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.

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.

A Pennsylvania appellate court yesterday handed a victory to Pittsburgh Episcopalians in their long-running dispute with their former diocesan leadership (read the full opinion here). Observers of the Anglican scene will recall that the Episcopal Diocese of Pittsburgh, as well as a majority of its member parishes, several years ago effected changes to its constitution and canons that effectively withdrew the diocese from the Episcopal Church. The “breakaway” Episcopal Diocese of Pittsburgh subsequently became a member of the Anglican Church in North America. The disaffiliation move resulted in litgation between the Diocese and certain Episcopalians loyal to the national Episcopal Church who stayed behind and were in turn recognized by the Episcopal Church as the Diocese of Pittsburgh in the Episcopal Church in the United States of America (confused yet?) over which of the two sides were the rightful owners of property held by the diocese before the disaffiliation.
The litigation, which was initially filed before the disaffiliation had become effective, was settled, the terms of which settlement are memorialized in a stipulation in which the diocese appears to have pledged that it would administer those assets at issue (which evidently are valued at something around $20 million) solely for the benefit of the mission of the Diocese of Pittsburgh in the Episcopal Church in the United States of America and its member parishes. Once the Diocese’s disaffiliation became effective, the so-called loyalists filed a petition seeking to enforce the stipulation, claiming that the now disaffiliated diocese was seeking to remove assets from the Episcopal Church in contravention of the stipulation. The trial court agreed with the loyalists, and found that the rump Episcopal diocese was the rightful owner of the diocesan assets. Yesterday, the Commonwealth Court, an intermediate appellate court, affirmed the trial court’s ruling. While this decision is, no doubt, disappointing to the disaffiliated diocese and its members, I would caution the national Episcopal Church and its allies against reading too much into the decision.

Sometimes appellate courts consider issues of far reaching importance and issue decisions that set forth general principles of broad, universal application. Sometimes, they consider cases that so turn on their particular facts that the resulting decisions are of little or no importance to other litigants, even those who might appear to be similarly situated. The Pittsburgh case is most certainly of the latter variety. To see this we need only look at what was NOT at issue in this case. The court did not consider, whether the Diocese’s disaffiliation from the Episcopal Church was valid, or whether a diocese of the Episcopal Church can or cannot withdraw from the denominational body. It did not consider whether any of the parishes that left with the diocese could lawfully do so, nor did it resolve questions surrounding the ownership of those parishes assets. The Commonwealth Court, rather, in a display of “small ball” restraint, confined its analysis to what is the proper interpretation of the stipulation that initially ended the litigation. This is a question so particular to this case that it is simply not possible to find any greater lessons to take from the opinion. None of the other issues that the court addressed in the course of its opinion are likely to be of any particular interest to future litigants or of much applicability to any future case.

So while there is, for sure, grounds for disappointment with the outcome of the litigation – disappointment that I share -  the greater legal issues raised by the crack up of the Episcopal Church and the Anglican Communion remain to be resolved another day, by other courts.

One other small note bears mentioning. The Diocese argued on appeal that the trial court erred by not dismissing the petition to enforce the stipulation because, the Diocese asserted, the loyalists ought to have sought enforcement by filing a complaint and initiating a new lawsuit, not by filing a petition for enforcement of the stipulation. The Commonwealth Court rejected this argument because, it said, the trial court had adopted the stipulation as its order, thereby retaining jurisdiction. Under such circumstances, a petition to enforce would be appropriate. At least one commentator has suggested that the court in effect “ignored” a “violation” of procedural rules. This characterization is, however, unfair to the Commonwealth Court. The court, in fact, found that a procedural violation HAD NOT occurred since, it concluded, the trial court had retained jurisdiction over the matter. While the commentator in question is right that, generally it is not a good sign when a court overlooks your adversary’s procedural miscues, that is not really a fair desrciption of what happened here. It may well be that the Commonwealth Court stretched the facts a bit so as to reach the conclusion that the petition was not procedurally invalid. Pennsylvania courts, however, have a tradition of interpreting non-jurisdictional procedural requirements (e.g., statutes of limitations, appeal deadlines and other such matters that touch on the courts’ jurisdiction) liberally in accordance with a general policy preference that favors the resolution of disputes on their merits. That may well be what happened here, and it doesn’t appear to me to represent a reversible error in this case.

In a separate post, I will discuss why I think it is unlikely that the Pennsylvania Supreme Court will agree to hear this case should the Diocese ask that it do so.

A recent issue of the New York Law Journal contains a report on a recent case in which the New York Court of Appeals upheld the dismissal of a personal injury suit filed against a golfer who failed to yell “fore” after hitting an errant shot and seriosuly injuring one of his playing partners. Seems that the court concluded that golfers assume the risk of being hit and harmed by the errant shots of other players, and that the plaintiff could not, therefore, maintain a negligence claim against his playing partner who shanked a fairway iron into the plaintiff’s eye, detaching his retina and permanently blinding him. The Shankopotamus in question’s failure to shout “fore” after the mishit doesn’t subject him to liability given the other players’ assumption of the risk. Any casual golfer knows, of course, that, given the lack of precision with which most amateurs often hit the ball, there is some risk of being hit by another player’s ball. I’m not so sure, however, that any player assumes the risk that one of his own playing partners will shank the ball almost dead right off his club and not even yell “fore”, as longstanding golf custom and practice dictates. In other words, while it is true that golfers assume some risk when they’re on the golf course, I think that the Court of Appeals got it wrong in finding that tey assume that particular risk. But hey, they’ve made the world safe for all of the Shankopotamuses in the State of New York. So they’ve got that going for them.

