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Friday, September 21, 2007

How would God fare in court?

As a special extra for our blog readers, I am making the full-text of the editor's column from Monday's Minnesota Lawyer available on this site.

Does Nebraska’s long-arm jurisdiction reach into Heaven?

By Mark A. Cohen
Minnesota Lawyer Sept. 24, 2007

In case you missed the big news all over the Internet earlier this week, Nebraska State Senator Ernie Chambers has filed suit against God.

Chambers — who has a law degree, but is not admitted to any bar — filed the case pro se. Presumably, no lawyer could be found to play Devil’s advocate for him.

In his suit, Chambers alleges that the Supreme Being has caused “widespread death, destruction and terrorization of millions upon millions of the Earth’s inhabitants.” Asking for injunctive relief, he also says God has plagued the world with “fearsome floods ... horrendous hurricanes, terrifying tornadoes.”

Chambers filed the action after becoming upset by a suit filed against a federal judge that Chambers believed was frivolous. The Nebraska politician says his suit was filed to show that anybody can file a lawsuit against anybody.

Now I don’t mean to nitpick, but I am not sure that the Creator qualifies as just “anybody.” In fact, I am not sure if He (or She, if you prefer), qualifies as a person at all under the laws of the United States. But this is Nebraska after all. Besides, you can sue certain entities, such as corporations. For the sake of argument, let’s treat God as a nonprofit.

Since nonprofits and other corporate entities cannot represent themselves in court, God would have to hire a lawyer to represent Him if the Nebraska judge were to allow this ludicrous action to proceed. (Perhaps attorney Miles Lord would take the case. He has the right name for the job, anyway.)

While service of process would be tricky, Chambers had the good sense to ask it be waived. Chambers reasons that since God is omniscient, He has actual knowledge of the suit.

Anticipating a jurisdictional issue, Chambers argues that since God is everywhere, he can be sued anywhere. I suppose that if we do view God as a nonprofit, He is indeed “doing business” in Nebraska – although how much time He actually spends in the Cornhusker state is open for debate.

God’s lawyer could advance a couple of immunity arguments. For example, as the Supreme Sovereign, God would have a pretty decent sovereign immunity argument. He could also be legitimately found to have diplomatic immunity as the King of Kings. But let’s get by these thorny issues by saying that God decides to waive them.

Prior to discovery, it would be difficult to decide under which legal theory the case would proceed. Are the fires, floods and famines sent as intentional acts — as they are sometimes portrayed in the Bible and elsewhere — or are they side effects of a defectively created Earth? Under either scenario, Chambers’ case seems like a loser. Being omniscient, God could never actually be inattentive or otherwise negligent. And as goodness personified, he would not be able to commit the type of wrongful act that could be the basis of an intentional tort.

Putting all that aside, discovery with God would be something less than heavenly for Chambers. Since God knows everything, His response to even the most simple interrogatory would take an eternity to read. On the other hand, since God knows all, the defense would likely not make any discovery requests whatsoever.

The actual trial would be even tougher to conduct. As a child of God, every potential judge would have a disqualifying conflict of interest. And good luck finding a jury of God’s peers (although there are a number of $1,000-an hour Manhattan lawyers who no doubt believe themselves qualified).

Even if these problems could be surmounted and a trial were to be conducted, imagine how long it would take for God’s character witnesses to testify.

And what if God Himself wanted to testify in his own defense? How would He be sworn in? “I swear to tell the truth, the whole truth and nothing but the truth, so help me Me?”

I suspect any god-fearing jury would find in God’s favor. However, what would happen if, in some ungodly turn of events, Chambers actually won the case?

Not much. God would pretty much be free to go on doing what He has been doing since the beginning of time. It’s not like the judge could order God arrested for disobeying the court’s decree. Any law-enforcement officer who would try to carry out such an order would be best advised to dress for a trip somewhere very, very warm.

In short, I do not believe Chambers has a prayer with his lawsuit. To find the relief that he is looking for, he will have to appeal to a Higher Authority.

Mark A. Cohen is the editor-in-chief of Minnesota Lawyer. He can be reached at (612) 584-1531, or by e-mail at mark.cohen@minnlawyer.com.

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