Sunday, September 3, 2017

Faults in the South Carolina Decision Laid Bare (II)

[Note: For background to this post, please read its predecessor here.]

After the Motion to Recuse and Vacate discussed in the previous post, the petition for rehearing heaps on many more reasons why the South Carolina Supreme Court should place no confidence in its divided result in the Episcopal Diocese of South Carolina case. To a certain extent, because the reasons in the motion to disqualify Justice Hearn are so strong and irrefutable, the reasons the petition gives for rehearing are ancillary.

For as demonstrated in my previous post, if Justice Hearn should have disqualified herself under the applicable Judicial Canons of South Carolina, then the only remedy for her violation of those canons would be to grant a rehearing of the entire case before new and untainted justices.

Rehearing is required, flat out, because respondents' due process rights to a fair and impartial tribunal were grossly violated. But rehearing would be required in any event because the bias injected into the proceedings by Justice Hearn tainted not only her conclusions, but those of Acting Justice Pleicones and of Chief Justice Beatty, as well.

In a nutshell, the fault exposed by the petition for rehearing is this: there is no 3-2 majority, or any majority, of the Court that is united in favor of any reasoning for any result that is dispositive of the entire case. When a court has failed properly to dispose of the whole case before it, it must grant a rehearing to clarify what it meant by its original decision.

Let me restate that observation, in terms a lay person can understand. To have an effective decision from a court of law in which a panel of multiple justices participates, there has to be a majority of the participating justices who each concur in (agree with) the result that necessarily follows from that concurrence. And in this South Carolina decision, an analysis of the separate opinions shows conclusively that while three justices out of five may concur in one given result, they differ fatally in what process gets them to that result.

With no clear majority agreeing on the approach the Court (through its supposed majority) is laying out, the picture is the same as if three bettors at roulette won money when the ball landed on Red 34, because the first bet on "red", the second bet on "even", and the third bet on "34". There is consensus only in result, but not in how you get there. And basic due process requires courts to explicate their reasoning for reaching a given result.

When the result is shown to have been clearly mistaken (i.e., the ball actually landed on Black 15 next to Red 34, or even on Black 22 on the other side -- which means that at a minimum only one bettor out of three could collect), the so-called "plurality" consensus fails, and there remain only the separate reasonings to get to that result, which do not unite or agree in any way.

This is the problem with the opinions as rendered by the South Carolina Supreme Court in the Episcopal Diocese of South Carolina case, and it is the key to a lay person's understanding of the issues presented by the petition for rehearing. So let us proceed to the particulars.

Let us start with the so-called "lead" opinion of Acting Justice Pleicones. As will be shown, his opinion is factually inaccurate, grossly misleading, and blatantly result-oriented (in disregard of binding precedent from prior decisions by the same Court).

The first thing to note is that A. J. Pleicones announces that the "standard of review" for the case is in "equity" (Opinions, p. 4 [Adobe Acrobat numbering], at n.1; I will explain what that means in a moment). While the unconstitutionally biased Justice Hearn agrees with him (Opinions, p. 21 [concurring "fully" in the opinion of A.J. Pleicones]), no other Justice does so, and two dissenting Justices (Toal and Kittredge) argue that the standard of review is "one at law", not equity (Opinions, pp. 55-57, and 39 at n. 31).

For his part, Chief Justice Beatty in his opinion makes absolutely no mention of the standard of review which he thinks applies to the case, although he states that he "disagree[s] with the analysis of the majority" (Opinions at 36; emphasis added), so presumably he rejects the equitable standard of review, as well. This means that there are, at best, only two Justices who agree on the applicable standard of review.

An appellate court always specifies the "standard of review" under which it will decide the case before it. That phrase describes the standpoint from which the higher court will review what is in the record from the court below.

For South Carolina courts, the two standards mentioned ("in equity", and "at law") entail two very different procedures in the reviewing court. Under an equitable standard, the appellate court examines the entire record anew, from scratch ("de novo"), and is free to make its own factual findings and conclusions of law that may vary from those of the trial court.

