Wednesday, February 25, 2009

Rushing to Judgment

In what can be described only as a somewhat terse performance by its collective justices, the California Supreme Court has corrected a rather glaring error in its prior opinion in The Episcopal Church Cases, 45 Cal.4th 467 (2009). It has published a short per curiam (meaning: unsigned) order, which it says does not affect its earlier judgment. But since the order has no byline, and carries no explanation, its significance is easy to miss. 

Those to my left have, as usual, jumped to totally unwarranted conclusions. Out of the three sentences used by the Court to describe what it was doing, they select only this one: "The [local churches'] petition for rehearing is denied." Then they trumpet headlines like "California breakaway churches lose in court again". What they ignore are these words: "Request for modification granted. . .  The opinion is modified." (Emphasis added.) If I were to read things as one-sidedly as they do, I could have titled this post: "California orthodox churches win in Supreme Court"; or (only slightly less outrageous) "Supreme Court concedes mistake in prior ruling in favor of ECUSA". I have decided instead to reach two birds with just one cast, and call what has happened in both the Supreme Court and on liberal blogs "rushing to judgment".

I explained in this earlier post what was wrong about the Court's original opinion. Briefly, the Court said it was deciding "the merits" of the case---before the defendants in the case, the individual parishes in Orange County who had each been sued first by the Diocese of Los Angeles and then by the Episcopal Church (USA), had even answered the complaints! Just like any other branch of government, courts cannot deprive people of their property without following "due process of law". One does not have to be an attorney to appreciate that if you are sued, you get a chance to answer your opponent's complaint before anything can be decided in your case "on the merits".

The error must have been at least a little embarrassing for the justices and their law clerks. In their zeal to render an opinion in the case, they literally rushed to judgment by purporting to decide the case "on the merits". The latter is a legal turn of phrase meaning that the case is decided squarely on the facts presented to the court, instead of being brushed aside on procedural or technical grounds that do not resolve any of the factual or legal issues raised. Normally, therefore, one expects a decision "on the merits" at the end, and not at the beginning, of a case. For the Court to assume it could decide the merits of the Episcopal Church Cases before the churches themselves had even an opportunity to answer would make it look as though the justices were biased, or had prejudged the case to such a degree that they did not even need to hear from any of the defendants. In other words, they would be saying: "Our minds are made up---don't confuse us with the facts!" 

Now let us take a look at how the Court has gone about stepping back from its mistake. The modifications it made may best be understood by presenting the text of the original opinion below. Then, by using strikeouts for deletions and underlining for new language, I show just what the Court decided to change in order to avoid any appearance that it was prejudging the case.

The first change made is as follows, in the first full paragraph on page 473 of the published opinion:
Applying the neutral principles of law approach, we conclude, on this record, that the general church, not the local church, owns the property in question.
The Court has decided to add the three underlined words, together with offsetting commas, to its earlier sentence. I shall return to the meaning of this later. The second change, to the third full paragraph on page 476, is this:
We granted review to decide whether this action is subject to the special motion to strike under Code of Civil Procedure section 425.16 and to address the merits of the church property dispute.
Are you beginning to see what the Court is doing here? By inserting a second infinitive ("to address"), the Court has changed the meaning of its original sentence from "We granted review to decide . . . the merits of the church property dispute" to "We granted review . . . to address the merits of the church property dispute."

The changes continue. On page 478, the first full paragraph under Section B is changed to read as follows:

Both lower courts also decided addressed the merits of the dispute over ownership of the local church---the trial court found in favor of the local church and the Court of Appeal found clear and convincing evidence in favor of the general church. We will also decide address this question, which the parties as well as various amici curiae have fully briefed. We will first consider what method the secular courts of this state should use to resolve disputes over church property.* We will then apply that method to resolve analyze the dispute of this case.
*{My footnote: Unusually, the official report of the Court's per curiam decision today on Westlaw omits this sentence, while the summary carried on the Court's own website (scroll to the bottom) includes it. It is rare for Westlaw to make such a mistake.}

