Wednesday, January 20, 2010

ECUSA, Diocese of LA Starting to Watch Legal Expenses?

I had previously calendared January 19 as the date on which ECUSA and the Diocese of Los Angeles were due to file a response to the petition for certiorari filed last December 15 in the United States Supreme Court by St. Luke's of the Mountains. However, when I went to the Supreme Court's docket for the case recently, look what I found:

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 15 2009

Petition for a writ of certiorari filed.
(Response due January 19, 2010)

Jan 5 2010
Waiver of right of respondent Episcopal Church to respond filed.

Jan 8 2010

Waiver of right of respondents Protestant Episcopal Church
in the Diocese of Los Angeles, et al. to respond filed.

So either ECUSA and the Diocese are so confident that the Court will decline to hear St. Luke's petition that they decided not to file any response, or else they are starting to watch all the money they have been shelling out for legal fees, and are having to prioritize where it gets spent. Either way, this marks a retreat from the "take-no-prisoners" strategy they have been following up to this point, and could reflect the recent budget cuts, as I discussed in this post.

The Supreme Court will assign St. Luke's petition to a conference in the coming weeks (probably the one on February 19), and then we will hear some coming Monday whether they have granted or declined review. (If the Conference Date is February 19, the decision will be announced at the Court's morning session on Tuesday, February 23, because of the holiday on February 22.) It will take the vote of at least four out of the nine justices on the Court for review to be granted, and for the case to be set for full briefing and oral argument. Grants of review are statistically very rare; only one in every 25 cases or so on the "paid docket" (the ones in which all the required fees are paid, as opposed to the 5,000+ petitions filed each year in forma pauperis) make it to consideration by the full Court.

We have about a month to wait before seeing whether ECUSA's strategy saved it any money. Stay tuned.

[UPDATE 01/21/2010: I have received a copy of the response, filed by ECUSA and the group previously organized under Bishop Gulick in Fort Worth, in the pending mandamus proceedings before the Second District Court of Appeal, which has agreed to review Judge Chupp's order denying Bishop Iker's Rule 12 motion (and also refusing to reconsider that ruling). It has not yet been posted on the website of the Episcopal group, although the Diocese of Fort Worth itself has put up a brief statement about it.

I will be putting up a longer post shortly that deals with the misstatements of fact and the arguments in the response. What I noted in the response which was of special interest to my topic above was this statement on page 44, casually made in connection with a reference to the September 18 decision by the Supreme Court of South Carolina, All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina (bold added for emphasis):

[The South Carolina Supreme Court's decision in All Saints Waccamaw] also runs counter to the many decisions that have held for The Episcopal Church in these kinds of cases [footnote omitted], and U.S. Supreme Court review is being sought.
If ECUSA or the Diocese of South Carolina is asking the Supreme Court to review that decision, then they (or one of them) must have sought and obtained an extension of time within which to file their petition for certiorari (review) with the Court. Normally, a party has up to ninety days from the date of the lower court's decision within which to file for review in the Supreme Court, but that time period may be extended for up to 60 days upon application to the justice in charge of the circuit where the court whose decision is the subject of the petition is located. (For South Carolina, that would be Chief Justice Roberts, who is assigned to the Fourth Circuit.) Since the South Carolina decision was handed down on September 18, the 90-day period expired on December 17; a further 60-day extension, if that was what has been granted, would run to February 15.

A search of the Supreme Court's docket this morning does not turn up any filing yet in the South Carolina case. In seeking review, ECUSA apparently contends that the decision in All Saints Waccamaw "runs counter to the many decisions that have held for the Episcopal Church in these kinds of cases" -- of which the decision in the St. Luke's case is one example. It would be ironic (and somewhat atypical) of the Supreme Court to grant review of the South Carolina decision after denying review of the contrary California decision -- but that is just what ECUSA is asking the Court to do.]


  1. We're still a long ways away from the day when DioLA or ECUSA will need to be filing in forma pauperis.

  2. I seriously doubt that the diocese of SC would ask for review by the Supreme Court. Many here are HAPPY with our state's Supreme Court decision. Must be a TECUSA decision.

    Carol M

  3. Carol M, I have no doubt you are right. If my behind-the-scenes information is correct, we will see a petition for review filed by ECUSA and a select few members of the congregation whose bid to take over the property was stopped by the South Carolina Supreme Court. The Diocese itself will not be a petitioner unless it joins in the petition, or files a separate brief in support on its own.

    I will put up a much more specific post after we see just who files anything with the Court. Stay tuned!