2/26/2009

The Living Church on the California Supreme Court clarification.

The Living Church does a good job with its website, except for the difficult to load picture history of TLC that sometimes comes up slowly, and, oh yes, except for the fact that its news section includes items decidedly driven by opinion.

This is a game played out in broadcast media these days. News broadcasts often end up being interviews between the talking head (the news anchor) in one place and a talking head in another (the reporter) about the opinions of the second about the meaning of the events..blah, blah, blah. Where the news thins out the talk thickens. And at the end the announcer says, "thank you" to the reporter in the field as if getting the reporter's opinion was getting the news.

In TLC's latest foray into reporting of this sort it posted this news item: "California Court Modifies Property Opinion." Indeed it has. But the lead sentence of the article is, "The California Supreme Court has clarified its prior opinion in The Episcopal Church Cases, according to A.S. Haley, a lawyer and Anglican blogger."

A.S. Haley who blogs as the Anglican Curmudgeon may very well have said that the California Supreme Court has clarified its prior opinion. But the news is not that the Anglican Curmudgeon has voiced an opinion about the clarification, but that the CSC has issued it.

What Mr. Haley has done is offer an opinion about what that clarification means. He may or may not be right, but it is hard to say why TLC thinks this is news. The last paragraph of the article finally gets to the news they really wanted to report:

"The Diocese of Los Angeles contends in a press release, however, that the denial for rehearing means that “the matter is finally over,” according to John Shiner, chancellor for the Diocese of Los Angeles."

So the news in this news story is that there is disagreement as to what the clarification means. And the reason why this is news is because TLC believes the opinion of the chancellor is either incorrect or misleading and it has found another opinion.

Fine. Then the title ought to reflect it: "Lawyers disagree about the meaning of the California Supreme Court clarification." It sounds boring... it could be jazzed up a bit, "Lawyers argue over the bones," or "LA Chancellor is wrong says lawyer blogger." Somehow, "lawyers disagree" sounds better than "Chancellor and blogger disagree."

TLC's article is not news, but opinion. Perhaps the new executive director will help TLC clarify just what is news and what is editorial opinion.

14 comments:

  1. Episcopal Cafe thinks it is essentially over - if you read the court opinion - linked there - you can see for your self. here

    ReplyDelete
  2. This topped "Titus 1:10" this morning. I clicked on it to see the provinence - The Living Church.

    Frankly I don't see why you in America take it seriously, I haven't for a long time, nor "Titus 1.10"

    Also: mixing news and comment, as is the fashion, is as bad as mixing Text and interpretation, isn't it?

    :-(

    ReplyDelete
  3. Concerning A.S. Haley's mastery of legal nicety, he states, re the backing that Kevin Thew Forrester is supposedly receiving from the Presiding Bishop, that Forrester "is an alumni of her own alma mater".

    Nit-picking, I know, but the Devil is in the details.

    ReplyDelete
  4. The news has nothing to do with the opinion. The news is that they refused to rehear the case.

    ReplyDelete
  5. another reason why I'm letting my TLC subscription expire...

    ReplyDelete
  6. There is much in The Living Church that I look forward to reading, such as feature articles, book reports, and the editiorials (well, sometimes...) The news section however is blantantly one-sided, and often has a curious twist on a story. Thankfully with the internet, we can find news from several sources-hopefully from progressive and conservative sources.

    ReplyDelete
  7. Fr Forrester is now an "alumnus" at Mr Haley's site. Congrats on your catholic readership.

    ReplyDelete
  8. Forrester "is an alumni of her own alma mater".

    Do not the Orthodites mostly share the same alma mater?

    ReplyDelete
  9. Do not the Orthodites mostly share the same alma mater?

    I hear that they are mass produced in a secret underground lab somewhere. Kind of like The Boys from Brazil.

    ReplyDelete
  10. There's a subtle difference between the original and the modified opinion. The original opinion holds that based on a certain set of facts (which the court assumed to be true even though there was never a hearing on the merits in the trial court), the property belongs to the Diocese of Los Angeles and TEC. This can be expressed by the following syllogism:

    A + B = C
    D + E = C
    Therefore A + B = D + E

    The modified opinion basically says that _if_ this set of facts is established at a trial or hearing on the merits, then the property will belong to the diocese and TEC.
    In other words:

    _If_ A + B = C
    and _If_ D + E = C
    then A + B = D + E

    The end result may be the same either way, but TEC and the diocese can't just take their victory for granted. They're going to have to work for it.

