O California!

is the title of a book (now out of print) published in 1991, which, as one reviewer on Amazon puts it:

bestows a glimpse of what prehistory California was like before its wild nature so quickly vanished. The reader of this weighty, coffee table-sized book enjoys a journey back in time through excerpts of the diaries of Spanish padres, essays and memoir of American settlers and literature by early California authors. . . .

. . . "O California!" is set-apart from the others by its lack of interpretation of events, instead allowing the personal truth, the eyewitness accounts describe what California was like. . . .

One giving an eyewitness account of the State today would be hard put to connect it coherently to the accounts one can read in the 1991 book. In fact, it would be difficult to conceive of a tale fuller of loss, betrayal, selfish aggrandizement and squandered opportunity than the chronicle of events in California from 1849 to the present. From the very first overrunning of Johann August Sutter's land by those who had been driven mad by the Gold Rush, to the latest plundering of the State's fisc by politicians and public employee unions, California has served as a stage for man to display his fallenness. The immense natural riches of the State have served over the years not to inspire feelings of stewardship, but instead to tempt toward greed and selfishness.

California is now spinning out of control -- there is no one at the head, and the center does not hold. Both the executive and legislative branches are scrambling to find means to cover a twenty-billion-dollar gap between income and total spending, most of which is dictated by prior cherished initiatives which tell them how they must run the State. And now the judiciary has joined the fray -- a Sacramento judge has approved the legislature's and the governor's shifting of $1.7 billion last year from redevelopment funds to the public schools, in a desperate move to save teachers' jobs. The judge (a former legislator himself) ruled in a 26-page opinion that the payments to schools "benefit redevelopment" and were thus a proper use of redevelopment funds. Thus funds intended to enable the replacement of crumbling infrastructure go instead to maintaining a failing educational infrastructure. Even with that stopgap measure, however, newly minted teachers are graduating with no prospects of employment anytime soon in California, because the ones previously laid off in droves have seniority on being rehired.

Nowhere, perhaps, is the utter confusion and confoundment that is California today more apparent than in the completely unconstitutional actions of the California courts (and by implication, the actions of the California legislature -- since it has done nothing to change the courts' interpretation of its statutes) in the matter of The Episcopal Church Cases (2009) 45 Cal.4th 467, and in related cases from Los Angeles and San Diego counties. I have chronicled the history of this litigation on this blog, and you can find links to all of the various posts here and here.

Here is the condensed version (for an explanation of any legal terms which may be unfamiliar, please see the previous posts linked above): After St. James parish in Newport Beach, St. David's parish in North Hollywood and All Saints parish in Long Beach voted to withdraw from the Diocese of Los Angeles in 2004, the Diocese sued each of them in local courts. The three cases were consolidated for hearing and trial under a single judge in Orange County. ECUSA sought and was granted leave to intervene in the suits as a plaintiff, and filed its own complaints against the parishes.

St. James brought a motion to strike the Diocese's lawsuit, on the grounds that it attempted to retaliate against the parish's exercise of their rights under the First Amendment. It also demurred to ECUSA's complaint -- challenging the sufficiency of its claims to hold a beneficial interest in all of the parish's property because of the Dennis Canon, because there was no written instrument signed by the parish vestry which established any such trust in favor of the national church.

The trial court granted the motion to strike, and sustained the demurrer without leave to amend. Essentially, this ended both actions -- the first, because it was punitive in nature, and the second because there was no way under California law to establish a trust in real property without a writing signed by the property owner (the doctrine of the "Statute of Frauds"). The plaintiffs each took an appeal -- which, because the decision was from Orange County, went to the Fourth Appellate District Court of Appeals, instead of to the Second District (Los Angeles County).

That Court in June 2007 reversed the trial court in a 77-page slip opinion (link at this post). It held that the Diocese's lawsuit did not attempt to infringe on any First Amendment rights, and found that a California statute allowed national churches to create trusts without having to satisfy the requirements of the Statute of Frauds. It remanded the cases back to Orange County "for further proceedings." St. James and the other parishes petitioned the California Supreme Court for review. That Court granted review, and oral arguments were held in October 2008.

The Supreme Court handed down its decision on January 5, 2009. Although disagreeing with the law on which the Court of Appeals relied to decide the cases, it agreed with that Court's result, and affirmed its decision (which, it will be remembered, had sent the cases back "for further proceedings"). However, it used strange language to the effect that it, like the "lower courts" before it, "decided the merits of the dispute over ownership of the local church." (Emphasis added.) As I explained in this post, such language was a complete anomaly at this stage of the case -- you cannot have a decision "on the merits" when the defendant has not yet even answered the complaint!

