Minnesota Lawyer Blog

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.

It’s been 20 years since the American Bar Association formed its Commission on Lawyer Assistance Programs. To celebrate the occasion, hundreds of lawyers and other professionals involved with lawyer assistance programs -- which are designed to help lawyers cope with depression, stress and alcohol or substance abuse -- will gather in Halifax from Oct. 2-5.

In a press release, Barbara Smith, conference co-chair and director of the New York State Lawyer Assistance Trust, said that the conference will introduce a new initiative that calls for assistance programs for judges.

Minnesota’s own lawyers’ assistance program celebrated its 30th anniversary last year. According to Joan Bibelhausen, director of Lawyers Concerned for Lawyers, judges have been included in Minnesota’s program since the beginning, although enhanced efforts -- through the Minnesota District Judges Association -- are currently underway to get the word out to the bench about the availability of program to judges.

Bibelhausen and at least six other Minnesotans will be attending the conference next month. “There will be a good Minnesota representation,” Bibelhausen said.

More information on the 20th anniversary National Conference for Lawyer Assistance Programs is available here.

The Minnesota Supreme Court Historical Society (at least that's the working title of the group) had its second meeting yesterday at the Minnesota Judicial Center. One of the points addressed by attendees was whether to adopt the historical society name.

St. Louis Park attorney Kate MacKinnon commented that the word "society" made the group sound like a “club for fusty old men."

Justice Sam Hanson -- who, along with Justice Paul Anderson has been a driving force of the initiative -- drew laughs when he quipped that he took exception to the “fusty old man” reference.

One of the early projects that will be tackled by the fledgling society(?) will be to write memorials for all the deceased Supreme Court justices for whom no memorial was published. (Minnesota Reports stopped publishing memorials in 1977, so memorials are missing for justices who have died since then. In addition, memorials are missing for some early justices. In all, 24 memorials need to be written.)

If you are interested in judicial history and want to pitch in by researching and writing a memorial, you can contact MacKinnon at (952) 915-9215.

I was watching Harvey Birdman, attorney at law the other night on Cartoon Network when it occurred to me — right after Top Cat got arrested for 'being a cat' — that there's nothing particularly funny about an incompetent judge.

To wit: Soo Chung and her husband Jin Nam Chung just closed their dry cleaning shop in Washington, D.C., after a two year legal battle with Administrative Law Judge Roy L. Pearson, who sued them for $54 million over a missing pair of pants.

Pearson lost, but two years of litigating the "pants suit" and the prospects of an appeal ultimately drove this South Korean couple out of business.

"This is a truly tragic example of how devastating frivolous litigation can be to the American people and to small businesses," attorney Chris Manning said in a statement.

Keep that in mind the next time you see Judge Gibber Jabber on Boston Legal.

So. Not. Funny.

Today's Strib reports that Hamline University Law School Dean Jon Garon plans to step down from his post at the end of the academic year. Garon, who served as dean for five years, plans to return to the Hamline faculty after a year-long sabbatical.

With four local law schools, three are now without a permanent dean. In addition to Hamline, the University of Minnesota Law School and William Mitchell College of Law are looking for deans. (We blogged about WMCL dean Allen Easley's resignation only a few short weeks ago -- see "Half the state's law schools now in between deans." Unlike Garon's resignation, Easley's was effective immediately.)

The announcement means that only the University of St. Thomas School of Law -- which has Thomas Mengler at its helm -- is now not in dean search mode.

For more on Garon's decision to take a break from deaning, see "Hamline Law School joins U, William Mitchell in search for a dean."

Much of the coverage of Ramsey County Judge David Higgs’ decision that new Star Tribune publisher Par Ridder must step down from his position for a year has made note of the strictness of the decision. The Star Tribune’s coverage called it an “extraordinary step,” and other outlets referred to it as a “sweeping victory” for the Pioneer Press. But considering the standards that are often applied in non-compete cases, it seems the news could have been worse for Ridder and the Star Tribune.

Most non-compete agreements in creative fields follow similar terms: You can’t work for a direct competitor for two years; if you do, you might be subject to an injunction to keep you from working there, and might be forced to pay the legal costs of your former employer, and maybe even punitive damages. And Higgs is forcing the Star Tribune to pay the Pioneer Press’s legal fees in the Ridder case, to the tune of $5 million – not exactly pocket change.

But letting Ridder return to the Star Tribune after just a year – especially considering the extraordinary circumstances of the case, which included the pilfering of confidential budget and advertising data – seems lenient.

Higgs did rule that the non-compete agreement Ridder signed wasn’t valid. However, he did say the non-compete of another former Pioneer Press executive, Jennifer Parratt, was valid, and yet she was also enjoined from working at the Star Tribune for only a year.

If there was ever a non-compete controversy that seems to call for textbook punishment, the Ridder case seemed to be it. One could argue that Ridder and the Strib should thank their lucky stars that this “extraordinary step” was so ordinary.

Has your client been hurt in a car crash? Are you wondering who is to blame? Maybe the auto maker contributed to the injury by negligently designing the vehicle. But where, oh where, can you go to find out how safe your client's car really is?

