Saturday, May 21, 2016

Wait: the Dept. of Justice Is Supposed to Do Justice??

The courts are slapping Obama's US Attorneys with reprimands and sanctions, from all parts of the country. On Thursday, federal Judge Andrew Hanen in Brownsville, Texas filed an extraordinary order in the immigration case (Texas v. United States), in which his earlier injunction against DHS' implementation of President Obama's directions to delay deportation of millions of illegal aliens, as affirmed by the Fifth Circuit Court of Appeals, is now before the United States Supreme Court, awaiting its ruling after oral arguments. The order will require (gasp!) certain US Attorneys based in Washington to take annual courses in legal ethics for the next five years -- as a sanction for repeatedly lying to him in his courtroom.

Meanwhile, in Washington itself, the US Attorneys defending the IRS against charges of selectively targeting conservative non-profits to delay or prevent their obtaining tax-exempt status also met with suspicion, if not outright hostility, from the appellate judges before whom they were arguing:
A lower-court judge had blithely accepted the IRS’s claim that the targeting had stopped, that applications for nonprofit status had been approved, and that the matter was therefore moot.

The federal judges hearing the appeal, among them David B. Sentelle and Douglas H. Ginsburg, weren’t so easily rolled. In a series of probing questions the judges ascertained that at least two of the groups that are party to the lawsuit have still not received their nonprofit approvals....

The hearing also showed the degree to which the IRS has doubled down on its outrageous revisionist history, and its excuses. IRS lawyers again claimed that the whole targeting affair came down to bad “training” and bad “guidance.” They blew off a Government Accountability Office report that last year found the IRS still had procedures that would allow it to unfairly select organizations for examinations based on religious or political viewpoint. The lawyers’ argument: We wouldn’t do such a thing. Again. Trust us.

More incredibly, the IRS team claimed that the fault for some of the scandal rests with the conservative groups, for not pushing back hard enough during the targeting. In response to complaints that the groups had been forced to hand over confidential information (information the IRS now refuses to destroy), one agency lawyer retorted: “They didn’t have to give the information to the IRS if they thought it was inappropriate, they could have said so.” Really.

...
An IRS lawyer rolled out the defense used by former agency official Lois Lerner that the targeting was just the unfortunate use of “inappropriate” criteria, but Judge Sentelle reminded the lawyer of the IRS’s vindictiveness. He noted that on one occasion the IRS simply shelved the application of an organization that had sued it. The agency “came to Court not having done anything to eliminate” the problem, he said, so “It’s just hard to find the IRS to be an agency we can trust, isn’t it?”

Judge Sentelle said there is a “pretty good case” that “egregious violations of the Constitution” had been committed, and he dared an IRS lawyer to “stand there with a straight face” and say otherwise...
In the Texas case, Judge Hanen was far more severe, but arguably so was the unethical conduct of the US Attorneys from the Department's headquarters who appeared before him. You may read his order in its entirety here, and there is an excellent background summary of the whole matter here.

What I find amazing is the alacrity with which the leftist news media have leapt to the defense of the "Justice" Department, and accused Judge Hanen of "violating the privacy" of illegal aliens. What did he do? He ordered the Government to file under seal a list of all the aliens to whom it had given deportation extensions while its attorneys were telling him in court that no such extensions were being granted, and that nothing was happening. Imagine that: their privacy is violated because their names and contact information will appear in a document that no one will be permitted to look at until the case is over, and then only if a plaintiff State makes its case to Judge Hanen that it needs access to the names of the immigrants in its borders who received illegal deferments in order to enforce its laws.

In other words, the IRS's intrusive demands into the names and addresses of donors to non-profit organizations -- information which it refuses to destroy now that it has illegally collected it -- are as nothing compared to a judge's order to file under seal a list of those who benefited from the Government's lying. Go figure.

Still other leftist sites don't see anything so wrong with what the attorneys did, since it was only to help out innocent "teenagers and young immigrants" who were "caught up in a bureaucratic screwup". Sure -- lying repeatedly to a federal judge is just a "bureaucratic screwup", and people who entered the country illegally can't be made to run the risk of exposure "to hostile State governments." Ethics, shmethics -- if you're a leftist, you do what you gotta do to get what you want.

