Courtesy of The Appellate Record:

Today would have been Ronald Reagan’s 101st birthday, were he alive. We miss you, Mr. President

And from the Episcopal Diocese of South Carolina comes evidence that there are a few Christians and men of good will remaining in the rotting edifice that was once the Episcopal Church.

On Monday of this week the Pennsylvania Supreme Court denied the petition for allowance of appeal filed by the former Episcopal Diocese of Pittsburgh (or the “breakaway” diocese, as I had called it in my earlier posts) in the Pittsburgh church property case between the disaffiliated diocese and the rump group that decided to remain loyal to the national Episcopal Church. The Court’s order can be found here. Last February I explained why this was the likely result in this post. This ruling brings no joy to my heart, but, for the reasons I set forth in the earlier posts, I think it was the correct one.

There’s been a lot of commentary about the Obama Administration’s announcement yesterday that it would no longer defend the constitutionality of the Defense of Marriage Act. If you’re interested in the legal policy issues and implications on this, I highly recommend that you check out the various posts at the Volokh Conspiracy. There have been a number of interesting posts there, and I especially recommend Professr Ilya Somin’s contribution on the issue. I also recommend the posts by Professors Yoo and Epstein at the Ricochet blog. Both Yoo and Epstein conclude, notwithstanding their personal support for same sex marriage, that the Administration is wrong as a matter of law and policy. Finally, Professor Orin Kerr links to a very interesting Federalist Society podcast in which the question of the government’s duty to defend its laws in court is discussed. You can listen to that podcast here.

The Legal Intelligencer reports that the Pennsylvania Supreme Court has ruled, with Justices Eakin and McCaffery dissenting, that Pennsylvania’s statutory attorney-client privilege protects not only communications by the client to the layer but, also, communications from lawyer to client. The ruling effectively expands the privilege in Pennsylvania - the relevant statute appear t cover only communications from client to lawyer, and Pennsylvania’s courts had previously only recognized a privilege for lawyer to client communications where the lawyer’s communication contained or was based upon information received from the client. Today’s ruling expands the privilege to cover ALL communications from lawyer to client.

While the court’s ruling has the effect of clarifying what has ling been a murky area of Pennsylvania law, and provides some welcome comfort to attorneys and their clients alike, it would seem that the court has regrettably igmored the plain language of the applicable statute and, as Justice McCaffery charges, legislated from the bench to replace the legislature’s unambiguous language with its own policy preferences. Justice Saylor, writing for the majority, answers this argument by asserting that the legislature could not have intended to limit the privilege as the dissenters suggest. It is, of course, possible that Justice Saylor is correct – that the legislature did indeed intend to enact a more expansive privilege. But the language of the statute that it did enact is plain and unambiguous, and inarguably defines the scope of the privilege as more limited than what the court’s majority has embraced. Had the legislature intended to enact a more sweeping privilege, it could have, and ought to have, explicitly said so. In light of the clear language in the statute, any expansion of the privilege ought to have come from the legislature, not the Pennsylvania Supreme Court.

You can read the majority opinion here, Justice Eakin’s dissent here, and Justice McCaffery’s dissent here. Thanks to Howard Bashman for tipping me off to the story.

I don’t agree with Barack Obama on pretty much anything. That much is probably clear from most of what I’ve posted here and elsewhere. It is probably also clear that I don’t think very much of Eric Holder’s performance as Attorney General, either. And, to be sure, I have some issues with the Attorney General’s decision, announced yetserday, that the Department of Justice will no longer defend at least a portion of the Defense of Marriage Act (“DOMA”). I largely agree with those who think that the DOJ’s positon is both bad policy and a bad legal decision. I also agree, however, with both Andy McCarthy and Shannen Coffin that it is preferable for the Administration and the DOJ to state plainly what we all know – that they don’t like the statute, and would rather not defend it. It is preferable that the Department not defend the statute than that they make a half assed defense, as they have been doing, or that they forego making the best defense of the statute, as they’ve also done, because they don’t really have their political or policy heart in making the case. Better to cut and run and allow the Supreme Court to appoint Special Counsel to make a proper defense of a duly enacted federal statute. So while I disagree with the policy underlying the decision, at least the administration is finally being honest about its position, and getting out of the way so that the statute may be properly defended.

As noted in my previous post on the Commonwealth Court’s recent decision in the case involving the Episcopal Diocese of Pittsburgh, I doubt that the Pennsylvanis Supreme Court will agree to hear the case in the event that the Diocese hould choose to seek further review. This case seems to present a good opportunity to discuss, at least briefly, the role that the Pennsylvania Supreme Court plays in the Commonwealth’s appellate system, and the criteria that the court applies when deciding whether or not to hear a case. When the case is evaluated in this context it is, I think, pretty clear that the matter is not worthy of further appellate review. 

As an initial matter, it is important to understand that the Pennsylvania Supreme Court – like the United States Supreme Court and the highest courts of mist of the other states – is not a court of general review whose purpose is the correction of error. It is, rather,  court of limited jurisdiction, and largely has the responsibility for selection of its own docket. There are very few cases in which a party has the right to appeal to the Pennsylvania Supreme Court. In almost all circumstances – including the litigation involving the Diocese of Pittsburgh -the court will hear an appeal only if it has first granted permission to a party to file the appeal. This process is a reflection of the fact that the court’s role is not to correct mistakes made by intermediate appellate courts but, rather, to oversee the doctrinal development of Pennsylvania law and to assure consistency in the way that the law is applied.