But under a standard of review "at law", the appellate court is bound by the findings of fact made by the trial court which are supported by at least some modicum of trustworthy evidence in the record (such evidence is frequently called "substantial evidence", though the term implies only that the evidence must be at least sufficient to justify a greater than 50-50 belief in its probable veracity).

From what the separate Justices state in their opinions, it has to be concluded that only two of them (Pleicones and Hearn) were in favor of disregarding the findings of the trial court, and of starting anew from scratch. The other three apparently believed that the trial court's findings of fact were binding upon them, subject only to a substantial evidence requirement in support.

This analysis shows that Pleicones and Hearn stood alone in their free-ranging substitutions of their own factual findings in place of those made by the trial court. But two votes out of five do not make for a majority in that respect. Therefore it is folly to regard the "lead" opinion of A.J. Pleicones as stating anything other than the individual views of the case by himself and Justice Hearn.

In other words, there were three votes out of five (a majority) to regard the trial court's findings of fact as binding upon the Supreme Court, rather than subject to de novo review. This analysis alone should give pause to those who triumphed in announcing that they had prevailed by a 3-2 vote.

In his separate opinion concurring partly in those of Justices Hearn and Pleicones, Chief Justice Beatty voted in favor of reversing the trial court's legal conclusion (following the rule handed down in the Waccamaw case -- see the previous post) that the Dennis Canon could not create an effective trust in South Carolina. Instead, C.J. Beatty concluded that the Canon, in combination with the individual parishes' supposed "accessions" through their corporate articles and bylaws, operated to create a binding and irrevocable trust on their properties in favor of the national Church and its diocese, as a matter of law.

This conclusion, as just noted, was one of law, not of fact. So the adjudicatory effect of Chief Justice Beatty's opinion depends upon his application of the law to the trial court's factual findings (which were binding upon the three members of the appellate court who rejected the "equity" standard of review). The problem that underlies Chief Justice Beatty's legal conclusion is that it rests upon certain assumptions of fact that were contrary to those found by the trial court (e.g., that the various "accessions" signed by the individual parishes were informed enough to operate as a consent to the creation of a trust that was legally recognizable ["cognizable"] under South Carolina law).

A good part of the petition for rehearing (pp. 18-22, and 24-31) is devoted to a detailed showing that there was never any express consent by the various parishes, under the specific wording of their so-called "accessions" to the national Church's canons (including its Dennis Canon after 1979), that would be sufficient under South Carolina trust law to create any kind of trust in favor of ECUSA and its local diocese in those parish properties.

Justice Beatty does not address these discrepancies -- he was unaware of them, since the documents were not made part of the record on appeal (because ECUSA never raised any appellate issue involving them). Justice Beatty apparently relied for his conclusion on the unsupported assertions of ECUSA's attorneys, made in a post-trial motion for reconsideration, that all the subject parishes had "acceded" to the Dennis Canon. He simply delivers an omnibus ruling that the standards for trust creation were met in the case of parishes who "acceded" to the national canons (i.e., according to the representations of ECUSA's attorneys -- which were not evidence in the case).

The petition for rehearing shows, as just noted, that Justice Beatty's assumed factual basis for his decision is fatally flawed, along with the consequences he draws from his unjustified assumption. So what is left of his concurring opinion? If he truly wants to address the discrepancies identified by the petition for rehearing, he will concede that it is correct. Only an irrefragable personal pride in one's output would keep a conscientious justice from admitting that he made a mistake, and from voting to reconsider the Court's decision.

A particularly poignant observation is necessary here, in light of the fact that Chief Justice Beatty was the only Justice to address the specific fate of Camp Christopher, a long-held diocesan property that serves as a conference center and clergy retreat for Mark Lawrence's diocese. He stated in a footnote to his concurring opinion:
The conveyance of Camp St. Christopher was for the explicit purpose of furthering "the welfare of the Protestant Episcopal Diocese of South Carolina." In my view, the disassociated diocese can make no claim to being the successor to the Protestant Episcopal Church in the Diocese of South Carolina.
The petition for rehearing (pp. 34-35) refutes this unwarranted (and unsupported) conclusion on the basis that the trial court never found, and the appellants never argued on appeal, that they were the "successor" to the Protestant Episcopal Church in the Diocese of South Carolina. Justice Beatty seems to have reached this conclusion entirely on his own initiative, with zero evidence in the record and zero contentions on appeal to support it. (Associate Justice Pleicones fell into the same trap under his pseudo-"hierarchical" finding -- see his opinion at p. 18. Since, however, the Dennis Canon has no application to property held by a diocese, his conclusion about its validity as to parishes has no bearing on the title to Camp Christopher.)