In due course, the Supreme Court grudgingly modified some of the language in question -- it would not "decide" the merits, but only "address" them as they were presented "on this record." This appeared to most observers to recognize that the Court had before it ("on this record") only the unproved allegations of the plaintiffs -- which it had to assume were true for the purpose of deciding whether or not they stated a claim.

But the clarification did not disturb the views of ECUSA or the Diocese in the slightest. After the case was back in Orange County Superior Court and the defendants had answered the complaints, the plaintiffs filed a motion to enter judgment "on the pleadings", based on the decision "on the merits" by the California Supreme Court.

Part of the pleadings on which judgment was requested consisted of an answer and cross-complaint which St. James had filed after the remand to the trial court. These set out, as a defense to the plaintiffs' claim to have a beneficial trust interest in the parish's property, the fact that the Diocese had expressly waived its claims of such a beneficial interest -- by sending it a letter to that effect in writing, in order to allow St. James to accept donations from parishioners wanting to help it acquire further land and construct additional church buildings.

The letter was signed by the Rev. Canon (and now Bishop) D. Bruce MacPherson, in his capacity as canon to the ordinary (i.e., on behalf of the then Bishop of Los Angeles). St. James's attorneys had also taken Bishop MacPherson's deposition, in which he "testified that the purpose of the conversations between the Diocese and St. James was for St. James to hold title to its property in its own name free of any trust . . . [as] part of an agreement in order for St. James to secure substantial donations for its building program." (Quotation taken from St. James's petition for review to the California Supreme Court, p. 10, a link to which should be posted shortly at this site.) Needless to say, this testimony did not form part of the "record" that was before the California Supreme Court when it issued its decision "on the merits."

The trial court made short shrift of the plaintiffs' motion:

The Supreme Court affirmed the judgment of the Court of Appeal which had previously ordered that the dismissals by the trial court were reversed and that "further proceedings shall be consistent with this opinion. it This is not trial on the merits, and, in modifying its opinion, the Supreme Court underlined this by adding the words "on this record" [emphasis added] at several points in the opinion. It was the anti-SLAPP motion alone that provided the mechanism by which the case was appealed. The waiver issue was not before the Supreme Court or the Court of Appeal. The waiver issue was neither" expressly nor impliedly decided by either court.

It ordered the case to proceed, and invited plaintiffs to bring a motion for summary judgment if they felt the waiver defense and other issues could be decided as a matter of law, without the necessity for holding a trial. ECUSA and the Diocese, however, were convinced they had friends at the Court of Appeal. That is the only charitable explanation one can give of their next move, which was to seek an emergency writ from that Court, asking it to intervene and put an immediate halt to the further proceedings ordered by the trial court -- pursuant to the earlier decision of that same Court of Appeals! (An attorney could never make these things up.)

Lo and behold, the Fourth District Court of Appeals -- although denying 98%+ of all such emergency writ petitions -- now found that there was such an emergency, and issued the writ. In an utterly incredible decision filed last month (see this post), two of the three justices on the hearing panel agreed that the case was now over -- because of the "decision on the merits" by the California Supreme Court! Here is how they viewed the power of that Court:

We must remember that the Supreme Court can decide any issue it pleases that is "fairly included" in the briefing. [Citation omitted; emphasis added.]

And it held that since a copy of Canon MacPherson's letter had been in the "record" before the California Supreme Court, that Court could proceed to decide any factual issues raised by that letter.

This stands the functions of the California courts on their respective heads. The California Supreme Court is not a fact-finding court; that function is the job of the trial courts. The way cases are supposed to proceed is that the trial court finds the facts and makes the initial application of the law to those facts; then the appellate courts review that application, and make any changes to the application of the law which they deem necessary or appropriate, and reverse or affirm the decision below accordingly. But they do not alter the findings of fact. (In certain narrow instances, where there is no substantial evidence in the record to support the findings, an appellate court will set them aside -- but it still will not make new findings on its own. It sends the case back to the trial court to do so.) And in this particular instance, of course, there were no findings of fact that had even been made! All the court had before it were unsupported, and unproved, allegations in a complaint -- that the church was "hierarchical", that there was a provision called "the Dennis Canon", etc., etc.

