Thursday, September 19, 2013

As Long as There Are Lawyers Who Will Take its Money

It is sad, but true: a person with money to spend can always find a lawyer willing to take his money -- and ECUSA is no exception. ECUSA lost its cases in Fort Worth, Quincy and South Carolina, and now is paying attorneys to ask the courts in Fort Worth and South Carolina to "reconsider" their decisions. (There is no judgment entered yet in the Quincy case, and until there is, there will not be anything to ask the court there to reconsider.)

ECUSA obtained an extension of time until October 18 within which to file a "petition for rehearing" with the Texas Supreme Court in the Fort Worth case. (The Diocese of Northwest Texas did likewise, in the Masterson case.) Their papers are not on file yet, so we cannot discern the reasons they will give to the Court for reversing its decisions.

But in South Carolina, the motion to Federal Senior District Judge C. Weston Houck, asking him reconsider his earlier dismissal of Bishop vonRosenberg's trademark infringement suit, and filed on the latter's behalf by ECUSA's attorneys, is available for your reading enjoyment. Essentially the motion challenges two technical aspects of Judge Houck's earlier ruling, and suggests that had he followed the proper precedents, he would have retained jurisdiction of the suit, rather than dismiss it.

The reasons given for reconsideration might sound plausible on their face to a layperson, but they are nonsense to one experienced in litigation. In the first place, most judges would rather undergo a root canal treatment than admit that they got anything wrong, and change a decision once made. But in the second place, in this case Judge Houck got it right the first time.

The Bishop's attorneys attack just two of the rationales Judge Houck gave for his ruling: one factual, and one legal. Leave the legal one be -- it turns on a very technical distinction about the discretion a federal court has to entertain a suit that asks for both declaratory and other relief (Bishop von Rosenberg wants an injunction to issue against Bishop Lawrence).

It is the attack made on Judge Houck's factual reasoning in the first seven pages of the Memorandum that I would like to consider. Here the attorneys argue that under an earlier case from the same Fourth Circuit Court of Appeal which would hear any appeal from Judge Houck's decision Bishop vonRosenberg has certain prerogatives of his office with which Bishop Lawrence is allegedly interfering.

The argument is ludicrous on its face. Consider this point: Bishop Lawrence is also a bishop of a diocese -- the one that is paying his salary -- and so under that same precedent, he has certain prerogatives of his office as well. What Bishop vonRosenberg wants is to restrict Bishop Lawrence's prerogatives just so he can exercise the ones he claims are his.

And that is not all. In Dixon v. Edwards (the earlier case in question), Bishop Dixon claimed that it was the vestry and rector of a particular parish in her own diocese that were interfering with her prerogatives as its bishop, and the court decided that her claims warranted relief. But Bishop Lawrence is not in the same diocese as Bishop vonRosenberg, and is not subject to his jurisdiction. If Bishop Lawrence's activities in his own diocese are interfering with Bishop vonRosenberg's activities in his, then can a federal court supply a remedy? To do so would be to wade too far into matters that are "quintessentially ecclesiastical" (to quote the Court of Appeal's decision in the Schofield case), in violation of the First Amendment.

And just what are these "prerogatives" which Bishop vonRosenberg demands the federal court protect? The only one the memorandum bothers to mention (p. 5) is his performance of confirmations. Now pause for a minute, and consider just how ludicrous this claim really is.

Confirmation takes place in a specific parish. The candidates are screened and prepared by their own parish priest, who then invites the bishop for a specific date. Are we seriously expected to believe that his own parish priests are so confused about which bishop to call that poor Bishop vonRosenberg has not been getting any requests to perform confirmations? Or ordinations?

Consider this point also. The lead attorney filing the motion to reconsider is Bishop vonRosenberg's chancellor, Mr. Thomas Tisdale. And he argues (evidently with a straight face) that Bishop Lawrence's performance of his functions as bishop of his diocese is making it "nearly impossible" for Bishop vonRosenberg to perform his.

