HOLY SMOKE. 3.

As we mentioned last time, the Bishop doesn't want the decision of Judge Ponsor to stand and has filed an appeal of the OLOH decison. The City and the Diocese entered a mediation process in federal court in Springfield on April 5.

This may sound hopeful. But, it is important to know that this mediation is not what the judge referred to on the last page of his decision. There, he called for a cordial meeting of minds between Diocese and City. Instead, this mediation flows from the appeal process itself. It's a requirement of the Boston-based appeal court, which handles appeals for several other New England states and Puerto Rico in addition to the Commonwealth. There are simply too many appeals, and so, there’s a need to reduce them whenever possible.

Justifying his appeal, the Bishop said that he wanted to "...preserve all...rights [of the diocese]. As it stands, it [the decision] would force us to litigate every single ruling a historical commission makes on one of our properties.”

Holy Smoke Alert! These explanations don't hold up.

While making his decisions the judge confirmed that a neutral secular law which affects everyone also applies to the diocese. We recall that the main point raised by the Bishop was that he did not want to submit to the Historic Districts Act, the state-wide law that resulted in creation of the OLOH Historic District. The Bishop gave no reason, he just asserted that he was above the law.

Judge Ponsor’s upholding of the Historic Districts Act, as it applied to OLOH, was a slam-dunk for the City. All of the ripe complaints were dismissed by applying existing law. There were no genuine issues of fact to be hashed out, so the judge short-circuited a jury trial in favor of summary judgment.

Under these circumstances, there is no point in the Bishop pursuing further litigation when and if other churches come under the Historic Districts Act. He's sure to lose, everything else being equal.

More mystifying yet, some changes in the judiciary of the Commonwealth should be giving the Bishop pause, and yet he seems oblivious to them.

Consider the nomination of Judge Nan Duffly to the high court in December of 2010 by the governor. During the 8.5 Million insurance trial, a key part of the proceedings was the appeal that Egan and Co. filed in an attempt to get around Judge Agonstini’s ruling that thousands of secret papers of the Diocese must be provided to the insurance lawyers during discovery.

Judge Duffly, at that time an appeals court judge, heard the appeal. She not only upheld everything that Agonstini had decided, she went further and chastised the diocesan lawyers for the very idea of the protective order, which was, in her words, a "collateral attack on the trial court's denial of its motion" to compel discovery. See pg. 9 of her Memorandum Paper 89 (Appeals Court Order Affirming Orders of Jan. 3, and Feb. 13, 2007).  Throughout this document she shows little patience or deference toward the RCB. Judge Duffly was confirmed to the Supreme Court of Massachusetts and began hearing cases in February.

This is not to suggest that Duffly or Agostini have an animus against the RCB, but only a record of holding the RCB to the same standards as other corporations. No more, no less. Since both have shown no particular favoritism toward clerical plaintiffs, and since other justices are likely to rule the same way, it's hard to see why anything will change.

Similarly, his passive-aggressive complaints about being "forced" into the appeal and more litigation are suspect.  Not even Jesus Christ asserted that he was above civil law. Quite the contrary.


Whatever the reasons for the Bishop's appeal, it has so little chance of succeeding that it resembles a Hail Mary pass (with apologies to Doug Flutie, who actually connected). Unless Doug Flutie is joining the Chancery, perhaps the Bishop should stay on the sidelines regarding future litigation of these issues.

But wait, there's more.

We should also consider the decision and dissent in the Springfield Preservation Trust case, both of which came down hard on the RCB. In brief, this dispute was about an exception made for some properties in the first historic district in Springfield (The Quadrangle), created in 1972. At the time, certain properties of the RCB and the Springfield Libraries and Museums Association were  exempted from the historic district.

It was disputed whether these properties were exempt on their own, or because of their owners (the exemption cited the owners of the properties to identify the properties, not the properties themselves). Long story short, the exemption was upheld, but only as it pertained to property owned by these entities in 1972 (and not any later in time). That was a loss for those (including the Diocese) who tried to broaden the exemption to include other properties. However, a significant dissent was written by Judge Ireland, who wanted to go further and strike down the 1972 exemption itself. He felt that the exemption of Diocesan property never should have been granted in the first place.

