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Mark Twain once said, “Heaven goes by favor; if it went by merit, you would stay out and your dog would go in.” Based partly on my experience with animals, but mostly on my experience with humans, I wholeheartedly concur with Twain’s assessment of the relative virtue of the two groups. (Although, when you phrase it as Twain did, you find yourself wondering, like the little boy who’s been told his recently deceased pet is now in heaven, “Why would God want a dead dog?”) That is not to say, however, that Fido and friends are entirely blameless. As I sat down to write today, I found myself deluged with instances in which animals had gotten humans into trouble. A man in San Francisco is facing felony charges for biting his dog. Sure, go ahead, read that sentence again. I’ll wait. Yep, that’s what it said. Man bites dog. It also said “felony.” Seems one Stephen Maul (which strikes me as a great name for a biter) decided the most effective way to discipline his dog was to “mimic the dog behavior of male dominance.” So he “forced [the dog] to the ground and bit him on the neck.” In San Francisco that’s a felony. The prosecutor handling the case is quoted as saying, “This is not normal behavior, a man biting his dog.” While I’m prepared to concede the prosecutor’s point about normalcy — even in San Francisco — I must admit I’m surprised this is regarded as a felony. And I’m positively astounded there was a police officer on the scene who recognized it as a crime, rather than just two unusually slow participants in the Bay to Breakers race. There was a similar item in the California Lawyer, whose editors clearly don’t know a real story when they see one. According to the November issue, a San Francisco lawyer has been suspended “following his conviction for violation of Penal Code 487(a), stealing a livestock carcass, a felony involving moral turpitude.” Stealing a livestock carcass. In the limbo world of criminal activity, this has to be the how-low-can-you-go champion. Once again, weird animal stuff gets a hapless human in trouble. In a doubtless futile attempt to inject some redeeming social value into this column, let me remind you of the three classifications of crime. The first group are the malum in se crimes: those which are inherently and essentially evil. The second group are the malum prohibitum crimes: things which are not inherently immoral, but become so because their commission is expressly forbidden by positive law. The third group, less well-known than the other two, are the “malum in contemplatum” crimes: those which are bad because when we think about what the perpetrator had in mind it makes us likely to puke on our shoes. Needless to say, stealing a livestock carcass falls within the third category. When we contemplate why this guy cared enough to steal a dead cow or a deceased pig, we just know we don’t want him in the game until the second half. Which is good, because we may have to pull Judge Paul Stansel from the lineup about then. According to the Associated Press, Judge Stansel, a Hamilton, Ga., municipal court judge, found himself in contempt of court and fined himself $50 because he was late to work. And why was he late to work? “The judge lost track of time while tending to Bubba, his 15-year-old pony with bad feet.” This is a much more frightening story than is suggested by the three column inches my local paper gave it. Not just because it shows that no one — not even a judge — is safe from the mischief of 21st century animals, although that’s a pretty scary thought. But what’s even more unnerving is that the article describes Judge Stansel’s self-inflicted $50 fine as “two weeks’ pay.” Two weeks!! Now, I have no great desire to go to Georgia. As I understand it, Ted Turner and Jane Fonda both live there, and either one would be enough to keep me away. But even though I never expect to be dragooned into service in the Georgia municipal courts, the fact that one of my brethren is making $25 a week stomping traffic ticket grapes in the judicial vineyards of a sister state concerns me greatly. (When I’m greatly concerned I resort to overwrought metaphorical hysteria and use terms like “judicial vineyards.” Just a little tip for those of you who sometimes read my opinions.) But it appears to concern the Associated Press and my local paper not at all, so I know nothing more about it. Nor do I know nearly as much as I’d like to about John J. Zentner. According to the Associated Press (The AP is just all over these animal stories. I’m sure there’s a Pulitzer in here, somewhere.) Zentner, “an Emeryville environmental consultant, has been charged in federal court with illegally relocating 64 California red-legged frogs and 500 tadpoles from a construction site.” Frog relocation. Not a crime I’ve previously encountered. But, according to the article, serious enough to merit contemplation by the federal courts. And we know