Monday, October 5, 2009

Supreme Court Denies (for now) St. James Petition for Review

Today we learned that the United States Supreme Court declined to grant review at this time of the Episcopal Church Cases as decided on an interim appeal by the Supreme Court of California. (The list of petitions denied goes on for some 84 pages, so there is no need to believe St. James was singled out -- it is No. 08-1579 on page 12. The Court receives almost 8,000 petitions in the course of one term, and grants review only in about one percent of them.) The denial of review means that the California court's decision will stand for the time being as the law of the case, which will now work its way toward a trial sometime next year. (If they remain true to form, however, the plaintiffs, the Diocese of Los Angeles and the Episcopal Church (USA), can be expected to file a motion for partial summary judgment in an attempt largely to circumvent a trial.)

The denial does not mean necessarily that the United States Supreme Court will never have anything to say about the case. The decision by the California Supreme Court, as I say, was an interim one. The trial court had struck the complaint of the Diocese, and had dismissed the separate complaint of the Church for failure to state a claim upon which any legal relief could be granted. The Fourth District Court of Appeal reversed those two decisions, and the California Supreme Court affirmed the reversals, but partly on different grounds. The effect of the reversals was to send the cases back to the trial court in Orange County, so that the defendant parishes, which in 2004 had voted to leave the Diocese, could answer the complaints and the cases could move forward from there.

Depending on what the trial court does about any motions for summary judgment, there would still be a full-blown trial, followed by a final decision for one side or the other by the end of next year. Then the appeals process will begin anew -- but this time the appeals will be from a final, and not an interim, decision. In this process, there is only one level of appeal that is guaranteed: the first appeal to the Court of Appeals for the Fourth Appellate District. Any review higher than that -- by the California Supreme Court, or by the United States Supreme Court -- will again be at the discretion of each of those courts.

The denial of review at this time was entered without dissent or discussion, so it would be useless to speculate as to the reasons for it. Under the rules of the Supreme Court, at least four of its nine Justices must vote to grant review for a petition to be accepted. There may have been only three Justices voting for review, or two; there was almost certainly at least one: Justice Stevens, the oldest Justice on the Court, is its only member who was also on the Court when it decided to allow States to use a "neutral principles" approach to resolving church property disputes in 1979. He voted with the 5-4 majority in Jones v. Wolf. As I explained in this earlier post, he was one of only two Justices at the time who openly favored the use of neutral principles over the other two approaches being advocated by the remaining Justices.

The questions which the Supreme Court had been asked to review were these:
1. Whether the California Supreme Court violated the First Amendment’s Establishment and Free Exercise clauses by interpreting a state statute to confer a special power on certain religious denominations to create trusts for their own benefit in the real property of affiliated local church corporations, solely by declaring that they have unilaterally enacted a post-hoc internal rule, when no other person or entity has such a power under state law?

2. Whether this Court’s reference in Jones v. Wolf, 443 U.S. 595 (1979), to denominational canons and constitutions as potential sources of neutral principles of property law can be read, consistently with the First Amendment, as trumping other secular laws governing property rights?
In their brief in opposition, the Diocese of Los Angeles and the Episcopal Church (USA) made the following argument against granting review:
Apart from raising no substantive issues that warrant review, the Petition for a Writ of Certiorari should be denied on jurisdictional grounds because trial court proceedings remain ongoing and no final judgment will be entered until those proceedings have run their course. Petitioners acknowledge this, but seek to overcome this jurisdictional defect by relying on the fourth exception to the finality rule described in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). This exception does not apply because reversal on the grounds asserted in the Petition would not end the litigation, and declining immediate review would not “seriously erode” federal policy. Moreover, the California Supreme Court based its decision on independent state grounds.

If the Supreme Court denied certiorari (review) at this time because the Justices deemed the California decision not to be "final" enough for review, it would be impossible to know that fact. In the case mentioned, Cox Broadcasting Corp. v. Cohn, the Court's opinion enumerated four different categories of cases which the Supreme Court has traditionally agreed to review even though the decision in question was not a final decision. The petitioner St. James argued that this case fell within the fourth category listed in Cox: "those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds."

