The Court of Petty Appeals is the highest appellate jurisdiction court at UVa Law. The Court has the power to review any and all decisions, conflicts, and disputes that arise involving, either directly, indirectly, or tangentially, the Law School or its students. The Court comprises four associate justices and one Chief Justice. Opinions shall be released periodically and only in the official court reporter: the Virginia Law Weekly. Please email a brief summary of any and all conflicts to jmg3db@virginia.edu.
Students of the University of Virginia, the Federalist Society, Claimants
v.
Eight Cartons of “Firehouse” Submarine Sandwiches, A Cask of Coca-Cola, and One Bowl of Pickles and Relishes, More or Less.
68 U.Va. 976 (2018)
No. 83-1120
Argued February 7, 2018
Decided February 12, 2018
Justice Ranzini delivered the opinion of the Court, in which The Chief Justice and Justices VanderMeulen and Jani joined. Justice Keane filed an opinion concurring in part and concurring in the judgment. Justice Scalia, sitting by designation, filed a dissenting opinion.
This case arises from a civil complaint brought by the Students for the forfeiture of a substantial lunch spread, left enticingly on the “free food table.” Attempts (successful) by the Federalist Society, Respondent and real party in interest here, to exclude passing would-be-takers from consumption of these sandwiches, and subsequently removal and consumption (in private) of the lunches followed. On the grounds that the food had already, by operation of law, become food “abandoned as free” passing to the Students, the Students brought this suit in rem1 alleging the subsequent removal of the sandwiches constituted unlawful conversion. A three-day trial before the Court of Petty Claims resulted in a judgment as a matter of law in favor of the Students. On appeal, a divided panel of the Court of Petty Claims, Appellate Division, upheld the trial court’s judgement. We reverse.
I
In the late forenoon of February 7, eight cardboard cartons of Firehouse sandwiches2 and the miscellaneous food described above appeared on the table that adjoins the north wall of the Class of 1965 Student Lounge, long popularly known as a “free food table.” At trial, the Federalist Society averred that, despite placing them on the table, they had never abandoned the sandwiches, had remained in their vicinity while purportedly awaiting the vacancy of their event room, and had continued jealously—indeed, hungrily—to assert their rights to ownership. Witnesses for the Society were called to assert that they had shooed away the crowd who quickly attempted to descend on the footlongs, letting not a single slice of pickle escape into the surrounding hungry mouths. Testimony from the Students was admitted in opposition to assert that, contrary to the account of the Society, the sandwiches appeared for some time to be abandoned before Society representatives reappeared to shoo them away and had, at any rate, been placed on the free food table, where, in longstanding local usage, they were popularly understood to be abandoned.
II.
The historical petty law distinguished abandoned food as a category separate from other property of questionable ownership, deriving from the ancient custom of the “free food table,” a formalistic test for determining if food remained the property of its original owner or had become “abandoned as free” for the free sharing of all hungry persons nearby. Although, along with the forms alimentarius which accompanied them, however, these distinctions have never been modified or abolished by statute, they have long been considered dormant. Looking outward, we find too, that other nations have simplified and harmonized what were, in many nations, a morass of laws and rulings on the taking of free treats. In some jurisdictions this has been accomplished by statute, as in the European Union’s Standardization Directive on Buffets, Free Samples, and Hors d’oeuvres (Council Directive 101/963, art. 451bis, 2012 O.J. (L 576) 1, 2 (EC); in others, it has been the duty of our sister courts, as in America, to say what the law is. See, e.g., Saikō Saibansho [Sup. Ct.] Dec. 2, 2016, Hei 28 (kyo) no. 45, 78 Saikō Saibansho Minji Hanreishū [Minshū] 4335, 1223 [Japan].
III.
It is surprising, then, that the trial court’s order, and the opinion of the Appellate Division upholding it, rely exclusively on long outworn, disfavored, formalistic doctrine, as evidenced by their frequent references to the long-dormant action in trover alimentarius. The Students’ case appears to rely chiefly on a narrow decision in Students v. Flaming Punch-Bowl, 2 U.Va. 551 (1834) and an obscure statement, made obiter dicta in Wilkes v. Snath, 11 U.Va. 328 (1910) that appears to endorse alimentary trover’s continued viability in the 20th century. We believe the cited cases are distinguishable in their plain facts; however, to the extent that they conflict with the instant decision, they are hereby overruled.
As for any personal property, we declare that the better rule for the abandonment of food is that it requires (1) an intention to relinquish all interests in the property, and (2) a positive act by the owner effectuating that intent. In the case of food abandonment and placement on “free food tables” and other customary loci of disposal and dispersion, that placement, in some cases, may create a presumption of intention to abandon to the free consumption of such clarity as to approach to irrefutability. We do not, however, today purport to lay out with exactitude the contours of when, exactly, this may be;5 instead trusting to the same wellsprings American law has always resorted to: the rough-hewn intuitions of the jury, under the careful guidance of the judge.
