8 minute read
Editorial | Jonathan Wardle
Proving Santa
You never know when you are going to have to prove Santa Claus.
I don’t mean summoning your best “ho ho ho!” at midnight to convince your kids that Santa came. Or wearing a Santa suit while putting out presents in the middle of the night or leaving cookie crumbs and a half-drunk mug of eggnog on the coffee table. And I don’t mean proving Santa in the sense of feel-good movie magic—like producing a miraculous snow globe in “The Santa Clause,” or having the United States Post Office come to the rescue by delivering hundreds of letters addressed to Santa in the middle of trial in “Miracle on 34th Street.”1
No, I mean proving Santa in actual, real-life court work.
Take, for instance, the case where your client tries to legally change their name to Santa Claus, only to have some curmudgeonly judge step in the way, as did a Utah district court judge who denied David Lynn Porter’s petition to change his name to Santa Claus (or, alternatively, to “Kris Kringle”).2 On appeal, the Utah Supreme Court held there was nothing illegal, improper, or inappropriate about the name-change petition and allowed Mr. Porter (that is, Mr. Claus) to change his name.3 (One justice did try to play the role of the Grinch, but he could only mutter his complaints in dissent.4)
In a similar case, an Ohio municipal court held that a criminal defendant was not guilty of possessing a fictitious identification card where the individual had been issued identification cards and registered vehicles in the name of Santa Claus over the course of 20 years.5 But an Ohio probate court held that a different individual went too far when he tried to legally change his name to Santa Claus:
“The petitioner is seeking . . . the identity of an individual that this culture has recognized throughout the world, for well over one hundred years. Thus, the public has a proprietary interest, a proprietary right in the identity of Santa Claus, both in the name and the persona.”6
Then there is a whole line of Santa-themed business disputes, like when one business claims their Santa decoration is the original, and that another business is infringing on their intellectual property rights.7 Or when one local Santa-themed business establishment claims another business engages in unfair competition by also invoking Santa’s name (or one of its cheerful variants).8 You may even find yourself litigating whether a Santa-based movie (or book or song) is the original or an intellectual property rip-off. Indeed, such claims were made against the two movies named at the beginning of this article.9 There is even a case where the owner of several Christmas classics, such as “Rudolph the Red-Nosed-Reindeer” and “Santa Clause is Coming to Town,” sued to prevent a private liquor establishment from playing their Christmas songs for the club’s patrons.10
All of this seems most un-Christmas-like. But it gets worse. You may find yourself in litigation over whether Santa was used to commit harassment or discrimination. In one case, an employee claimed he was subjected to harassment and racial discrimination where a fellow employee sent him a message of Santa wearing a Ku Klux Klan hood.11 In another case, an employee claimed he was subjected to racial discrimination when a bunch of white co-workers put up an African-American Santa Claus.12 And in another case, an employee claimed she was sexually harassed where a management employee dressed as Santa and had female employees sit on his lap, and where another executive wore a Santa hat that read “bitch.”13 And in yet another case, an employee claimed she was subjected to religious discrimination when her employer tried to force her to wear a Santa Claus cap.14
Unfortunately, Santa has even been involved in the commission of violent crimes. In one awful case, a young child was murdered after being lured to his death by the promise of a visit to Santa Claus.15 In another case, a woman was killed when a burglar smashed her head with a Santa Claus statue.16 And Santa paraphernalia has been used to hide other, less charitable paraphernalia, like bags of heroin marked “Santa Claus,”17 or proceeds from a robbery being placed in a Santa hat.18 Even here in Tennessee, the convoluted history of a malicious prosecution case began when someone stole someone else’s plastic Santa Claus.19
Of course, none of those crimes required anyone to prove that the defendant was or was not Santa Claus. But what about when the crime was committed by someone dressed as Santa? For example, where two young girls were sexually abused by someone who entered their bedroom in the middle of the night wearing a Santa suit.20 Or where the defendant’s sentence was enhanced in a child pornography case because the defendant allegedly dressed as Santa Claus to be near children.21 Or where a robbery was committed by someone dressed as Santa.22 Can you prove that your client was not Santa? Can you prove who Santa really was?