And the last change, to the first full paragraph on page 493, is like the first:
For these reasons, we agree with the Court of Appeal's conclusion (although not with all of its reasoning) that, on this record, when defendants disaffiliated from the Episcopal Church, the local church property reverted to the general church.
Now, then, just what do these changes accomplish? First, note that the Court has definitively backed off from its pretense to have decided the merits of the case; instead, it has only "addressed" them---or, in the other instance, it has "analyzed" the merits instead of "resolving" them. This is a huge relief to all concerned. (I doubt that even ECUSA's attorneys would have wanted to defend the position that it was entitled to a final judgment just by filing its complaint, without ever having to prove its case.) Second, the Court's "addressing" of the merits applies only to the merits as shown "on this record"---i.e., on the case in the posture presented to it, before the defendants have had a chance to answer the complaints.

"On this record", however, has a further technical meaning in this case, which attorneys will appreciate. For in the case of the complaint brought by ECUSA, the trial court granted the defendant parish's demurrer to it without leave to amend. (A "demurrer" to a complaint is just the same as saying: "So what if everything you say in your complaint were true? You still haven't stated a case on which the court can grant the relief for which you are asking [in this case, the transfer of the parish's property to the Diocese and to ECUSA]. And when a court "sustains", i.e., upholds, the defendant's demurrer "without leave to amend", it means that nothing the plaintiff could plead in his complaint would change the result---it would still not state a claim upon which relief could be granted. The case is then over, without the defendant ever having had to answer, because the plaintiff's case is so weak that it could not succeed even if everything the complaint says---or could conceivably say under the circumstances---were true.) 

Thus in reversing the dismissal of ECUSA's complaint, the judgment of the Supreme Court has the effect of reinstating the complaint, and requiring defendants to answer it (they cannot demur to it any more). The Court has held, in effect, that if everything the Church alleges were true, then it would be entitled to the property of St. James's, Newport Beach.

It is in this sense of the matter that I read the addition of the word "found" twice to the paragraph on page 478. By finding in favor of the local church on its demurrer, the trial court held that ECUSA had failed to state a claim for the property, and by reversing that decision, the appellate court "found" the opposite. The word is potentially confusing, however---and do not think that ECUSA's attorneys will shy from exploiting this aspect---because a "finding" by a court is usually on a matter of disputed fact. ("Finding clear and convincing evidence" is normally the job of the trial court, not the appellate court. The Court of Appeal did use that phrase, but it was with reference to the fact that the language of the Dennis Canon declares a trust, a point on which nobody disagrees; the disagreement is over whether the trust so declared can be valid simply because the local church long ago agreed to be bound by then existing canons.) When a court rules on a disputed point of law, as all three levels of the system did here, the word normally used is that it "concluded" that the law was thus and so. (Courts do not like to create the impression that they "find", or discover, the law; instead, they reach a conclusion as to what the law is---or should be---after carefully considering all the applicable rules and precedents.)

Things are now, in short, back to normal. A demurrer to ECUSA's complaint was sustained by the trial court, reversed by the appellate court, and the reversal was affirmed by the Supreme Court. The case will now go forward on ECUSA's complaint (and on the Diocese's, as well). If ECUSA proves at trial that everything it alleged is true, then it can use what the Supreme Court said on the merits "on this record" to ask for judgment in its favor. But if the facts turn out to be otherwise at trial than what ECUSA alleges, it could prove to be a whole new ball game.

It is way too early to tell. Certainly it is premature to crow about "losing again in court".



  1. Good post. A comment on a detail: You noted a discrepancy between Westlaw and what was on the Court’s website. The order posted at indicates at the top of the page that there was a correction made to a version posted earlier in the day. This may account for the discrepancy. Also note that the order posted at that link has the sentence you footnoted appearing as the penultimate sentence in the paragraph (i.e., in a different order). Confusing, and perhaps adding slightly to the embarrassment for the Court to need to correct its correction.

  2. Thanks for pointing that out, Mike. It turns out that it was I, burning the midnight oil to get this posted, who made the mistake in the order of the sentences (based on the official version of the original decision). So I have fixed that in the post above, and now there is no discrepancy between my version of the modification order and the Court's.