Sen. Mike Lee called an eviction by an “ungrateful mayor.”

The mayor of the District of Columbia, Muriel Bowser, said this week that she wanted National Guard troops out of the district, which has seen days of protests — some of which have been violent — over racial injustice and the death of black Americans at police hands.

Utah’s 200 soldiers in the nation’s capital had been staying at a Marriott hotel near downtown Washington since they’re activation on Monday but were checking out Friday after being deployed to various parts of the capital city until the early morning hours.

The Utah Guard had until noon Eastern Time to depart their hotel and lodging and other accommodations were “still up in the air for this evening,” said Lee's spokesman Conn Carroll.

 Lee voiced his complaint on Twitter in the following tweets:

Just heard that Mayor Bowser is kicking the Utah National Guard out of all DC hotels tomorrow. More than 1200 troops from 10 states are being evicted. This is unacceptable. 1/2

— Mike Lee (@SenMikeLee) June 5, 2020

These brave men and women have risked their lives protecting DC for three days. Rioting, looting, arson, and vandalism have all disappeared bc these soldiers served. And now they are being kicked to the curb by an ungrateful mayor. This must be stopped. 2/2 pic.twitter.com/YYyctKvUqN

— Mike Lee (@SenMikeLee) June 5, 2020

People on Twitter were quick to respond by arguing that Lee was calling for the quartering of soldiers in hotels--a position they argued was inconsistent with the Third Amendment, which states:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The Salt Lake Tribune noted this response from Lee's spokesperson to the Third Amendment issue:

Carroll said the issue has nothing to do with the Constitution’s 3rd Amendment — which prohibits forcing a homeowner to quarter troops without the owner’s consent — but a political move by Bowser.

Twitter is abuzz with debate over the issue, with some people claiming that the Third Amendment will finally get some attention, and others arguing that this sentiment is overblown. There seems to be an assumption that the officers were removed as a result of the Third Amendment being invoked by Mayor Bowser, but I have seen nothing suggesting that this is the case.

A lot of this talk is off the cuff, and bereft of case law and authority. Maybe these commentators don't realize that at least one court has addressed Third Amendment claims before. Maybe they are fair weather Third Amendment enthusiasts (unlike myself, and the National Anti-Quartering Society). Whatever the explanation may be, here is the in-depth analysis of the Third Amendment questions you were undoubtedly waiting for.

Has President Trump Already Pardoned Roger Stone?

There are a lot of people out there who generally express reasonable opinions and seem normal, but who nevertheless are willing to entertain the odd outlandish belief. You may get through your workday without incident while believing that the world is flat, that we are living in a computer simulation, or that the spelling of "The Berenstain Bears" is evidence of a parallel universe. Indeed, you may believe all of these things and still get along just fine with your friends and coworkers.

I'm not here to judge you. Instead, desperate for distraction from quarantine and curfews, I've cooked up my own wild theory--a theory that I may have fooled myself into believing is true. Maybe I'm right. Or maybe I've just been stuck inside for too long.

News outlets have reported for some time, with renewed interest today, that President Trump may be about to pardon Roger Stone, who was sentenced to three years in prison back in February after being convicted of lying to authorities, obstructing a congressional investigation, and witness intimidation. My wild theory is that Stone has already been pardoned as a result of Trump's tweets.

From Politico, earlier today:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe. 

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer. 

“This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!” 

Trump went on to share the tweet Thursday morning, writing in his own accompanying message: “No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night!”

Here is the tweet:

No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night! https://t.co/HHg24tcZrx

— Donald J. Trump (@realDonaldTrump) June 4, 2020

This is not the first time Trump has tweeted something like this. Kirk wrote a similar tweet criticizing Stone's conviction back in April, which also prompted a response from Trump:

This is a disgraceful situation! https://t.co/s2qZSrGw6U

— Donald J. Trump (@realDonaldTrump) April 18, 2020

Politico and other outlets are reporting that Trump's tweet today appears to be a promise by Trump to pardon Roger Stone, as his suggestion that Stone "can sleep well at night" strongly suggests that Stone will not end up spending the night in prison (because he will be pardoned).