The reason that Ireland's dissent gains in significance now is that just about the time that Nan Duffly was being appointed to the Supreme Court,  Judge Roderick Ireland was being appointed Chief Justice of the Massachusetts Supreme Court.  It is interesting to read the whole decision in the Quadrangle case:

excerpts from Judge Ireland's dissent are here:

I concur in the court's conclusion that Springfield Preservation Trust, Inc., is entitled to a hearing on further remedies [namely, compensation for a now-destroyed historic building]. I write separately because I disagree with the court's conclusion that the exemption . . . is valid for property owned by the Springfield Library and Museums Association, Inc. (association), and the bishop of the Roman Catholic diocese of Springfield (diocese) at the time the Quadrangle-Mattoon Street Historic District (district) was created in 1972. Rather, I believe that the court should have affirmed the motion judge's decision to strike the entire exemption . . .

 . . . A historic district must be determined by the legislative branch . . .  Contrary to the court's holding today, there is nothing in the statute that states that a municipality can include properties within a map of a historic district yet exempt them through the language of an ordinance, as was done here. . .

. . . The association and the diocese correctly point out that the Act gives municipalities the discretion whether to establish a historic district and to determine its composition. However, there is no basis to their arguments that the statute grants municipalities broad discretion to create the exemption based on ownership or control. Their argument is based on the selective focus on individual words of the statute, particularly in §§ 3 and 8, which are taken out of context. As the motion judge pointed out: "The room for discretion [under the statute] is narrow, the list of exemptions [is] finite." The judge correctly stated: "[The Act] grants the [c]ity the power to create historic districts, as well as the power to exempt from the requirements of those districts one or more of a finite set of categories. The power to exempt categories based on ownership or control is not explicitly granted, nor is it necessary to carry out the express powers conferred by the. . . Act. The [c]ity can create, reduce, expand, and otherwise maintain its historic districts without the power to exempt based on ownership or control. . . . [Thus,] the failure to infer this particular power from the ones expressly granted would not impair the [c]ity in its exercise of authority, nor would it decrease the effectiveness or longevity of the [c]ity's preservation efforts." . . .
. . . What is critical here is that property owned by the association and the diocese are included within the map delineating the boundaries of the historic district, as was the property that was demolished. Once a historic district is created, all property within the district is subject to the procedures for alteration contained in the Act, e.g., report, study, notice, and public hearing. G. L. c. 40C, § 3. As the motion judge stated, these procedures show that the Legislature recognized "that any departure from the [Act's] guiding purpose of `preservation and protection' must be undertaken with care and deliberation. The exemptions [here] . . . permit the [d]istrict to be whittled away with almost no deliberation whatsoever (simply by receiving a certificate of non-applicability from the [c]ommission), and with no investigation, report, or public hearing. . . . Permitting the reduction of the [d]istrict by such casual, near-ministerial means violates both the letter of § 3 and the purpose of the [Act]." It constitutes an impermissible delegation of legislative authority to private interests. . .

. . . Given the statutory scheme as I read it, the lack of any indication of the city's intent concerning the exemption, the ambiguity in the language of the exemption itself, and our past case law, I cannot indorse the court's interpretation of the exemption. Therefore, I respectfully dissent from that part of the court's opinion.

Considering how the Diocese has been consistently treated by Judges Ponsor, Agostini, Duffly and Ireland, namely, as a corporate entity with no special rights; considering Ireland's dissent against the attempts of the Diocese to expand their exemption in the Quadrangle case; considering the recent appointments of Duffly to the high court and of Ireland to Chief Justice — considering all of this, the Bishop's expectations seem remarkably ill-founded. Somehow, he expects that his appeal in the OLOH case and his threatened litigation over historic preservation issues with other churches will produce better results than the original OLOH decision.

It would not be surprising to this observer if the reverse happens.  The next judge may very well find that another lawsuit by Bishop McDonnell seeking to escape the designation of a church as a historic structure is a waste of the taxpayers money and the judge's time – that it is, in short, a frivolous lawsuit.

HOLY SMOKE. 2.

I was genuinely surprised to learn that the Bishop is appealing the OLOH decision. See this story by Stephanie Barrie: Springfield Diocese Files Federal Appeal

As we shall see, the Bishop's complaint was thoroughly shot down. I wonder where he'll find a foothold for appeal? Or, will it come on procedural grounds? Anyway, we'll certainly report news on this front.

We said earlier that although there were 12 counts in the Bishop’s complaint, only 8 were decided. We now explain this discrepancy.

The judge spends half his 56-page decision laying the groundwork with a potted history of the dispute.

From pp. 25 to 44,  he considers the RLUIPA counts (8, 9, and 10). The judge explains on pg. 25 that he considers these first since RLUIPA law is based on constitutional intent. He saw no need to reinvent the wheel by starting with the freedom of religion/establishment issues in Count 1. As a result, the constitutional counts largely resolve themselves.