Fear not! The Web has an easy answer for you. There is a website you can go to to determine how various vehicles perform in crash tests. (You can reach the site -- which is run by the venerable Consumer Reports -- by clicking here. The site includes interior and exterior videos of the selected vehicle crashing during a test so you can witness the damage first hand. (Warning: some crash-test dummies were hurt to make these videos).

For example, I tried a 2007 Saturn Ion and found out that, in the Insurance Institute for Highway Safety's crash-test results, it received an "acceptable" rating for frontal offset. However, it was rated "poor" for side impact -- regardless of whether the car was equipped with optional side airbags. Hmmm. Makes me wonder what you are paying for when you shell out all that extra money for side airbags.

In any event, whether you are trying to decide if you should file a product-liability action or just looking for a safe new family vehicle, the site is worth checking out.

Yesterday I visited an Itasca County courtroom to help out a friend and witnessed an extremely effective judicial process handled in a respectful and humane manner. I’m grateful for that demonstration of professional competence, especially after checking for legal news this morning.

I read that a state court judge in Nebraska has banned the word “rape” “victim” and “assailant” from a sexual assault trial, which seems like an unusual ruling. The putative rape victim responded by suing the judge for violating her constitutional rights, which also seems like an unusual move. A federal judge responded by issuing an order to show cause to the plaintiff/putative rape victim to demonstrate that her lawsuit wasn’t improper and frivolous, which seems like a smart move and was scheduled for hearing today.

But that’s not all. Nebraska Senator Ernie Chambers responded to the kerfuffle by filing a lawsuit against God to prove a point about frivolous lawsuits. This also seems like an unusual thing to do. Reportedly, Chambers is upset that the constitution requires that the doors to the courthouse be open to all, so he has sued God to show that anybody can be sued.

News reports indicate that Chambers’ lawsuit seeks a permanent injunction ordering God to cease certain harmful activities and the making of terroristic threats.

Chambers asked the court to waive personal service. "Plaintiff, despite reasonable efforts to effectuate personal service upon defendant 'Come out, come out, wherever you are,' has been unable to do so,'" Chambers said. The suit said that the plaintiff assumes God, being omniscient, will have actual knowledge of the action.

Chambers, it must be said, is not a lawyer, although he has a law degree from Creighton University. Otherwise, we assume he might be subject to professional sanctions. He has served nearly 40 years in the senate but is about to be term-limited out, so the voters won’t be able to make a point either. I guess they don’t call him the maverick of Omaha for nothing.

With the 2008 election season just around the corner, a Minnesota Supreme Court advisory committee soon plans to unveil its proposal on what changes need to be made to the ethics rules governing judicial campaigns.

The committee -- chaired by E. Thomas Sullivan of the University of Minnesota (photo on right) -- has been charged with recommending how Canon 5 of the state's Code of Judicial Conduct should be amended in light of the 8th U.S. Circuit and U.S. Supreme Court rulings in White, et al. v. Republican Party of Minnesota, et al. (Those decisions struck down as free-speech violations most of the restrictions Minnesota previously placed on campaigning for judicial seats.)

A draft of the committee’s recommendation is expected to be available on the Minnesota Judicial Branch website on or about Sept. 21, 2007. The committee will hold a public hearing on Oct. 17, 2007, from 9 a.m. to 11 a.m. at the Minnesota Judicial Center. (For more information, click here.)

It will be interesting to see what the committee proposes. Given the breadth of the White decisions, I would expect that the recommended restrictions will be relatively mild. One of the things the committee is looking at in making its recommendations is the American Bar Association Model Code. Adopting the ABA’s approach is certainly no guaranty against a later court challenge, but it would at least leave Minnesota in a better position than it was in the last go around, when it had on its books the more-restrictive rules that were ultimately struck down.

In any event, I would expect that the public hearing on whatever proposal the committee makes should be instructive. Stay tuned!

Is it just me, or have their been a lot more newspaper stories this year on bicyclists being hurt? Maybe I am just hypersensitive to the issue since I like to ride my bike to work on nice summer days. However, just recently we've had:

-- the 30-year-old bicyclist killed in the intersection near Lake Calhoun,
-- the 13-year-old bicyclist in Lakeville severely injured when he was hit by a car,
-- the father of four killed last Thursday in Minneapolis in an apparent homicide when he went out bicycling at night;
-- the Wright County teen bicyclist recently injured by a hit-and-run driver; and
-- a Nick Coleman column in the Strib today about a bicyclist injured by a motorist.

Of course, one of those incidents was an apparent homicide rather than an incident caused by negligence, but that goes to show another potential danger of biking. In crashes alone, eight bicyclists were killed in Minnesota last year, the Strib reports in one of the articles.

The negligence cases sometimes lead to lawsuits, of course. Minnesota Lawyer has reported this year on a $47,000 settlement procured by a bicyclist whose jaw was fractured and a bicyclist who procured a $45,000 settlement for a shoulder injury.

It should not be surprising that there are even some lawyers who fancy themselves specialists on these kind of cases. Minnesota Lawyer had an article last December about a California lawyer whose practice centers on bicycle cases. ("California lawyer chooses the (bike) path less taken," subscriber password required.)

I am not aware of any local lawyers who concentrate in bicycle cases -- although, of course, personal injury lawyers will always be willing to take a good one. The wheels of justice turn for bicyclists as well as motorists.