Articles

MARSHALL LAW

Kagan nomination: The umpire strikes back

"Being an umpire prepares you for nothing."
Baseball Umpire Ron Luciano (1984).

By Marshall H. Tanick

The Senate confirmation proceedings this summer for the nomination by President Obama of Solicitor General Elena Kagan to serve on the U.S. Supreme Court is likely to evoke "umpire" analogies both by those who are supporters as well as critics of the nominee.

The metaphor was used by John Roberts during his confirmation hearing for Chief Justice in 2005, equating the model role of a judge to an umpire in a baseball game "calling balls and strikes." His observation drew plaudits from his backers for whom "judicial activism" is an anathema. Detractors, however, pointed out that the analogy was misguided because umpires in baseball, and arbiters in other sports for that matter, have generally firmly-defined rules and standards to follow, like strike zones, foul lines, and time clocks, compared to judges who often have to deal with more amorphous concepts and guidelines like "Due Process," "Equal Protection," strict construction and similar phrases that are more subjective and require discretion and interpretation rather than reflexive responses.

Regardless of its merits, the analogy is not novel. Supreme Court Justice Lewis Powell, who served from 1971 to 1987, once used it during a luncheon with a player for the Washington Redskins. When asked how he liked being on the High Court, Powell, a prominent lawyer before becoming a jurist, responds wistfully by asking the gridiron. "Would you rather be a player or a referee?"

Umpires and their professional kin do not, of course, adjudicate cases. But they have been the subject of a number of lawsuits decided by the Federal and State appellate courts in Minnesota over the years.

With the baseball season in high stride and the Kagan confirmation hearings coming soon, it is an opportune time to review a handful of those cases.

Injury Issues

Umpires generally do not sustain physical harm while carrying out their duties. But injuries are, to some extent, an occupational hazard for them.

In Rostad v. On-Debt, Inc., 372 N.W.2d 717 (Minn. 1985), a softball umpire was struck in the head by a donut-shaped metal device used as a bat weight that flew off the end of a bat by a player who was swinging it while warming up on deck. The ump's suit against the New Jersey manufacturer of the device was dismissed by the Hennepin County District Court on grounds of lack of personal jurisdiction. The Court of Appeals reversed, holding that personal jurisdiction existed, and the Supreme Court affirmed.

The manufacturer was subject to suit in Minnesota under the state long-arm statute, Minn. Stat. § 543.19, subd. 1(d), which extends state jurisdiction over a party that commits "any act outside Minnesota causing injury or property damage" in this state. The nationwide distribution contracts and marketing efforts by the manufacturer of the device, met the five-pronged standard for assertion of personal jurisdiction in Minnesota, consisting of the quantity of its contacts with the state, the quality of those contacts, the source of the contacts, the state's interest in the case, and the convenience of the parties.

Because the manufacturer's "purposeful availment ... of the benefits and corresponding responsibilities of doing business in Minnesota," it should be required to "defend this lawsuit in Minnesota." This is preferable to requiring the injured umpire to be "limited to suit" in New Jersey.

A softball umpire who twice claimed knee injuries was denied payment of medical expenses by an insurance carrier earlier this year in Kolosky v. Nationwide Life Insurance Co., 2010 WL 1412214 (D. Minn. 2010). The case started in Dakota County Conciliation Court and wound its way through the Dakota County District Court system, with a jury trial resulting in a directed verdict in favor of the insurer on grounds that the claim was not filed within a 90-day time period under the policy.

The umpire then took the case to U.S. District Court, where he also struck out. Magistrate Judge Arthur Boylan recommended to Judge Patrick Schiltz that the claim be dismissed on grounds of res judicata because the earlier claim involved the same set of factual circumstances, the same parties, resulted in the final judgment of the merits, and the umpire had a "full and fair opportunity to litigate the matter" in state court. The prior case, therefore, was "a bar to the present federal litigation." Judge Schiltz adopted the recommendation 2010 WL 1412039 (D. Minn. April 1, 2010) on grounds that the erstwhile umpire "cannot litigate his claim a second time," and the matter has now been appealed to the Eighth Circuit Court of Appeals, which may not get to it until the Kagan confirmation process is history.

Inflicting Injuries

Umpires and other sports officials also find themselves in court because of injuries they inflict upon others.