I'll go a step further and suggest that there's an argument to be made that this tweet itself (and his April tweet) constitute a pardon of Roger Stone. 

City in Japan Proposes Broad "Distracted Walking" Ordinance

The Independent reports:

Politicians in Yamato, about 25 miles southwest of Tokyo, have put forward a bill that could make it illegal for people to gaze at their devices while walking. 

The bill was submitted to the city’s assembly on 1 June. If passed, the law would come into effect from 1 July.

Officials said that people were unlikely to be punished for flouting the proposed new measures. 

Instead, the law has been designed to keep pedestrians safe when crossing roads, officials added. 

People are being encouraged to use their devices while standing in a spot where they are unlikely to pose a hindrance to others passing by.

The Daily Mail reports on the ordinance as well, claiming that city politicians "allegedly claim there has been an increase in injuries among people walking while distracted by their phones," and that this ordinance, if passed, would be the first such restriction on phone use while walking in Japan.

Both outlets cite various statistics regarding injuries resulting from distracted walking. The Independent cites a study by a Japanese telecom firm which simulated what would happen if 1,500 people crossed the Shibuya pedestrian crossing in Tokyo if all were looking at their smartphones--noting that there would be: "446 collisions, with 103 people getting knocked down while 21 others dropped their phones." The Independent and Daily Mail also refer to this study authored by researchers at the University of Calgary, which reviewed 14 studies and found that mobile phone conversation and text messaging increased rates of hits and close calls in intersections--with texting having a greater impact and resulting in decreased rates of looking left and right prior to crossing the street.

Because I cannot find a full text version of the cited University of Calgary study, it is difficult to evaluate--although the authors note that "a variety of study quality issues limit the interpretation and generalisation of the results." As for the telecom firm simulation, its assumption that absolutely everyone in the intersection would be on their phone is somewhat extreme. Indeed, researchers working for the city observed far lower rates of cell phone use, reporting a 12 percent user rate after observing 6,000 people at two "stations" in Yamato.

This proposed ordinance would be far broader than ordinances in US cities such as Honolulu, Hawaii, and Montclair, California. While those ordinances apply to cell phone use while crossing a street, the proposed Yamato ordinance would apply to "city streets and sidewalks as well as 'shared public spaces' such as plazas outside train stations." While the impact of the statute is offset by its lack of a punishment provision, its application to pedestrians who are not crossing streets is the first such ban of which I am aware.

I generally oppose bans on "distracted walking," as they tend to be based on studies and statistics that are uncertain at best, and because they criminalize common behaviors, which invites selective enforcement of the law. Yamato's ordinance is even broader, as it targets pedestrians both on and off the street. Additionally, the ordinance appears to have little basis in evidence, as most studies warning of potential injuries from pedestrian cell phone use stem from use of phones while crossing the street. Here's hoping that the ordinance fails, as it otherwise may serve as a model for other cities, states, and countries eager to implement their own bans.

Yes, It's Possible for a Dead Person to Win at Trial by Combat

I'm writing a paper on trial by combat in my spare time because these days, what else is there to do? I've written about the subject before, both on this blog and in an article I coauthored with my former law school classmate, Raj Shah. Why I have such an enduring interest in the subject is unclear. Perhaps after days spent working on various civil litigation matters, reading accounts of cases where people physically battle each other to resolve their disputes makes my job seem calm by comparison.

I found one particularly quirky story of trial by combat in the short article, His Body Shall be Brought to the Lists, by W. Croft Dickinson. Dickinson notes that, in cases of trial by battle that involve "a cause touching life and limb," the party responding to the accusation of the crime (the "defender," or in a more modern sense, the "Respondent"), is obliged to appear for the battle within two weeks. If the Respondent dies within that time, his pledges (people who swore that he would appear) would bring his corpse to the area where the battle was to take place (the "lists.") After all, they had sworn an oath that they would ensure that the Respondent would appear and would make sure that their oath was fulfilled, even if the Respondent had died.

