Friday, May 31, 2013

One Rule for Thee, A Different One for Me

Episcopalians should remember the nine bishops who were subjected to proceedings under the new Title IV disciplinary canons for having the temerity to file papers opposing the Presiding Bishop's official position in U.S. courts that ECUSA is "hierarchical."  Your Curmudgeon criticized those proceedings severely at the time, because the Presiding Bishop acted as chief complainant, prosecutor, judge and jury throughout.

The proceedings ended in an "Accord," which stated the terms upon which the charges were settled. However, the Accord itself remained confidential at the time, under both the provisions of Title IV, and the Agreement to Mediate signed by all parties to the Conciliation that took place in Richmond, Virginia in January of this year under the direction of Prof. John Douglass. Specifically, I can now disclose (see below) that the Agreement to Mediate provided:
-Statements and documents generated in the process of Conciliation are confidential unless otherwise agreed by all parties and the Conciliator;
-Confidential materials and communications are not subject to disclosure or subpoena in any judicial, administrative or disciplinary proceeding ...
The Accord was reached at the close of the Conciliation, but agreement had to be secured from all the Complainants and Respondents (the nine bishops) who did not personally attend the Conciliation. Finally, in accordance with Canon IV.14.5, the Presiding Bishop (whom Title IV places in charge of disciplinary proceedings against her fellow bishops) had to agree (or disagree) with the Accord within thirty days after all parties and the Conciliator signed it.

Some alert readers may remember that Bishop Dan Martins of Springfield, one of the nine respondent bishops, put up a post at his blog shortly after the Conciliation, which he attended. The post recorded  his experiences with the process, and the fact that an Accord had been reached.  But because not all parties, nor the Presiding Bishop, had yet signed the Accord, he was asked to take it down, and did so promptly  -- pursuant to the express terms in the Agreement to Mediate, quoted above.

Under Canon IV.14.12 (b), the Presiding Bishop is to give "notice" of the Accord to the Ecclesiastical Authority in each Diocese of the Church, as well as to the Primates and Archbishops of the provinces in communion with ECUSA, and other officials. Notice of the Accord, however, is not necessarily the same thing as revealing its actual text. In order to preserve confidentiality, one would expect a simple communication of the fact that the Accord was reached, and of any sentence pronounced as a result of it. (Here the Accord did not provide for any sentence.) And one certainly would not expect that any such communication would go further than the specific recipients named in the Canon.

Notwithstanding the confidentiality provisions in the Agreement to Mediate, and in Title IV itself, the Office of the Presiding Bishop issued a press release on March 8, 2010 which included the full text of the Accord! Indeed, it turned out that the very text of the Accord called for its "publication ... as required by Canon IV.14.12 (b)" (my emphasis). Paragraph 10 of the Accord stated (again, with my emphasis added):
The Parties and their agents reaffirm, attach and incorporate herein by reference the Agreement to Mediate executed on or about January 8, 2013, and specifically reaffirm that the provisions regarding the confidentiality of the Conciliation process as described therein remain in effect hereafter, except for the publication of this Accord as required by Canon IV.14.12(b).
Required? Required?? As a canon lawyer of some long standing, I have to say that I would never have agreed to this language on behalf of my clients. As stated above, the most that Canon IV.14.12 (b) requires is that "notice" of the Accord be communicated officially to specified officials within the Church and the Anglican Communion -- but not to the public at large, through a press release.

After the Presiding Bishop issued her press release with the full text of the Accord, Bishop Martins put up a post explaining why he agreed to its terms. He did not say anything more of substance, however,  about what went on in the Conciliation itself, since Paragraph 10 required him to maintain the confidentiality of those proceedings.

I noted at the time that some of the other provisions of the Accord text seemed designed to undercut the earlier statement made by the nine bishops and their colleagues as "Communion Partner Bishops".  Paragraphs 6 and 7 of the Accord stated:
6. Respondents acknowledge that the 2009 Bishops’ Statement on the Polity of the Episcopal Church is likely a minority opinion.
7. Respondents affirm that the authority of a diocesan Bishop is limited by the Dennis canon (Canon I.7.4).
(N.B.: Indeed, the latter statement is particularly poignant in light of the subsequent ruling by the Orange County Superior Court, which I discussed here.)