Such diaphanous cloth appears to be the material from which the Supreme Court of South Carolina weaves its fantastic decisions (at least when it is not wisely advised). Chief Justice Beatty's gratuitous footnote was not joined in by any other Justice -- no one else so much as mentioned Camp Christopher in their opinions. Accordingly, it would be a stretch to claim that his footnote serves as the basis for a 3-2 decision to transfer title to Camp Christopher to ECUSA.

All these minor points, however, are but appetizers for the main course. For the opinions of a minority of two of the South Carolina Justices (Hearn and Pleicones) are being touted by those ignorant of precedent as the basis for a wholesale overturning of South Carolina law on the topic of religious property disputes.

I hesitate to go here, because there is so much ill-informed opinion out on the Web about what "neutral principles" means in the context of disputes between religious factions over the ownership of and title to religious property. The best I can do is what I have already done: please visit this earlier post and its links before wading into these murky waters.

If you have absorbed what is in those earlier posts, congratulations! You will then be able to see just where A.J. Pleicones (and Justice Hearn, too, of course) went astray in giving lip service to "neutral principles" while in fact taking us back to the 19th-century doctrine of "deference to ecclesiastical authority." They want nothing to do with "neutral principles", because they like creating "special principles" applicable only to a category of church denominations they find to be "hierarchical."

In so doing, they stand the First Amendment on its head, by "establishing" ECUSA as a special church in our legal system that, in order to placate Justice Blackmun's "minimal burden" standard under Jones v. Wolf, is able to create a binding and irrevocable trust across all State borders and regardless of the fifty States' individual trust laws by the adoption of a single bylaw. Such "deference" to a national church has precisely the effect of doing what the Establishment Clause forbids. It gives to ECUSA a status that favors it over all secular organizations, and many other religious ones, as well.

Moreover, there are a number of other problems with A. J. Pleicones' and Hearn's approaches that they simply overlook, and fail to deal with:
  • First, ECUSA did not follow Justice Blackmun's advice and embody a trust in its governing constitution (which would require at least four years to amend). It fudged, by passing just a canon (bylaw), which can take effect immediately, and which Jones did not sanction.
  • Second, they ignore all the undisputed evidence that ECUSA's General Convention is just a legislative, and not an adjudicatory body. It passes laws (resolutions), and decides no disputes of any kind (other than who is entitled to a seat and vote). Indeed, there is zero evidence for the claim that ECUSA has any kind of "highest adjudicatory body" at all. So there is no body, or adjudication, to which a court must defer.
  • Third, the Dennis Canon trust cannot be "irrevocable", because General Convention may amend or revoke it unilaterally at any time it chooses. A trust that can so be amended or revoked is not "irrevocable." Moreover, making it irrevocable by any actions of a parish or a diocese creates its own problems with the First Amendment, since if deciding what to do with church real property is part of the "free exercise of religion" and so beyond civil adjudication, then placing limits on what parishes and dioceses may do with their own properties is an infringement on their free exercise rights.
All these arguments, and many more, are in the petition for rehearing. It does not merely "restate [Plaintiffs'] earlier arguments to the Court", as I saw one blogger describe it. The reason it does not is that the "majority Justices" themselves departed so freely in their several opinions from exactly what the parties had submitted to them in the record of the case and in the briefs on appeal.