Dickinson then describes what happens when a dead body is brought to the lists. From "The Lawe of Armes Within Listis," Dickinson provides the following quoted account--with very little clarification or explanation:

It mycht fal sa that the appellour deis before the day; his borowis, quilk ar bound wndir gret panis, cummis and enteris his ded cors within the barreris to freith thaim of thair borowgang. The defendour, lik as he fand borowis, is enterit within [the] barreris; he findis the provour ded, and he can nocht sla a slane man; and he him self wnpurgit of the crime quhilk that the provour, that thair is deid, put upoun him. Than has he na recover bot to cast this ded cors our the barreris or the day be gane, or ellis the frendis of the ded man] may allege that the luffand man had tynt his actioun and ask him to be justifeit thairfor. Bot it mycht be allegit that [[an] assise war metast than; or ellis a campione for the appellour that is ded to mak gud it that he tuk apon hand, gif the juge and partii will admytt him.

Bot as to that purpose I haf herd that that samyn impediment com anys to preiff and [lege in] the kynrik of spanye, that quhen the ded man wes laid within barreris he wes sa hevy that the liffand man was nocht of mycht to put this ded cors out of [the] barreris, and al the day wes in hand thairwith quhill the son wes gane doun. And than the frendis of the ded man come before the Juge and askit the law of armes, and allegit that the peremptour day wes passit and thair frend had wonnyn his accioun; for he had nothir said the word ne wes not put out of the feld thocht he wes ded. And sua be the law of armes the ded man wan the quyk, and he demanyt as culpable of that actioun; and this wald the law of armes. And sum sais that as this quyk man wald haf castin the ded man our the barreris he fell bakwart on his bak and the ded man on his brest, and cud nocht avoid him of him quhill the day wes passit. And sua be the law he wes jugit in the crime and justifeit hairfore.

To my knowledge, nobody has taken up the task of translating this account from the old Scottish vernacular that was in vogue at the time (around the 1400s). While I am sure there are people better qualified than me to do this, I have a paper to write and I'm not going to wait around for them to get to this, so here is my attempt at a translation:

It might happen that the appellour ["Appellant" -- the party making the accusation of the crime, and responding to a demand for trial by battle] dies before the day; in which case his pledges, who are bound under great pains, come and enter his corpse within the lists [the area where the fight was held], to free them of their responsibility.  The defendour ["Respondent" -- the party accused of the crime, who demands trial by battle], along with his pledges, enters within [the] lists; he finds the Appellant dead, and he cannot slay a slain main; and he himself is unabsolved of the crime which that the appellant; who is there dead, put upon him.  At this point, he has no remedy but to cast the corpse out of the lists before the day is over [before sunset], or else the friends of the dead [man] may allege that the accused man is guilty of his alleged actions and ask him to be adjudicated guilty as a result.  But it might be alleged that that the respondent has met the challenge, as the Appellant's champion is already dead.

But as to that purpose, I have heard that same impediment came to proof in the country of Spain, and when the dead man was laid within the lists he was so heavy that the living man was not strong enough to put his corpse out of [the] lists, and was there all day until the sun went down.  And then the friends of the dead man came before the judge and requested the law of arms, alleging that the day had passed and their friend had won his action; for he had neither said the word ["recreant," or "craven" -- spoken to surrender the battle] nor was he put out of the field though he was dead.  And so, by the law of arms, the dead man defeated the accused, who was found culpable of his alleged conduct; and this was the law of arms.  And some say that as this accused man attempted to cast this dead man over the barriers, he fell backwards on his back, and the dead man was on his breast, and he could not free himself before the day had ended.  And so, by the law, he was judged in the crime and therefore adjudicated guilty.

Some notes on terminology: the "Appellant," is the party making a private accusation of a crime against another party--typically known as an appeal of felony or appeal of murder (in cases where involving allegations of murder).  This is not to be confused with a situation where a party appeals from some lower action (although in some cases, an appeal of felony or murder could follow after a party had been acquitted or pardoned of a crime). And while the term "trial by battle" may be more in line with language used in historic accounts of the practice, I use "trial by combat," as this is the more commonly used phrase today (thanks, Game of Thrones).