how serious those people are. My first thought was that this was probably another “malum in contemplatum” crime. I figured Mr. Zentner was probably considering some weird Mann Act violation I didn’t even want to think about. Otherwise, I couldn’t figure out why moving frogs either into or out of Emeryville would be a crime. Emeryville is the mud capital of the universe. They invented mud. If there were a Grand Canyon of mud, it would be in Emeryville. I can’t imagine 64 frogs more or less in the acres of Emeryville mud would upset the balance of the cosmos. (Emeryville is located west of Oakland and Berkeley, Calif., squeezed onto a finger of soggy turf slightly smaller than your driveway.) So I figured there had to be something about the way these particular frogs became “red-legged” that involved conduct that we, as a civilized society, could not tolerate. At least not without spending an inordinate amount of time cleaning stuff off our shoes. But it turns out to be just another garden-variety, root-of-all-evil, save-the-whales-and-tadpoles, malum prohibitum Endangered Species Act thing. Apparently, Zentner was hired by a developer who wanted to put houses in the mud where the frogs were happily . . . I don’t know . . . doing whatever frogs do. Frogging. Zentner allegedly (I include this word for the benefit of Prof. Stephen Barnett: See, Professor, I was paying attention during your libel law lectures) recognized these as California Red-legged Frogs, Twain’s famous “Celebrated Jumping Frogs of Calaveras County,” which have been on the endangered list since 1996. Apparently, the developer was presumably opposed to the option of moving bullfrogs and mosquitofish into the neighborhood and waiting for them to eat the celebrated jumping frogs. (Bullfrogs and mosquitofish are, after bulldozers, the primary predators of California Red-legged Frogs.) And Zentner, an environmentalist after all, was displeased by the alternative of unobtrusively incorporating the frogs into housing foundations. So, I suspect, a compromise was chosen: The frogs were relocated. Zentner somehow scooped up 64 frogs and 500 tadpoles (Is it just me, or can we all imagine him trudging through the muck and the mire at midnight, muttering under his breath that this was not what he got his Master’s for? “Twenty years of schooling and they put you on the day shift”) and moved them somewhere else. To me, it’s a terrible journalistic failure that the article does not say where he moved them. I’m somewhat reassured by the fact he’s not charged with killing them, but I’d sleep better if the Associated Press had reassured me he didn’t relocate them to “Francois’ Fast Food Frog Leg Emporium.” I’d rather not be forced to contemplate the spectacle of dozens of legless frogs on tiny wheeled platforms, panhandling all over the East Bay. Personally, I accept Zentner’s attorney’s explanation. He says, “This was as much for the benefit of the frogs as much as anything else.” (I not only accept the explanation, I assume it was expressed with one less “as much” than the AP writer inserted. I’m not sure why I make that assumption; I guess I just want to believe that a lawyer would have said it better than that.) I believe that. I believe getting out of Emeryville is always a plus, and it seems to me getting out of any community where they’re going to pave over your head is a good deal. But mostly I believe it because I think the natural human instinct is to compromise. And I believe the natural inertial tendency of compromise is to go awry. Ask Franklin Moen. Franklin Moen is a Laguna Beach lawyer. One of Mr. Moen’s personal injury clients contacted him one day and told him she’d been injured again, this time in a supermarket accident. He told her it wasn’t a “high-value” case and he’d need more information, specifically a store diagram, before advising her what she should do. Instead, she began negotiating directly with the store, and he didn’t hear from her again. Then, in early June, the store advised her by letter that the statute of limitations would run on July 7. At 2:30 in the afternoon on July 7 — the day the statute ran out — she faxed Moen a store diagram and a copy of the letter about the statute of limitations. Moen was out of the office and didn’t receive the letter until after 5 p.m. But, instead of just telling her she was an idiot and she’d blown the statute, Moen called her and asked if she’d settle her claim for $750. Informed that she would, he wrote her a $750 check on his own account and told her the store had settled. Mr. Moen is now on probation because the state bar characterized this as moral turpitude. That’s what happens when you try to avoid conflict. That’s where compromise gets you. Moen should have just confronted the problem head-on: He should have driven to her house and bitten her frogs. William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected]

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