In the past I have accused U.S. District Judge Fred Biery of misdemeanor alliteration.
Now come some law school professors to charge him with a more serious infraction: double entendre in the first degree.
The case involves a legal challenge to the City of San Antonio’s regulations regarding strip joints.
An ordinance passed last year requires that what the city calls “human display establishments” must require female employees to wear the equivalent of bikini tops and bottoms, not pasties and thongs.
Otherwise these HDE’s will be classified as “sexually oriented businesses” and fall under considerably stricter regulations.
Biery does indeed submit to the obvious temptation.
He begins his written order denying the plaintiff’s request for a preliminary injunction against the ordinance by saying, “An ordinance dealing with semi-nude dancers has once again fallen on the Court’s Lap.”
He ends the document with:
Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.
There’s much more in the middle, including for no clear reason a photo of “Miss Wiggles,” who for many years entertained at San Antonio’s Eastwood Country Club, but as a fully-covered contortionist, not a stripper.
If you want to read the order, go to the “Texas Week” page at KLRN.org.
St. Mary’s University Law School Professor Michael Ariens was not amused.
“I think Judge Biery's decision is correct as a legal matter,” he told the Express-News. “But his opinion fails if he was attempting to be witty or attempting to write 'tongue in cheek,' and his use of double entendres largely fails as humor and appears almost intended to offend.”
A Chicago law professor is quoted as saying such judicial playfulness “is seldom a good idea because the issues are very serious and the people involved often don't appreciate humor in decision-making.”
I cut Biery some slack.
Having covered many trials in my career, I am sensitive to the uncommonly boring nature of being a judge.
Most trials and other judicial proceedings are 80 percent tedium, 10 percent lawyerly testiness and, at best, 10 percent interesting disclosures.
I do, however, object strongly to a separate infraction within Biery’s order.
He repeatedly refers to these “human display establishments” as “gentlemen’s clubs.”
Your honor, those may be clubs, but being a “gentleman” is not a criterion for admission.
“Gentlemen’s club” is a label dreamt up by some clever agent of the industry.
It suggests that the clientele may be lecherous, but it is classy lechery.
Neither journalists nor judges should honor this notion.
Speaking of class, this legal controversy reminds me of a case I covered in Houston five years ago.
A podiatrist appealed his conviction of exposing himself to an undercover officer.
He argued that he had “ineffective assistance of counsel” because his lawyer refused his request to have a urologist testify that he had examined the accused and found that which was said to have been exposed was too small to have been seen by the undercover officer.
Justice Wanda McKee Fowler wrote an opinion for a unanimous panel rejecting the appeal.
As I wrote at the time, the opinion was “clinically crafted to avoid double entendrees.”
But there is evidence not all law professors eschew humor in such situations.
Two lawyers independently wrote me of a limerick they learned in law school to illustrate a Latin phrase declaring that the law does not deal with trifles.
Slightly adapted it is:
There once was a podiatrist named Rex,
With a miniscule organ of sex.
When charged with exposure
He said with composure,
“Deminimis non curat lex.”
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