More on the Virginia AG’s filings

A lawyer friend sent me an email in response to my post on the Virginia Attorney General's motion and brief. She said that I might use her remarks in any way I saw fit. I am posting them here. I think they stand by themselves as a fine contribution to understanding just why the AG's filing of these papers needs careful attention. I post them without attribution. She may, if she wishes, respond with her name, etc. Suffice to say I consider her contribution to the matter a gift. From her email:

…I think the AG's filing is unusual for the following reasons.

1. Intervening in a state trial court proceeding

While there is no question that an AG has the right, and arguably the responsibility, to defend a state statute from a constitutional challenge, the reality is that any such action is a political decision. AG's offices, like other state agencies, have limited resources in terms of both staff and money. They prosecute cases, often under statutes that make them the only ones who can enforce laws (e.g. consumer protection, environmental protection, etc., where sometimes there is no "private right of action" that would allow individuals to enforce them). They give written opinions on questions presented to them, which parties and courts can cite as legal authority in various situations (persuasive authority, not precedent). They also advise other agencies of government on their legal rights and responsibilities. So, to take any kind of action in a civil dispute in which they are not originally a party means that they are making a judgment that it is a high priority issue.

Moving to intervene in a state trial court is particularly unusual, in part, simply because of the resources involved. Typically, an AG would wait until there was a court ruling declaring a statute unconstitutional since a) they cannot possibly intervene at the trial level every time a statute is challenged, b) standard judicial doctrine requires the court to give great deference to the legislature and requires it to uphold its constitutionality if at all possible, c) so it makes more economic sense to wait and see whether it is actually struck down.

Also, although I am not familiar with the procedural posture of the litigation or the DOV/TEC's briefs, I assume that DOV/TEC did not file a declaratory judgment action seeking to invalidate the statute but rather the breakaways filed suit under the division statute seeking a ruling that the property was theirs, DOV responded, and TEC intervened. Under these circumstances, it is not like a state statute banning abortions being passed and Planned Parenthood or the ACLU or someone running to federal court to seek a preliminary and eventually permanent injunction seeking to prevent the statute from being enforced on the grounds it is unconstitutional – where it would make sense for an AG to come in right away to defend the state statute.

The only caveat to this would be if the constitutional issue is really at the heart of DOV/TEC's defense (which I think some folks at Stand Firm suggested it was). If so, I'd still think it would be better and more conventional for the AG to wait for a ruling, but if, in fact, there is no way to interpret the division statute in a way that would allow DOV/TEC to win, then it could be argued that the different procedural posture (i.e. suit to divide property vs. declaratory judgment action) does not matter.

Even so, the old-fashioned Warren Court civil libertarian in me bristles at the notion of a state AG intervening at the trial court level in this kind of church dispute. It really is taking sides, no matter how you cut it, and to maintain at least the semblance of neutrality should require them to wait until there is at least an adverse ruling and an appeal to the state appellate court.

In any event, I note that in the Washington Post article (attached to original message), a local Va. "real estate lawyer" (as much of an expert as me!), said he thought the intervention at this level was unusual.

2. The tone of the documents.

There are two documents involved, as there should be – the motion to intervene and the legal memo in support of the motion. Ordinarily the motion would simply state the reasons for intervention in general terms – here, simply that the constitutionality of duly enacted state statute was at issue – and the memo would contain the argument.

Here, the motion itself states baldly, "As a matter of federal constitutional law, the Episcopal Church is simply wrong." Yet at the end, it says that intervention "will not prejudice either party." This kind of argumentiveness in a motion probably won't get it tossed out or even remarked upon, but my read is that it is unusually aggressive and designed to at least raise eyebrows.

More important, of course, is the memorandum. It aggressively supports the "CANA interpretation" and opposes TEC. What is really kind of snarky is footnote 5, which states: 5 Although the Commonwealth believes that CANA's interpretation of § 57-9 is both textually and historically accurate, it does not address either the meaning of § 57-9 or its application to the facts in this case. Rather, the Commonwealth addresses only the issue of whether the CANA's interpretation of § 57-9 is consistent with the Virginia and United States Constitutions. Because CANA's interpretation of § 57-9 is constitutional, the doctrine of constitutional doubt is inapplicable. If this Court chooses to accept CANA's interpretation, there is no constitutional problem.

It really is funny in context because the main text above is vociferously denouncing TEC's interpretation while the backing off, "neutral" stance is explained buried in a footnote.

