On March 5th, Rich McCune, counsel for the LSU-3 (Beach, Bradley, and Kaatz), had a bad day in court. Riverside County law & motion Judge Edward D. Webster not only threw out the plaintiffs' case, he made McCune stay after school so he could tell Mr. McCune what he really thought of his case and his clients, “I think this case is extraordinarily ill-advised for a lot of different reasons."
We published a short notice regarding the dismissal of the lawsuit, but I have only just had time to sit down and read through the 89 page transcript of the oral argument.
Judge Webster was well prepared, having spent nine hours reading through the papers and pleadings. He was familiar with the relevant case law, and was able to interject and finish counsels' arguments and case law citations. (The lay reader might be surprised at how often judges are not well prepared to rule on the motions before them.) I was interested to learn that Judge Webster had a briefing attorney, Erin Orzel, who prepared an objective analysis of the case. Federal trial court judges and the justices of both federal and state courts of appeals have long employed briefing attorneys to prepare pre-argument memoranda and draft opinions—I was a once a briefing attorney for a Texas appellate court—but rarely do state trial courts employ them. Judge Webster not only had a briefing attorney, but he also acknowledged her work, said she was brighter than him (Tr. 26), and he read extensively from her analysis and recommended ruling. (Tr. 27-46)
A. The Boring Legal Analysis
Regarding the claims against La Sierra University for breach of contract, breach of the covenant of good faith and fair dealing, etc., the court held that the adjudication of these claims would entangle the court with religious issues that are off limits to secular courts. These claims would have involved a determination as to whether the things said and done at the Beach residence were sufficient, in light of Seventh-day Adventist standards of deportment, to justify Ricardo Graham in demanding the plaintiffs' resignations, and the Board of Trustees in subsequently accepting those resignations. In light of the First Amendment, civil courts are loath to rule on issues of church doctrines, church standards, and church governance.
As to the claims against Ricardo Graham, the court held that his actions were privileged under the “managerial privilege,” a rule that holds that a manager of an employing entity cannot be liable for inducing the employing entity to breach a contract with an employee. Since Graham was the chairman of the LSU's Board of Trustees, which has governing authority over the university, he was in effect a manager of the university. Plaintiffs argued that Graham stood to personally benefit from his actions and hence could not avail himself of the managerial privilege—their theory being that he was up for re-election as president of the Pacific Union Conference, and Dan Jackson chairs the committee that elects the PUC president. But the court held that this was too remote and attenuated a benefit to set aside the managerial privilege. The court also noted that Graham's actions were ratified by the Board of Trustees when it voted to accept the resignations. That ratification returns the responsibility to the university, and again raises the question whether the action was wrongful under Adventist standards of deportment, a question that, again, civil courts do not want to rule on.
As to the claims against Dan Jackson and Larry Blackmer, the court ruled that their communications with Graham were privileged by the “common interest” privilege. See Ca. Civil Code § 47(c). Graham, as the Chairman of the Board of Trustees of LSU, was obviously directly concerned with the goings on at the Beach residence and whether what happened there constituted a breach of the standards set out in the faculty handbook. But Jackson and Blackmer, as Adventist Church officers at the level of the North American Division, were also interested in having La Sierra uphold the standards and mission of the Adventist Church. Hence there was a common interest, and the men were privileged to work in common without allegations of tortious interference.
Judge Webster referred to the case of New v. Kroeger (2008) 167 Cal. App. 4th 800, 820:
As the California Supreme Court has explained, religious corporations are merely “permitted as a convenience to assist in the conduct of the temporalities of the church. Notwithstanding incorporation, the ecclesiastical body is still all important. The corporation is a subordinate factor in the life and purposes of the church proper.”
In other words, the corporation is not the church, and the church is not the corporation. The church's property is held by corporations, and different levels of the church hold separate corporations, but there is still only one, indivisible Seventh-day Adventist Church. Jackson and Blackmer were not strangers or interlopers with regard to La Sierra, but, as church officers at the division level, were tasked with seeing that the church's institutions throughout North America uphold her mission and standards of conduct, a “common interest” with Graham and the La Sierra Board of Trustees.