Remember this about Mr. Tisdale? He was the attorney first hired by ECUSA's Presiding Bishop to inquire into how Bishop Lawrence was running his diocese. So back then, he was not very jealous to guard the "prerogatives" of a sitting bishop; he worked instead to undermine them. I'm sorry, Mr. Tisdale, but your protestations on Bishop vonRosenberg's behalf now ring rather hollow.

But the bottom line here is that there are all kinds of good reasons for Judge Houck to have dismissed this ridiculous litigation, and not just the reasons he gave in his order. (I covered those other grounds in this earlier post, and have nothing to add to it now.) So attacking just the two grounds he happened to give does not do the job -- there is the little matter of the federal Anti-Injunction Act to consider, for example.

An appellate court does not have to rely on just the reasons Judge Houck actually gave in order to affirm his dismissal. If the decision was correct upon any applicable legal ground, they will let it stand. That is why this motion, at least to this church litigator, appears to be such a monumental waste of Church funds. (And note that the latest figures from ECUSA's Treasurer show that the amounts spent on "litigation to safeguard property Church-wide" is already more than double the amount budgeted for the entire year, and is well on its way to exceeding the budget by 300%! That is why I say that all of the hand-wringing over the triennial budget is just so much Sturm und Drang. The real priorities at 815 are to spend whatever it takes in order to impoverish their opponents -- the "budget" be damned.)

If either Judge Houck or the Texas Supreme Court pays any attention to ECUSA's machinations, I for one will be entirely surprised. But that is not, alas, why ECUSA is engaging in them. ECUSA's strategy is geared toward getting an appropriate case into the United States Supreme Court, in its own good time. Until then, the program is just to keep their attorneys fully employed on all fronts, at all possible times -- and hang the costs involved. 


  1. Mr. Haley, at what point can a court step in and order a particular party to stop gaming the system in an attempt to spend the other party into oblivion? This kind of action in South Carolina doesn't seem to be serving any other purpose. Surely this sort of motion is an abuse of our legal system.

  2. On the ENS news release, I noticed this:

    Attorneys for The Episcopal Church in South Carolina contacted the Church Insurance Company of Vermont in writing in August. The company denied coverage, prompting the legal action to clarify the matter, according to Thomas S. Tisdale, Jr., Chancellor of The Episcopal Church in South Carolina. The case also has been assigned to Judge Houck.

    Is this common?

  3. Bryan Hunter, the remedy may well come from a South Carolina state court first. As I wrote in this earlier post, Judge Goodstein has scheduled a status conference for October 11, at which she will also hear a pending motion for contempt of court against the rump Episcopal group and ECUSA itself. The federal court also has remedial measures under FRCP Rule 11, but those (as with the contempt motion in State court) have to be invoked by a noticed motion, and any such motion would be premature until after the coirt has ruled on the motion to reconsider.

    Galletta, I have not written about that development, because I am awaiting more information about the lawsuit. The fact that it is filed in South Carolina federal district court, however, leads me to suspect that it is yet another maneuver by Bishop vonRosenberg, ECUSA and their attorneys to take this case out of State court by any means possible. Stay tuned, until I have further info, and then I will write about the lawsuit.

  4. Mr Haley, thank you again for the update on the legal gyrations of the ECUSA. If, as you suggest, their strategy is to drive a case to the Supreme Court, the tide does seem to be turning slightly and that legal strategy could backfire spectacularly on them.

  5. Galletta, I don't know how "common" the insurance ploy is, but I do know that they tried the same thing here in Ft. Worth. They eventually lost, but the effect was that DoFW had to foot its own legal expenses in the interim, which was well over a year.

  6. Let's not forget that Mr. Tisdale was Chancellor of the Diocese of South Carolina. I do not mean the *diocese* of which von Rosenberg is bishop, I mean the diocese that elected Mark Lawrence its bishop. Yep. Tis true. Would have to look for dates........