Even a leftist law professor wonders if Judge Hanen has "jurisdiction" over the DoJ lawyers who practice in states outside of his own -- in other words, a judge should be powerless to remedy the consequences of a fraud on his court that injured twenty-six States, and must focus on just the attorneys in his own district (who, Judge Hanen found, were among the few government attorneys who did not lie or misrepresent the facts to him, and whom he consequently exempted from the sanctions he ordered).

Oh, yes -- and the Government itself? Turns out that it "strongly disagrees" with Judge Hanen's order. What did you expect?


Tuesday, May 17, 2016

ECUSA Loses (Again) in Quincy; San Joaquin Seeks Review [UPDATED]

[Note to new readers: You may be surprised at the degree of bias evident in this post, but I do not apologize. After eight years of participating in and writing about all of the matters collected under the links at this page, your Curmudgeon can no longer even try to appear neutral. The long and short of it is that the Episcopal Church (USA) is a bully, and is a bully with unlimited funds behind it. So it would be inhuman not to sound delighted when -- now and again -- it loses a case in court.]

Two of the four pending court cases involving realigning dioceses had further developments this week. In Illinois, the Episcopal Church's protracted efforts to punish the Anglican Diocese of Quincy by freezing its bank accounts and suing for possession of its real property met with a resounding rebuff from the Fourth District Court of Appeals -- for the second time in two years. In California, the Anglican Diocese of San Joaquin has filed a petition with the California Supreme Court to review the inexplicably obtuse decision by the Court of Appeal in Fresno to stand by its clearly erroneous reading of California corporate law. (I will write more about the latter case in a separate post.)

As we saw earlier with the Illinois Court of Appeals, its decision yesterday is a model of clear and succinct reasoning. Anyone reading it will be able to follow what happened in the case. Briefly, the Episcopal Church (USA) and its Potemkin shell of a plaintiff diocese sued the Anglican Diocese for everything it owned, based on their claims of "hierarchy" and the permanent, irrevocable trust supposedly embodied in the Dennis Canon; they lost their case in the Adams County Circuit Court in Quincy, Illinois, as reported in this earlier post. They appealed to the Fourth District in Peoria, which affirmed Judge Ortbal's thorough and thoughtful decision, as described in this post. Then they asked the Illinois Supreme Court for leave to appeal the case to that tribunal. In November 2014, it refused, so the decision by the Court of Appeals became final.

"Final", that is, for any litigant but the David-Booth-Beers-led and trust-fund-financed Episcopal warriors: they promptly filed a new action in Peoria (not Quincy). In this complaint, they now claimed that 18% of the $3.8 million in diocesan funds, which they had managed to freeze in the previous action (by threatening the bank with a lawsuit), actually was held by the Anglican Diocese in trust for some of its member parishes -- and that under the infernal Dennis Canon, again, the Episcopal Church had the right to apply those funds for the benefit of its parishioners, who had now joined the Episcopal Diocese of Chicago. (Got that? Read it again, slowly, to absorb the outlandish nature of their claims.)

On the day before the appellate court was due to issue its mandate returning the case to Adams County, Mr. Beers and his local team wrote National City Bank again, and threatened it with a new lawsuit if it should try to disperse any of the funds held in trust for the Quincy parishes. The bank responded that all of the funds were combined in a single account, and that it had no means of telling which funds were in trust from those which were not, as that was purely an internal Diocese bookkeeping matter. Faced with the threat, however, it announced it was again freezing all the funds.

Never mind that Judge Ortbal had ruled in his (now final) decision that all of the funds in the bank belonged to the Anglican Diocese, and that neither ECUSA nor its propped-up and fast-fading "Episcopal Diocese of Quincy" had any interest in or claim to the funds. This was a brand-new claim, don't you see? The earlier case had not even considered whether any of the moneys had in fact been held in trust, rather than owned outright, by the Diocese.

The attorneys for the Anglican Diocese responded to these moves by asking the Circuit Court of Adams County for an order enforcing its judgment, unfreezing the funds, and restraining the plaintiffs from pursuing their persecutions in Peoria. Circuit Judge Mark Drummond (Judge Ortbal had retired in the interim) agreed, and specifically found that Judge Ortbal's prior decision about the ownership of the funds was now final, and could not be "collaterally attacked" in any new lawsuit. He issued the injunction, ordered the bank to release all of the funds from its freeze, and sanctioned the plaintiffs by ordering them to pay all of the attorneys' fees incurred by the Diocese of Quincy in order to enforce the (now final) judgment.

