"The misfortunes hardest to bear," wrote James Russell Lowell, "are those that never happen." So true, so true.
And true in the legal world, too -- what could have been some of the most interesting lawsuits instead were resolved before they ever started -- because one side decided to throw in the towel before the contest even began.
Take, for example, a 2013 case involving a San Antonio, Texas establishment known as "35 Bar and Grille." Now, the offering that attracted patrons to the "bar and grille" was probably not barbecued ribs or patty melts. That's because the lawsuit challenged a city ordinance, in the words of federal District Judge Fred Biery, requiring female dancers "to wear larger pieces of fabric to cover more of the female breast." Judge Biery issued a seven-page ruling on a request by 35 Bar and Grille for an immediate court order striking down the city's ordinance.
But if nothing else, the opinion demonstrates that Judge Biery may have a little too much time on his hands. How else to explain that his opinion even begins with a "title": "The Case of the Itsy Bitsy Teeny Weeny Bikini Top v. The (More) Itsy Bitsy Teeny Weeny Pastie," helpfully adding a footnote that explained that his title derived from "Itsy Bitsy Teeny Weeny Yellow Polka Dot Bikini (Knapp Records 1960)."
Most of his discussion of the case also reads more like something written by, say, a twelve year-old boy than a sober federal judge -- or, perhaps, a judge having just a little too much fun. The first line of Biery's opinion, for example, was "An ordinance dealing with semi-nude dancers has once again fallen on the Court's lap." And, after explaining the general nature of San Antonio's ordinance, he added, "Thus, the age old question before the Court, now with constitutional implications, is: Does size matter?" ("Size," in this case, apparently referring to the City's aforementioned requirement for certain amounts of cloth.)
Judge Biery then explained what he meant by such an ordinance falling into his lap "again," stating, somewhat opaquely, that "The genesis of this gentlemen's clubs case can be found at 2003 WL 21204471 , known by some as 'The Salome Order.'" That string of numbers refers to the judge's 2003 court order in a similar dispute, Allstars v. City of San Antonio, illuminated by another helpful footnote in which Biery explained the reference to "Salome" by citing Mark 6:16-28. His footnote then had what looked like a Biblical verse: "And Salome, dressed only in seven thin veils,/ danced lasciviously at a men's club called/the Palace . . . of King Herod, that is.
"The result was a fatal secondary effect for John the Baptist."
Somehow, it seems unlikely that's a direct quotation from Mark 6:16-28.
Anyway, Biery added that his earlier order also got its name partly from "the play Salome written by Oscar Wilde starring Sarah Bernhardt as Salome and produced in Paris in 1894." It's always nice when federal judges include some extra facts like that.
Biery went on in this vein for his entire opinion, leaving no pun unuttered: that, for example, 35 Bar and Grille feared that "enforcement of the ordinance would strip them of their profits, adversely impacting their bottom line." Or that the City, for its part, "asserts these businesses contribute to reduced property values, violent crime, increased drug sales, prostitution and other sex crimes, and therefore need to be girdled more tightly." Or that 35 Bar and Grille "and by extension their customers, seek an erection of a constitutional wall separating themselves from the regulatory power of City government."
After much similar fooling around, Biery eventually ruled in the City's favor against any immediate restriction on the ordinance.
Still, the strangest part of his opinion began with a comment that his court "has been blessed with volunteers known in South Texas as 'curious amigos' to be inspectors general to perform sight visits" at the businesses subject to the ordinance. Apropos of nothing, he suddenly added, "However, they would have enjoyed far more the sight of Miss Wiggles, truly an exotic artist of physical self expression even into her eighties, when she performed fully clothed in the 1960s at San Antonio's Eastwood Country Club. Miss Wiggles passed Oct. 14, 2012 at the age of ninety." And then, most bizarrely of all, he actually included a color photograph of "Miss Wiggles," clad in what appears to be a leopard-print body suit, doing a cheerleader-style split -- except she does this while standing on her head.
Since it has nothing whatever to do with Biery's decision, one must wonder . . . might this be a wistful memory from Biery's own youth, at that long-ago country club event?
Frank Zotter, Jr. is a Ukiah attorney.
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