Felonies and Gratuities

The California Court of Appeal handed down two quirky cases today. (By “quirky” I mean “including a creative argument, the discussion of which is both intellectually stimulating and entertaining.”)

First was Legal Services v. Bowen. There the court held that when section 2 of the 14th amendment to the federal constitution says you can disenfranchise people for “participation in rebellion or other crime,” the word “crime” is not restricted to “felonies at common law.” Go figure. And even though there are pages and pages of discussion in the court’s opinion thoroughly trouncing what was, I have to admit, a pretty creative argument, the best part is the last paragraph:

If Petitioners’ argument were accepted, it would mean that someone convicted of larceny, a felony at common law, would not be allowed to vote, however modest the take. But the defendants in People v. Schoenfeld (1980) 111 Cal.App.3d 671, serving life sentences for kidnapping 27 children and burying them in a school bus for 28 hours, would. As would the serial child molester. And the drug kingpin. If that manifests a worthy public policy, it comes in a novel guise.

In other words, if you haven’t already slapped your forehead, you should do it now. I love a well-turned judicial understatement.

The other quirky case is Lu v. Hawaiian Gardens Casino. In that one, a casino dealer argued that casinos should not be allowed to require the pooling of tips, since tips are handed directly to dealers, instead of being left on tables, like in restaurants. Again, another creative argument, although the court dismisses it, with the classic phrase, as “a distinction without a legal difference.”

The opinion is not so entertaining as the one in the case above, but there is an interesting bit about restaurant tips, quoted from an earlier case (Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062):

We dare say that the average diner has little or no idea and does not really care who benefits from the gratuity he leaves, as long as the employer does not pocket it, because he rewards for good service no matter which one of the employees directly servicing the table renders it.

This court then added:

Lu made no factual showing that casino patrons intend tips specifically for the dealer and not for the good service received from all the employees with whom they come in contact.

I used to have a job delivering food for a business that had a tip-pooling policy. Since I was the delivery person, I was often the only employee the customer directly interacted with, and the tips were always handed directly to me (because there was no one else to hand them to). But every now and then (not frequently) customers would declare a specific intent that a certain tip be mine, and mine only. Sometimes I put them into the pool, sometimes I didn’t. But either way, I felt like somebody was getting snubbed—I was either ignoring the wishes of the customer or ignoring the policy of my employer. (But I seem to recall my boss telling me that, in those situations, it was okay to keep the tip for myself. Or maybe it was my fellow employees telling me that. I forget.)

I had never really thought about that in legal terms until now, but it’s interesting. Do Lu and Leighton stand for the proposition that an employee may keep any tips the customer specifically declares to be intended for the personal use of the employee? Probably not. Both of these cases cite the doctrine that a judicial opinion cannot stand for a proposition it implies, but does not consider directly. That’s a signal that you’re out there in the borderlands of law. But that’s also where you can do some creative lawyering. Which, as both of these cases demonstrate, does not always succeed. (Makes for fun blog posts, though.)