The best conclusion to this discussion is the one in the petition itself (pp. 36-37):
The majority has fashioned a neutral principles standard for religious organizations under South Carolina property, trust and corporate law that admittedly would not be applied to secular organizations. It then applied it to religious organizations today in a fashion it did not do 8 years ago involving the same issues between the Plaintiff Diocese, The Episcopal Church and a parish church. It does so when no appellant asked the trial court, either during trial or post trial, to apply such a standard. As a result, the majority would transfer the real and personal property of South Carolina religious organizations, many of which preexisted The Episcopal Church and the United States, to a New York religious organization. This establishment of one religion over another impacts the choices these South Carolina religious organizations (and those associated with them) made in the free exercise of their religion. They chose to disassociate, exercising their right of association under the United States and South Carolina Constitutions which this Court has recognized. Yet, according to the majority, that constitutionally protected decision requires a massive transfer of centuries old real and personal property when it would not be required for a secular South Carolina organization.
Indeed. The "decision" is not a real decision at all. It is fractured beyond understanding; it is ambiguous, confusing and contradictory; and biased beyond all measures of impartiality and fairness. It needs to be wiped from the books, and a fresh start made with an impartial tribunal.


Saturday, September 2, 2017

Faults in South Carolina Decision Laid Bare

In two separate court filings yesterday, the attorneys for Bishop Mark Lawrence, the Episcopal Diocese of South Carolina and twenty-nine parishes -- who had been told they must hand over their properties to the national Church (ECUSA) and its ersatz "diocese" (ECSC) -- laid bare the severe faults and conflicts of interest that permeate the bitterly divided 3-2 decision on August 2 by the South Carolina Supreme Court.

The first filing is a 37-page petition for rehearing that systematically points out the huge flaws and legal errors in the 35 pages that comprise the majority decision.

The second filing is a motion addressed to the four current justices of the Supreme Court (minus Justice Kaye Hearn, who is requested to recuse herself from sitting in judgment on herself). It seeks to disqualify Justice Hearn from participating further in the case, and to vacate her overtly biased opinion that resulted in a loss for twenty-nine parishes. Alternatively, it asks that the Court vacate all five separate opinions and rehear the appeal with (if necessary to resolve a tie vote) a specially appointed fifth justice to sit in place of Justice Hearn.

These amount to quite a lot of legal substance to digest on a Saturday morning. But the filings deserve your serious attention, and I will do my best to make them understandable to you. Because it is the key to collapsing the entire rickety structure represented by the Court's divided opinion, I shall take up the motion for recusal and vacation first in this post, and then follow it up with another post on the reasons for rehearing.

The bottom line of this devastating motion is simple: Justice Kaye Hearn had no business sitting on the panel that heard and decided this case, and should have recused (disqualified) herself at the outset of the appeal. The evidence shown for her bias goes far beyond what your Curmudgeon wrote about in the post linked above (which was bad enough): it leaves now no room for doubt on the question. (The page references below are to the pages of the document numbered according to the Adobe Acrobat program -- plug a number into the box, and Acrobat will take you to that page.)

The motion begins its factual presentation with this overview (p. 5):
This case has been challenging emotionally, spiritually, and financially to thousands of people in South Carolina. One of those people is Justice Hearn. Like all of her current and former fellow parishioners, this dispute was and is important to Justice Hearn. However, only a limited number of those people were actively engaged in the debate of the underlying issues. An even smaller handful of people left their parish homes and started new parishes because of the issues involved in this case. One of those people is Justice Hearn. This case was important to Justice Hearn, and she and her husband were actively involved in the debate of the issues and were leaders in developing a new parish after leaving their prior one. Over several years, Justice Hearn developed opinions, advocated for these opinions, and took action based on the outcomes of decisions central to this case. These actions are to be expected by any interested parishioner. However, they should have led Justice Hearn to publicly disclose them, and she should not have rendered judgment in this case.
Bias against her former parishAs is well known, Kaye Hearn and her husband George were long-time members of St. Paul's, Conway. They left in 2013, after that parish voted to remain with Bishop Lawrence's Episcopal Diocese. Before they left, however, they were both vocal in their opposition to the direction in which Bishop Lawrence was going, and differed publicly with St. Paul's rector on a number of occasions (pp. 5-6, and 30-33). It should be noted that if Justice Hearn's written opinion had become the majority decision, it would have resulted in her former parish of St. Paul's having to turn over all its real and personal property to her new parish of St. Anne's. Could a conflict be shown more directly than that?

