Mimesis Law
24 April 2019

KKKopf, The “Fuck You” Motion & The “Casey at the Bat” Opinion

June 22, 2016 (Fault Lines) — A very literate person made a comment on my post last week regarding Judge Persky.  He wrote:

Ok. I don’t know how everyone else feels, but after the past ten days please use all your powers, all your skills and give us an uplifting, life affirming, funny post. Let’s all take a one week break from all the BS of this world. I can’t bring myself to watch the news. It’s all day long. Ever read the case of the celebrated Missouri mule case. An ongoing saga involving two drunks, a wagon and a mule that collided. A never end indent lawsuit that went up and down the state courts in Missouri over five dollars (maybe it was fifty) about 120 years ago. I don’t have the cite handy, but I’ve read it several times. Really funny. I read somewhere (don’t think it was H&U) about the Missouri judge who authored same, and he apparently had several of this kind of opinion. You got anything like that from your decision portfolio that you could share? We could all use something light. No guns, bombs, murders, heinous crimes please. (Underline added.)

In a follow-on comment, our friend added, among other things, that I should review B.L. Lyman v. Horace Dale, 262 Mo. 353, 171 S.W. 352 (1914), a case about whether a mule was inherently dangerous. He added that I should pay particular attention to the concurring opinion of Justice Lamm about the mule in question and “the magnificent sum” of five dollars that was at stake.

So, I read the entire opinion, including the beautifully written and terrifically funny concurrence of Justice Lamm. (You should too!) The Justice concluded his concurrence this way:

Enough has been said to show that the ass is not without some rights in the courts even on sentimental grounds ; ergo if his hybrid son, tracing his lineage as he does to the Jacks of Kentucky and Andalusia, inherits  some  of  his  traits, he cannot be held bad per se. Q. E. D.

It is meet that a $5 case, having its tap root in anger (and possibly in liquor), should not drag its slow lengths through the courts for more than five years, even if it has earned the soubriquet of “the celebrated mule case.”

The premises herein and in the opinion of Brother GRAVES all in mind, I concur.

But our Fault Lines friend’s question still lingered. “You got anything like that from your decision portfolio that you could share?”  Although they pale in comparison to Justice Lamm’s memorable concurrence, I offer the following two cases for your edification and amusement.

Case One

There is a prisoner, whom I will call William. He files cases frequently. So much so that the Circuit has limited him to one case per month.

There is rumor floating around that he once filed a pleading using excrement to write out his views.  I cannot attest to that fact because I did not see or smell it, and for some reason the Clerk’s office appears to have disposed of it.

In any event, William does not like me.  He calls me “KKKopf,” which I understand to be a subtle suggestion that I belong to the Ku Klux Klan. For the life of me, I don’t know how William knows about my white hooded robe. Nor do I know how he learned of my penchant for burning stuff on my neighbor’s lawn every Halloween. (My neighbor is a white former IRS agent.) It is my own (but admittedly peculiar) “burning man” festival.

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But, I digress.

This one time (but not at band camp [tasteful but obscure reference to the classic 1999 movie, American Pie]), William filed what he artfully entitled as a “Fuck You Motion” for “KKKopf.” That aroused my interest.

So, I sent down to the Clerk an order to file.  It read: “William’s Fuck You Motion is denied with a hearty ‘you too!’”  Shortly thereafter the Clerk’s office called and said they would not file my order. I got annoyed. I said file my damn order.  At that point, a supervisory person from the Clerk’s office came to my chambers. She was distraught.

I told her again, file my order!  She begged me to rethink it.

Then she said, “Think of the children.” It was only then that I relented and struck the words: “with a hearty ‘you too.’”

I admit it. I’m a wuss.

Case Two

Next, I offer a partially abridged opinion that was actually filed. It got some local press. I hope the opinion speaks for itself. If not, the reader is either a moron or hates baseball. In either event, I hope that reader rots in hell.

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Casey At The Bat

by Ernest L. Thayer

The outlook wasn’t brilliant for the Mudville[1] nine that day;
The score stood four to two, with but one inning more to play,
And then when Cooney died at first, and Barrows did the same,
A pall-like silence fell upon the patrons of the game.