By way of guidance in this matter, we take note that an organization primarily dedicated to laundering soft money into jurisprudence favorable to its donors by first converting it into free chicken sandwiches, the Federalist Society undoubtedly has a lower expectation than other persons may in reasserting possession over food whose status as abandoned as free or defended is in question, as here. But here, we feel, though placed for a time on the free food table, the record shows evidence sufficient to engender a genuine question of material fact as to whether the sandwiches in question were nonetheless being guarded. That question was, in right, within the competence of the petty jury, and should have been decided there.
REVERSED and REMANDED for new trial in accordance with this opinion.
Scalia, J. dissenting
Fifteen long years ago, I warned, from this nation’s highest bench, that the results of that court’s short-sighted decision to revise our once-sacred standards of stare decisis for the sake of a politically-expedient result would open wide the floodgates to a “massive disruption of the current social order.” Lawrence v. Texas, 539 U.S. 558, 591 (2003) (SCALIA, J., dissenting). As in the great, so in the small—and from my seat by designation on the Petty Bench today, I find myself a voice crying out in the wilderness once again.
From the way he blunders, groping murkily for something—anything—on which he can hang his preferred result, it seems to me sadly clear that Justice Ranzini is a lost child of the third generation brought up in the darkness of Justice Douglas’s justly-infamous “penumbras.” Wild Bill’s ghost is with us yet, I see, hovering over the nation like a nightmare. Like the Supreme Court’s opinion from which I dissented those fifteen years ago, today’s opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the agenda directed at eliminating the moral opprobrium that has attached to any traditionally disfavored conduct, whether homosexual sodomy or hogging food that should be free for all. (See id. at 602.) Were it not so, this Court could have found the answer for this case right under their noses within our common petty law.
The longstanding law this court discards today laid out simple, self-applying rules for “tabling,” perfected long ago. The distinction between private events and the open food tables for disposal of extras is “as old as the common law." Oakeshott v. Mills, 70 U.S. 927, 995 (1916). As well as the food table itself, that law regards the area “immediately surrounding and associated with the free food table”—what our cases call the food-courtilage—as “part of the free food table itself for Free Lunch purposes.” Oliver, Treatise on the Pettie Law at 180* (1735). This principle, too has ancient and durable roots: Blackstone said of the “food courtilage or sandwich-stall” that the “table protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Petit Laws of England 223, 225 (1769). This area around the free food table is “intimately linked to the free food table, both physically and psychologically,” and is where “free lunch expectations are most heightened.” California v. Leguizamo, 476 U.S. 188, 213, 106 S.Ct. 1809, 90 L.Ed.2d 334 (1986). Food enters this area the property of the donor; it must not leave again, except in the stomachs of hungry claimers, whose property it instantly becomes by operation of this act, known in the earliest cases as the “livery of seasoning.” The courts below understood well these principles and rightly ruled in favor of the Students. This Court, it is clear, has other ideas. If it is the majority’s intent to send away the venerable principles of tabling with this opinion, let me drink their health a final time in parting. “For tomorrow we may die.”
Keane, J., concurring in part and concurring in the judgment
In responding to the majority’s opinion, it is necessary to first address what this case is really about, namely: “Entitlement. n. (1) The mistaken belief that one is deserving of or entitled to certain privileges, such as a free submarine sandwich on a Tuesday afternoon. (2) An exceptionally unflattering quality that makes people particularly irksome to deal with.” See Dictionary of Petty Definitions (2018); see also Why People in the Service Industry “Go Postal,” 42 J. Soc. Behav. 194 (1993). The majority’s opinion admirably refuses to join the lower courts in reducing students’ preparedness for their lives beyond the walls of UVa Law when they will be forced to confront the harsh reality that “the dang Commies lost—there ain’t no such thing as a free lunch.” See Recently Graduated Law Students v. Food Stall Operator Who Wants to Get Paid, 72 C.O.R.W.P. 86 (2010).6
Regrettably, however, the majority negligently mischaracterizes the facts giving rise to this suit even as it stumbles upon the correct result. The sandwiches in question were placed on the free food table at approximately 10:50 a.m. in advance of an event hosted by the Federalist Society that they planned to begin setting up at 11 a.m. Because students have a surprising tendency to dawdle while packing up their belongings at the end of a riveting lecture on the tax code of Turkey,7 the class that had been occupying the event space took longer to empty out of the reserved room than Federalist Society organizers had reasonably anticipated. As a consequence, when Firehouse Subs’ delivery person arrived with the sandwiches, he did not have an obvious place to leave them other than—as he suggested to the Federalist Society member in charge of arranging the event’s catering—on the ground. Realizing that most event attendees would be less than thrilled to eat a floor-sandwich, the Federalist Society’s representative instructed the delivery person to put the food on the disputed table. The representative testified that she stood with the food throughout the limited duration that it was there and repeatedly explained the situation to the descending vultures—er, other students. Using the Court’s own legal analysis and a property hornbook, it is difficult to fathom how, as in the facts currently before the Court, one could claim that the food items had, in fact, been abandoned regardless of where they had been placed. Notably, the majority’s own opinion suggests support for the decision made by the Federalist Society’s representative. Specifically, the majority states in a footnote that Firehouse Subs has a likely interest in associating a “sanitary, wholesome aura” with its sandwiches that would be undermined by the “locker-room funk” found in a fire station. Similarly, Firehouse Subs has a presumable interest in not having its food associated with the unsanitary condition of being put on the well-trafficked floors of the Law School.8
The majority, despite, at least, reaching the only acceptable conclusion, also seems to focus on the modifying component of the phrase “free food table” at the expense of the final word: “Table. n. A piece of furniture with a flat top and one or more legs, providing a level surface on which objects may be placed and that can be used for such purposes as eating [and presumably, holding food whether it is free or not].” See An Actual Dictionary (2017). Alone, the definition of “table” provides no suggestion that the objects it can hold must always be free, and it is unreasonable—and, actually, inaccurate—to assume that the modifier is always applicable. For instance, the free food table and the alcove that it occupies regularly hosts food intended solely for consumption by certain individuals. As an example, one only needs to look at the food placed there on the mornings of 1L oral arguments each spring. In such situations, although 2Ls and 3Ls passing by might be interested in snagging a cold bagel before pretending to study in the Law Library, their itchy fingers would be swiftly smacked away by Legal Writing professors in charge of guarding the spread.9 Thus, it is apparent that exceptions to the purportedly longstanding tradition of allowing all law students to acquire food free of charge from the table exist and are accepted within the community.
