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12 Catt. 1: In re Tops American Food Company

2012 September 5

JEREMY, C.J., delivered the opinion of the Cart. CATTLEYA, J., wrote a separate concurrence.

We granted cartiorari to Tops American Food Company (“TAFC”) to review the combination of its “hot Italian sausage” with peppers, onions, cheese, and “chilli [sic] cook-off winning chilli [sic]” atop a hot dog bun. As discussed below, we affirm.

Our initial query is always that of determining whether the subject of our discussion constitutes “street food.” If it does, we apply a presumption that the item under consideration should be affirmed. See In re Big Cheese, 6 Catt. 2 (2012). We need not linger on this question, for we have previously held that a half-smoke is per se street food, and by the same logic so must a hot Italian sausage. Cf. In re Street Vendor Near National Mall, 9 Catt. 5 (2012); see also In re PORC, 4 Catt. 1 (2011). Because the subject of our consideration constitutes “street food,” we will presume it should be affirmed absent indication to the contrary.

Tops American Food Company

Sausage. This Cart has, on at least one prior occasion, addressed an artisanal sausage. In In re PORC, we considered the following elements in assessing a gin and juniper duck sausage: (1) casing, (2) preparation, (3) texture, (4) taste. See id. Without holding here that a sausage or sausage-like foodstuff need satisfy all four elements in order to be affirmed by this Cart, we find, in this case, that TAFC’s hot Italian sausage does. TAFC’s casing was good, the kind that snaps satisfyingly when you bite into it. The preparation was flawless–not too dry, not overcooked. Texturally, the sausage was, like PORC’s and like a typical Washingtonian half-smoke, on the coarser side, which I tend to prefer. In terms of taste, I would call the sausage pleasantly piquant; without searing the palate, it lived up to the promise of the “hot” in its name. All in all, I have no complaints.

Italian Chili Cheese Dog

Chili. As noted above, I am informed TAFC’s chili has won certain awards. I am not sure which, and, quite frankly, dear reader, I don’t give a damn. Food awards are political events, and we of the Judiciary do best to avoid involvement in such. We say what the law is, see Marbury v. Madison, 5 U.S. 137 (1803), not what it should be. TAFC’s chili was delicious and a perfect complement to its hot Italian sausage. It, too, packed a certain potency. All in all, I have no complaints.

Accoutrements. Every good chili cheese dog requires some conveyance by which to maintain its nature as “street food.” Here, as usual, that conveyance is the hot dog bun. The bun held up well enough under the heat and weight of sausage and chili, becoming permeated with their flavors but without becoming soggily so. Toppings of cheese, onions, and peppers completed a classic street food concoction.

Because there are no flaws by which to rebut the presumption of affirmance, we, the Cart, find that TAFC’s hot Italian sausage chili cheese dog must be, and is hereby,


CATTLEYA, J., concurring.

Although the correct result has been reached in this case, I am saddened to see that my brother has opened up the Cart’s new term with an opinion that rejects plain English. But, of course, I am not surprised. See, e.g., In re DC Empanadas, 1 Catt. 3 (2011) (Jeremy, C.J.) (purposely using pretentious words). Yet again he casts aside familiar words in favor of a romp in his beloved thesaurus. He “would call the sausage pleasantly piquant”? 12 Catt. 1 (emphasis added). Oh really, Chief Justice? Well, I (and most other people, I think) would call it spicy. The sausage was spicy. Wonderfully so. So wonderful, in fact, that I am going to pick up another chili cheese dog on my way to get a copy of Plain English for Lawyers for my colleague, though he will surely continue to ignore its wise lessons (and opt instead to re-re-watch his copy of Gone with the Wind).

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