    ReplyDelete
  11. Paul Powers:

    What? Your core is based on, "_if_ this set of facts is established at a trial or hearing on the merits;" but, wasn't that the role of the circuit court in the first place? I'm not an attorney, but my understanding is that appellate procedures accept the facts as established in the first instance, and review whether the decision based on those facts was correct (as opposed to the facts themselves). So, the the first court determined that there were certain facts: the Canons of the Episcopal Church say X; the bylaws of the parish say Y; California law says Z; and here is how the principles and precedents of law apply to these facts. The Appellate Court found that the Circuit judge has misapplied the principles and precedents of law, not that he has misidentified the facts; and the Supreme Court ruled, and refused to review, based on application of principles and precedents. Presumably, the trial on the merits of the facts was the first trial.

    So, "TEC and the diocese can't just take their victory for granted. They're going to have to work for it." Work for it where? In what venue? It's not like this was sent back to the first court for reconsideration.

    ReplyDelete
  12. The point is, Marshall, there never was a trial or any sort of hearing on the merits in the lower court. What happened is that the defendants (i.e. the seceding congregations) filed a demurrer, which is basically a pleading asserting that even if all of the allegations in the plaintiffs' complaint are true, they do not state facts sufficient to constitute a cause of action. The trial court agreed with the defendants. The court of appeal disagreed and found that the complaint's allegations are sufficient to state a cause of action and then ordered the case to be sent back to the trial court for further proceedings.

    The case then went to the California Supreme Court, which affimed the Court of Appeal's judgment (which includes sending the case back to the trial court). In determining whether the complaint was sufficient to state a cause of action, all 3 courts would have assumed that all of the allegations of the complaint are true. However, no evidence has been introduced into any court that these allegations are true, not has any court had the opportunity to consider any affirmative defenses that any of the defendants might offer that could change the result.

    I'm not familiar with the specific details of California civil procedure, but I imagine that the next step is that the defendant congregations will file their answers, some discovery will be conducted, and then there will be either a full blown trial (or at least a summary judgment hearing) at which evidence will be offered and a judgment on the merits will be rendered. Depending on the trial court's judgment (and the parties' willingness and ability to continue the battle), the case may then be appealed back to the court of appeal and possibly from there to the California Supreme Court.

    So, while I think there's a good chance TEC and the Diocese of LA will win in the end, it's not over yet.

    ReplyDelete
  13. Paul Powers:

    I see (I think): so, this may be sent back to the court of first jurisdiction? And the demurrer - "asserting that even if all of the allegations in the plaintiffs' complaint are true, they do not state facts sufficient to constitute a cause of action" - did not include a stipulation that the facts are correct?

    Well, as I said, I'm not an attorney, and so am subject more to the way things have been reported. Apparently, I'll just have to watch and wait myself. Thanks.

    ReplyDelete
  14. That's certainly my interpretation of the court's ruling. There are instances where a case is presented to the court on a stipulated set of facts and the court is asked to apply the law to those facts in making its decision. AFAIK, that didn't happen here, nor to my knowledge is it required for a demurrer, but since I practice in a state that doesn't use demurrers, I will happily defer to someone with more knowledge in this area.

    Also, while I disagree that this is a complete victory for TEC and the Diocese, I think the court's ruling gives them a definite advantage when it goes back to the Superior Court. For one example, it's pretty clear that the issue of whether the Dennis Canon was properly adopted by GC is now off the table.

    ReplyDelete

OK... Comments, gripes, etc welcomed, but with comment moderation but with some cautions and one rule:
Cautions: Calling people fools, idiots, etc, will be reason to bounce your comment. Keeping in mind that in the struggles it is difficult enough to try to respect opponents, we should at least try.
Rule: PLEASE DO NOT SIGN OFF AS ANONYMOUS: BEGIN OR END THE MESSAGE WITH A NAME - ANY NAME. ANONYMOUS commentary will be cut.