Another Latin Lesson

During the run up to the hearing on Bill Schmalfeldt’s failed motion to modify the peace order issued against him, he kept ranting about how he was going to relitigate the Hoge v. Schmalfeldt peace order case during the hearing on the motion. My response to him was to offer a lesson in the meaning of the Latin phrase res judicata (“the thing decided”). As a legal principle, it means that a final judgment is just that; it’s final and not to be relitigated.

The Cabin Boy has committed an absurd number of violations of that peace order, so he is now facing an absurd number of criminal counts of failure to comply with a peace order. He’s taken to the Interwebz to lecture what few readers he can muster on his crackpot legal theory of why he really hasn’t done what the judge told him not to do. It may be time for him to learn a new Latin phrase.

Stare decisis.

Those word come from the legal maxim stare decisis et non quieta movere which means “to stand by decisions and not disturb the undisturbed.” As a legal principle, this means that courts abide by precedent and don’t disturb settled matters.

So what are the precedents and settled matters with respect to the Hoge v. Schmalfeldt peace order?

First, it is a settled matter of fact that Bill Schmalfeldt engaged in a course of conduct to harass me.

Second, it is a settled matter of fact that he used @mentions and @replies to do so. The only evidence offered in the trial in the Circuit Court was from Twitter, so if the judge found that harassment occurred, it must have been via Twitter.

Third, it is a settled matter of fact that the Circuit Court issued a peace order requiring that Schmalfeldt should not contact, attempt to contact, or harass me and that the order is effective until 14 December, 2013.

Fourth, it is a settled matter of law as far as the Circuit Court is concerned that Schmalfeldt’s use of @mentions and @replies on Twitter is within the scope of the Maryland harassment statue. The Court of Appeals refused to review the Circuit Court’s ruling.

Fifth, it is a settled matter of law as far as the Circuit Court is concerned that neither the ruling nor the dicta in U.S v. Cassidy are applicable to the Maryland harassment or peace order statutes. Cassidy turns on speech about someone. The harassment statute involves speech to someone. The Court of Appeals refused to review the Circuit Court’s ruling.

Sixth, it is a settled matter of law that one must obey a court order, even an unconstitutional one, until it is either rescinded or overturned on appeal. The Supreme Court said so in Walker v. City of Birmingham.

When the four cases (for now) dealing with the 351 counts (for now) of failure to comply with a peace order go before the District Court, the principles of res judicata and stare decisis should require the District Court to take the first three points above as a given. Also, since the Circuit Court is a higher court, the District Court should also be bound by higher court’s determination of the meaning of the law in points four and five. It will certainly be bound by Walker.

So the questions to be decided by the District Court should boil down to these:

1. What did the peace order forbid?
2. Did Bill Schmalfeldt commit a forbidden act?

Nothing that the Cabin Boy has been going on about should be relevant.

UPDATE—Some people will only learn Latin the hard way …

UPDATE 2—Minor correction for clarity.

Team Kimberlin Post of the Day


Cabin Boy Bill Schmalfeldt has a moderately fluent potty mouth in English, but his Latin leaves something to be desired. He’s written a four-word sentence with multiple errors. I’ll leave it to someone else correct his attempted insult except to say that the verb he was looking for is futuō, futuere, futuī, futūtum, which is a very naughty word, or paedīcō, paedīcāre, paedīcāvī, paedīcātum, which is even worse.

Falsus in uno, falsus in omnibus.