ENTRE NOUS:  FALL 1998

       By Claude Ducloux

                                    UP IN SMOKE: The Wacky Tabacky Litigation

            By the time you read this, it is possible that the controversy about paying the attorneys fees out of the huge tobacco settlement may be resolved, which can only mean that peace has been bought at the appropriate price (plus expenses).  But the mere existence of the controversy is a pitiful (if not hilarious) commentary on how politicians view their power, and the cavalier attitude many still have about the sanctity of a contract with the state. You’d think they’d learn. Let me get this straight:  once again, (harkening back to the George Green Whistle-blower Sausage, as reported in Entre Nous, Winter ‘94) the State of Texas, the keeper of the "Rule of Law", does not have to abide by the rules.  It seems we love to make laws, regulations, institute requirements, and negotiate contracts, but the state’s requirement to abide by the same is, apparently, always negotiable.  Whenever we want to back out, we jump behind the “Public Policy” barricade, sticking out our collective tongue at the poor schnooks who relied on silly things like our word.  Let the schnook breach a provision of the same agreement, and he is ridden out of town on a sea of public approbation supported by righteous indignation (and a hefty judgment).

            Would that we mere mortals could have the same dodge.  I dare you to argue with the local tax assessor-collector next time your school taxes are due.  Excuses like "but it’s not in my family’s best interest to pay taxes.  We would prefer to appropriate these funds for higher education,” won't get you very far.  Thus, the difference between family policy and public policy.

            In case you hadn't heard, we, the people, hired these legal henchmen to go sue some big bad companies, and told them to invest their own money, buy their own lunches, pay their own cab fare, and, in return, the state would pay 15% of the booty. Hey, it was a prudent "no risk" deal for the taxpayers.  We could sit back and indulge in fantasies of potential billions gained on these pirates' own investment.  We were licking our lips anticipating a possible recovery of 5 to 7 billion, perhaps even more.  Now, the pirates arrived back in port with even more than we ever anticipated (over 15 billion), and apparently we're, like, totally pissed. 

            Naturally, we don't need to abide by our contract to split the booty, because they did so well.  (Or did they? According to some revisionist historians, the bad guys were already "in the bag" and any fool could have negotiated this deal, perhaps even Jimmy Carter.) Anyway, it was so good that now it's unfair.  Besides, the funds will, by and large, be paid to (add scary music here) Plaintiffs lawyers!

            Thus the problem: even in these shameless times, success is an odd reason to declare a default. Of course, we'll have to come up with some half-credible reason to bust our own contract and keep a straight face. After all, any law student who has completed the first few weeks of "Contracts" law would blush at the suggestion that we have a "right" to bust a fully performed contract in writing.   Hmm, we're looking for a reason... any reason... hey, let's look at the history books for a precedent.  Well, looky here, the ancient newspapers provide guidance. I think I'm on to something.

            VATICAN CITY, A.D. 1512.  POPE BRUSHES OFF MICHELANGELO.

The Court of Pope Julius II announced today that the Chief artist of the Cappella Sistina, Michelangelo, would not be paid for his work on the ceiling.

            Presiding Cardinal Anthony Buscati, the Pope's chief of staff explained,"Analysis proves that these paintings are far too beautiful for a mere human to have fashioned.  This artist was obviously guided by the hand of God. We did not agree to pay for a miracle"  Buscati went further to explain that the Holy Church's treasury must be protected from such extravagance.  "There are starving masses who could better use this money."  Asked whether the starving masses would actually receive the benefits of the money, Buscati replied that they were "looking into it."

            Michelangelo, who had agreed to paint the ceiling for 5,000 gold pieces, had not yet heard the news. "I certainly hope I'll hear this personally from the Pope.  His Holiness and I have been friends for many years, and I doubt he is behind this," the artist replied.

            The Congress of Cardinals issued a further statement, condemning Michelangelo for his lax work ethic, noting that it took him four years to complete the ceiling and that he had laid down for much of the time.  "Besides that, we think he's a homo."

            Late last evening, the spokesman stated in a further clarification that Michelangelo would be compensated for his paints and brushes used in the process, but warned that these reimbursements will be audited.  "He must produce receipts."

            Michelangelo stated he would be happy to remove the paintings.

            PARIS 1804.  JEFFERSON'S CHECK BOUNCES.  In a shocking turnabout, the United States has refused to tender the full purchase price for the Louisiana Purchase.            After only paying about nine million of the fifteen million dollar purchase price, the United States foreign minister announced that future payments would be delayed indefinitely. The official press release included the vague explanation, "we did not receive the product we were expecting."

            According to the American Embassy, the payments were halted after explorers and surveyors with the Lewis and Clark Expedition discovered that the area included nearly twice as much land as advertised, it was going to cost a whole lot to mow it, and the northwestern regions of lands purchased were "really, really cold."  The surveyors said it was unlikely anyone could ever live there.  It was also revealed that the U.S. tried to "flip" the sale to the Spanish, but Spain declined, choosing to keep their current northern border at the Nueces River.

            The Emperor Napoleon was furious with the news.  "It was the bargain of the century!  Jefferson's just playing politics to get some votes this fall.  If the U.S. doesn't pay up, I'll place a curse on Louisiana that will keep the region a cultural wasteland for 200 years."

Ah…and so it was.  Don't misunderstand that I have sympathy for the pirates.  The sums being discussed are unimaginable to us footsoldiers down here slogging out monthly bills and worrying about overhead and local rule changes.  But answer me this:  how do I explain to my children that dealing with the great State of Texas is a risky proposition?  It's all apparently a big game with these politicians, and when you land on Boardwalk, the state won't pay the rent. That is the most troubling issue, and no amount of political pitchspeak will answer that question.

            While researching the historical precedent for this matter, I am reminded that the British colonial empire hired the infamous pirate, Captain Kidd, on the sly to assist them in handling piracy on the high seas.  Obviously, Captain Kidd could use some creative and indelicate approaches which would not be sanctioned under maritime law.  Captain Kidd, in return, was promised the seal of legitimacy and payment.  When he returned to England to receive his well deserved reward, they hanged him as a pirate, which of course is exactly the reason they hired him.  Today we are much more civilized.  Now that John O'Quinn has completed the legal work for the State in this matter, they are merely seeking his disbarment.  Things could be worse, John.