Wednesday, September 23, 2009

Episcopal Church Sues Justice's Estate for Malpractice

(ENS, Prairie City) - The Presiding Bishop of The Protestant Episcopal Church in the United States of America, the Most Reverend Katharine Jefferts Schori, announced today from her headquarters at 815 Second Avenue in New York City that she has instructed her Chancellor, David Booth Beers, to file a lawsuit against the estate of deceased Supreme Court Justice Harry Blackmun of Minnesota for malpractice. In a statement released today, she explained: "On the advice of my Chancellor, and with the approval of my Council of Advice, I have authorized the filing of a suit by the Church for legal malpractice against the Estate of former Supreme Court Justice Harry A. Blackmun. The decision by the Supreme Court of South Carolina earlier this week has shown that the advice he gave to Bishop Walter Dennis of this Church in 1979 was wrong, and we think he -- or rather, his estate -- should compensate the Church for the attorneys' fees and other losses that have resulted from following his advice."

When questioned about the nature of the advice which Justice Blackmun gave, the Presiding Bishop referred this reporter to the following passage in the decision authored by Justice Blackmun in the 1979 Supreme Court case of Jones v. Wolf:

Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.
She then explained that, relying on this legal advice, Bishop Walter Dennis of New York had introduced the text of the Dennis Canon in the last days of General Convention 1979, and that by adopting the Canon, the Church had done exactly what Justice Blackmun had advised it to do: the Church's canons were "made to recite an express trust in our favor." "But now," she continued, "the South Carolina Supreme Court has said that our Canon didn't do the trick. As a result, the Church has lost its claim to property worth around $5 million, and has incurred several million dollars worth of legal fees trying to enforce the Canon in South Carolina since we were first sued for asserting a claim there ten years ago."

A reporter for Church Legal Times present at the announcement put this question to the Presiding Bishop: "But did the Church actually follow Justice Blackmun's advice? He said that the constitution of the general church could be made to recite an express trust, and you just said that it was the canons which were amended, not the Constitution." The Presiding Bishop replied: "In our view, it doesn't make any difference -- other than that it would have taken the Church four years to amend the Constitution, while we were able to change the Canons in just a few days, without anyone even noticing it. All dioceses of the Church are subject to the canons just as much as they are to the Constitution, so it comes down to the same thing. We followed Justice Blackmun's advice, all right, and now we find out that it wasn't any good."

When contacted, a spokesperson for the Blackmun family said they had heard about a lawsuit, but had not yet been served with any papers. The spokesperson said that the family, however, doubted that the Justice's estate could be found liable for any malpractice, because he did not receive any legal fees for the advice he gave. "The advice he gave in that opinion was free," the spokesperson said. "No charge -- zip -- nada. And it is common knowledge that legal advice is worth what you pay for it."

Asked to respond, a spokesperson for the Presiding Bishop replied: "That's not true that the advice Justice Blackmun gave was 'free.' He was paid a handsome salary by all of us taxpayers to sit on that bench and dispense legal advice." When it was pointed out that the Church, as an exempt organization, paid no taxes, the spokesperson continued: "The Church may not have paid any taxes, but Bishop Dennis did, and Bishop Sauls did, and so did the other Property Task Force members -- they all relied on the advice he gave in the Jones opinion. So we maintain that his estate is definitely liable."

Legal commentators across the Web were taken aback by the South Carolina ruling. Said one renowned scholar (who maintained anonymity, however, for this post):
The U[nited] S[tates] S[upreme] C[ourt] ruling [in Jones v. Wolf] specifically states and advises that "the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form". The Dennis canon was adopted to do exactly this. Guess the S[outh] C[arolina] Supremes missed that bit.
Another legal commentator opined that the South Carolina decision was no "blockbuster":
The case . . . limits its discussion to the Dennis Canon to a short paragraph:

"It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property."

In other words, where the Diocese transferred its interest in the property in 1903, it could not create a trust in 1987,or enforce it in 2000.

I'm not sure that decision is right, in view of the canon and overall polity, but it's not a blockbuster, even if it is.
When asked why the giving in 1903 of a quitclaim deed by the Diocese would block the Episcopal Church (USA) from asserting its trust in 1979 -- when it, too, did not have any interest in the property before that date -- the commentator indicated further research would be in order.