A challenge by an inmate at a federal prison that he was improperly disciplined for engaging in a fight with another prisoner while the claimant was serving as a referee at a prison softball game was rejected in Sweesy v. Federal Bureau of Prisons, 2009 WL 1244047 (D. Minn. 2009). The prisoner claimed that his Due Process rights were violated by the disallowance of 27-days of good conduct time and imposition of 3-days of prison segregation after he struck another inmate when a dispute arose about a call the claimant made while umpiring a game. Magistrate Judge Jeffrey Keys recommended that the prisoner's Due Process claim be denied, and U.S. District Court Judge Paul Magnuson agreed.

The five elements of Due Process for a prisoner's claims, as set forth by the U.S. Supreme Court in Wolff v. McDonnell, 418 U.S. 539 (1974) were satisfied. The prisoner received written notice of the charge of misconduct at least 24 hours before a hearing, an impartial hearing was held, the prisoner had an opportunity to present witnesses and to document evidence, assistance was available to him if legal assistance was necessary for him, and written statements or evidence relief upon and reasons for the sanctions were issued.

There also was "sufficient evidence" to sustain the disciplinary action against the inmate umpire. Therefore, his challenge to the disciplinary action was properly rejected.

In Ulrich v. Minneapolis Boxing and Wrestling Club, Inc., 268 Minn. 328, 129 N.W.2d 288 (Minn. 1964), a 77 year-old spectator at a professional wrestling match sued the promoter and a referee after the referee accidentally struck him while on the way to the dressing room after a match. A Freeborn County District Court jury awarded the fan $25,000 for a broken leg he suffered, but the Supreme Court reversed.

The claim was not actionable against the promoter because it did not fail to provide adequate crowd supervision. The claimed "lapse in crowd supervision was not a proximate cause of the injury." Because the referee twisted around, after the spectator touched his arm was "not reasonably foreseeable," and the promoter was not liable as a matter of law.

Nor was the promoter reckless in employment of the referee. There was no evidence indicating that the promoteor knew, or should have known, that the referee's "response to being jostled by the spectator" would be as abrupt and unusual as it was. Nor was there any evidence that the referee was acting within the course of his employment after the match had ended.

Because there was no finding whether there was an "employer-employee relationship," the verdict could not be sustained on the grounds either. Therefore, the case was remanded to determine the issue of vicarious liability of the promoter. The issue of damages had to be re-litigated, as well, to determine the amount of "pain and suffering" that could be properly awarded to the elderly claimant.

Criminal Cases

Disputes involving sports officials occasionally lead to criminal cases. In State v. McCarthy, 659 N.W.2d 808 (Minn. App. 2003), the father of a football player was convicted in Ramsey County District Court for disorderly conduct after a disturbance at a football game following a dispute with the referee.

The Appellate Court affirmed the conviction, holding that the conduct "arose alarm, anger, or resentment that is present" at the game. By placing his hands on the referee, refusing to leave when asked, and causing disruption of the game, the father's conduct was "sufficient to support a conviction of disorderly conduct."

Convictions on two counts of attempted second degree murder and felonious assault, stemming from a shooting following a disagreement over a referee's call in a basketball game at a St. Paul recreational facility was affirmed in State v. Lindsay, 1991 WL 102960 (Minn. App. 1991). The Ramsey County District Court imposed the shooter's conviction for the incident, and the Appellate Court affirmed. Hearsay testimony was allowable because it "corroborated" testimony of the victim, which constituted "sufficient guarantees of trustworthiness."

The role of umpires and referees may not be equivalent to that of a judge. But, as these cases reflect, the jurists and sports officials share a common feature: they spend a lot of time in court.

PERSPECTIVES POINTERS
Landmark Minnesota baseball cases

• Metropolitan Sports Commission v. Minnesota Twins Partnership (2002): Minnesota Twins enjoined to play at Metrodome under lease;
• Liftau v. Metropolitan Sports Facilities Commission (1978): Liquor tax to finance construction of Metrodome upheld;
• Marshall v. Marshall (1984): Deferred compensation of ex-Twins player treated as marital property in dissolution;
• Uhlaender v. Hendricksen (1970): Baseball players entitled to "right of publicity" in statistics used in commercial games.

Marshall H. Tanick is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace related matters.