A straggling few got up to go in deep despair. The rest
Clung to that hope which springs eternal in the human breast;
They thought, “If only Casey could but get a whack at that­-
We’d put up even money now, with Casey at the bat.”

But Flynn preceded Casey, as did also Jimmy Blake,
And the former was a hoodoo, while the latter was a cake.
So upon that stricken multitude grim melancholy sat;
For there seemed but little chance of Casey getting to the bat.

But Flynn let drive a single, to the wonderment of all,
And Blake, the much despised, tore the cover off the ball;
And when the dust bad lifted, and men saw what had occurred,
There was Jimmy safe at second and Flynn a-hugging third.

Then from five thousand throats and more there rose a lusty yell;
It rumbled through the valley, it rattled in the dell;
It pounded on the mountain and recoiled upon the flat,
For Casey, mighty Casey, was advancing to the bat.

There was ease in Casey’s manner as he stepped into his place;
There was pride in Casey’s bearing and a smile lit Casey’s face.
And when, responding to the cheers, he lightly doffed his hat,
No stranger in the crowd could doubt t’was Casey at the bat.

Ten thousand eyes were on him as he rubbed his hands with dirt.
Five thousand tongues applauded when he wiped them on his shirt.
Then while the writhing pitcher ground the ball into his hip,
Defiance flashed in Casey’s eye, a sneer curled Casey’s lip.

And now the leather-covered sphere came hurtling through the air,
And Casey stood a-watching it in haughty grandeur there.
Close by the sturdy batsman the ball unheeded sped-
“That ain’t my style,” said Casey. “Strike one!” the umpire said.

From the benches, black with people, there went up a muffled roar,
Like the beating of the storm-waves on a stern and distant shore;
“Kill him! Kill the umpire ” shouted someone on the stand;
And it’s likely they’d have killed him had not Casey raised his hand.

With a smile of Christian charity great Casey’s visage shone;
He stilled the rising tumult; he bade the game go on;
He signaled to the pitcher, and once more the dun sphere flew;
But Casey still ignored it, and the umpire said, “Strike two!”

“Fraud!” cried the maddened thousands, and echo answered “Fraud!”
But one scornful look from Casey and the audience was awed.
They saw his face grow stem and cold, they saw his muscles strain,
And they knew that Casey wouldn’t let that ball go by again.

The sneer has fled from Casey’s lip, the teeth are clenched in hate;
He pounds with cruel violence his bat upon the plate.
And now the pitcher holds the ball, and now he lets it go,
And now the air is shattered by the force of Casey’s blow.

Oh, somewhere in this favored land the sun is shining bright,
The band is playing somewhere, and somewhere hearts are light,
And, somewhere men are laughing, and little children shout;
But there is no joy in Mudville-mighty Casey has struck out.           __________________________________________

 The plaintiffs, a sophomore in high school and his parents, seek a temporary restraining order. They want me to restrain the high school from prohibiting the student from playing baseball. The school barred the boy from playing this spring because he twice violated the school’s prohibition against consuming alcohol. Asserting a procedural due process claim, and despite the fact that the school afforded the boy and his parents two levels of appeal, the plaintiffs claim the rule against alcohol use is too vague to enforce.

On February 27, 2003, in the late afternoon, I took evidence and heard the arguments of counsel. I denied the motion for a temporary restraining order. In brief, here are my reasons.

[Citation to en banc opinion from the Eighth Circuit omitted. It took an en banc Court of Appeals opinion to establish a four-factor balancing test for simple-minded district judges to apply when granting or denying a preliminary injunction motion or TRO. Despite my well-known lack of balance, I love balancing tests.]

First, I found that the plaintiffs were not likely to prevail on the merits because there is probably  no property or liberty interest involved in playing high school baseball for a season. [string citations omitted despite the fact that they were almost on point.]

Second, I also found that there is no irreparable injury. The suspension is for one year only. After the boy serves the suspension, he will have two more years to chase fly balls and hit home runs. Thus, any loss he suffers now can be easily made up in the following years. Said simply, there is always another spring training.

