If we' re lucky, she'll be writing the appellate brief for the plaintiffs!

Thursday morning I was trolling Catholic World News and clicked on a Findlaw link, to Marci Hamilton's column in support of the Portland bankruptcy judge's determination that parish property was part of the Archdiocesan bankruptcy estate. Wow.

This Marci is a law professor at a respectable law school--Cardozo (in NY, at Yeshiva University). This Prof. Marci argues that the bankruptcy judge in Portland, Elizabeth Perris, was correct in ruling that the churches were property of the diocese and therefore properly included in the bankruptcy estate. She does so with the following "full disclosure":

In the Portland proceedings, I represented clergy abuse victims on the First Amendment and constitutional issues, as I do in many other jurisdictions. But the view expressed in this column are not advocacy; they are what I personally believe as an attorney and law professor.

So, this article isn't advocacy? This article contains the disinterested analysis of a law professor at a ranked law school? (she also claims to be a "consultant" on the Philadelphia Grand Jury Report). Am I going to be too hard on Prof. Marci? After all, charity calls for us to be forgiving of human weakness. But in this case, I'm not crossing a line. I don't think this scrawl is a product of "human weakness." After all, this woman isn't an in-over-her-head, gum-smacking journalist. As the lawyers I know will confirm, Prof. Marci makes her living grilling law students and claims to be a practicing litigator, or consultant to one. Despite her unfortunate first name, Prof. Marci's a big girl and she ought to know what she's doing. She can take this criticism.

In attempting to diffuse the presumption that the Catholic Church is "indigent," a word I've never heard a commercial bankruptcy lawyer use (and yes, I know a half-dozen of 'em—the proper term is "insolvent," dear), Prof. Marci asserts that "The Catholic Church in the United States has enormous resources, including much in commercial property." Of course, in the first week of a small law school seminar on clergy abuse cases, you figure out that the "Catholic Church in the United States" does not legally exist under ecclesiastical or civil law (much to the chagrin of the boys at the USCCB), and the concept is not legally or factually relevant to the Portland case. Each diocese is an independent local Church, not subject to any other diocese, not obliged to share property or personnel with any other diocese, and not subject to the dictates of any national body except in very limited circumstances. Therefore, the purported wealth of the Catholic Church throughout the United States is not relevant to the analysis of any particular case--only (perhaps) the purported wealth of the defendant diocese.

Prof. Marci says in the same paragraph that "it would take millions of clergy abuse victims before it would have to shut down parishes or programs to any significant degree." Lawyers I know tell me that Rule #2 on law school examinations (after Rule #1, watch the clock): do not base your conclusions or legal analysis on facts not stated. Lawyers tell me that Rule #11(b) in civil procedure (before Rule #11(c), sanctions) can be paraphrased as "allegations and factual contentions in pleadings must have evidentiary support." These are good rules to live by, even outside the narrow worlds of law school exams and litigation. On what basis to you base this grand conclusion, Prof. Marci? Do you have data to back up your assertion, or is it, perchance, gratuitous? Do you even have anectodal evidence? Test your assertion on the people of Boston, including the traddies who are about to get kicked out of Holy Trinity. Maybe closing the Boston Paulist Center wouldn't be significant (in the way you mean), but wiping out churches such as Holy Trinity and dozens of others like it is a "significant degree," and there ain't "millions" of claimants in Boston.

Prof Marci uses the term "Archdioceses" as a general description of the local Churches. This is a small point, forgivable in someone, even a Catholic educated after 1970, who isn't involved in the either the administration of, or the fleecing of, the Church. But Prof. Marci ought to know her enemy better: the proper generic term is "dioceses." In fact, the most relevant case to preceding the Portland ruling, the Spokane bankruptcy (which you failed to do more than mention, despite its particular relevance to this issue) is not an archdiocese.

Prof. Marci asks, "so why opt for bankruptcy, if not due to indigence?" She says it's to protect assets.

Full disclosure for me at this point: I agree with the Portland lawyer (whose article I can't find) and think the three bankruptcies were all damned foolish moves to make.

But a perfectly reasonable justification (in our current legal/economic milleau) for an entity to file for bankruptcy might be because unliquidated liabilities exceed assets, which they do in these cases (thanks to the contingent fee extortion practice of the smarmy plaintiff's bar) and a company needs to reach a global settlement those liabilities. Take, for instance, another victim of our legal system and asbestos hysteria, Johns Manville Co. They were able to reach a global settlement on their litigation and make the few legitimate cases and the thousands of garbage ones go away, and they're OK (I think they, like every other sizeable business, are owned by Warren Buffett now). Lots of other companies have done the same. I'm not familiar enough to know the details of the Johns Manville case, but I doubt very seriously that funds held by Johns Manville in trust for some of its constituents (i.e., its employee pensions) were forfeited to the bankruptcy estate. More on that below

Prof. Marci has a great two-paragraph excerpt in which she makes it clear that this isn't "about the victims and about justice" but it's about hating a Church that she knows next to nothing about, other than what she's read in Dan Brown novels:

Fortunately, though, the judge ruled the other way. And rightly so. The Roman Catholic Church, after all, is the longest surviving monarchy in history -- its top-down structure is hardly a secret. Indeed, a prime reason priests were ordered to be celibate centuries ago so as to ensure property ownership stayed within the larger church and did not devolve to their offspring. (In the early centuries of the church, priests could be female, and, whether male or female, could be married.)