However, given the confidentiality provision which expressly continued in effect after publication of the bare text, unaccompanied by anything more, I did not see a way in which the Church could seek to use the Accord in any future proceedings.  And now, as I have only recently discovered, the Agreement to Mediate, which was incorporated into the Accord, provided that the document could not even be produced pursuant to a subpoena! (See the language quoted above.) There was to be a one-time publication of the text, and apparently both sides had agreed that such publication would be the end of the matter.

Well, was I ever wrong! I can now report that it appears the Church's litigation strategy took precedence over the terms to which all parties, including the Presiding Bishop, had agreed upon by signing the Accord with its incorporated Agreement to Mediate. Or, perhaps more accurately stated, the Accord was designed and intended by 815 from the outset to be used by the Church in litigation, in defiance of its express terms.

Why can I now say this? Indeed: only because in the recent Quincy trial, the full Accord (with its attached Agreement to Mediate, and concurrence in the Accord signed by the Presiding Bishop) was offered and received into evidence as Exhibit 204B. So I now have a copy, as does every attorney who participated in the trial -- and Judge Ortbal and his clerk have it, too. (Out of respect for the bishops  who were falsely induced to sign it, I decline to publish or quote it to any further extent than I have already above.)

Well, who offered the full Accord into evidence, in violation of its own terms? I can assure you that we (the attorneys for the Diocese of Quincy at the trial) did not obtain a copy of it from our witness, the Rt. Rev. Peter Beckwith, who was the Bishop of Springfield before Bishop Martins, and who was one of the bishops charged with violating Title IV. And we certainly did not offer it into evidence.

No -- by now, you must have guessed. The full Accord document was voluntarily offered into evidence at the trial by ECUSA's attorneys.  (That would be David Booth Beers, the Presiding Bishop's own Chancellor, and Mary Kostel, the Presiding Bishop's "Personal Assistant for Church Litigation."  They, along with local Illinois attorney Thomas Ewing, represented ECUSA and the Episcopal rump diocese of Quincy at the trial.)

And they offered the document into evidence at the last minute, after the trial had already begun.  This was a conscious decision (what else could have been the reason, after the trial had started?) by the Presiding Bishop's own attorneys to disregard the language of the Accord in order to impeach Bishop Beckwith's expected testimony at trial. (For the Accord made the bishops promise not to submit any additional "amicus brief or affidavit", but it did not prohibit them from testifying in open court -- which almost certainly would have run afoul of their First Amendment rights, to say nothing of subjecting the participants in the Accord to a charge of suppressing evidence.)

Once the Accord was made an Exhibit, Quincy's attorneys knew what their opponents' plan was: to wait until Bishop Beckwith testified that the Episcopal Church was not "hierarchical", and then to cross-examine him with his statement that his view was "likely a minority opinion."  ("Minority" in regard to what? The Accord did not say, in order to provide the impeachers with maximum flexibility in their cross-examination.)