A principle of judicial restraint requires courts to refrain from ruling on constitutional issues when not necessary. Here, the claims against the defendants other than La Sierra could be disposed of pursuant to principles of common and statutory law. But it seems clear that these claims were also barred by the First Amendment: they would have required the court to traipse into the minefield of religious governance. The courts are not to decide how churches should vouchsafe the religious mission of their institutions, nor how some church leaders should alert other church leaders to problems with the integrity of church institutions. This is important because if the court of appeals can uphold the trial court's ruling on any legal basis, even a rationale not articulated by the trial court, it will affirm the judgment.
B. The Woodshedding of Rich McCune
At this point, Judge Webster might have dismissed the parties and called the next case, and I would have expected him to do so. But his honor was just getting warmed up. Turns out he wanted to say a few things about the merits of the plaintiffs' case—or rather the lack thereof. Regarding the Beach residence transcript, he said:
Now, let me go through what we're really talking about here, because everyone is just soft-shoeing it . . . you know, it's kind of remarkably tolerant of the university that all they wanted of Mr. Kaatz and Mr. Beach was to remove them from their leadership positions and go ahead and resume their teaching positions. (Tr. 50)
Judge Webster easily saw through the plaintiffs and their schemes. Darnell “who, essentially, I think, is an ally of these three gentlemen . . . surreptitiously and improperly” recorded the Blackmer/Jackson presentation to the LSU faculty, then sent the recording to Spectrum. “[S]o I suspect that they were using Spectrum as a forum to either pressure or to stop this from happening. That's the only logical conclusion I can come to.” (Tr. 51) Indeed, Darnell was an ally of Beach, Bradley, and Kaatz and he did post the recording at Spectrum in an attempt to embarrass Jackson and Blackmer, and by extension Ted Wilson.
But they were hoist by their own petard, when it turned out Darnell had recorded and then disseminated something far worse, their own drinking and defaming session at the Beach residence. “And if half of it is true—and let me go through it,” said Judge Webster. “I'm going to spend a little time going through what's on this tape recording. If half of it is true, it's just really bad.” (Tr. 52) So Judge Webster spent the next 18 pages (Tr. 53 to 71) going through the transcript of the recording at the Beach residence.
Now, the attorneys knew exactly what was said and done at the Beach residence, having pored over the transcript for years and taken the sworn testimony of everyone who was there. They probably knew that transcript better than their own wives' faces, and certainly did not need Judge Webster to tell them what was in it. So why did he? Because he wanted, in the event there is an appeal, to draw the appellate court justices' attention to the frivolity, nay, the perversity of this case: These guys are suing everyone and his brother, but their frat house antics—drinking hard liquor, calling people “eunuch” and “gay burrito,” saying a female trustee was a lesbian, ridiculing church standards on alcohol and diet, etc—made them the authors of their own downfall.
Remarkably, Judge Webster's review continued over the noon recess! (Tr. 60) So Rich McCune, who probably wanted to go to his office and lick his wounds, instead had to come back to court after lunch and continue to listen to the judge trash his case, and his clients' breathtaking chutzpah in suing others for their own wrong actions. At the end of this long recitation, Judge Webster fully discharged his mind on the worthlessness of the case:
It looks like these gentlemen . . . made derogatory comments about a person with disabilities, made fun of the fundamental belief of the . . . Seventh-day Adventists relating to eating meat and drinking wine, made arguably derogatory comments about sexual orientation as well as carried on an extended discussion and told, in no uncertain terms, what they thought of various people, all of which seems to me . . . could cause considerable concern to Mr. Graham and the board of trustees, who have the responsibility to defend the university from influences which interfere with achieving its mission . . . So it seems to me there is nothing inappropriate about him contacting these three gentlemen and seeing if they would resign. . . . And I don't see why he has to give them time to sign the resignation letter or not. These are choices that you have to make, and they may not be pleasant choices. But to say that's coercion, it's just not there. . . . I would expect him [Graham] to have consulted not only with Mr. Blackmer and Mr. Jackson, but probably with a lot of other people, trying to figure out the right thing to do. . . . Now, as to whether or not this conduct breaches the contract or [is] inappropriate, I think, is missing the point. I think the real point is did the conduct that these gentlemen displayed in this conversation, where they are displaying values on their face that are contrary to the . . . fundamental values of the church, make them unfit for leadership positions? And did they breach their morals clause themselves? And it seems to me that it did.
Sometimes our much-maligned court system gets it exactly right in the end. This was one of those times.