Finally, a third legal expert complained that the switch by the South Carolina Supreme Court from its previously announced "deferential" approach to a "neutral principles" approach, first announced in a 1996 decision, was too sudden, and unfair to the Episcopal Church (USA). "The Church published its Dennis Canon relying on the fact that, as a hierarchical church, the courts would have to defer to its ecclesiastical determinations," said this expert. "Then the South Carolina Supreme Court goes in 1996 and changes all the rules on us. That's not fair."

When it was pointed out to him that Justice Blackmun's advice, given in Jones v. Wolf, was itself in a case announcing that the "neutral principles" approach would now pass constitutional muster, and refusing to apply the "deferential" line of cases, the expert made no reply. Asked further how a decision announced in 1996 could come as a surprise to the Diocese and the Church when it recorded its claim to the property in Pawley's Island in 2000, the expert kept his silence, and turned away.

"There are a lot of us [Episcopalians] who are very disappointed with the approach taken by the South Carolina Supreme Court," said a regular churchgoer. "They took the same approach to the law that the so-called 'orthodox' take to the Scriptures - any and all facts to the contrary notwithstanding, it has to mean exactly what they want it to mean, and only that."

Asked about the praise for the decision given on a blog known as the "Anglican Curmudgeon", another Episcopal regular replied: "I've stopped reading him. He's too biased in everything he writes. A curmudgeon should be balanced and objective, open to all points of view, and he's just not."

In a later announcement, the office of the Presiding Bishop stated that she had asked her Chancellor to review other cases in which judges had offered legal advice on which the Church had relied to its detriment. Since the fund-raising campaign announced by her office had not gotten off to a very strong start, observers speculated whether malpractice lawsuits might not be seen as an entirely new and refreshing way to replenish the Church's dwindling coffers.


  1. Seems to me, they didn't understand the Justice's advice and didn't execute it properly--that's not his fault, it's just further evidence of ineptitude.

  2. If I didn't already believe [Christopher] Johnson’s First Law of Episcopal Thermodynamics(Every joke you make about the Episcopalians eventually comes true), I would think this was farce. But who would have thought KJS and DBB would be this OUTRAGEOUS!?!

  3. Unfortunately for the P.B., Justice Blackmun's funeral was held at Washington's Metropolitan Memorial United Methodist Church and he was buried at Arlington National Cemetary. I don't think she will be able to sue for either property. After all, even Robt. E. Lee's heirs couldn't get Arlington back from the Yankees.

  4. I may be just a lay person, but with the release of the letter asking for donations today and now this, I can't help but think the PB and ECUSA is doing whatever it takes to get quick cash. They know they are loosing members hence money each month/year. I wouldn't be surprised is she sues individual parishioners if she thought it would generate money.

  5. Surely this is a joke. If not, then it is simply beyond belief.

    Blackmun has been dead for over a decade. Is there even the slightest possibility that a lawyer could file a claim against his estate in good faith, today?

    Further, is it even conceivable that a lawyer could make a good faith assertion that a judge's words in a published opinion in a case involving parties unrelated to the plaintiff nevertheless constitute legal advice to the plaintiff upon which the plaintiff is entitled to rely?

    I'm not a litigator, so maybe the courts really will let anybody sue anybody for anything and will hear the case. But if I were the judge, unless the chief priestess' lawyers could show me some strong authority for making such a claim, I would be inclined to hold the lawyers in contempt and smack 'em with fines they'd never forget, and toss in a week in jail to let 'em think over how they treat the courts. That would be after dismissing the case on my own initiative and charging every possible cost (including all fees of all of defendant's attorneys at their full rate) against the plaintiff.

  6. Brilliant! Christopher Johnson has now met his match. Brilliant!


  7. Is this serious or this just a parody? This can't be real.

  8. Folks, I am happy/sorry (you choose which) to admit this is just a parody. Had this been a real-life news report, you would have received better references than just E[piscopal] N[onsense] S[preaders] linked at the outset, from "Prairie City".