And so Quincy's attorneys did what any experienced trial attorney would do, faced with such a potentially damaging document. Tad Brenner, the longtime Chancellor of the (now Anglican) Diocese of Quincy, showed the document to Bishop Beckwith during his direct examination -- before David Booth Beers could use it in cross-examination (after all, the document was now in evidence before the Court, by stipulation of the parties). And the following colloquy then occurred:
Q. Now, back in April of 2008, you signed a document entitled "The Bishop's Statement on the Polity of the Episcopal Church." Do you recall signing that document? 
A. Yes. I do. 
Q. Did you, additionally, sign an affidavit in this case whereby you affirmed your views as expressed in that document? 
A. Yes. I did. 
Q. Were any types of complaints or charges brought against you as a result of those actions? 
A. Yes. There was. 
Q. And when was that complaint initially made? ... Was it roughly the fall of 2012? 
A. Yes. 
Q. And, if you know, was that shortly before the plaintiff in this case was required to disclose witnesses? 
A. Apparently. 
Q. Now, that situation was resolved roughly a month ago, is that correct? 
A. Yes. ... 
Q. And you signed a document called "An Accord," which is going to be Exhibit 204B. Do you recall signing that document? 
A. Yes. I did. 
Q. Why did you sign that document? 
A. The active bishops, who also were a part of that action, wanted to get on with things and put that behind them. That was a main motivator. I didn't see anything in it that really was a specific issue. I could -- I could read into it enough generality so that I could sign it in good conscience. 
That much was intended to, and did, take the sting out of Mr. Beers's anticipated cross-examination. Chancellor Brenner went on, however, to deal with the other statements in the Accord, and ran into an objection from Chancellor Beers when his questions came too close to minimizing the text of the Accord altogether:
Q. Now, in terms of the other folks against whom charges were brought, were they bishops who had also signed affidavits on behalf of the Diocese of Quincy? 
A. Yes. 
Q. Or bishops who had signed an amicus brief for the Diocese of Fort Worth? 
A. Yes. 
Q. Now, there are three statements in that accord, one of them is that the signatory said that the bishop's statement on polity is, quote, likely a minority view. Do you recall that section? 
A. Yes. 
Q. What does that mean? 
A. Well, to me, it meant if you took the opinions or held a vote in the House of Bishops, it probably would be a minority position. 
Q. Today? 
A. Today. If you had taken that in '92, it would have been a slam dunk. I mean, overwhelmingly, it would have been approved. And the church, as a whole, in my opinion, would embrace that a hundred percent. That's classic Anglican theology and polity. 
THE COURT: Do you have an objection, Mr. Beers? 
MR. BEERS: Yes. I do. I move to strike this [as] sheer speculation. There's no foundation for his opinion. 
MR. BRENNER: I think he has given some foundation. This witness has served as a diocesan bishop for a good number of years. He was ordained as a priest in 1961. ...
Q. Let me ask this question: You've been a priest for more than 50 years? ... 
A. It will be -- it will be 50 -- I will [have been] ordained [for] 50 years [on] June 29, 2014. ...
Q. In terms of your longevity with the [church], do the views expressed in that document reflect the historic views of the church, as you understand them? 
A. Absolutely. 
So Bishop Beckwith was able to assert clearly that the views of the Communion Partner Bishops were the Church's traditional views, and imply that the views being advocated in the current lawsuit were claims newly invented for the occasion.

Chancellor Brenner had a few more questions about the Accord:
Q. Now, you also state in that accord that you will not sign any further affidavits or amicus briefs, is that correct? 
A. That's -- that was the agreement. 
Q. Additionally, there's a statement that reads something to the effect that "the so-called Dennis Canon applies to diocesan bishops." 
A. Yes, as much as canons apply. 
Q. What do you mean by that? 
A. Well, canons have an application to every diocese and, therefore, every -- every bishop that is not -- that does not necessarily mean -- it certainly doesn't mean to me that you take it at how it's being interpreted today. 
Q. Is a diocese able to disregard a canon? 
A. Certainly. 
Q. Have you seen that happen on many occasions? 
A. Absolutely.
All in all, this was a very effective de-fanging of the anticipated cross-examination which Mr. Beers would make. The proof, after all, was in the pudding: when it came time for his cross-examination, Chancellor Beers confined it to questions about the recent depositions of various bishops, and asked not a single question about the Accord.

Notwithstanding the fact that 815's intended scenario did not pan out in this instance, the brutal fact remains: 815 was prepared to jettison the terms of the Accord entirely if it would advance their litigation strategy -- regardless of what the Presiding Bishop had signed onto with the accused bishops -- and to parade it openly and fully in court.  

Confidentiality? What does that mean, or matter, to the Presiding Bishop and her attorneys?

Bishop Martins and his colleagues who signed the Accord now have a complete picture of what it means to enter into a pact with the current leadership of the Episcopal Church (USA): "One rule for thee; but a different one for me ...". (Reading some of the comments at his earlier blog post serves only to drive home this point.)

Is there a remedy for this gross violation of the confidentiality provisions of the Accord? Well, of course there is -- on paper. It's just that any charges lodged, you see, would have to be vetted first by the Presiding Bishop's designated Intake Officer, the Rt. Rev. Clayton Matthews. And then, any complainant would have to put forward evidence that David Booth Beers and Mary Kostel were acting in accordance with the Presiding Bishop's wishes (or dare I say: instructions?), and were not off on an independent lark of their own. For as laity, neither the Presiding Bishop's Chancellor, nor her Special Assistant for Church Litigation, are chargeable under the current provisions of Title IV. (Nor did they sign on to the Accord.)

It's a rather neat set-up, don't you think? Get the uneasy bishops to face disciplinary charges, and then soft-soap them with promises of full (well, almost) confidentiality. And then disregard the terms of the Accord entirely, thereby letting the accused bishops know that nothing, absolutely nothing, will stand in the way of intimidating them to whatever extent may be necessary to keep them silent.

