Well-written: Judge Pregerson

Attractive Nuisance cringes whenever she comes across linguistic redundancy. When her friends announce they need to go make a withdrawal from the "ATM machine," presumably by punching in their "PIN number," sometimes she isn't there when they get back. Or when her boss sends out an email to everyone announcing a meeting "at 10 AM tomorrow morning," A-Nu immediately hits "reply-all" to explain that she simply can't wait for the whole department to "assemble together" in "close proximity" so that they can "continue on" their unbelievably fascinating discussion from last meeting. (Well, no, she doesn't do that, but she thinks about it, oh yes.)

Today, though, the Ninth Circuit's opinion in Center for Bio-Ethical Reform v. Los Angeles County Sheriff (9th Cir. July 2, 2008), has made A-Nu see redundancy in a whole new light. The opinion involves First and Fourth Amendment claims brought by a pro-life group. The group made a thoughtful, nuanced attempt to educate middle school students about the abortion debate by repeatedly driving a truck displaying "enlarged, graphic photographs of early-term aborted fetuses" around the perimeter of the school. The school called the cops; the cops detained the group and searched their truck; and, inevitably, section 1983 litigation ensued.

Judge Pregerson (joined, and no doubt egged on, by Judges Berzon and W. Fletcher) goes on a civil liberties rampage, finding First and Fourth Amendment violations right and left. The substantive issues alone are interesting enough to keep A-Nu from passing out on her keyboard in a puddle of drool. Moreover, the writing is pretty good. Pregerson is generally well above mean as far as judicial literary efforts go, and this opinion is in line with his usual product: thorough, readable, and devoid of noxious Latin, though perhaps a tad repetitive (do we really need to be told three times that some girls were crying, some boys were thinking about throwing rocks, and some kids discussed the incident that day in their classes?), and perhaps a tad over-organized (do we really need nineteen headings and subheadings?).

What makes this opinion a standout, though, is Pregerson's description of a sheriff sued in his official capacity as a "redundant defendant," meaning that, because both a municipal officer and a local government entity are named in the suit, the court can dismiss the officer. A-Nu is completely enchanted with this delightful phrase. She loves its assonance bordering on rhyme, she thinks it cleverly evokes the sheriff's complete lack of relevance to the suit, and she especially enjoys imagining the dismissed sheriff pumping his fist in celebration of his own redundancy. Moreover, Pregerson's usage makes history: he is the first federal appellate judge to refer to a "redundant defendant" in an opinion (section 1983 or otherwise), although a handful of district courts have employed the phrase previously.

A-Nu therefore recommends that the words "redundant defendant" be used whenever possible in section 1983 cases, and can only hope that the legal profession will find other contexts in which such a charming phrase might be put to use. For instance, she can easily envision it taking root as an affirmative defense in criminal law: "Ladies and gentlemen of the jury, the man you see before you is a 'redundant defendant': the conspirators already had a trailer in which to conceal their meth lab, so what conceivable purpose could they have for involving Bobby Ray here?"

And she simply can't wait for Judge Pregerson's next opinion, which she now fully expects to rehabilitate the image of some other habitual grammatical offender. Next think you know he'll have her cooing over double negatives or swooning over a comma splice.