Aside from the tone and my subjective take on it, is the fact that it is, in effect, saying that any interpretation of the statute that conforms to the Polity test is an attack on the constitutionality of the statute. The AG's memo says at the outset that TEC's position only "impliedly" attacks the statute:

"The Episcopal Church and the Diocese of Virginia (collectively "Episcopal Church") implicitly deny the ability of the States to choose a particular approach for resolving church property disputes. The Episcopal Church insists that local church property disputes involving hierarchical denominations must be resolved by deferring to national and regional church leaders. See Episcopal Church Br. at 5-39. In effect, the Episcopal Church contends this Court must utilize the Polity Approach articulated in Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872). More importantly, the Episcopal Church contends that if § 57-9 requires an approach other than deference to national and regional church leaders, then § 57-9 is unconstitutional as applied to hierarchical denominations.3 Episcopal Church Br. at 40-53. Because the "doctrine of constitutional doubt" requires this Court "to interpret statutes, if possible, in such fashion as to avoid grave constitutional questions," Federal Election Comm'n v. Akins, 524 U.S. 11, 32 (1998), the Episcopal Church insists that this Court must adopt its interpretation of § 57-9. Put another way, the Episcopal Church believes that, when there is a property dispute involving a hierarchical denomination, the National and Virginia Constitutions require deference to regional and national church leaders.4" (Memo at p. 2-3).

So, the AG is admitting that DOV/TEC is not saying the statute is flat out unconstitutional on its face. It is saying that the interpretation that DOV/TEC is advocating is wrong and that CANA's interpretation is correct because CANA reads the statute more broadly and the state of Va. has the right (i.e. is not constitutionally prohibited from) applying a different kind of test.

This on the face of it strikes me as very unusual. Now admittedly I haven't studied the U.S. Supreme Court precedent and have only glanced at (some time ago) the 77-page Cal. Appellate Court decision in favor of TEC (the fact that the California court opinion strikes me as clear and well-written has led me to believe that I can't fully grasp all the issues without spending considerable time studying them). I also haven't tried to think through whether the Va. statute realistically can be interpreted in any way under so called "Neutral Principles" or the "Polity" test (two of the primary tests used in past U.S. Supreme Court cases). Also, despite the fact that the tone irritates me, I must say that the Va AG's arguments seem, at first glance, reasonable and cogent. BUT…. the more I read of it the more it strikes me as pretty darned peculiar that a state AG would side with a particular interpretation of the statute, which he clearly identifies with one side in the dispute, rather than saying in a more restrained manner, look, there's no way to hold this statute constitutional unless you put the polity question aside and look at such and such facts on a neutral basis. In other words, while the gist of his argument is methodology, and while he claims (in a footnote) that he's not saying that the statute should be interpreted one way or another according to the facts, he still keeps saying over and over that CANA's interpretation is correct without any other qualification.

And if I remember correctly, this is after there has been extensive trial proceedings and testimony presented, so that at this juncture, applying the law to the facts is what is truly at stake. If there is any reasonable possibility that the court might rule in favor of DOV/TEC and, at the same time, uphold the constitutionality of the statute but simply decide that it must be interpreted and/or applied in a certain way to be within constitutional bounds, then it seems to me that the AG is really stepping in where he should not. Even if the trial court judge was leaning in favor of CANA anyway, it seems that if a ruling against TEC goes to a state appellate court, it will be kind of a double whammy in favor of CANA -- state judge and state AG side against NYC outsiders in favor of upholding home statute. Psychological, maybe, but there's a lot of that in litigation…


  1. Well, I don't need the credit or the thanks, but I'll take the blame for any inaccuracies. These were just some of my in the middle of the night ponderings about the situation, which came to me once I pulled up the documents online.

    Unfortunately, at the time I could not get anything but the AG's Motion and Memo. More documents are available at the Diocese of Va's website at here (under "news" and "news room" and "property dispute")(which apparently was offline in the middle of the night). Now that I can reach it, I see that it was, in fact, DOV and TEC who filed the complaints for the purpose of getting a legal determination concerning the property. The position appears to be that there is no "division" in fact that would trigger the so-called division statute. However, they also assert that the current occupancy of the property is unconstitutional as well as contrary to canon law, etc., so they do seem to suggest, even at the outset that an interpretation of the division statute that would find that there was a "division" would be unconstitutional.

    This still strikes me as a dispute about different interpretations of the statute rather than a direct attack on the constitutionality of the statute as a whole. At the very least, there appear to be more options than thumbs up or down on the constitutionality of the statute. Under those circumstances, I still find it peculiar and disturbing that the state AG would intervene before the state trial court makes an appealable ruling that would narrow the legal issues involved and would allow the state to sift through which are properly its concern.