My reading of the text differs from the scenario Dickinson discusses at the start of his article.  Dickinson contemplates a situation where a party accused of a crime (the defender, or--in the terminology I chose, the "Respondent") dies before the trial by combat against the accuser, (aka the "Appellant," "appelour," or "provour") takes place. But the text discusses what happens if the Appellant dies before the battle--and the conundrum faced by the accused who finds himself unable to battle against a dead person.  The solution, apparently, is for the living to "put forth" the dead man from the lists, that is, toss him out of the ring--a seemingly simple task.

Not so for the poor fellow described in the story, who tried to throw his opponent's corpse out of the lists, but instead ended up being pinned under the body.  As he was unable to free himself before sunset, he was adjudicated to have lost, as the dead man had not been thrown out of the lists, nor had the dead man verbally signaled that he had surrendered.

As I am writing this, people all over the world are going through tough times. Many of us are stuck inside, some of us have lost our jobs or suffered reductions in pay, and all of us are stressed over the state of the economy and the health of the nation. Perhaps we can all take comfort in the fact that, at the very least, we haven't been found guilty of a crime because we failed to win at trial by combat against a dead person.

(NOTE: Translating old Scottish texts is not my day job, and I welcome any comments on words or phrases I messed up. The last sentence of the first paragraph was unclear, and my version is largely a guess based on context.  I translated "justifeit" as "adjudicated guilty," based on the context in which the term was used, and based on similar usage of the term in other sources.  I translated "borrowgang" as "responsibility," although it appears that this is a technical term that may be more akin to "suretyship."  I could not find a translation for "luffand," which I translated as "accused," based on the context.  The same is true for "wnpurgit," which received a whopping zero results on Google and which I translated as "unabsolved," based partly on the context and based on the similarity of part of the word to "purged.")

North Dakota's Maxims of Jurisprudence

A while back, I blogged about California's and Montana's maxims of jurisprudence. These are collections of statutes, or subsections of statutes, that set forth various maxims, canons of construction, or presumptions to aid in the interpretation and application of the law. Typically, the text accompanying the maxims notes that they are intended to aid in the just application of laws, and do not qualify any existing laws.

As a result of another weekend spent inside, I learned that North Dakota also has a statute setting forth a similar list of maxims. North Dakota Century Code § 31-11-05 sets forth North Dakota's maxims of jurisprudence:

The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application: 

1. When the reason of a rule ceases so should the rule itself. 

2. When the reason is the same the rule should be the same. 

3. A person must not change that person's purpose to the injury of another. 

4. Anyone may waive the advantage of a law intended solely for that person's benefit, but a law established for a public reason cannot be contravened by a private agreement. 

5. One must so use one's own rights as not to infringe upon the rights of another. 

6. One who consents to an act is not wronged by it. 

7. Acquiescence in error takes away the right of objecting to it. 

8. A person cannot take advantage of that person's own wrong. 

9. A person who fraudulently has dispossessed himself or herself of a thing may be treated as if the person still had possession. 

10. A person who can and does not forbid that which is done on that person's behalf is deemed to have bidden it. 

11. No one should suffer by the act of another. 

12. One who takes the benefit must bear the burden. 

13. One who grants a thing is presumed to grant also whatever is essential to its use. 

14. For every wrong there is a remedy. 

15. Between those who are equally in the right or equally in the wrong the law does not interpose. 

16. Between rights otherwise equal the earliest is preferred. 

17. No person is responsible for that which no person can control. 

18. The law helps the vigilant before those who sleep on their rights. 

19. The law respects form less than substance. 

20. That which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due. 

21. That which does not appear to exist is to be regarded as if it did not exist. 

22. The law never requires impossibilities. 

23. The law neither does nor requires idle acts. 

24. The law disregards trifles. 

25. Particular expressions qualify those which are general. 

26. Contemporaneous exposition is in general the best. 

27. The greater contains the less. 

28. Superfluity does not vitiate. 

29. That is certain which can be made certain. 

30. Time does not confirm a void act. 

31. The incident follows the principal, not the principal the incident. 

32. An interpretation which gives effect is preferred to one which makes void. 

33. Interpretation must be reasonable. 

34. When one of two innocent persons must suffer by the act of a third, the one by whose negligence it happened must be the sufferer.