The fact that they had first ordered "further proceedings" below, however, and now were changing their mind, did not trouble the two justices on the Court of Appeals. They blithely palmed the responsibility off on the Supreme Court, and said:

We have no doubt, of course, that if we are incorrect in relying on the plain language of the Supreme Court's opinion in granting the general church's petition for writ of mandate, the high court will correct our error.

In other words: "We don't know how the Supreme Court can manage to decide a case on the merits before a party gets to answer a complaint, but it said it was doing so, and we cannot ignore what it said. The parties will just have to spend the money required to have it tell everyone whether we are right, or you are." (Never mind that the alternative was simply to deny the writ in the first instance, and let the parties take their case to trial. Even after trial, ECUSA and the Diocese could still have argued on the appeal that the case had really been ended earlier, regardless of the outcome of the trial.)

A more exasperating abdication of judicial responsibility is scarcely to be found. What is particularly striking about this case is that no court -- not the California Supreme Court, or the Court of Appeals on either occasion on which it issued its opinion in the case, or indeed any other court in California, or in the entire United States -- has ever before decided that judgment may be entered against a defendant who has appeared in a case, but has not yet filed an answer and still has time in which to do so. Such a procedure violates fundamental constitutional rights of due process, and to a trial by jury. The Court of Appeal, and ECUSA and the Diocese in their briefs, were completely unable to cite any authority for proceeding to judgment in this manner -- except the language of the California Supreme Court in its decision "on the merits." Which is to say, of course: "Our mind is made up. Don't try to confuse us with the facts (or the Constitution)."

What is truly scary is that this is now considered to be the only treatment that is appropriate in California courts for the august Episcopal Church (USA). Unlike other petty litigants, it does not have to do anything to prevail under its Dennis Canon than to file a complaint, and that is the end of the matter. "Dennis Canon, you say? Oh well, that's that, then. Judgment for the plaintiff on the complaint as filed -- no, Mr. Defendant, you have no right to be heard, let alone to present evidence. Next case." And if you don't want to take my word for it, just listen to this ECUSA blogger, writing after the Supreme Court announced its decision:

The parish of St. James' has released a wonderful piece of comedy . . .

. . . Nor is the saga over for St. James Anglican Church. “While we are surprised that the Court seemed to give some credence to the Episcopal Church’s purported rule confiscating local church property, the battle is far from over,” lead attorney Eric C. Sohlgren said. “The matter will now return to the Orange County Superior Court for further proceedings, and we look forward to presenting evidence and additional legal arguments that St. James Church should prevail under neutral principles of law.” . . .

One must wonder what decision Mr. Sohlgren read; clearly it was not the document released today. In effect, the court took a 2x4 and smacked the "confiscating" fundamentalists upside the head and said, "Thou shalt not steal."

How Sohlgren can read into the decision that other churches may leave their denomination and take the property with them is beyond understanding. Clearly he needs a remedial course in the English language. The court said, "people may leave but they cannot take the property with them." The only way to misunderstand that statement is to deliberately do so.
. . .

I will be surprised if any judge is willing to hear arguments about this case. Judges take a dim view of their opinions being overturned. With the Supreme Court's ruling, the entire California legal establishment knows how the Court will rule regarding confiscation of TEC's property.

Additionally, there is one little phrase in the Court's decision that will cause the confiscators a lot of grief. The Court ruled "on the merits of the case." That means there is nothing else to be decided in this matter. The justices considered every aspect of the issue and ruled on the matter in totality.

It's over; the fat lady sang and she cracked on that final "high C." But like those on the Titanic, the confiscators are grasping for anything that floats in an attempt to regain some credibility.

Going from the proverbial fat lady in one sentence to the Titanic in the next may be an inartful profusion/confusion of metaphors. But such are the poor means left to those who try to comment on the incredible goings-on in California.

St. James has filed, as all three justices of the Court of Appeal told it to do, a petition for review with the California Supreme Court, which is now the only court that can restore due process to these cases. Its stingy and mean-spirited "modification" of its decision more than a year ago, which refused to make the limitations on what it was deciding crystal clear to the parties and the courts below, has now cost the parties further hundreds of thousands of dollars. Of course ECUSA, as we know from many previous posts, views that as chump change, so long as it can win by any means, fair or foul. (It should change its motto to: "The Episcopal Church -- no due process for you.")

And so I say:

O California!