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Commentary: Oh, the places judges go!

A U.S. Supreme Court opinion cited Dr. Seuss for the first time on Feb. 25, five days before what would have been his 101st birthday. The case was Yates v. United States, a name that has a nice Seussian rhyme (No. 13-7451).

Yates interpreted a federal statute making it illegal for a person to knowingly alter, destroy or make a false entry into “any record, document, or tangible object.” 18 U.S.C. §1519.

As the majority opinion put it, Yates, a shipping boat captain, “caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea.”

Were the fish tangible objects envisioned by the statute? No, the court ruled.

Yes, Justice Elena Kagan wrote in dissent: “A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term ‘tangible object’ in §1519, as no one here disputes, covers fish (including too-small red grouper).”

I assume that the red grouper triggered Justice Kagan’s association with “Red Fish” in the title of the children’s book by Dr. Seuss (whose real name was Theodor Geisel).

With that, a Supreme Court justice caught up with other judges, who have been citing Dr. Seuss since at least 1980. The most often cited Seuss source is “Horton Hears a Who”: “I meant what I said / And I said what I meant … / An elephant’s faithful / One Hundred per cent!” (ellipsis in original).

The citing, quoting and paraphrasing courts have been the Vermont Supreme Court, two intermediate state appellate courts, three U.S. District courts, and a U.S. Bankruptcy Court: Burlington Electric Department v. Vermont Department of Taxes, 154 Vt. 332, 336 (1990); Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So. 2d 371, 373 (Fla. Dist. Ct. App. 2006) (Florida Supreme Court meant what it said and said what it meant); State v. Johnson, 181 Wis. 2d 470, 496 (Ct. App. 1993) (trial judge said what he meant and meant what he said); Campero USA Corp. v. ADS Foodservice, LLC, 916 F. Supp. 2d 1284, 1288 n.2 (S.D. Fla. 2012); Hydro-Thermal Corp. v. Pro-Sonix, LLC, No. 07-C-918, 2010 WL 1441239, at *1 (E.D. Wis. April 8, 2010); Draper v. Astoria School District No. 1C, 995 F. Supp. 1122, 1140 (D. Ore. 1998) (referring to Oregon Legislature); and In re Bank of New England Corp., 404 B.R. 17, 36 (Bankr. D. Mass. 2009).

The Vermont Supreme Court added a Seussian rhyming flourish to its quotation in Burlington Electric Department:

“Where the Legislature ‘meant what [it] said and said what [it] meant,’ we must be true to the statute’s intent. See Dr. Seuss, Horton Hatches the Egg passim (1940).”

Three courts, including the 10th Circuit and the Alaska Supreme Court, have cited Seuss’ “The 500 Hats of Bartholomew Cubbins:” Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir. 1991) (“The district court could no more reinstate the damages portion of the first verdict than it could substitute the second jury’s award with a larger sum pulled out of a magically appearing hat, see Dr. Seuss, The 500 Hats of Bartholomew Cubbins (1938).”); Raiolo v. B.A.C Home Loans, 29 Misc. 3d 1227(A), 920 N.Y.S.2d 244 (Civ. Ct. 2010) (“Unless you are Bartholomew Cubbins, wearing more than one hat will surely lead to trouble.”) (footnote citing Seuss book); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1077 (Alaska 2002) (“[T]he tort reform act already imposes an express cap on punitive damages; to read subsection (j) as placing a second cap on top of the first cap thus carries us into a Seussian realm.”) (footnotes omitted; one footnote citing Seuss book).

The 2nd Circuit has cited Seuss’ “The Sneetches and Other Stories,” referring to a conflict between two Bankruptcy Code sections “reminiscent of Dr. Seuss’s intractable North Going and South–Going Zax,” In re Stoltz, 315 F.3d 80, 84 (2d Cir. 2002) (footnote reads: “And it happened that both of them came to a place. Where they bumped. There they stood. Foot to foot. Face to face.”) (citation to Seuss omitted).

The 5th Circuit began one opinion with a quotation from “Yertle the Turtle”:

“‘Silence,’ the King of the Turtles barked back, ‘I’m king, and you’re only a turtle named Mack.’

“Those in authority do not readily accept public criticism by their subordinates. They are particularly sensitive when employee censure brings their governance into public disrepute,” Davis v. Williams, 598 F.2d 916, 917 (5th Cir. 1979) (footnote to Seuss omitted). The opinion concluded with a Yertle quotation too, Id. at 922 n. 8.

I believe in using short-hand metaphors — and the Horton metaphor, that a person or entity said what was meant and meant what was said, might be useful. However, Justice Kagan’s reference to “One Fish Two Fish” was not apropos, but strained.

I see another problem with judicial opinions citing Dr. Seuss. Conversational legal writing is often desirable, but the law has a majesty nonetheless. Judicial opinions shouldn’t be wearing powdered wigs, but they shouldn’t be wearing bunny slippers either.

In 1992, the Kentucky Supreme Court decided a serious and difficult issue under the state statute governing manslaughter in the second degree, which occurs when a defendant “wantonly causes the death of another person.” The defendant in the case had been charged because he, “while driving under the influence of alcohol, collided with another vehicle driven by Kimberly Lynch, who was 32 weeks pregnant at the time. Five hours later the baby was delivered by caesarean section, and 14 hours after delivery the baby died from prenatal injuries sustained in the motor vehicle collision,” Jones v. Commonwealth, 830 S.W.2d 877, 878 (Ky. 1992), amended (April 30, 1992).

In his concurring opinion, Justice Donald Wintersheimer, wrote, in part: “As observed by Dr. Seuss in the popular children’s story Horton Hears a Who, it is abundantly clear that ‘A person is a person no matter how small,’” Id. at 883 (Wintersheimer, J., concurring).

Really? A quotation from a children’s book is persuasive authority on the issue of when human life begins?

Were these Seuss-citing judges reading to their young children or grandchildren at night while they were, during the day, writing these opinions? Did their references shift to Harry Potter as their issue grew older?

Legal writing should be eloquent or conversational, but not child-like. Just because Dr. Seuss’ scenarios and rhyme schemes are marvelous in children’s books doesn’t mean they belong in judicial opinions.

Attorney Ken Bresler is, among other things, principal of ClearWriting.com. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.

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