From page 45 to 52, he considers other aspects of the First Amendment counts, and explains why “individualized assessments” does not apply here. The remaining State counts (2 and 6) fail because there are no genuine issues. The same is true for Federal counts 5 and 7, which are disposed of in pp. 53-55.

Counts 3 and 4 assert that sacred artifacts count as symbolic speech, but these counts were not ripe. Count 11 (civil rights) was dismissed on procedural grounds (the Bishop wanted to sue individuals as well as the City but claims against individual officials were dismissed as redundant). Count 12 was not a genuine claim, but instead a request for summary judgment.

Thus, eight claims (1, 2, 5, 6, 7, 8, 9 and 10) were disposed of. Since there were no material issues of fact, each was decided by applying existing law – which indeed fits the definition of summary judgment. We will look at each of these in turn. These resolve into three groupings:
first amendment claims (1, 2); other constitutional claims (5, 6, 7); and RLUIPA claims (8,9,10). No extra charge.

Before we do that, let's glance at 3 and 4, the freedom of speech claims found to be unripe.

This is the one area where the Bishop did manage to raise some potential doubt. The question is: what happens when and if a properly filed plan is submitted to the Historic Commission? Suppose that the Bishop wants to remove a sacred artifact for use elsewhere (stained glass comes to mind). In that instance, there might arise for the first time a genuine issue of fact.  Namely, the relative values of the artifact (the historic value of the stained glass vs. its religious value).

Many other artifacts mentioned in the complaint are unlikely to qualify for removal because they're too large. Indeed, the Bishop went so far as to call the church itself a “sacred symbol”, because it's foundation was poured in the form of a cross. The removal of the entire church to a different site would be, of course, a near miracle. It is unlikely that even this plaintiff could pull it off.

Though not as extreme, the same argument holds true for the stone friezes and columns, each of which must weigh many thousands of pounds. The Bishop claimed that if he could not move the sacred objects, church law dictates that they must be covered, or destroyed. Both these measures, according to the Bishop, would prevent desecration of the sacred objects. Let's take these one at at time.

The prospect of a fleet of concrete trucks pulling up on Armory St. to entirely obliterate some of these large symbols beneath  a flood of putty-colored cement, though put forward with an air of earnestness by church lawyers, seems unlikely, if not downright bizarre.

The transformation of a lovely Italian Renaissance church to something resembling a side wall of a parking garage is painful to imagine. Ostensibly, the reason for this would be to prevent desecration. It may not have occurred to church lawyers or to the Bishop that the act of pouring wet concrete over irreplaceable historic artifacts may amount to the same thing.

Of all the exterior ornaments, only the stained glass and perhaps a few doors or door lintels would seem to qualify for removal to another worship site. Even so, considering the surplus of churches these days, it's doubtful that secondhand stained glass, even really good secondhand stained glass, is in high demand.

The other way to prevent sacred artifacts from desecration, according to the Bishop, is to destroy them, and he promotes this as a sound canonical solution. We can't help notice that if the church were sold to a third party, knocked down, and taken to a landfill, that would appear to be an equally sound canonical solution. Although he doesn't dwell on this possibility, one suspects that this result would please the Bishop greatly — not only would it prevent the church from desecration, it would enable the Bishop to sell an open lot in downtown Springfield. The phrase "ready-to-build" comes to mind.

There is some suggestion in church law that the mere selling of the artifact would work to "deconsecrate" it, without necessarily moving it anywhere, or knocking it down, but let's not get ahead of ourselves.  As I said, these freedom of speech claims (based on the symbolic speech of the artifacts) were found unripe.

Above all, the successful prosecution of a freedom of speech argument depends on the inability of the Bishop to remove a sacred symbol — which inability is dependent on the rejection of a plan by the Historic Commission — which rejection is dependent on the submission of a plan by the Bishop — which submission is dependent on the acceptance of the need to file a plan by the Bishop. Circular logic, here we come and there we go!

No factually-based argument ever got started because of the posture of the Bishop that the Ordinance did not apply to him. Indeed, the very creation of the OLOH District by the City was offensive to the Bishop. This had repercussions.

This offense explains why Counts 1 and 2 were found ripe by the judge, even though Counts 3 and 4 (the substantive dispute about the sacred symbols) were not.
This left the judge no choice but to apply existing law, which resulted in the holding of Counts 3 and 4 in abeyance, and in the defeat of the remainder of the Bishop’s complaint.

The judge commented that since both sides were looking for summary judgment, their arguments sailed past each other like “ships in the night”. To the judge’s credit, he suggested at the end of his decision that constructive dialog was not too late.

Whether this latest news that the Bishop has decided to appeal the decision means a step toward constructive dialog, or something else, remains to be seen.

(to be continued)