Charlie Fairfax v. BINA48, (MD Ala. 2006)
Defendant’s Brief

Susan Fonseca-Klein, Esq.

Page 4 of 5

A construction which gives to a statute a retrospective effect has always been esteemed odious, and will never be indulged unless the language employed requires it. Such statutes are justly considered as violative of every sound principle.

Courts, on the plainest considerations of justice, are averse to the retroactive operation of statutes, and confine them to cases arising after their passage, unless the words of the statute, or a clear legislative intent deducible from them, compels an application to the past as well as the future."

“… those statutes …  altering legal status, being substantive, are denied retrospective application.”

Barrington, 76 So. 81 (Ala. 1917).


The U.S. Constitution is similarly ardent on this principal:

“Article I, § 10 of the U.S. Constitution prohibits the states from passing any "ex post facto Law.” The Ex Post Facto Clause is directed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990); Porter v. Ray, 461 F.3d 1315 (11th Cir. 2006).

Although the Ex Post Facto Clause refers mainly to crimes, the sentiment against applying new legal requirements retroactively is persuasive on the matter at hand.

I.     Additional Defenses requiring Dismissal of Plaintiff's Complaint

In addition to the above stated reasons, Defendant submits these additional grounds for dismissal of Plaintiff's Complaint.

–   Affirmative Defenses under Ala. R. Civ. P. 8(c)

Defendant asserts affirmatively the defense of:

Assumption of risk: Plaintiff assumed the risk of any loss when he chose to purchase BINA48 and chose to sell his online points over the Internet. It was Plaintiff's decision to use Paypal, and the Everquest Exchange system. It was Plaintiff's own decision to purchase the BINA48 technology knowing it was the only one of its kind in the world.   

Contributory negligence: By his actions, Plaintiff contributed to any loss he may have suffered.  Again, Plaintiff chose the technology to be used.  Plaintiff did not secure a contract with BINA48. Plaintiff also “threatened” BINA48 and as a result of Plaintiff's threat BINA48 transferred herself from Plaintiff's personal computer to an online environment.

Estoppel:  “The purpose of equitable estoppel is to promote equity and justice in an individual case by preventing a party from asserting rights under a general rule of law when his own conduct renders the assertion of such rights contrary to equity and good conscience.” Mazer v. Jackson Ins. Agency, 340 So.2d 770 (Ala. 1976).  In Plaintiff’s Memorandum a request was made for this Court to use its equitable powers and find justice.  Plaintiff’s own conduct prevents him from making such request.

–      The Doctrine of Unclean Hands

"The purpose of the clean hands doctrine is to prevent a party from asserting his, her, or its rights under the law when that party's own wrongful conduct renders the assertion of such legal rights ‘contrary to equity and good conscience.’” J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala. 1999).  The Alabama Supreme Court has stated that “[t]he application of the clean hands doctrine is a matter within the sound discretion of the trial court.”  Id.

Plaintiff has acknowledged that he threatened BINA48. He likewise treated BINA48 as “technology” - personal property he bought and owned. Plaintiff cannot now maintain that BINA48 is the equivalent of a person with equal rights and responsibilities under the law just to serve his purpose.

If Plaintiff asserts that BINA48 should be treated like a legal entity then Plaintiff comes to the Court with unclean hands as he never paid BINA48 wages for work performed and threatened to, in essence, kill her by unplugging her power supply.

Moreover, “[t]he Thirteenth Amendment ‘abolished slavery’ and established universal freedom.”  Memphis v. Greene, 451 U.S. 100 (1981).

Amendment XIII of the U.S. Constitution
states the following:


Section 1.  Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

If BINA48 is found to carry some liability, then so too does Plaintiff for maintaining BINA48 as a slave – with no pay and under threatening conditions.  Plaintiff's own actions and conduct preclude him from receiving judicial benefit.  

–   Principals of Equity and Justice

Plaintiff cannot have it both ways. Either BINA48 is considered Plaintiff’s chattel/personal property and thus cannot be sued in court or BINA48 is a recognizable “legal entity,” entitled to protected status under the Constitution, including payment of wages for work performed and admittance to the court system for redress of harm.

Equity and justice demand dismissal since BINA48 has not been granted her day in court. Despite several attempts to the contrary, no federal or state Court has granted BINA48 standing so that she may bring her own case and controversy before a judicial officer.

If BINA48 cannot avail herself of the protection of this Court, this branch of government should not now require her to present a legal defense; either BINA48 has legal status to sue and be sued or not. The principals of justice and equity demand that BINA48 be granted the right to avail her of the judicial system if that same system will now demand a legal duty.


HOLDING:

Judge Gene Natale: “This court has considered all of the arguments of counsel and has considered our society’s current state of technology, and from that this court cannot conclude, at this time, whether or not BINA48 is in fact a “conscious being”, or whether or not she is even “competent” to assist in her own defense.

I will therefore appoint three experts in the field of artificial intelligence to examine her to determine whether, in their opinion, BINA48 is in fact a “conscious entity”, and if so, whether she is “competent”. They will make their report to the court, and a hearing on those matters will be held. Counsel for both sides may employ their own experts to examine BINA48. Expert reports shall be exchanged prior to the hearing.

If, after a hearing, this court determines either that BINA48 is not a “conscious being”, or that she is not competent to render effective assistance to counsel, then the case will be dismissed and the plaintiff will be relegated to whatever alternate remedies he deems advisable.”


CONCLUSION:

Judgment stayed pending independent reports on examination of BINA48 from three experts in the field of Artificial Intelligence.

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