Never daunted, Mr. Beers and his team took a second appeal to the Fourth District in Peoria. And it was that Court which issued its opinion affirming the injunction, order and sanctions yesterday. Here are some choice extracts for you to savor:
¶ 18 The Church denied violating the trial court's order by sending the letter to National City. According to the Church, National City "is the one that chose to freeze the account, not [the Church]." The Church maintained although it lost, the Adams County trial court only adjudicated it had no interest in the account with regard to diocesan property. The Church argued the question of whether it had any interest in the funds held for parishes and missions was a "different animal" than what was decided in the Adams County case. The following exchange then took place between the trial court and counsel for the Church:

"THE COURT: Where does it say that [in] Judge Ortbal's order? Where does it say that?

[COUNSEL]: It does not say that explicitly, Your Honor, but when looking, I cite—

THE COURT: Wouldn't it have to say that explicitly?

[COUNSEL]: No, Your Honor, because the subject matter of [that] case was diocesan property.

THE COURT: And wouldn't—if there's a mistake in Judge Ortbal's order, wouldn't you have to bring a motion to correct that?

[COUNSEL]: If there was a mistake, Your Honor.

THE COURT: Well, aren't you saying there was a mistake? It's not in there.

[COUNSEL]: I'm not saying that there was a mistake, Your Honor. What was adjudicated was diocesan—my client's interest in diocesan property."
The Court of Appeals points out that the Episcopal Church was attempting to have two bites at the apple. It litigated first the Diocese's ownership of the funds, and lost that battle. Then it came back and wanted to litigate the Diocese's trusteeship of 18% of the funds for the benefit of its individual member parishes. The trial court judge, again quoted by the Court of Appeals, found that ECUSA's attorneys missed the boat by not asking Judge Ortbal to specify the scope of his ruling:
¶ 20 At the conclusion of the hearing, the trial court found in favor of the Diocese and stated the following:

"The court's considered the pleadings and the arguments. I am not confused. This is a very simple issue.

The court finds [the Church] is attempting to grasp victory from the jaws of defeat. Judge Ortbal's order is clear. Paragraph A, quote: [']that the Diocese House and any and all disputed funds, money, endowments[,] and accounts held by [National City] are hereby declared to be owned by the [Diocese] without any claim by the [the Church].[']

. . .
So it appears [the Church] comes in after the fact and says: [']Well, if we can't get the whole 100 percent, we want the 18 percent.['] So if *** the issue that was litigated back then was this distinction between diocesan versus parish and mission property when Judge Ortbal entered this order on October 9th, 2013, within 30 days [the Church] should have come in and said: [']Hey judge, this order is wrong. You've got to correct this. You've got to designate diocesan versus parish—parish and missions,['] and they didn't do that. * * *

I find [the Church's] position in this case to be so lacking in merit that I am assessing sanctions in this case."
And so the Court of Appeals finds that Judge Drummond decided the matter correctly:
¶ 33 Put simply, the trial court in the original Adams County action found the Church had no interest in any of the funds in the National City account. The Church did not file a motion to reconsider or a motion to clarify to argue the court's judgment should apply to just 82% of the funds. On appeal, we affirmed the trial court's judgment. Thereafter, the supreme court denied the Church's petition for leave to appeal. As such, the issue has been settled as a matter of law, and any relitigation is barred by the law-of-the case doctrine.
¶ 34 If the Church wished to advance its current theory of the case, it should have argued in the alternative before the trial court and on appeal. Instead, the Church chose to wait until after the trial court rendered its final judgment to file a complaint in a different county (located in a different appellate court district) advancing an alternative theory of recovery. Under the circumstances of this case, it was improper for the Church to do so. Accordingly, the trial court's judgment granting the Diocese's motion to enforce is affirmed.
Alas for the Anglican Diocese and its members, this decision, satisfying as it is, still does not end all of the matters pending against them. Before they lost the first appeal, but after they had lost in the trial court, the Episcopal team of litigators filed two more actions in Illinois courts: one against an incorporated parish in Moline, seeking the funds and property it held in its own name, and the other the aforementioned suit in Peoria, seeking not just the 18% of the bank funds held in trust for parishes, but also the real property of those parishes.  These cases were stayed pending the appeal from the injunction and order granted by the Adams County Circuit Court.