  2. P.S. Sorry -- in a hurry here. I was right the first time. The CANA people filed first (listed as "petitions") on Dec. 13, 2006 to have the division statute applied and the property declared theirs. The DOV and TEC intervened shortly thereafter and then filed their "complaints" in January 2007. Doesn't make much difference in terms of what is being discussed here, but that's the correct procedural history.

  3. Well, I'll ask the obvious. Whose the Virginia A.G.? And where does he go to church?

  4. I don't know where the AG goes to church... However, William "Bill" Mims, the Deputy AG, was (still is?) a member of Church of the Holy Spirit, Ashburn, now with CANA.

    Before moving into the AG office, Mims was a member of General Assembly of Virginia, where in 2005 proposed legislation allowing "congregants to vote to leave their denominations and keep their church buildings and land, unless a legally binding document such as a deed specified otherwise."

    The proposed legislation died.

    Now, the AG is the likely Republican's candidate for Governor of Virginia, and I have no doubt that acting to defend the "constitutionality" will help him garner votes from the "cananites".

    And probably Mims is vying to set himself as candidate for AG.

    There is a lot of back-scratching going on, I believe!


  5. jcwheeler........ the correct question is, "What is the position of the law?"

    Too often in Anglican "conversations", we look at the individuals or the politics or the "hidden hand"......but not the key questions of what is right and wrong in the situations.

    Maybe some people do not wnat that simple question to be asked....so it makes sense to talk of politics etc etc.

    I wish the CANA et al leaders would give TEC the keys and leave buildings graciously.............and I wish TEC would give those keys right back to them. This is what would happen if "leaders" were reading the bible......regardless of where a public lawyer in a US state goes to church. WWJD? (not just a bracelet for kids but a key question for us all)

  6. FWIW, jcwheeler, the Washington Post reported the following about the AG (McDonnell)'s office:

    "McDonnell's office has another connection to this issue -- his deputy, former state senator William C. Mims (R), who has been a member of another Episcopal church that broke away from the national church over the same issues of how to understand Scripture as it pertains to homosexuality. Mims prompted controversy and much debate in 2005 when he -- as a senator -- proposed a bill that would have explicitly allowed congregants who leave their denominations to keep their land. The measure failed, and opponents said it was an inappropriate insertion of government into church affairs."

    At http://www.washingtonpost.com/

  7. What with all these connections between the AG's office and CANA, it will be even harder for TEC to obtain justice. I cannot understand how the AG's office could intervene, what with this obvious conflict of interest. Well, if God loses, and the rulings favor CANA, this will give us fuel for the supreme court's opinion.

  8. Virginia, BTW, voted in one of the most draconian anti-gay-partnerships laws anywhere. The state forbids (I believe the law is still on the books) even private contracts that approximate the benefits of marriage.

    An apparently truly awful place. Not for lovers, indeed....

  9. jcwheeler, In a previous comment thread, lapinbizzare mentioned, "Robert F. McDonnell, the Va AG, is a conservative Roman Catholic. He is also on the board of Falwell's Regent University. "

    In the FWIW Dept...

  10. Thomas+ confirms what I assumed is going on in Virginia. Several posters here and on your earlier "Va. Attorney General thinks Virginia Law constitutional" post, have argued that AG McDonnell has a constitutional duty to intervene in the suit. Living in another Southern state, where a recent AG, also, coincidentally, a conservative Roman Catholic, apparently cherry-picked cases and causes with a view to a later - unsuccessful - bid for the Governor's Mansion, I am sceptical of this argument. Attorneys General, like prosecutors, have a heavy case-load and considerable leeway, other than in very high-profile cases, to decide when and when not to act. Personally, I have no doubt that through their intervention in this case, McDonnell and his deputy are playing to their base.

  11. McDonnell, Mims and the solicitor general (whose name is on the motion) are all Republicans (FWIW). The solicitor general is also Roman Catholic it appears, though I am not certain.

    Pat Roberston made a $56,000 contribution to McDonnell's campaign. See: http://vpap.org/index.cfm

  12. The CANA churches did not file suit. The CANA churches recorded the votes with the court - a move that was acceptable to the DoV according to the StandStill Agreement. Subsequently, the DoV terminated the StandStill Agreement and filed suit (along with TEC) against the CANA churches.

    TEC has an argument in the alternative that even if the statute applies and would work in the CANA churches' favor, the statute is unconstitutional. The court required the parties to brief the specific issue of the constitutionality of the statute. The AG is not raising an unaddressed issue.

    BTW, the Mims bill simply better defined the legal standard for a "division," which would have avoided some of the controversy in the present case.


  13. The CANA churches did not file suit. The CANA churches recorded the votes with the court

    That is the CANA party line, but filing must have done something because it did put CANA in the plaintiffs position in November!


OK... Comments, gripes, etc welcomed, 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.