Judge Porter Seems Amused As The JACC Slander Suit Grinds Forward

Photo By John Hoff

The lawsuit filed by JACC "Old Majority" Vice Chair Ben Myers was grinding forward yesteday--kind of like one of my crappy vans used to grind forward when the ball bearings started to give out on the left front wheel. Though not quite a "Batmobile has lost its wheel" situation, Ben Myers was looking grim and seriously outgunned.

An individual was in the courtroom who is reportedly a member of the Professional Responsibility Board of the state bar, one Patrick Burns, looking not-too-happy.

There are people in law school who laugh at lawyer jokes--roughly 95 percent of law students, in my estimation--and then there are the ones who don't find lawyer jokes funny at all, and out of nowhere they mysteriously excel at Professional Responsibility classes; which most law students find to be a combination of terribly dry and incredibly scary.

Patrick Burns seems to be one of THOSE lawyers, an unsmiling shark among the sharks, quite willing to eat his own if they make a few incredibly stupid moves and deserve what they get. There's a job tougher than cleaning up after the elephants, and here it is: keeping lawyers honest.

(That was...um...supposed to be funny)

Burns was (apparently) there because one of the issues in the lawsuit concerns a complaint made to the State Bar. The complaint was filed by Megan Goodmundson against Ben Myers, who is an attorney. Thus, the right of a citizen to file a complaint with the state bar without fear of a retaliatory slander lawsuit is also at issue in this case, according to statements made by the defense attorneys.

Megan Goodmundson probably has very little appreciation for the arcane and rarified issues associated with her existence as a defendant, how something like this could become lasting legal precedent.

The happiest person in the courtroom appeared to be Judge Porter, who was...

...almost jovial, and seemed to be actually ENJOYING the proceedings.

Present from the defendant side of the case were Anne McCandless, Megan Goodmundson, and Dottie Titus.

Denny Wagner was not there because he "had more important things to do," according to one of the defendants.

One of the defense lawyers, Ben Loetscher, just got his bar exam results but Anne McCandless has told Loetscher he'll "be retiring before this is through." Defense attorneys David Schooler and Ferdinand Peters were also present.

The defendants sat on one of the soft, padded benches outside the courtroom on the 18th Floor of the Hennepin County Courthouse, sometimes reading a newspaper.

North Minneapolis was doing its share to keep the courts filled: the Larry Maxwell trial was taking place on the 10th Floor, and the T.J. Waconia sentencing is currently scheduled for April 16. Shortly before the scheduled hearing, Ben Myers approached and tried the door. It was locked. He didn't answer my greeting, "Good morning, Mr. Myers." He was exhaling quite a bit, frowning. He took a seat some distance away.

One of the defendants told me the word on the street is the "Council for Non-Profits" is following the two related JACC cases rather closely.

Waiting for the hearing to begin, Anne McCandless worked on a crossword puzzle. When the case began and the court reporter identified those present, Ben Myers said he was the only attorney there for the plaintiff "at this time." That phrase "at this time" sure does cover a lot of ground, doesn't it?

For the record, I'm not dating a model AT THIS TIME.

Nothing much was expected at this hearing. Nothing much was going to get resolved. Today was mostly a matter of scheduling stuff and--as one of the defense attorneys put it--pointing out "everything is written." The judge suggested doing "the other case" on the 12th and the 13th of May. Ben Myers said he has a "first degree murder trial coming up," so that just wouldn't work.

Judge Porter said "we are re-arguing a motion which was heard before Judge Howard, but which he didn't rule on before he recused himself." Defense stood to argue first, and referred to a case that was decided recently, an "anti-SLAP case." It might be good to discuss what a "SLAP" is in this legal context. First of all, it DOES NOT involve physically striking or slapping somebody...no, not even in a helpful way to uncross their eyes.

"SLAP" means "strategic lawsuit against public participation." A "SLAP" is when somebody uses the court system as a political weapon to stop citizens from using public process as part of democracy. So an "anti-SLAP" statute is aimed at preventing that kind of thing by, for example, making sure plaintiffs who file what turn out to be SLAPs are held liable for the defendant's legal bills.