Support for the Episcopal Forum. As I documented previously, Justice Hearn was a continuing member of the Episcopal Forum of South Carolina since at least March 2007.  According to its mission statement on June 25 of this year (p. 111 -- the Forum's website has since been purged of this and all similar materials, and also of its public membership lists),
The mission of the Episcopal Forum is to support The Episcopal Church in South Carolina, The Episcopal Church and the worldwide Anglican Communion by providing support and educational offerings . . .
The first two entities named in the statement of support are precisely those who Justice Hearn decided were legally entitled to all of the properties of those parishes with whom she disagreed as a Forum member, and as a member of a parish in the Episcopal Church of South Carolina (ECSC). What better witness of support for them could she give than voting to hand over to them about half a billion dollars' worth of real estate?

Moreover, the Forum -- stating it had the backing of all its individual members -- wrote in 2007 and again in 2010 (pp. 103-07, and 177-86) to the bishops in ECUSA and in Province IV (which includes South Carolina) setting out its concerns about and disagreement with Bishop Mark Lawrence over the very actions which would form the basis for the later attempts by the national Church to discipline and remove him -- actions which Justice Hearn likewise criticized and attacked in her decision. In 2012, the forum published on its Website (pp. 188-91) a legal critique of the South Carolina Supreme Court's unanimous decision in 2009 in the All Saints Parish Waccamaw case. The document reads like a precursor to Justice Hearn's (highly biased) reasons given in her 2017 opinion for voting to overrule that decision.

Her Husband's Involvement in the First and Second ECSC Conventions

Justice Hearn's husband, George, served as a delegate for his dissident parishioners to both of the early conventions in 2013 that launched the Episcopal Church in South Carolina. As a delegate, he voted to nullify the resolutions and amendments to diocesan governing documents which had been approved by the most recent diocesan convention under Mark Lawrence, yet his wife saw no difficulty in sitting in judgment over the validity of those resolutions and amendments on appeal (pp. 115-17).

He also voted to elect Bishop Charles vonRosenberg, who promptly sued Bishop Lawrence in federal court claiming that he, not Bishop Lawrence, owned the trademark and seals of the diocese. Later, in response to Bishop Lawrence's preemptive move that kept ECSC from carrying out its plan to sow confusion by insisting that it had the right to be called "the Episcopal Diocese of South Carolina", vonRosenberg countersued against Bishop Lawrence and the individual parishes, claiming all of their property due to the supposedly self-effecting Dennis Canon adopted by the national Church in 1979. Finally, as a two-time delegate, George Hearn signed two oaths of conformity in which he swore allegiance to the National Church and to the remnant ECSC (pp. 74-81).

