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.

So former Solicitor General and current Harvard Law School Professor tells us that the federal government could, if it were of a mind to, issue a mandate requiring Americans to buy vegetables, and that such a mandate would pass Constitutional muster (thankfully, the good Professor tells us that they couldn’t actually force us to EAT those vegetables once we’ve bought them. Don’t you feel better now?) Now, Charles Fried is a smart guy. Clearly much smarter than me, because it seems to me that what he’s selling here is just so much nonsense. If the feds can force us to buy vegetables, what can’t they force us to buy? Mets tickets? If Professor Fried’s views are generally representative of what they’re teaching in Con Law at Harvard, there’s little mystery about the sorry state of the legal academy.

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.