The Wall Street Journal reports that the US Supreme Court has agreed to hear former Enron CEO Jeff Skilling’s appeal. Now we’ll see if there is any prospect that reason and fairness will prevail in the Enron witch hunt.

The South Carolina Supreme Court gave the national Episcopal Church (“TEC’) a good kick in the teeth last week when it ruled that one of the former parishes in the Episcopal Diocese of South Carolina, All Saints Church on Pawley’s Island, is the rightful owner of its church buildings and other real property. All Saints, which left TEC and the Diocese of South Carolina in 2000, is one of dozens of parish churches that has seceded from TEC over the years. TEC, and its constiuent dioceses, claims that it is the rightful owener of the property of such seceding parishes as a consequence of a provision in its canons that purports to establish a trust in favor of TEC over such property.

Numerous parish churches have challenged the validity of the trust provision without success. The South Carolina Supreme Court, however, categorically rejected the trust theory, holding that a party cannot unilaterally declare a trust over property to which it did not hold legal title. As such the TEC property canon, in South Carolina at least, is unenforceable as a matter of law. And so All Saints – and any other parish in the Diocese of South Carolina that wants to leave – is free.

There has been much buzz on the internet – at least in some of the arcane quarters that I frequent – as to what the impact of this decision will be. Specifically, folks are wondering whether the dozen or so parishes involved in litigation in other states now have a better chance of defeating TEC’s claims to their property, and whether the US Supreme Court is now more likely to hear the appeal of St. James Church in Newport Beach, California, which saw a trial court decision in its favor on the question of property ownership overturned by the California appellate courts. Happy as I am for the members of All Saints, I must regrettably conclude that the hope of its supporters that this court decision will have a wide and dramatic impact on future church property litigation are misplaced. I’ll explain why after the jump.As to the first issue, whether this decision will have an impact on cases pending in other states, its important to bear in mind (and I am astonished at how many people commenting on this case have failed to grasp this fact) that this decision was issued by a South Carolina court, applying South Carolina law to a particular set of facts. No court outside of South Carolina is bound by this decision. Courts in other states may – or maynot – find the opinion persuasive. But those courts are bound to decide the cases before them based upon the law of their own states and the facts of the particular case before them. Much as I wish it were otherwise, the South Carolina decision does not necessarily suggest that there will be a sudden wave of decisions favorable to parish churches and unfavorable to TEC any more than TEC’s heretofore perfect record in church property litigation was a harbinger of a pro-TEC ruling in South Carolina.

As for whether the US Supreme Court is now more likely to take up the California case or some other case because there is a split of authority between South Carolina and all of the states in which the appellate courts have upheld TEC’s property canon. The answer to that question, in my view, is even clearer, and is also no. The Supreme Court has no interest in seeing that there is uniformity in state trust or property law. Indeed, there are many areas in which the law varies from state to state, and where the answer to a legal question will depend solely upon which state’s law applies. This is an unavoidable byproduct of our federalist system and, so long as there are no questions of federal law involved, of no interest to the US Supreme Court. The likelihood that the SCOTUS will take one of these cases is, in my view, extremely limited, unless some First Amendment issue is implicated, which to me seems unlikely.

The Supreme Court ruled Wednesday that individual participants in the most common type of retirement plan can sue under a pension protection law to recover their losses.

The unanimous decision has implications for 50 million workers with $2.7 trillion invested in 401(k) retirement plans.

James LaRue of Southlake, Texas, said the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments.

The issue in the LaRue case was whether the Employee Retirement Income Security Act permits an individual account holder to sue plan administrators for breaching their fiduciary duties.

The language of the law refers to recovering money for the “plan” rather than for an individual, raising the question of whether a participant can sue solely for himself.

Justice John Paul Stevens, in his opinion for the court, said that such lawsuits are allowed. “Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive,” Stevens said.

The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers squarely in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan’s administrators.

“Defined contribution plans dominate the retirement plan scene today,” unlike when ERISA was enacted in the mid-1970s, Stevens said.

Many traditional pension plans guaranteeing a fixed monthly benefit have either been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers.

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue’s lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators fail to live up to their duties.

Business groups supported LaRue’s employer. They argued that ERISA is aimed at encouraging employers to set up pension plans, while guarding against administrative abuses involving the plan as a whole. The law doesn’t permit individual lawsuits like LaRue’s, the business groups said.

Congress enacted ERISA after some widely publicized failures by companies and labor unions to pay promised pensions. Workers in class-action lawsuits have long relied on the law, most recently in the scandal-ridden collapses of companies like Enron and its 401(k) plan for workers.

The term 401(k) refers to a section of the Internal Revenue Code.

Participants in 401(k) plans do not know how much money they will receive in retirement. Employees invest a certain amount each month and how much they get back depends on how well their chosen investments have performed.

The case is LaRue v. DeWolff, 06-856

Source: Associated Press (via Law.com)

The Inquirer reported in yesterday’s paper on a critical argument that will be held in the US Third Circuit Court of Appeals this Thursday in the long running case of convicted cop killer Mumia Abu Jamal (and truthfully, have there been more than a handful of hot Broadway shows that have run longer than this guy’s appellate litigation?) In any event – as sympathetic as I am to folks who get railroaded by the state and as corrupt as I know the system is, Mumia is guilty. He was given a fair trial, and has had ample opportunity to litigate his appeals. Its time to bring down the curtain on this show and to put a needle into Mumia’s arm.