All this is not to say, however, that the court makes its decisions as to what cases to hear based on whim or caprice (notwithstanding what some may believe, including many disappointed litigants). The court, rather, has clearly delineated criteria that it applies when considering requests for permission to appeal (known here in Pennsylvania as petitions for allocatur). Specifically, the Pennsylvania Supreme Court will hear a case only if one or more of the follwoing factors is satisfied:

1. the lower court’s decision conflicts with another intermediate appellate court decision (i.e., the state equivalent of a circuit split;

2. the lower court’s decision conflicts with a decision of the Pennsylvania Supreme Court or the United States Supreme Court on the same issue;

3. the question presented is one of first impression and is such ublic importance that prompt resolution by the court is necessary;

4. the issue involves the consitutionality of a statute of the Commonwealth; or

5. the lower court has so far departed from accepted judicial practices or so abused its discretion as to call for the court to exercise its supervisory authority.

The Pittsburgh case does not meet any of these standards. Indeed, categories 1, 2, 4 and 5 can be dispensed with virtually without comment. There is simply no support for an argument that the Commonwealth Court decision in the Pittsburgh case is in any way in conflict with another Commonwealth Court decision or any decision of the Superior Court, or that the decision is in conflict with a PA or US Supreme Court decision. The Commonwealth Court’s decision involved little more than the routine application of long standing principles of law. Nor is there any viable argument that the constitutionality of a state law is at stake, or that the Commonwealth grossly abused its discretion. All that’s left, then, is whether the lower court’s decision involves an issue of first impression and involves a matter of great public importance. As sympathetic as I am to the breakway diocese, the case does not satisfy this standard any more than it meets the others.

First, it bears mention that the Pittsburgh case did not involve any significant or controversial issues such as, for instance, whether a diocese of the Episcopal Church can validly withdraw from the national church. It involved, rather, a fairly routine and mundane issue concerning the interpretation of a stipulation whereby the litigation had earlier been resolved. It is hard to see how this case involvesany particularly novel issues or questions of first impression for the Pennsylvania courts. It is, furthermore, difficult to imagine why the resolution of a question regarding the proper interpretation of the parties’ earlier stipulation is a question of public importance, let alone a question of substantial import. It is, to be sure, an issue of great concern to the parties themselves, and to the parties’ respective adherents. Whether the stipulation ought to be read to vest control in one or the other of the parties to the litigation, however, is hardly a question of public importance, given that broader issues such, such as the right of a subunit of a denominational church to withdraw from the denomination under Pennsylvania law is not at issue. As such, it does not seem to me that there is any likelihood that the Pennsylvania Sypreme Court will, or should, hear the case.

Since the date of my initial post, I have been informed that the break away diocese intends to seek a rehearing of the case before the full Commonwealth Court. Whether this request will be granted is a wholly separate question. This move makes sense to me, though, since, given the foregoing, I expect that they have a far better chance at obtaining a favorable result through a rehearing than through a petition to the PA Supreme Court, unless they can somehow frame the case as involving questions of broader import.

UCLA Professor Eugene Volokh recently provided some excellent advice that I highly advise following when citing to legal treatises that have been through multiple editions, and that have had different editors over the years:

I ran across this passage (in a generally very well-done brief), which inadvertently highlights an issue that legal writers — students, lawyers, academics, and judges — should keep in mind:

Justice Story likewise explained in his noted Commentaries that any law dispensing with the requirement that jurors “must unanimously concur in the guilt of the accused before a legal conviction can be had …, may be considered unconstitutional.” 2 Joseph Story, Commentaries on the Constitution § 1779 n.2 (1891) (emphasis in original).

Justice Story did indeed describe the criminal jury trial as requiring unanimity (though in a slightly less helpful passage). But this item was not in Story’s original treatise; rather, I found it in Thomas Cooley’s fourth (1873) edition of the Commentaries. (Of course, Cooley himself was an influential constitutional commentator.)

But then I looked more closely, and realized that Cooley didn’t write this passage, though he endorsed it. The original appears in the 1858 edition, and was likely added by the editor of that edition, Edmund H. Bennett. So Story didn’t “explain[]” it, and I wouldn’t even say that Cooley explained it (though he did not edit out Bennett’s earlier explanation). The quote does have some authority, both because Bennett was a lawyer of some note (though most of his accomplishments came after the 1858 edition) and because the passage in an edition of Story’s highly influential treatise — even when the passage was not Story’s own — might have helped influence legal thinking during the mid-1800s, including when the Fourteenth Amendment was ratified. But the passage shouldn’t be credited to Story, and any credit to Cooley has to be properly limited.

This is generally quite common in influential legal treatises; they go through many editions, and later editions include material written by people other than the original author. That’s fine when you’re just citing the work for its own value as authority. But if you’re citing the work because of the authoritative status of the person who wrote it, you need to make sure that the quoted material was indeed written by that person and not by a later editor (or even by an earlier editor).

Moral of the story: cite check carefully. Always.

This morning came the news that John Taylor “J.T.” Skilling, son of former Enron CEO Jeff Skilling, has died of an apparent drug overdose. My condolences, and prayers, go out to the Skilling family at this time of loss. One wonders whether Jeff Skilling might have been able to impact his son’s life in a positive direction and avoid this tragedy had he not been sent to prison at such a critical period in his son’s life. One also wonders whether the members of federal government’s Enron Task Force, who relentlessly and, as has been chronicled in detail in various outlets, it seems unethically sought to imprison Jeff Skilling on questionable charges with at best dubious evidence, feel any remorse today. They should. They now have blood on their hands.