North Dakota also has two other statutes (both accessible at the link above) which set forth conclusive and disputable presumptions. Section 31-11-03 is the list of forty disputable presumptions which contains several familiar concepts such as: "That a person is innocent of a crime or wrong" (subsection (1)); "That higher evidence would be adverse if inferior is produced" (subsection (6)); and "That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the tate or county where the book is published contains correct reports of such cases. (subsection (34)).  The list also contains some presumptions that the familiar reader will recognize from other states' lists of maxims of jurisprudence, such as: "That Private transactions have been fair and regular" (subsection (19)); "That things have happened according to the ordinary course of nature and the ordinary habits of life" (subsection (28)); That a thing once found to exist continues as long as is usual with things of that nature" (subsection (31)); and "That the law has been obeyed." (subsection 32)).

These maxims are virtually identical to most of California's maxims of jurisprudence, and are even listed in the same order.  There are some minor changes in the wording, primarily changes that make North Dakota's list gender neutral.  North Dakota's list overlaps with California Civil Code sections 3509 through 3543.  Missing from North Dakota's list are the following California sections:

3545. Private transactions are fair and regular.

3546. Things happen according to the ordinary course of nature and the ordinary habits of life.

3547. A thing continues to exist as long as is usual with things of that nature.

3548. The law has been obeyed.

As noted above, all of these missing maxims are included in North Dakota's list of forty disputable presumptions.

The statutes appear to be cited with relative frequency--often in cases involving equitable claims or defenses, such as equitable estoppel or the defense of unclean hands.  While a body of case law exists in support of these defenses, the statutes appear to provide a quick, go-to resource for a simple statement of the rule being applied. But as noted in the statute itself, the maxims have little independent force beyond that which is already set forth in statute or precedent.

Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

Amy Howe at SCOTUSblog writes:

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case is New York State Rifle & Pistol Assn., Inc. v. City of New York.  I wrote about this case back in January 2019 when the Court granted cert, noting that this was the first major Second Amendment case that the Court had agreed to hear in over a decade. Details on the ordinance at issue and the petitioners' challenge can be found there.

As I noted then, the Court was likely to overturn New York City's restriction in light of Kavanaugh's appointment. But after the Court agreed to review the law, New York City amended its rule so that people could transport firearms to second homes or to shooting ranges outside of the city. In its opinion today, the Court notes that this was the relief that the petitioners had sought.

While the Court's mootness determination avoids engagement with the substance of the Second Amendment challenge, several Justices either disagreed with the decision, or explicitly stated that the Court should take up a Second Amendment case.

Justices Alito, joined by Gorsuch and (for the most part) by Thomas, dissented. The dissent concluded that the case was not moot, and determined that New York City's ordinance violated the Second Amendment.  To quickly summarize the Second Amendment analysis: the dissent found that the New York City ordinance infringed on the right to keep a handgun in the home for self-defense because it restricted people from taking guns out of the home for certain purposes necessary to exercise that right, such as repairing the gun or taking the gun to a range for practice. The dissent found that the ordinance's restriction on taking firearms outside of the city to practice at ranges was impermissible, since gun ranges may not have the same models of firearms available, and because the City could not identify restrictions on taking firearms outside of municipal limits during the founding era. The dissent also took issue with the City's claims that the restriction served a purpose of promoting public safety.

This case originally looked like it would be the next major Supreme Court case to interpret the Second Amendment. With its mootness determination, the Court sidestepped this outcome. But the layout of the opinions gives a preview of the Court's next steps on the Second Amendment. Kavanaugh's concurrence all but confirms that he will join Alito, Gorsuch, and Thomas in voting to grant certiorari to a Second Amendment challenge in the near future, and once that happens this process will begin again.

