Ellsworth Van Graafeiland, who died Saturday at age 89, was a senior U.S. Court of Appeals judge whose tartly worded opinions during 30 years on the bench criticized mandatory sentencing laws as inhuman, affirmed the rights of musicians to deduct the costs of practice rooms from their taxes, and found that the Muppets did not libel Spam.
Van Graafeiland - "Van" to friends - was a native of Rochester, N.Y., where he practiced law for more than 30 years before being named to the 2nd Circuit by President Ford in 1974.
Limited in his mobility by a cast he had to wear for scoliosis, he credited his inactivity for inspiring him to read and excel academically. In high school, Van Graafeiland composed the alma mater song. He also taught himself to play the piano, a skill that would endear him to friends later in life and help him understand working conditions for musicians being audited by the Internal Revenue Service.
The son of a clothing cutter who found work scarce during the Depression, Van Graafeiland enrolled at the Cornell School of Agriculture with just $15 in his pockets. Later, he landed a job as a cashier at a Walgreens in Rochester and transferred to the University of Rochester. He then attended law school at Cornell. Van Graafeiland was admitted to the bar in 1940 and joined the Rochester firm that would become Wiser, Shaw, Freeman, Van Graafeiland, Harter and Secrest. He worked mainly as a trial lawyer.
In 1974, Van Graafeiland was nominated for the Court of Appeals on the recommendation of Senator James Buckley. Needing Senator Jacob Javits's approval as well, Van Graafeiland went to his interview in new leatherheeled shoes. As they began to speak, Van Graafeiland's feet went out from under him, and he fell to the floor. Javits was dumbfounded, but recommended him. Van Graafeiland was approved just three weeks later.
He was soon involved in several well-known cases of the day - the sale of Atlantic Ocean oil leases, landing rights for the Concorde SST plane - as well as some not so well-known, as in a case over whether topless dancing is constitutionally protected self-expression. "We recognize that there is only a modicum of expression involved in the conduct of dancers," the opinion ran. But the "modicum is one of constitutional significance."
In his Drucker v. Commissioner decision of 1983, in which members of the Metropolitan Orchestra wanted to deduct expenses for their home practice rooms, Van Graafeiland quoted the old adage that the best way to Carnegie Hall is "Practice! Practice!"; he quoted Ignace Paderewski saying, "If I don't practice for one day, I know it; if I don't practice for two days, the critics know it; if I don't practice for three days, the audience knows it." Van Graafeiland ruled against the IRS.
Van Graafeiland wrote the opinion in U.S. v. Yonkers, a 1984 decision holding that reporters do not have the right to bring tape recorders into courtrooms. "The development of newspaper reporting as a skilled profession did not await the invention of the modern tape recorder," he wrote. "For decades, newsmen have practiced this profession successfully with the aid of pencil and paper."
In Hormel Foods Corporation v. Jim Henson Productions (1996),Van Graafeiland ruled that the character Spa'am, a large, savage boar in the movie "Muppet Treasure Island," could not be suppressed, despite Hormel's worries that sales of its product would drop if it were associated with a character it said was "evil in porcine form." Given that jokes linking Spam to all sorts of inedible substances were already rife, Van Graafeiland noted, "One might think Hormel would welcome the association with a genuine source of pork."
Van Graafeiland was disappointed by the federal sentencing guidelines established in the mid-1980s and correctly predicted that they would lead to stresses on courts and jails.
He was promoted to senior status in 1985, and continued to hear cases until the end of his life. Last spring, in a dissent, he challenged the historical legitimacy, and hence tax-exempt status, of members of the Oneida Indian tribe, which wanted to build an upstate casino. "You don't have to pay any taxes, but you can get all the benefits," Van Graafeiland wrote.
Ellsworth Alfred Van Graafeiland
Born in 1915 in Rochester; died November 20 after suffering a heart attack; survived by his wife, Rosemary, his children, Gary, John, Anne Van Graafeiland, Joan Pack, and Suzanne Giunta, and nine grandchildren and one great-grandchild.