Bias Shown in Justice Hearn's Opinion

In her opinion concurring with the plurality in the present case, Justice Hearn just could not avoid letting show her overt bias against Bishop Lawrence and his diocese, by relying on her personal knowledge and opinions which were outside of the actual court record in the case. Let the motion for her recusal speak for itself (pp. 8-11):
Justice Hearn found that it was "clear from the record that doctrinal issues concerning .... the role of women were the trigger" for the disassociation. See Opinion p. 37. A complete and thorough review of not just the Record on Appeal, but the entire trial transcript uncovers no mention of the role of women. George Hearn stated that the role of women in the church was an issue to him in leaving St. Paul's Conway, but this deposition testimony was not introduced at trial. See Ex. 2, Depo. of G. Hearn pp. 27-28.  
In another section of her opinion, Justice Hearn strongly criticizes Bishop Lawrence by arguing that Lawrence joined an effort to lead his prior diocese, San Joaquin, out of TEC. See fn. 23. The record on appeal and trial transcript are devoid of such information. The published opinions on the San Joaquin case never mention Lawrence at all. In his deposition, which was not part of the record, Lawrence testified that he left San Joaquin before taking any position on their disassociation. See Ex. 26, Depo. of Mark Lawrence pp. 177-79, 183-84. 
The myth that Bishop Lawrence assisted or agreed with the withdrawal of the Diocese of San Joaquin  from ECUSA in 2006-07 was widely circulated by members of the Episcopal Forum as one of the reasons for his colleagues to exercise extreme caution in voting to confirm his election (see, e.g., pp. 105-07). As noted, there was no proof of his support, either in or out of the record. It is all too telling that Justice Hearn saw fit anyway, because of her unmitigated bias, to regurgitate the myth in her published opinion. And yet that is not all -- the motion continues (p. 10, with my emphases added):
Further, Justice Hearn states in fn. 14 "although there can be no question that the individual parishes have been affiliated with the National Church for decades, the trial court found in its order that '[n]one of the Plaintiff parish churches have ever been members of [the National Church]."' The record is clear that the trial court was right. The clerk of the Supreme Court specifically asked for Requests to Admit to be supplemented in the record. On October 8, 2013, TEC admitted "[p]arish churches are not members of The Episcopal Church." See Ex. 27, Requests for Admission dated October 8, 2013. This same admission appeared in the Record on Appeal already at R. pp. 81 and 630. This finding in Justice Hearn's opinion exists despite the clear admission from the party itself
In perhaps her most egregious attempt to manufacture false facts, Justice Hearn managed to show not only her overwhelming bias in favor of the national Church, but also her complete ignorance of its polity and structure (id. at 10-11; emphasis again added):
Justice Hearn states that the Diocese did not disassociate because its amendment of its corporate documents was trumped because "the National Church has promulgated its own set of rules concerning corporate governance, including changes to the bylaws." Op. at 14. However, TEC has no governance provisions in its constitution (R.1532) and canons (R.1703) which speak at all to the ability of a Diocese to amend its governance documents or that require the Diocese to secure approval for such amendments from anybody. There is no reference at all to a Diocese's Constitution and Canons or to its articles of incorporation or bylaws. In fact, it. was undisputed that interference ("regulation or control") with a Diocese's internal policy or affairs was forbidden to TEC's provincial synods. R.783-84. There was no provision here like that in Serbian E. Orthodox Diocese for U S. of A. and Canada v. Milivojevich, 426 U.S. 696 (1976), where a Diocese submitted its governance documents, either originally or when amended, to any other body for approval. 426 U.S. at 715, n. 9.
Long-time readers of this blog may remember my post about when canons were proposed for the national Church which included a "supremacy clause" that would have given such priority to its Constitution and Canons. That proposal, however, was resoundingly defeated in General Convention after the individual dioceses had an opportunity to consider the nature of the changes in the triennium 1895-98. That solid historical fact has never prevented liberal Episcopalians like Justice Hearn from reading nonetheless an imaginary supremacy clause into the national Constitution, despite its express rejection in 1898, and complete absence ever since.

The Clincher: Justice Hearn, a Member of ECUSA and ECSC, Is Herself a Party to the Case!

In a demonstration that tops all that came before, the motion makes its most convincing argument for Justice Hearn's disqualification at pp. 11-12. ECUSA itself has for a long time declared in its national canons that as an unincorporated association of dioceses, its members are individuals who have been baptized in the Church (Canon I.17.1 [a], cited in n. 1 on p. 11). Justice Hearn fits that description, so ECUSA itself regards her as one of its own members.

Likewise, ECSC stated in discovery that "its members are persons" (ibid.), and so Justice Hearn, who belongs to a parish that recognizes the authority of ECSC and its Provisional Bishop, is a member of that body as well.

But the kicker is that under South Carolina law, all members of unincorporated associations are deemed to be parties to an action in the name of the association -- and both ECUSA and ECSC are unincorporated associations. Ergo, Justice Hearn is a party defendant, and could be found personally liable if ECSC ends up with a money judgment against it and no means to pay it. As a party defendant, she has no right to sit in judgment of her own case (just as she has no inherent right to rule on her own disqualification by participating in deciding the motion). See the motion at pp. 11-12, and 24.)