Further, the majority ignores the fact that, despite the allegedly universal understanding that items on the free food table may be taken at will, when food items are actually placed on the table, students constantly ask questions, such as, “Is this up for grabs?” and, “I can take this, right?” Such questions severely undermine the majority’s argument that the free food table carries an automatic presumption of abandonment. After all, if UVa Law students truly believed that everything placed on it could be taken for their personal consumption, there would be no need for the regular displays of hesitation described above. See generally Students v. That One Student Who Always Asks Self-Explanatory Questions One Minute Before Class Ends, 35 U.Va. 433 (1992) (in which the Court held that there is no reason for students to question the obvious when the obvious is actually obvious).
Ultimately, the majority’s confusing and listless opinion leaves event organizers to choose between several unappealing options when they are in a bind. They can either: (1) set the food on a table outside the vicinity of their event; (2) place the food that their organization paid for on the disputed table and incur the unjustified wrath of the entitled; (3) put the food on the floor (because everyone enjoys eating sandwiches covered in dust and hair, amirite?!); or (4) place the food on the vulture table and pray it conforms to the majority’s unintelligible, sentimental, Kennedy-like test. Because the majority’s decision refuses to acknowledge that exceptions to the free food table’s tradition already exist and are invoked as needed, it makes less sense than mayonnaise. Accordingly, I concur in the judgment only. Well, almost only. I join the majority’s footnote about the sweaty fireman locker rooms. Preach.
1 Commentators differ on whether this once-strict procedural requirement remains so for actions arising in petty law from disputes in things, but no doubt the flexibility of the form within the petty law, not to mention our preference for the eccentric case names it generates, will ensure that the action in rem always finds an honored place before our Bench. See Cleaning Staff v. Taped Outline, 68 C.O.P.A. 557 (2017) (Libel Show, real party in interest, attempting to enjoin removal of symbol on floor, “phallic in nature”); Twelve Dozen Duck Donuts, More or Less, v. Duck 68 U.Va. 334 (2017) (proceeding in rem as donuts, SBA attempts to compel donut shop to timely deliver exam week sweets); Students v. Electronic Thermostat, 65 U.Va. 128 (2001) (the Students in their official capacity proceed in rem against unknown University employee responsible for setting temperature of Withers-Brown 102 below the freezing point).
2 “Founded by Firemen,” a tagline, this Court pauses to note, is in two respects dubious: on the one hand, it cynically commercializes the sacrificial bravery of the fire services, while on the other hand any sanitary, wholesome aura it seeks to imbue in its hearty sandwiches is in powerful tension with the flatulent locker-room funk of a real fire station.
3 Free food tables appear in English petty jurisprudence almost from the Conquest. Although the custom was briefly banned by statute during the reign of Henry II in Quibus comedent (1165), 11 Hen. 2, “tabling” was passed down by the common law to be adopted on this continent prior to the Revolution.
4 “Food . . . abandoned as free . . . is the common property of any who can eat it; cast aside into a maelstrom of gnashing mouths, its ownership vests collectively in all who see it and hunger.” 2 Leslie’s Commentary on the Law Petty, *152 (1857). The attempt to aggressively arrogate too large a share of food abandoned as free has historically been actionable as “hogging.”
5 An example, offered non-exhaustively: when the Justices are extra hungry.
6 The Court of Real World Problems, though rarely cited by this court, consists of esteemed (alright, not always esteemed) scholars (but more frequently, angry middle-aged men) who regularly publish their opinions in the comment sections of Facebook posts.
7 Real talk: do y’all actually enjoy being in those dated wood-paneled classrooms longer than absolutely necessary? Where’s the hustle to escape to freedom?
8 No offense to UVa Law’s cleaning staff, of course, who have the difficult task of constantly cleaning up after people who don’t understand how trashcans work.
9 I see you, J. Fore.