All of this is to say that the enterprising lawyer should not forget to brush up on the Rules of Evidence this holiday season. Pay special attention to the use of lay opinion testimony, and what inferences witnesses might be able to make that are “rationally based on [their] perception.”23 Be familiar with the exceptions to the hearsay exclusion rule, such as when someone seeing Santa Claus might make an excited utterance, or where someone might be able to testify to the reputation of Santa’s (or your client’s) character in the community.24
You might also consider whether or not Santa is an unavailable witness, since the North Pole is more than 100 miles away from anywhere in Tennessee.25 If you’re really lucky, you may even be able to get in testimony that a witness had previously identified Santa or, even better, an admission that your party opponent has told someone (maybe his or her children) that Santa is real.26 And, of course, don’t forget about the proper authentication of items affiliated with (or allegedly affiliated with) your Santa.27
You never know when your superior litigation skills, and especially your mastery of the Rules of Evidence, may end up saving Christmas!
Endnotes
1 Bill Haltom seemed to reference “Miracle on 34th Street” almost every year in his column for the Tennessee Bar Journal. One of his best may be “Remembering the Lawyer Who Saved Christmas,” Tenn. B.J. 35 (Dec. 2001).
2 See In re Porter, 31 P.3d 519 (Utah 2001).
3 See id. at 521-22.
4 See id. at 522-24 (Russon, J., dissenting).
5 See State v. Hayes, 774 N.W.2d 807 (Warren Municipal Ct, 2002).
6 In re Name Change of Handley, 736 N.E.2d 125 (Probate Ct. of Franklin County, 2000).
7 See, e.g., Sunset House Distrib. Corp. v. Doran, 304 F.2d 251 (9th Cir. 1962).
8 See Santa’s Workshop, Inc. v. Sterling, 2 A.D.2d 262 (N.Y. App. Div. 1956).
9 See Terrell v. Eisner, 104 F. App’x 210 (2d Cir. 2004) (“The Santa Claus”); Burns v. Twentieth Century-Fox Film Corp., 75 F. Supp. 986 (D. Mass. 1948) ( “Miracle on 34th Street”).
10 St. Nicholas Music, Inc. v. D.V.W., Inc., No. Civ. C84-0307W, 1985 WL 9626 (D. Utah Feb. 20, 1985).
11 See Martin v. Champion Ford, Inc., 41 F.Supp.3d 747 (N.D. Iowa 2014).
12 See Baily v. Final Touch Acrylic Spray Decks, Inc., No. 606cv-1578-Orl-19JGG, 2007 WL 3306749 (M.D. Fla. Nov. 6, 2007).
13 See Brennan v. Townsend & O’Leary Enters., Inc., 132 Cal. Rptr. 3d 292 (Cal. Ct. App. 2011).
14 See Velez-Sotomayor v. Progreso Cash & Carry, Inc., 279 F. Supp. 2d 65 (D.P.R. 2003).
15 See Styers v. Schriro, No. CV-98-2244-PHX-EHC, 2007 WL 433573 (D. Ariz. Feb. 5, 2007).
16 See People v. Stephens, No. 306032, 2013 WL 4528438 (Mich. Ct. App. Aug. 27, 2013).
17 See Com. v. Hodge, 961 N.E.2d 622 (2012).
18 See State v. Martinez, No. A-17-1072, 2018 WL 5919288 (Neb. Ct. App. Nov. 13, 2018).
19 See Hardin v. Caldwell, 695 S.W.2d 189 (Tenn. Ct. App. 1985).
20 See State v. West, 551 N.W.2d 869 (Wis. Ct. App. 1996).
21 See U.S. v. Sprague, 370 Fed. Appx. 638 (6th Cir. 2010).
22 See State v. Poitra, 136 P.3d 87 (Or. Ct. App. 2006).
23 Tenn. R. evid 701(a).
24 See Tenn. R. evid 803(2), (21).
25 See Tenn. R. evid 804(a)(6).
26 See Tenn. R. evid. 803(1.1), (1.2).
27 See Tenn. R. evid. 901, 902.
