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.