April 2005 - Riverside County Bar Association

CURRENT AFFAIRSby Richard Brent Reed, Esq.DON’T ASK, DON’T SMELLSan Luis Obispo County has outlawed stench. If you have bodyodor, you won’t be allowed to patronize the public libraries. If youstink, you can’t stay. Musty people cannot browse musty books.The law, on its face, is subject to constitutional challenge as a dejure limitation of First Amendment rights. Body odor is speechand the target groups form a definable class. This law discriminatesagainst the most disenfranchised tiers of our society: thepoor, the homeless, and the French.Ten years ago, Beverly Hills merchants along Rodeo Drivebegan posting signs: “No smoking and no Giorgio.” When SanLuis Obispoans caught wind of this, they were, no doubt, encouragedto engage in their own brand of olfactory intolerance. Theordinance, however, does not pass the constitutional smell test.Eventually, body odor will be recognized as protected speech– especially for those who use no protection.I’M READY FOR MY RULING, MR. DEMILLEIn 1956, Cecil B. DeMille produced his Biblical epic: The TenCommandments. To promote his film, DeMille donated a stonemonument, engraved with the Decalogue, to the Lone Star Stateand planted it next to the capitol in Austin. A homeless man, whois also an attorney, sued to have the monolith removed, decidingthat it offended his non-religious sensibilities.Constitutional law professor Erwin Chemerinsky stepped in totake the case to the U.S. Supreme Court, claiming that Texas hasviolated the First Amendment’s establishment clause by endorsinga religion. Justice Scalia argued that the monument merely standsfor God’s direction of human affairs and is no more an endorsementthat Congress’ 200-year-old Thanksgiving Proclamation.Chemerinsky rejoined: “… I think the ThanksgivingProclamations would be constitutional. I think it’s analogous tothe legislative prayer that this Court upheld in Chambers v. March.I think it’s very different than this Ten Commandments monument.”What eludes Prof. Chemerinsky is that the ThanksgivingProclamations were acts of Congress. The First Amendment states:“Congress shall make no law respecting an establishment of religion…”The monument is an act of DeMille sitting on Texas stateproperty. It does not require observance, is not statutory, and hasnothing to do with Congress.But the most problematic portion of Chemerinsky’s statementwas that the monument “is very different than this TenCommandments.” Something can be different from, but cannotbe different than. Such grammar is offensive toany strict constructionist.LIGHTS, CAMERA, JACKSONCoverage of the Michael Jackson case hasintroduced a new concept to legal journalism: thecourtroom simulation. Because the judge in thatcase has disallowed cameras in the courtroomduring proceedings, one television news outlet,not to be denied visuals, has hired actors to reenactthe trial, day by day. Not the real thing, butan incredible simulation. Not an artist’s sketch;more like a comedy sketch. David E. Kelley, moveover.BELIEVE IT OR NOTAttorney services, in the historic RiversideCounty Courthouse, will no longer be performedin the department labeled “ATTORNEYSERVICES.” Attorney services is now locatedin “PROBATE.” Non-attorneys will no longerbe served in PROBATE. Pro per probate papersare no longer proper in PROBATE. Probate propers must file across the hall in – you guessed it–CIVIL.Richard Reed, a member of the Bar PublicationsCommittee, is a sole practitioner in Riverside.6 Riverside Lawyer, March 2005