Third, I concluded that the public interest does not favor a restraining order. Except in the most compelling cases, public schools should be run by those assigned by elected officials to run them, and not by geezers wearing black robes. While I know a fair amount about baseball and beer, I know virtually nothing about educating and disciplining high school students who drink beer and play baseball. Indeed, a very long time ago when I was young and brash (as opposed to my present state of fat and old), beer and baseball were my passions, but rules were not.

Lastly, while the balance of the harms may fall more heavily on our “phenom,” the other factors are more important. Thus, even if it is true that the school would suffer little if enjoined from enforcing the rule during this baseball season, and the boy  may lose a season playing our national pastime unless enjoined, that is not enough, given the other considerations, to warrant relief.

Accordingly, while the plaintiffs cry “foul,” the Columbus High nine may “play ball” without Joe C. Put another way, “two strikes,” and “you’re outa here!”

IT IS ORDERED that the request for a temporary restraining order (filing 3) is denied.

So, there you have it. One decision wasn’t issued because the Clerk’s office consists of a bunch of prudes, and then an opinion that was issued because the Clerk’s censors were asleep at the switch.

I hope I have satisfied the request of our Fault Lines commenter.  If not, I guess I must advise our friend that you get what you pay for.  Or, as I like to say, if you can’t afford justice, then you don’t deserve it. Q.E.D.?

Richard G. Kopf
Senior United States District Judge (Nebraska)

  1. For what it is worth, I am the only federal judge in Nebraska to have attended a real Mud Hens game. For more about those mighty fowl, see http://www.mudhens.com. [footnote in original opinion.] [By the way, the note is true. My hometown is Toledo, Ohio and that’s where the Hens hail from. Judge Joe Bataillon once told me he saw the Mud Hens play (he loves baseball) but I doubt his veracity. He’s a liberal.]

 

9 Comments on this post.

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  • Matt Norwood
    22 June 2016 at 10:54 am - Reply

    The baseball opinion is a keeper. But the Fuck You opinion would have put you in Lord Denning territory.

    • repenting lawyer
      22 June 2016 at 3:53 pm - Reply

      Do not recall Denning ever seeing Denning use the f word. It is a colonial thing.

  • phroggie
    22 June 2016 at 1:24 pm - Reply

    Not going to lie: “KKKopf” brought me a hearty chuckle. Do the Lovejoy clerks at least intercept you before you get to the bench wearing the wrong robe? If so, they seem like a wise bunch.

    • Richard G. Kopf
      23 June 2016 at 1:30 pm - Reply

      phroggie,

      Sorry for the late reply.

      What wrong robe?

      All the best.

      RGK

  • DaveL
    22 June 2016 at 2:37 pm - Reply

    what he artfully entitled as a “Fuck You Motion”

    Presumably, anybody other than Mrs. Kopf would lack standing to demand such relief from your court.

    • Richard G. Kopf
      22 June 2016 at 3:30 pm - Reply

      Dave L.,

      You are dirty old (or perhaps young) man. I love it.

      All the best.

      RGK

  • Anonymous
    22 June 2016 at 3:16 pm - Reply

    You have more than satisfied.

    My guess is that you made the spirit of judge Lamm smile with your opinion in case two.

    But he’s probably a little disappointed with the result in case one. Discretion is always the better part of valor, so he probably understands. It’s tough when they lay “for the sake of the children” on you. I can’t tell you how many tax increases I’ve paid on our house with that one. Of course I don’t really mind too much, because I’m a sucker with that line too.

    I can only hope that the.Columbus Nine still made it to the playoff’s that year. I wouldn’t want you haunted by any disgruntled ghosts who may have been baseball nuts when they walked the mid-west.

    Thanks for a great post.

  • Keith
    23 June 2016 at 11:58 am - Reply
    • Richard G. Kopf
      23 June 2016 at 1:24 pm - Reply

      Keith,

      You are ever so right, that old mule and Justice Lamm’s memorable concurrence deserves to be remembered and the Web citation will help further that just cause. It would make them both smile. Thanks a lot.

      All the best.

      RGK