In other words, St. James Parish argued that it could prevail in the further proceedings still to take place in the trial court, but not on the basis of the Dennis Canon as construed and applied by the California Supreme Court. (For example, as explained here, the Parish has a letter from Bishop D. Bruce MacPherson -- then a Canon to the Ordinary in the Diocese of Los Angeles -- actually waiving the applicability of the Dennis Canon to a significant portion of the Parish's property.) If it did prevail by using that fact, the final decision in its favor would not allow any appeal of the California Supreme Court's application of a State statute (Corporations Code section 9142 [c], as I explained in this post) so as to grant the Episcopal Church special status for its Dennis Canon. Thus the only time in which review of that decision could be had for certain would be by granting review of it now, instead of waiting to see what the final decision would be.

This seems to me to be a pretty good argument for granting review at this time, and I consider the Diocese's/Church's response to it as fairly evasive and weak. They use boilerplate rather than substance, and fail to support their contention that the California Court's decision was based upon "independent state grounds" which are not yet final for purposes of review. In fact, their argument here is even inconsistent with their conduct after the case was remanded to the trial court for further proceedings. For as we learn from a short passage in their brief to the Supreme Court, ECUSA and the Diocese (referred to as "respondents", because they are responding to the petition for review filed by St. James) tried to claim to the trial court that the California Supreme Court's decision meant that the case was over, and precluded the necessity of any such further normal steps such as having the case go to trial:

Over respondents’ protests, the parties continue to litigate this matter in the California Superior Court. On July 10, 2009, the trial court ruled petitioners are entitled to pursue their affirmative defenses and a cross complaint.3

3 The Church and Diocese believe the trial court erred and they are entitled to judgment in their favor based on the California Supreme Court’s decision. In response to the trial court’s decision, they have filed a petition for writ of mandate in the California Court of Appeal seeking final judgment. The petition remains pending as of the date this Brief in Opposition was filed.
Thus the Church and the Diocese contradicted themselves: to the California courts, they argue that the California Supreme Court's decision resolved all of the issues in the case, such that "they are entitled to judgment in their favor" based on it. But to the United States Supreme Court, they argue that the California decision is not "final" enough for its review. This is yet another instance of how, under Chancellor David Booth Beers, the Church is simply not troubled by making inconsistent arguments that suit its immediate purpose.

The Church and the Diocese, however, had still other grounds to urge as reason for denying certiorari. I quote them below from their brief in the Supreme Court, and then give to each a short response:
• The neutral principles approach employed by the California Supreme Court to resolve this church property dispute was endorsed by this Court in Jones v. Wolf and has been adopted consistently by state courts to resolve similar disputes.
This is a gross overstatement of the situation in the State courts, which have varied all over the map in their application of Jones v. Wolf, as I intend to show in a later post in my series "O Tempora!" The California Supreme Court, to take just one example, gave lip service to "neutral principles" while deferring completely to ECUSA, as Justice Kennard pointed out in her concurring opinion in the cases.
• The California Supreme Court’s interpretation of California Corporations Code section 9142 follows existing United States Supreme Court authority enabling states to enact statutes governing church property disputes.

• There is no conflict among state courts regarding the constitutionality of section 9142 or any similar state statute. Nor is there any conflict among state courts as to whether general church rules should be considered in the application of neutral principles of law to a church property dispute.
These are two straw men set up for the purpose of knocking them down. What is unique about the California decision is not that it interprets section 9142 to "govern church property disputes", but rather that it interpreted it so as to favor only the Episcopal Church (USA) and other national, "hierarchical" churches in such disputes. (Congregational churches cannot benefit from the statute.) And the idea that there would be similar statutes in other States which have been read differently by their courts is a fantastical notion. The California statute was enacted to allow donors to enforce the terms of their gifts -- not to govern the outcome of "church property disputes".

Moreover, it seems to me that the parishes in the Anglican District of Virginia should cite, to the Supreme Court of Virginia in connection with ECUSA's current attempt to appeal the decision of Circuit Judge Randy Bellows upholding the application of Virginia's Division Statute to the church property dispute there (as I explained here), these words of ECUSA in its brief opposing certiorari: "The California Supreme Court’s interpretation of . . . section 9142 follows existing United States Supreme Court authority enabling states to enact statutes governing church property disputes." What is sauce for the goose, after all, is sauce for the gander.