Two Experts in Legal Ethics State that Justice Hearn Should Have Recused Herself

It is no answer to all of the foregoing to say that it was the responsibility of Bishop Lawrence's attorneys to have requested Justice Hearn to withdraw from participation in the case. The South Carolina Judicial Canons required her to make a full disclosure on the record of all of the relevant facts before proceeding at all. Not only that, once she made such a disclosure, the Canons forbid parties from waiving disqualification on grounds of personal involvement, so that she would have had to step down once she revealed the extent of her and her husband's personal involvement (see motion, pp. 13-19).

In further support of their motion, Bishop Lawrence's attorneys submitted the affidavits of two recognized experts in the field of legal ethics. (One has taught the subject at the University of South Carolina Law School for forty years.) Both are unanimous in their view that Justice Hearn was disqualified from participating in the case; that her participation violated the Due Process clause of the United States Constitution; and that under the Judicial Canons and state and federal law, it is still timely for the plaintiffs and respondents to raise the issue due to Justice Hearn's failure to follow those canons. (Motion, pp. 321-41.)

The Only Remedy: Remove the Justice from Further Participation and Erase Her Decision

It cannot be stressed enough just how serious a violation of due process this is -- for a judge so biased not to have recused herself, and to have presumed she was legally able to participate and decide a case in such a way as to benefit her own denomination, her husband and herself. This is not a matter of "abuse of a judge's discretion" -- given the facts rehearsed above and discussed at length in the motion, there was no discretion to be exercised at all. Moreover, because she deliberately chose to participate despite her many disqualifications, the full court should order her opinion on appeal vacated (see pp. 18-19).

Were the Justice now voluntarily to recuse herself, the full Court without her must still decide the motion to vacate her decision, because recusal alone will not remedy the violation. The 3-2 decision would stand until the regular Court (of only four justices) could act on the petition for rehearing (to be discussed in my next post). If it were to divide 2-2, the result would be an automatic denial of rehearing, and the egregious result would stand, leaving only a long shot at the United States Supreme Court's willingness to correct it.

The same stalemate, and same bad result, could occur in deciding the motion to vacate. That is why the motion requests the Chief Justice to appoint a a fifth qualified judge to resolve any possible division in ruling on the motion and the petition.

If the Court as so constituted agrees with the motion to vacate, it should not stop at vacating Justice Hearn's decision only, because then ECUSA and ECSC would cry foul: the result would affirm Judge Goldstein's decision, due to an equally divided court. And by vacating all the opinions, the Court would in effect be granting a new hearing of the case before a full panel (again with a fifth appointed judge to prevent any ties).

Could the Court deny this motion? Of course, it can do anything -- but to deny the motion would be for all the justices to sanction a half-a-billion dollar travesty achieved only through a gross violation of due process. That in and of itself would cast a pall over the entire Court.

ECUSA and its attorneys, of course, are not bothered by palls. Predictably, they will file obfuscatory oppositions to the motion that will play down Justice Hearn's prejudices while glorifying her legal acumen and fully appropriate decision in this case. But they have no sense of shame; they get paid to litigate to the hilt.

I cannot close without remarking how blind to due process have been all the usual bloggers who unstintingly support ECSC and ECUSA. In their comments and posts leading up to the decision (see the motion, pp. 198-256), they saw absolutely nothing wrong in Justice Hearn's participation, or her blatant bias. One of them even went so far as to write: "Justice Hearn was completely committed to the TEC/ECSC side. She was their intrepid advocate, doing, in my opinion, a better job of it [than their] lawyer" (motion, p. 248). And since the decision came out, I have read nothing but triumphalism on their websites -- there is no sense whatsoever of any impropriety, or of any unfair advantage gained by foul means. I call upon their consciences to come clean about the facts laid out in this post and in the full motion, and shall report here on their responses in due course.

Maybe I'm in the minority here, and maybe ethics is not as respected any more as it was when I started practicing law. I would like to think not, but then, I'm just a cranky old curmudgeon.