Now that the case will return to Adams County (assuming the Church litigators do not waste everyone's time and money with a request for leave to appeal again to the Illinois Supreme Court), the stay against those actions will be lifted, and they can proceed. However, like the claim to the moneys in the bank, the claims in these suits will not be proceeding in a vacuum. Twice now the Illinois Court of Appeals has held that ECUSA had no enforceable trust interest in property held for parishes. The first of those decisions also dealt with the ineffectiveness of the Dennis Canon to create any such trust under Illinois law. It is likely, therefore, but not certain, that these last few isolated claims will fare the same fate as the others. (No one ever made anything by trying to predict what a particular court will decide to do.)

It is nonetheless deplorable that the new Presiding Bishop of ECUSA sees fit to allow his litigators to continue to waste the Church's trust funds and pledge income on litigation for purely punitive purposes. One has to wonder, when it comes to going after realigning dioceses and parishes, just who is in charge of ECUSA after all these years. The irony is that a person who acts as his own attorney (or lets his attorney make all the decisions, which comes to the same thing) has, as those of us in the profession happily admit, "a fool for a client."

[UPDATE 05/19/2016: It appears that even Episcopalians are finally getting disgusted with the ongoing waste of precious resources on punitive litigation that has no legal merit. Today, your Curmudgeon received a copy of the following letter addressed to ECUSA's new Presiding Bishop from an attorney who is a member in good standing of a congregation in the Diocese of Chicago (which absorbed the Potemkin plaintiff "diocese", and so now finds itself liable for the sanctions imposed by the Illinois courts:
May 18, 2016

The Rt. Rev. Michael Curry Presiding Bishop of The Episcopal Church 815 Second Avenue New York, NY 10017

Right Reverend Sir:

I write as a longtime member of the Diocese of Chicago, a lawyer in my secular vocation, an award-winning writer of devotional essays, and as a Christian who believes in the word of God, first to advise you of an adverse ruling in the Illinois Appellate Court in long-pursued litigation against the former Diocese of Quincy and second, to request your intermediation to have this Diocese and others cease and desist from further litigation over the physical property and intangible assets of those parishes or dioceses which have chosen to leave the national body.

On May 13, the Illinois Appellate Court sanctioned the Diocese of Chicago for bringing a second lawsuit after it had already lost the first one at the trial court. I do not know how much this Diocese will have to pay for the departing parishes' and diocese's legal fees, but it can be expected to be in the hundreds of thousands of dollars. That is money that comes from my pocket and that of other devoted Christians, all to pursue a legal position that is, frankly, untenable. As explained at length in the Appellate Court's opinions, the national church has been wrong on the law (insofar as it has contended that the Episcopal Church is "hierarchical"), wrong on the facts (insofar as it has contended that the Diocese has a protected property interest in the buildings and other assets), and the act of pounding on the table and arguing someone else's case has grown thin. Because of this gross mis-use of funds, I will ask my parish, Church of the Ascension in Chicago, to reduce its annual giving to the Diocese.

Regardless of the applicability of St. Paul's admonitions against Christians' use of secular courts, the scorched earth policies of your immediate predecessor should be rejected. While I believe that you do not have the authority to tell your brother and sister bishops how to run the affairs within their dioceses, you do have the power of the purse as to the use of national church funds in this foolish enterprise. I bid you to use it.

Your faithful servant,

David G. Duggan cc: The Rt. Rev. Jeffrey Lee The Rev. Patrick Raymond
Your Curmudgeon was a lifelong Episcopalian until General Convention went off the deep end, as I explained in this post. So my criticisms of ECUSA, which used to be based on my own status as a member of that denomination, once carried more weight than they do now. But my Rumpolean bowler is off to Mr. Duggan for taking such a firm and forthright stand  from within. "He who has ears to hear, let him hear."]





