Insulting Halloween tombstone display

by Walter Olson on May 15, 2008

Judge Diane Sykes, on behalf of a three-judge Seventh Circuit panel, disposing of a suit that arose over whether the plaintiffs’ Halloween display of “wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors” was or was not Constitutionally protected, and if so what the consequences were for their suit against police:

In closing, a few words in defense of a saner use of judicial resources. It is unfortunate that this petty neighborhood dispute found its way into federal court, invoking the machinery of a justice system that is admired around the world. The suit was not so wholly without basis in fact or law as to be frivolous, but neither was it worth the inordinate effort it has taken to adjudicate it–on the part of judges, jurors, court staff, and attorneys (all, of course, at public expense). We take this opportunity to remind the bar that sound and responsible legal representation includes counseling as well as advocacy. The wiser course would have been to counsel the plaintiffs against filing such a trivial lawsuit. . . . Not every constitutional grievance deserves an airing in court. Lawsuits like this one cast the legal profession in a bad light and contribute to the impression that Americans are an overlawyered and excessively litigious people.

No live link to this site, though, apparently. (opinion link fixed now, sorry)(via Bashman). More: WSJ law blog, SkepticLawyer (Australia).

{ 13 comments }

1 Eric Turkewitz 05.15.08 at 8:16 pm

No link? Sue the bastards.

2 KickahaOta 05.15.08 at 8:19 pm
3 Jason Barney 05.15.08 at 9:17 pm

It caught my eye that Sykes used the adjective “overlawyered” when my brief review of online dictionaries shows no such word. Is it a reference to the influence of this site, perhaps? Is “Overlawyered” now a real adjective in our lexicon like the verb “Google” (Google it/look it up) was originally only a noun?

4 David Wisniewski 05.15.08 at 11:33 pm

Sykes got this one wrong. If this case really was “frivolous”, why wasn’t it disposed of on a summary judgment motion at the trial court? Why didn’t the defendants seek sanctions against the plaintiffs for filing a “frivolous” complaint?

I think this is a classic case of an out-of-control cop trying to impose his will upon others by threatening them with arrest. To quote Cartman, “Respect My Authority!” There was no immediate danger here to anyone. If anything, the neighbor assaulted the person who put up the halloween decorations (who conveniently, wasn’t arrested or charged with assault). Why couldn’t the cop go to the local D.A. and get an legal opinion on the halloween decorations before making up the law himself? I don’t understand why the courts give so much deference to the police and let them get away with things like this.

5 Ted Frank 05.16.08 at 1:51 am

David, reread the opinion: Sykes says that the suit isn’t “frivolous” in the narrow technical sense of the word.

6 trivial tom 05.16.08 at 3:09 am

Trivial does not equal frivolous.

If you steal 5 bucks from me it is trivial, suing you for conversion would not be frivolous.

7 Anonymous Attorney 05.16.08 at 10:29 am

We might all agree with Judge Sykes’ comment at the end of the opinion, but it stands in sharp contrast with the message the legal community (the bar, the bench and the academy) constantly drums into our heads: everyone gets their day in court, lawsuits can solve all problems, justice delayed is justice denied, we can’t close the courthouse doors when people are in need, etc. If the legal community finds itself exasperated by endless litigation over small matters, it might look to itself for reasons why. The bench in particular can be faulted: judges through the years have been quicker to take on more and more causes that would have in an earlier time been kicked, usually on “social justice” grounds.

8 David Wisniewski 05.16.08 at 3:28 pm

Ted Frank,

While you are correct, Sykes’ opinion did say that it was a “trivial lawsuit” which some read as a code-word for meritless or frivolous. I don’t understand what Sykes is complaining about. It is not for a Judge to say that a lawsuit was “trivial” – either the complaint is frivolous or it isn’t – there is no in-between. What Sykes might think is “trivial”, someone else, such as the Plaintiffs here, think is ripe for adjudication. It seems to me that Sykes is complaining that he had to do the job that he is paid for – to decide the merits of a case. If Sykes thinks that he can’t do that, then perhaps he should find a new line of work.

9 Ted Frank 05.16.08 at 4:32 pm

Trivial means trivial, and is orthogonal to the dimension of “frivolous/not-frivolous” in the technical legal sense of “frivolous.” If you want to criticize Judge Sykes because you have private meanings for common English words and legal terminology and she’s not honoring your secret definitions, that’s a different issue. (Among other matters, you seem to have a secret definition for the technical legal term “ripe.”) That you don’t begin to see the societal problems with this sort of lawsuit demonstrates that you’re precisely the type of lawyer that Sykes is criticizing for good reason.

10 MF 05.16.08 at 6:17 pm

Note to David W.: “Sykes” is a ‘she’ – Diane Sykes, one of the names who is so highly respected that her name popped up when we were all discussing who would get the SCOTUS spot that ultimately went to Alito. That’s not to say that her opinions will always be spot-on, but I do believe it lends even that more weight to her position.

11 BladeDoc 05.17.08 at 9:54 am

Unfortunately for the argument above the first definition of frivolous in my online dictionary is “Unworthy of serious attention; trivial: a frivolous novel.”

The publicity problem with lawyers in this matter is that by common understanding and “clear English” the lawsuits such as this are in fact frivolous but the legal definition thereof flies in the face of basic understanding. I am cognizant of the legal definition but I (like many non-lawyers) think it’s BS.

12 Ted Frank 05.17.08 at 10:08 am

Just so, BladeDoc. That’s why I distrust the term “frivolous”; we often see anti-reformers use the word dishonestly, sometimes shifting meaning in the same paragraph. I discuss this June 17.

13 LisaMarie 05.17.08 at 7:58 pm

Maybe I’m missing something here. The original dispute may have been trivial. It does not, however, seem trivial that you can settle petty disputes with your neighbors by having the cops threaten to arrest them for conduct which is not actually illegal. If there shouldn’t be any legal recourse for this couple, does that suggest that I can get back at any of my neighbors who piss me off by finding a cop who will tell them their actions are breaking the law and they’ll be arrested if they don’t stop, regardless of whether that is in fact true? Doesn’t that raise some serious legal questions?

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