[Updated 4/28/2020]

Kansas Man Demands Trial By Combat in Iowa Court

From the conversations, texts, emails, and messages of dozens of friends, coworkers, and former classmates (all of whom are dead-on when it comes to pinpointing my legal interests), I learned about this story of a Kansas man who demanded trial by combat in an Iowa divorce case.  The story was first reported a few days ago, but I've been busy.

Those who know me, who have read this blog, or who have read papers that I have co-authored should not be surprised that this case is right up my alley. 

The Des Moines register reports:

A Kansas man has asked an Iowa court to grant his motion for trial by combat so he can meet his ex-wife and her attorney "on the field of battle where (he) will rend their souls from their corporal bodies." 

David Ostrom, 40, of Paola, Kansas, claims in court documents that his ex-wife, Bridgette Ostrom, 38, of Harlan, has "destroyed (him) legally." 

He asked the Iowa District Court in Shelby County to give him 12 weeks "lead time" in order to source or forge katana and wakizashi swords, as first reported by the Carroll Times Herald. 

"To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," Ostrom argues in court records, adding that it was used "as recently as 1818 in British Court."

When reached by phone Monday, Ostrom told the Des Moines Register that he got the idea after learning about a 2016 case in which New York Supreme Court Justice Philip Minardo acknowledged that duels had not been abolished.

The story has been widely reported, but most of the other articles rehash the same points. Kevin Underhill at Lowering the Bar provides good legal coverage here, including a discussion of the relevant case law that Iowa's court would likely cite to reject Ostrom's request.

Here's a report on the story from KCTV5 News. It includes a video of an interview with Ostrom, who claims that "I'm not interested in physically causing harm to anyone." This is something of a shift in tone from the goal of rending souls from "corporal bodies" expressed in his moving papers.

(Ostrom later admitted that his demand contained a spelling error and that he had intended to write "corporeal bodies.")

If you want a copy of Ostrom's papers, or the response filed by his ex-wife's attorney, you're out of luck because none of the news outlets that are reporting and re-reporting this story have deigned them worthy to include for download in their stories. As far as I can tell, they cannot be obtained online. I'm hesitant to ask my firm's messenger service to send a runner to Shelby County, Iowa to obtain a copy of the papers, but I have not ruled the option out.

But back to the case. Unsurprisingly, Ostrom never had much of a chance of success in his motion. Indeed, the judge refused to consider his filing, or the response filed by his ex-wife's attorney in light of both parties' failure to abide by procedural requirements. Just because a form of dispute resolution is not specifically banned does not mean that a party can simply demand it once the case is being litigated in court.

Of course, if two parties are negotiating a dispute resolution provision in a private contract, this might be different. An arbitration by combat provision has been included in at least one contract of which I am aware. This 2016 New York Times article describes the contract behind the ownership of Zuffa, the promotion company that operates UFC:

The two brothers have equal stakes in Zuffa. And while there is no hint of tension between them, a lawyer insisted that their contract needed a dispute-resolution mechanism in case they ever differed over corporate strategy. Lorenzo had an idea: They would fight.

“A sport jujitsu match, three five-minute rounds,” he said. “Dana would be the referee. Whoever won got to vote the other guy’s shares.”

It has never come close to blows, the brothers say. But privately, each says that if combat were required, the other would win. “Frank’s getting ornery in his old age,” Lorenzo said. “Just kidding.”

To my knowledge, no court has litigated whether such a provision would be enforceable.

In the past, Ostrom would have faced the prospect of being barred from public office for engaging in trial by combat, as courts would likely view his proposed sword-fighting approach as a duel. But no longer, as Iowa in 1992 repealed Iowa's constitutional provision that prohibited those who had participated in duels from being eligible to hold public office. Good for them.

The court noted that it would take no action "[u]ntil the proper procedural steps to initiate a court proceeding are followed." For now, it appears that Ostrom's quest to bring swords to the courtroom has failed.

In any event, trial by combat has had yet another moment in the sun. The concept will likely now fade away for another several years until the next go-getter tries, and fails, to resolve a dispute with a legally sanctioned fight to the death. This is the way.