    The point of the parody is to show how ridiculous is the idea that a sitting Supreme Court Justice could (a) offer legal advice while sitting on the bench; (b) have his advice taken seriously by the folks at ECUSA; and (c) be sued for "malpractice" for getting it wrong. By stressing these outlandish "facts", the post is meant to drive home how foolish it was of the Episcopal Church (USA) and Walter Dennis to think that they could rely on such gratuitous advice in the first place, without also taking note of Justice Blackmun's qualifier -- "in legally cognizable form" (see the original text of the post).

    So I am sorry if this parody led people to think it reasonable that people like ECUSA might actually rely upon the gratuitous legal advice handed down in connection with a judicial opinion, because -- believe me -- the world is not supposed to work that way. Judges are supposed to decide just the cases before them, and not to give free advice as to how to handle future cases which are similar to some degree. This is what makes what Justice Blackmun wrote in Jones v. Wolf so bad -- he had no business writing what he wrote, because it had nothing to do with the decision of the actual case in front of him. He was writing for a future audience, and telling them: "Look, what I've written is not so bad, because here is how you can get around it -- just do as I say, and you will be all right, provided it is in legally cognizable form."

    Those last words were the weasel words of Justice Blackmun's free legal advice. They fudged a whole host of problems that courts ever since have had to grapple with --no thanks to Justice Blackmun. By purporting to hand out free legal advice as to how hierarchical churches could avoid the consequences of his decision, Justice Blackmun actually made things much, much worse, because those churches snatched at the advice without reading the fine print.

    So -- those of you who thought my story related real facts that happened need to examine why you would be so ready to believe that the Church might think it could do something so outlandish as to sue a dead Supreme Court Justice for some gratuitous legal advice he happened to include in a written opinion. And those of you who recognized this post for the parody it was should sharpen your instincts for the next one, which will not be as obvious.

  9. Thanks for sharing that this is indeed a parody. Sadly I fear that not all so understand. I was advised by an ex military friend once to be sore not only that I am understood, BUT not misunderstood. As a pastor and now missionary who is learning how to be understood in another language - I know what it is to be misunderstood.
    Having said that - I appreciate the "dry mock."

  10. Dadgummit, BB, then you, beat me to the punch. Lesson to me: be quicker.
    my sainte Gramdmothe told me, "Son. you keep doing that and you'll poke a hole in your cheek.".

  11. In other words, sir, you are hereby awarded the "Tongue in Cheek" Award for the month of September, 2009, and possibly for the entire year. Congratulations. We shall wait until the end for the final tally.

  12. The funniest thing about this is how plausible it is.

  13. Mr. Haley- I'm on your side of the issues but publishing this piece w/o a disclosure somewhere that it was a "parody" caused it to be distributed on the internet as fact. Many who oppose TEC's agenda will believe its hierarchy capable of almost anything, including this. I'm sure it was fun for you to draft and clearly evidences your razor sharp wit and knowledge of the background but w/o the disclosure, it subjects you to criticism and ridicule.

  14. Doubting Thomas, thank you for your concern -- I appreciate its sentiment -- but I assure you, I can handle anything that is dished out as a result of this post. For it would seem to me that anyone who failed to pick up that this was a parody (with its link to another parody on this site right at the outset), and then criticized and ridiculed its author for treating these outlandish facts as true, would do well to look in the mirror first. Any criticism and ridicule on those grounds will say far more about its source than it will about your trusty Curmudgeon.

  15. I for one a mature enough to accept A.S.'s explanation that this was a parody...and move on. Having said that though, I hope the some TEC lawyer doesn't get wind of this and actually go with it! Nothing would surprise me! They are so desperate to make their point and of course, they are low on lawyer cash.

  16. Wow. Just.. wow.

    I especially like the touch at the end. Yes, all grumpy old men should be balanced and objective. :)

  17. I thought it was a parody when I read it, but it *does* fit so well into the sort of things TEC has done during the current PB's tenure that I checked ENS to make sure. If the test of good satire is to be just close enough to reality to be plausible, while highlighting the absurdity of what is actually going on, this piece takes the cake.