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."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.
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.
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.
