Here Come the Judge

by Pamela Jones

June 10, 2003

I promised to share what I have found out about the judge assigned to try this case in federal court in Utah. His name is the Hon. Dale A. Kimball, and it's one of those happy times when the Honorable title does seem to fit.

Judges often let attorneys know their likes and dislikes, to minimize friction and atty learning curves. Here [ ] is Judge Kimball's bio and the page where he explains his judicial philosophy.

Here are some cases he has heard, and what I see is that he isn't intimidated by large corporations or inclined to favor any particular side, but goes entirely on the law and on what appears to be a deep sense of fairness too:

1. In this case, he ruled in favor of a small company that made red yeast/Cholestin, which the FDA wanted categorized as a "dietary supplement" so it could regulate it, but which the judge said was just a food. This was the first test case of the 1994 Dietary Supplement and Health Education Act. You can read about it here [ ] and here [ ] and here [ ].

2. He ruled [ ] against Proctor & Gamble, when it sued Amway in one of its "Satan-worshipper" rumour lawsuits. More here [ ].

3. Here [ ] is a case where he refused to ban recreational vehicles on wilderness land owned by the governement. You may or may not like that, but if you read his reasons, you note first that he doesn't care who is powerful and who isn't and he goes very strictly by what the law actually says, not what he might personally like or dislike. That's what judges are supposed to do.

4. Here [ ] is a fraud case he handled.

5. Want to see a software-related case? Here [ ] is one he handled, Altiris Inc v. Symantec Corporation, where the Appeals Court overruled part of his decision, but if you read the reasoning, you'll see it wasn't because he didn't have a tech clue.

6. He also sat by designation [ ] on ACLU v Johnson [ ], 194 F.3d 1149 , US Ct of Appeals, 10th Circuit, a unanimous decision re child filtering.

7. He handled the review of Zeran v. AOL [ ].

8. Worried he might put Mormons ahead of others because he is one and his last name is Kimball, to boot? Then take a look at Universal Life Church v. Utah [ ]. Another interesting case involving Indian religion is here [ ].

9. Here [ ] is a trademark case he ruled on.

10. And here [ ] is a copyright case he handled, in which he said the plaintiff waited too long to raise his objection. "Had Jacobsen [plaintiff] voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books," he wrote in his decision. Because he waited too long, the material had lost its copyright. A news story in the Deseret News [,1249,245014309,00.html ] explains:

"In his ruling, Kimball said Jacobsen did not 'express any disapproval' of the series until 1999, after the third volume had been published. 'Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books,' Kimball wrote. 'For Jacobsen to wait until three volumes of the series had been published before voicing his disapproval, when it is clear he had ample opportunity to let Hughes know of his disapproval as early as 1996, results in extreme prejudice to Hughes.'

The plaintiff had an opportunity to read the book before publication, but he never finished it. The reasoning in this ruling would appear to be encouraging in the SCO fact pattern, wouldn't you say? SCO, then Caldera, obviously had access to Linux code for years, as well as UNIX code, all the while they were selling Linux products. For that matter anyone can look at Linux source code. But they had access to both literally for years.

11. Complexity is obviously no problem. Here [ ] is a Forest Service timber use case he reviewed that will make your eyes hurt just to read it, and he had to write it. Even the caption of the case is complicated.

You can tell a lot about a judge by reading his decisions. In the above list, that would be the Altiris v. Symantec case, ACLU v. Johnson, Zeran v. Diamond Broadcasting, Universal Life Church v. Utah, the trademark case, and the Forest Ranger case. About the only thing I noticed that made me pause was that he appears to use Word to write his decisions so I don't know how much he knows about UNIX/Linux, but I assume he can quickly master whatever he doesn't start out with. He is apparently in the Utah inner circle [ ], for sure.

So what kind of guy is he, outside the courtroom? I found this article [ ] he wrote on a conference he attended as a panelist, in which LDS and Jewish leaders met to discuss differences and similarities of outlook in the two religions' views on law, "LDS and Judicial Perspectives on Stories from Jewish Tradition". It's quite interesting, because it clearly shows he has a sense of humour and a clear and logical mind. A Jewish panelist would tell famous stories about Jewish law, and then two LDS panelists would give their reactions. Examples:

"A penniless orphan had been taken in by a prominent rabbi and his wife and given lodging and wages in exchange for services as a maid. Unbeknownst to the rabbi, the young woman had broken a precious household candlestick and the rabbi's wife was taking her before the Beit Din (the local ecclesiastical court), seeking monetary damages. On the morning of the hearing, the rabbi observed that his wife was putting on her formal clothes and inquired why. She explained, whereupon the rabbi began putting on his formal attire and said he would accompany her to the Beit Din. 'Good!' exclaimed his wife, noticeably pleased with her husband's apparent support. 'You don't understand', explained the rabbi, 'I go to testify on the maid's behalf.' 'Why?' asked his stunned spouse. 'Is not my claim just according to the law?' 'It is,' replied the rabbi. 'However, the Torah commands us to protect the widow and the orphan -I go to fulfill God's commandment.'

After the other panelist's blah blah blah on protecting widows and orphans, Kimball's pragmatic reaction, in part, was, "We have here a good rabbi who needs more communication in his marriage."

Another reaction to a different story shows how his brain analyzes problems:

"A landowner employed a group of itinerant day laborers to move barrels of wine. The laborers carelessly handled one of the barrels and it fell and broke, spilling all of its contents. The landowner refused to pay them their wages and seized their knapsacks containing all of their worldly possessions. He then went before the Sanhedrin (the high Jewish court) seeking a ruling that his actions were legal in light of the fact that his damages exceeded the value of both their wages and possessions. The judges agreed with the owner's position as a matter of law. However, they reminded him that the God of Justice is also the God of Mercy. They then asked the owner which aspect of God he wished to encounter when it became his time to be judged. Acknowledging their point, the owner accepted the court's ruling that the laborers were entitled to return of their possessions and to their full wages."

The other panelist said:

"This reminds me of the parable found at Matthew 18:23-34: The Lord forgives his servant 10,000 talents, but the servant refuses to forgive his fellow servant 100 pence. The Lord asks the unforgiving servant, in verse 33, 'Shouldest not thou also have had compassion on thy fellow servant, even as I had pity on thee?'"

Kimball asked: "Were all of the workers negligent or just one? Did one or more act recklessly or intentionally? Should that make a difference? Would you sue a homeless person you hired to work for you when that person broke something valuable? The owner's actions here just seem wrong. What were the working conditions?"

This next story elicited what I found the most telling response:

"A businessman planned to file a lawsuit and had a choice of two jurisdictions. He sought advice from his rabbi as to which jurisdiction would be better. He explained that the judge in one town was renowned for his legal brilliance and copious scholarship. By contrast, the other judge was known for his humility. The businessman suggested the former should be preferred but his rabbi disagreed. The rabbi explained that the brilliant judge would be tempted to use the case as a means to demonstrate his own brilliance whereas the humble judge would be concerned only with discovering and applying what the law truly was."

The other panelist voted for humility being the most, most important quality a judge could have, but Kimball said: "Forum shopping is all right if it's legal. Humility is a marvelous attribute. A cause-oriented judge is a dangerous judge and one cause may be a judge's own brilliance. Is the humble judge also intelligent? Or is he humble and stupid? A stupid judge is dangerous also. If the matter is complex you may want to take your chances with the brilliant unhumble judge."

I don't know about you, but I 'd take my chances with this judge any day.

10:25:31 PM

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