Tuesday, May 10, 2016

What's Wrong with the Law, and in Particular, with Harvard Law School

This is one of the more remarkable, blatant and contemptuous liberal screeds ever to appear on the Internet. I graduated almost fifty years ago from the school where this man now teaches, and to connect the dots from then to now is a task that is beyond my imagination. If you want to know how the left sees the law as a crude tool to get by judicial fiat what they cannot achieve through the legislatures, and if you want to know why the U.S. Supreme Court is no longer a court, but a Supreme Legislature that exists only to serve the left's political agenda, look no farther:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions). 
It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. (They might be reversed, but now there’s no guarantee.)... What would abandoning defensive-crouch liberalism mean? ... 
1 A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and Shelby County. (I thought about including Washington v. Davis, but my third agenda item should be enough to deal with it.) Others will have their own candidates. What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important – more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.
So much for the traditional doctrine of stare decisis ("to stand with the things that have been decided"): decisions that one disagrees with are simply wrong from the start and need to be overruled at the first opportunity. Do you notice the one case that is not on this man's list? (Hint: it starts with "H" and rhymes with "Yeller", and has to do with the Second Amendment.) It's probably omitted because, after all, the man does not want to lay all his agenda out there for everyone to see. He continues:
2 The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.
You're welcome to what your victory will bring, I'm sure ("let thy will, not My will, be done..."). If this is what they teach at law school, can the seminaries be far behind?

Want more? How about a few hints for liberal judges (Judge Reinhardt of the Ninth Circuit needs no lessons, since he wrote the book to begin with) on how to get around precedent without bothering to overrule it, or how to fashion doctrine to undermine one's political opponents:
3 Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling. Take Wal-Mart: Confine it to its unusual facts (a huge nation-wide class, a questionable theory of liability), and don’t treat it as having any generative power in other cases. Or Washington v. Davis, which said that disparate racial impact wasn’t enough to trigger strict scrutiny, but that sometimes such an impact could support an inference of impermissible motive: Play the “sometimes” for all its worth. Defensive-crouch liberalism was afraid to be aggressive about the precedents because of a fear of reversal by higher courts. That fear can now be put aside. (Judge Reinhardt’s essay on habeas corpus, in the Michigan Law Review, is an exemplary discussion of how liberals can exploit ambiguities and loopholes.) 4 Related: Remember that doctrine is a way to empower our allies and weaken theirs. Conservative decisions on class-action arbitration should be understood as part of a long-term project of defunding the left. Much of the current Court’s voting rights jurisprudence strengthens Republican efforts selectively to shrink the electorate. Similarly with campaign finance jurisprudence. I don’t mean that these doctrines are consciously designed by the justices to have those effects, but outsiders – academics and activists – should understand that that’s what they do. (Nor do I mean that the efforts always succeed – see Evenwel for a failure.)
So whom do liberals want to have sitting on the Supreme Court? Take a guess:
5 Our models are Justices William Brennan and Thurgood Marshall, not David Souter or John Marshall Harlan. With some ambivalence I’d add Justice Ruth Bader Ginsburg to the list, the reluctance arising from the fact that her work as a judge has been shaped more than it should be by defensive crouch constitutionalism, particular in her sensitivity to the possibility of backlash. Still, when the votes are there, she’s been much like Brennan and Marshall (personality aside). Famously, Brennan said that he’d been around long enough to know what it was like to win, and what it was like to lose, implying that “this too shall pass,” though it’s taken a long time. (Or, channeling Sophie Tucker [or Mae West, or Beatrice Kaufman], he'd been a winner and a loser, and winning is better.)
And he has saved his worst for the last (though I, too have lost all respect for his next target, after the unbelievably awful opinion he wrote in Obergefell v. Hodges):
6 Finally (trigger/crudeness alert), f[*** -- this is a blog for churchgoers--Ed.] Anthony Kennedy. I don’t mean that liberals should treat him with disrespect. But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy’s apparently crucial vote (not so crucial any more), but also trying to milk his opinions – and more generally, obviously conservative opinions – for doctrines that might be awkwardly pressed into the service of liberal goals. (Think here of how liberal constitutional scholars treated Kennedy’s [truly silly] concurring opinion in Parents Involved [“You can deal with the consequences of segregated housing patterns by locating new school construction carefully” – in districts that are closing rather than building schools], or his “views” about affirmative action, or recasting the Court’s federalism cases as actually good for liberals.) There’s a lot of liberal constitutional scholarship taking Anthony Kennedy’s “thought” and other conservative opinions as a guide to potentially liberal outcomes if only the cases are massaged properly. Stop it. (See agenda items 1 and 3 for how to treat those opinions.)
His parting shot may, alas, be the truest thing Prof. Tushnet wrote in his entire screed:
Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.
Have at him in the comments -- but please keep things on the Christian side of civil.