Except for Vatican II, the 1970s encyclical [NB: in original; this was subsequently changed by the editor to "1960s ecumenical council"] that would have given the laity more power within the Church and which made services more informal, there has been little reason to think the hierarchy ever would have approved having church property land in the hands of parishioners. And Vatican II has not fared well in recent years or under recent Popes.

Then Professor Marci goes into the "independent ownership of parishes" schtick, with the specious argument that the archdioceses "could have made them independent if they wanted to," but completely ignoring the real issue in these cases of dioceses operating as corporations sole, which was that the property was held, not independently, but in trust by the bishop for the parish. Read her bit (before she gets into a rant about the irrelevance of canon law), and you don't see any mention of the argument here. Of course, it would have been too much to ask for her to consider the origins and justification of the "charitable immunity" rule in common law, the principles of which are relevant here.

Prof. Marci next goes into a section called "Baleful Consequences would have followed a ruling that canon law controlled property ownership." This brings up two points, off the top of my head. First is the notion that non-governmental laws or agreements aren't relevant to property ownership. If that's the case, then trade customs, written and oral contracts, and corporate by-laws, and partnership agreements, and even express trusts are all irrelevant and unenforceable, huh? The principle that private rules govern ownership between interested private parties can't be new to you, can it, Professor? For time immemorial, donors have given money and goods, and bishops have administered money and goods, according to the prescripts of canon law Canon law isn't some on-the-spot, artificial system (like, say, the limited liability company acts introduced to every state in the last fifteen years or so) that can be ignored out of hand, as you seem to want your readers to think. Canon law, Marci dear, predates American law, and the principles of equity from which the bankruptcy system developed from canon law. Canon law, like any "private" structure or agreement for another organization or relationship, is and always has been the proper vehicle for determining ownership between the larger organization and its constituents.

The second is that her warning that the uncertainty that determining property ownership from canon law would cost the church more money in the long run because it would cloud title. Our response has to be "Thanks for looking out for us Catholics, honey, but we'll hire a lawyer who's manifested competence and familiarity with the workings of the Church if we need legal advice."

"The Church doesn't have a right to operate in a universe wholly divorced from civil law, civil courts, or public accountability" says Prof. Marci. What about Separation of Church and State? Don't you believe in separation of Church and State, Prof. Marci? After all, it's in the Constitution, isn't it? What you're saying sounds more like subjugation of Church to State. I cannot believe that anyone in this country or anywhere would hold such a position. I simply cannot. After all, Separation of Church and State is in the Constitution, isn't it?

Anyways, that's enough. It's late and I'm tired, and as sloppy is this post is, I've obviously put more effort into it than Prof. Marci did her column. So let's wrap up:

Prof. Marci says the above isn't advocacy--it's just her opinion as an attorney and a law professor. She must be saying it's not advocacy because it's the sort of advocacy that would result in Prof. Marci having a "little talk" with her malpractice insurance carrier, or maybe the magistrate at a Rule 11 hearing. This column of Prof. Marci's (and I haven't read the others that she links to) demonstrates a shameful failure to engage in legal analysis and a painful-to-read lack of command of generally known and generally available information about the structure of the Catholic Church and the relationship between Church and state. This is the sort of vacuous analysis I expect to read in the pages of the Kansas City Star, or maybe even Pitch, or maybe hear on the Fox News, but it is not fitting for a law professor, even writing for a popular audience. It's an embarrassment to her colleagues at Cardozo, and if it were possible to embarrass this sort of plaintiff's lawyer, it would be an embarrassment to plaintiff's lawyers.

I guess, in closing, I could only say that (1) I hope that when the Archdiocese of Portland appeals this ruling, Prof. Marci is the one that argues it for the appellees, (2) I wish the Church's enemies were all so ill-informed and incoherent as is Prof. Marci. Were the former wish granted, the parishes would be safe, and were the latter one true, Britain would be a humane place to live, the French revolution would have failed, freemasonry would be eradicated, Europe would be Christendom, and we'd be buying our oil from Maronite, Chaldean and Coptic Catholics in Arabia and North Africa. Unfortunately for the Church, though, her greatest enemies—particularly those that have planted themselves in the hierarchy--are much wiser, and much more knowledgeable, than Prof. Marci.