by Justice William W. Bedsworth

EAT MOR CHIKIN.

That’s the message the Chick-fil-A restaurant people convey with their ad campaign that shows cows painting that message on billboards. Obviously, the cows are no better spellers than the Chick-fil-A company itself, but they are pretty cute.¹

I eat a large number of chickens every year. My diet includes a lot of dead animals, and chickens rank high on my list because they are a good source of both protein and breading.

Breading is also a major component of my diet. I am not an expert on nutrition. (My idea of a balanced diet is one in which the cookie dough and the chocolate chips weigh the same amount.) But my family’s from the South so I learned early that if you’re cooking for people you love (and you’re on a budget), breading is a necessity.

So the Chick-fil-A cattle and I are on the same page as far as eating chikin. And, in fairness to the cows, “chikin” is how Benjamin Franklin, Noah Webster, Andrew Carnegie, and Franklin Roosevelt would have spelled the word.² Nor am I gonna make a big deal out of the corporate spelling of “filet.”

But the eating part turns out to be more complicated than you might think. Complicated enough to split the Ohio Supreme Court and drive a state legislator around the bend. The issue is whether “boneless chicken wings” must be boneless.

As you might have already learned from Millar’s column on the same case, an issue that nuanced could defy easy resolution. And, indeed, it split the Ohio Supreme Court right down the middle. Well . . . okay, you’re right. A seven-member body cannot be split “right down the middle” without somebody going to jail, but it split them 4-3.

The question then becomes how much middle has to be in the term “right down the middle.” The court did not reach that question; it was having enough trouble getting through its plate of wings.

I’d like to provide some additional context to this fowl conundrum. Seems Michael Berkheimer was dining with his wife and friends at a restaurant that specialized in chicken wings. He ordered his favorite, boneless wings, and enjoyed them until one seemed to go down a little funny. Three days later, feverish and unable to keep food down, Mr. Berkheimer went to an emergency room where they removed a chicken bone that had torn his esophagus. And the torn esophagus led to a thoracic infection. Saving him required several surgeries, two medically induced comas, and a stay in intensive care long enough to support an adverse possession claim.

So Mr. Berkheimer sued.³ Part of his lawsuit involved the fact the restaurant had advertised these as BONELESS wings. Clearly, his was not boneless. Ergo . . .

Well, not so fast. The Supreme Court of Ohio—or at least four of its members—held that “boneless wings” doesn’t mean the wings are boneless. They say the term “boneless wings” refers only to a style of cooking chicken. “A diner reading ‘boneless wings’ on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating ‘chicken fingers’ would know he had not been served fingers.” They threw the lawsuit out.

The dissent called the majority opinion “utter jabberwocky.”⁴ Basing their decision largely upon the novel and arcane idea of relying upon the English language, they said—in vain, because they were fourth-justice-less—people understand that wings that are actually ON THE CHICKEN have bones, but they don’t think restaurant “wings” are actually clipped right off the chicken. They know the wings they order were never intended for flight—even the short flights your garden-variety, non-Olympic leghorn might manage.

I’m not gonna weigh in on this one.⁵ But I did have a similar issue a few years back. In Brady v. Bayer Corporation., 26 Cal. App. 5th 1156 (2018), our court confronted the similar issue of whether it was misleading for the dosage requirement of a product that called itself One-a-Day to be two a day, and I—Luckiest-Man-You-Ever-Met—got to write up our conclusion.

I won an award for that opinion. That’s not to say it’s right, only that it got attention as far away as Virginia—as a result of which my credit card is rejected if I try to use it to buy any product manufactured by the interstellar conglomerate which owns One-a-Day. Our supreme court chose not to speak to the issue. They generally prefer not to do anything that reminds them of me.

However, one of the first things you learn on an appellate court⁶ is that legislators are not overawed by black robes. I’ve had a few opinions that were affirmed by our supreme court but overruled by the legislature. I’ve even had a couple where I suggested the legislature might want to look at the statute again and see if they didn’t want to somehow geld my opinion.

And sure enough, the Ohio state legislature is taking another look at the bones case. After all, the majority was written by Republicans and the dissent by Democrats. The issue was pretty much served up on a platter.

State Senator Bill DeMora, a Democrat from Columbus, says the state supreme court has no concern for ordinary Ohioans. Says he went to lots of weekly wing nights with his friends at Ohio State University and they never expected there to be bones in their boneless wings.⁷ He’s introducing legislation to overturn the result in the Berkheimer case and change the law. Stay tuned.

But I wonder if Messrs. Berkheimer and DeMora aren’t chasing a wild goose here when there are tame ones milling about just begging to be cooked. How is it that no one is suing the company that made the wings in such a way as to prompt this debate over how boneless is boneless?

After all, the restaurant has no way of knowing what’s in the wing. Short of pre-tasting (yecch) or x-raying (“Yes sir, that will be $2,495.88”), they have to assume the product they buy after being told it has no bones is in fact . . . boneless.

See, this is why I’m not supreme court material. There are just way too many mysteries here for my meager faculties. I’m gonna let the good people of Ohio fight this one out.

Me, I’m gonna go home and eat some ladyfingers—and hope I don’t choke on a bone.

BEDS NOTES

1. The bar is set pretty low for cows.
2. They were all staunch and outspoken advocates of simplified spelling. Franklin invented a seventeen-character alphabet, Roosevelt issued an executive order (later rescinded) requiring it, and Carnegie put up $300,000 a year to advance the cause. Webster? Not sure he did anything but talk; he may have been too busy salivating over the chance to sell an entire new edition of dictionaries.
3. A fairly mild response. I think I would have returned to the restaurant with a flamethrower and a bandolier of grenades.
4. Now there’s a lovely—if somewhat inflammatory—turn of phrase. Not just “jabberwocky,” but “utter jabberwocky.” It turns out I may have been unduly collegial in the wording of my dissents over the years.
5. I’ll pause until you stop weeping.
6. Which you should have learned in law school.
7. They probably didn’t expect their football team to be made up of buckeyes—which are, after all, nuts—either.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.