The next "ground" for denying certiorari is just as outlandish as the previous one (I have added the emphasis):
• No clarification of the Court’s holding in Jones v. Wolf is required here to address the question of how to determine whether a religious denomination is hierarchical or congregational because the California court did not characterize or analyze the nature of The Episcopal Church’s governing structure. Based on St. James’ own written commitments, the court concluded the Parish was bound by the rules of The Episcopal Church. In any event, there is no real dispute over whether The Episcopal Church is hierarchical. This has been repeatedly confirmed in a long, unbroken chain of judicial decisions.
Oh, the statement in bold must certainly be correct, because here is what the California Supreme Court said at page 29 of its slip opinion:
Instead, we agree with the assessment of the Court of Appeal in this case: “[I]n a hierarchically organized church, the ‘general church’ can impress a trust on a local religious corporation of which the local corporation is a ‘member’ if the governing instruments of that superior religious body so provide.”
So while the California Supreme Court did not in so many words characterize the Episcopal Church (USA) as a "hierarchical" church, it definitely allowed it to act like one, because it held that the Church could impose an enforceable trust on all of its parish properties in California just through the expedient of adopting the Dennis Canon. This is painfully obvious to everyone but those who authored ECUSA's Supreme Court brief. They next make a futile effort to build on their preposterous argument:

• This case provides no occasion to address the question of whether courts should enforce denominational trust rules “unilaterally create[d]” and imposed by “canon fiat.” Pet. 10, 20. The Episcopal Church’s General Convention adopted Canon I.7.4 in 1979 by a majority vote through a democratic process involving delegates representing each parish, including St. James, 25 years before the dispute arose.
No doubt, no doubt -- that is why Bishop O'Neil of Colorado testified that "no one expects church members to know much about the canons." And the "democratic process" followed was, in fact, questionable and highly flawed, because the canon was pushed through at the last possible minute, with a number of procedural irregularities; nor was it noticed by anyone in the Church for the next twenty years.

Finally, to enforce the Canon in the secular courts, says ECUSA, certainly does not involve any favoritism toward particular churches who can pass national canons:
• Similarly, this case does not raise the question of whether a hierarchical church may receive favorable treatment not afforded secular organizations. The California Supreme Court’s decision employed rules that apply equally to secular voluntary associations and charitable trusts.
This would be news to most attorneys who read the California decision -- secular voluntary associations in California must abide generally by majority rule; and the statute which the Court interpreted to allow enforcement of the trust declared by the Dennis Canon applies only to certain types of religious organizations, not to secular associations.

ECUSA's reasons for denying review conclude with this one:
• Finally, by upholding The Episcopal Church’s trust interest, the decision reaches precisely the same result as the six other state courts of last resort that addressed this issue.
This statement is, of course, no longer true after the recent decision by the Supreme Court of South Carolina.

On the whole, not an impressive list of reasons -- yet one or more of them must have carried the day with at least six Supreme Court Justices. So the case will continue to wind its way through the lower California courts for the time being, and the Supreme Court has passed on an opportunity to tell us whether it really meant anything in Jones v. Wolf.


  1. Nice work in explaining the background and context for the ruling and then putting it in a proper perspective. From your discussion about the Dennis Canon, it appears TEC argued that it was enacted at General Convention 1979 "through a democratic process involving delegates representing each parish ..." I believe TEC misrepresented the process to SCOTUS. The members of GC are its dioceses; parishes are not members. Each diocesan convention elects its delegates to GC. So parishes were not directly represented in the so-called democratic process. Had TEC attempted to enact the Dennis Canon as a constitutional amendment (which in all fairness should be the absolute minimum due process requirement), then TEC's representation would be more accurate as each diocesan convention would be required to consider the amendment before it was returned to GC for a second, and final, vote.

  2. Since the California Supreme Court's decision in Episcopal Church Cases was from early successful attacks on the Episcopal complaints, any discussion of the so-called Dennis Canon was in a procedural posture that required the California Supreme Court to credit the unproven Episcopal allegations before St. James ever answered the complaints, conducted discovery, or had a trial. Therefore, while St. James argued to the U.S. Supreme Court that the California Supreme Court's constitutional interpretation of Corporations Code section 9142(c) was final, allowing for review, the facts regarding the purported Dennis Canon remain to be developed. The Episcopal Church now has the burden of proving in the trial court that it enacted the Dennis Canon and that even if it did, it is enforceable as to St. James.

  3. It seems to me that some of the statements in ECUSA's Supreme Court brief fall into the category of statement for which I believe the appropriate legal term is "lies."

    Is there no legal consequence for an attorney who deliberately makes demonstrably false statements in a brief to a court in the Federal appellate system, whether or not that court is the U.S. Supreme Court? And, if there is not, why is there no such consequence?

  4. If anyone has the ability to pull this off for Saint James, it's got to be Paine & Fears. They're a formidable team. And member Eric Sohlgren plays a mean sax in the St James worship band.