Myers objected to the "unpublished ruling" being referenced by defense, and to not getting a copy of the unpublished ruling beforehand.

"Gotcha," Judge Porter said to Myers, which apparently meant something like, "Your objection is noted."

Side note: "unpublished" means something different to lawyers than it means to laypeople. Published cases might be cited as precedent--subject to some other criteria. An "unpublished" case certainly happened, and you can find a copy of the opinion, looking all so very "published," but the circumstances under which that opinion can be cited are limited.

One of the defense attorneys said, "With Ms. Goodmundson, the only thing alleged against her is that she made complaints to the Professional Responsibility Board." As for McCandless, said the defense attorney, she "supposedly accused the plaintiff of being a womanizer."

“In each instance," said the defense attorney, "they chose to communicate…to procure government action.” In fact, Myers had sought with his powers as Chairman of JACC to have JACC sue the clients instead of himself. Documentation of this was in something called "the usual suspects email," because of the subject heading. Of course, Myers apparently had a few too many people listed as recipients and, well, the email ended up in the hands of--guess who?--"the usual suspects!"

Defense asserted the anti-SLAPP lawsuit requires the non-moving party to show by clear and convincing evidence that anti-SLAP doesn’t apply or that the various elements haven’t been met. However, the defense asserted, the items that would “knock us out of the anti-SLAPP ordinance” have not been shown.

Myers argued back, saying he thinks the court can reach a decision based simply on whether JACC is a government or not. He said if you look at Jerry Moore's affidavit, it is very clear the Jordan Area Community Council is not a government.

In this argument, to the amusement of at least ONE of the defendants, Myers apparently identified Jerry Moore as "the executive director...the former executive director...the CURRENT executive director" of JACC.

I confess to not catching that (allged) verbal slippage and would depend on a court transcript to show what was said.

Myers argued that JACC is NOT a subsidiary government of the City of Minneapolis, asserting JACC is some form of subsidiary by virtue of fulfilling certain obligations involving a contract with the city DOESN'T make JACC a subsidiary of the city. To which I say, "Yes, I agree with that. But that's not the end of it. Click here for a little essay on how and why JACC and other neighborhood councils are indeed subsidiary governments of the City of Minneapolis."

Myers said JACC can’t meet the definition of a "government." Furthermore, Myers said he has lost potential clients because of the statements made by defendants.

Myers next went after Megan Goodmundson, using a surprisingly un-lawyerlike argument which sounded like an undeveloped equity defense, i.e., IT'S NOT FAIR, IT'S SO VERY UNFAIR, AND FURTHERMORE SHE STARTED IT!!!!!

Indeed, said Ben Myers, a claim was filed (with the state bar) that had "nothing to do with me as an attorney, there was no reason for Goodmundson to go around and do that."

No, seriously, that was the argument made. Goodmundson had no reason to "go around and do that."

Kind of gives anybody hope they could succeed in law school, doesn't it?

One issue in the case is whether Myers is a "public figure." When it comes to the First Amendment, public figures have very little protection when it comes to slander. There is, however, something called a "limited public figure." This is somebody who straddles the line midway between private citizen and public figure.

Myers--who was featured in a widely-read article posing in front of the closed down Big Stop store with Jerry Myers, like he was some kind of neighborhood hero, click here, and THIS in his role on the JACC board--said, "I am no more a public figure than anybody on a board of directors" and "I am not a limited public figure for purposes of this litigation."

Myers also added that if JACC is a government organization, "then the city of Minneapolis would have to indemnify me."

In the end--which came with merciful speed--nothing was decided. The judge nodded, smiled, and went off to ponder these things. However, after many in the court room had left, I saw the person who was apparently Patrick Burns walk across the courtroom and enter the same door through wich the judge had exited, in the back of the court room.

Somehow, I didn't think that bode well for Ben Myers.

But the Maxwell case was going on downstairs, and I had other fish to fry.