In other words, despite your own contempt for the language of the Accord, continue to hold it over them, to intimidate them from attempting to commit such an outrageous act of disloyalty ever again. And if the bishops allow that continuing intimidation to affect their actions, then I pray for them, and for the future of a Church that is in such cynical and calculating hands.

Monday, May 27, 2013

The Difference Between Catholics and Episcopalians - Who Knew?

Yes, Virginia, there are people who call themselves Episcopalians, and no, they are not the same as Roman Catholics. The Episcopalians like to think themselves as better than the Catholics, because they do not have to kowtow to an old, fuddy-duddy Pope who simply cannot get with the times.

But then the world proves things otherwise. And do you know, Virginia? The Episcopalians do not even notice -- which is why they are Episcopalians.

Take last week, for instance.

The Pope gave a sermon at morning Mass in which he said that all were redeemed by the death of Our Savior on the Cross:
The Lord has redeemed all of us, all of us, with the Blood of Christ: all of us, not just Catholics. Everyone! ‘Father, the atheists?’ Even the atheists. Everyone! And this Blood makes us children of God of the first class! We are created children in the likeness of God and the Blood of Christ has redeemed us all! 
Jesus' death on the Cross served to redeem even the atheists -- yes, even the Richard Dawkinses and his ilk among us, who think the Pope is under a delusion.

And just a week earlier, the Presiding Bishop of the Episcopal Church (USA) also gave a sermon (albeit at Curaçao, in the Diocese of Venezuela, and not in some big city like Rome). And what was her theme? Redemption by Our Lord Jesus Christ?

Not exactly:
We live with the continuing tension between holier impulses that encourage us to see the image of God in all human beings and the reality that some of us choose not to see that glimpse of the divine, and instead use other people as means to an end. We’re seeing something similar right now in the changing attitudes and laws about same-sex relationships, as many people come to recognize that different is not the same thing as wrong. For many people, it can be difficult to see God at work in the world around us, particularly if God is doing something unexpected.  
There are some remarkable examples of that kind of blindness in the readings we heard this morning, and slavery is wrapped up in a lot of it. Paul is annoyed at the slave girl who keeps pursuing him, telling the world that he and his companions are slaves of God. She is quite right. She’s telling the same truth Paul and others claim for themselves. [Fn: "E.g., Rom 1:1."] But Paul is annoyed, perhaps for being put in his place, and he responds by depriving her of her gift of spiritual awareness. Paul can’t abide something he won’t see as beautiful or holy, so he tries to destroy it. It gets him thrown in prison. That’s pretty much where he’s put himself by his own refusal to recognize that she, too, shares in God’s nature, just as much as he does – maybe more so! The amazing thing is that during that long night in jail he remembers that he might find God there – so he and his cellmates spend the night praying and singing hymns.  
An earthquake opens the doors and sets them free, and now Paul and his friends most definitely discern the presence of God. The jailer doesn’t – he thinks his end is at hand. This time, Paul remembers who he is and that all his neighbors are reflections of God, and he reaches out to his frightened captor. This time Paul acts with compassion rather than annoyance, and as a result the company of Jesus’ friends expands to include a whole new household. It makes me wonder what would have happened to that slave girl if Paul had seen the spirit of God in her.
Thus the Pope made in his sermon what is for Catholics (as well as for nearly all Christians, as far as I can tell) a very traditional and not controversial point: Jesus died on the Cross to redeem us all from sin. The Pope went on to say that if atheists and unbelievers will simply follow the natural law that is written on their hearts, and "do good" rather than evil (and even Richard Dawkins claims he does good because it's the product of "secular, moral philosophy and rational discussion"), then Catholics can "engage them there." In other words, the Pope is encouraging a "culture of engagement," a celebration of common ground, rather than a heretical form of salvation by good works.

The liberal media, however, wanted to portray a Pope more to their liking, i.e., a liberal Pope. So they misread the Pope's word "redeem" as the equivalent of "save." And they ran with headlines like: "Pope: Second Look at Letting Atheists into Heaven?" Others made a note of the difference (which is everything, theologically speaking). While some atheists even took note, if only to say: "No thanks, Pope -- keep it to yourself" -- or other (perhaps also predictable) reactions.

The point is, however, that virtually the whole Western world took note of what the Pope had to say.

But our Presiding Bishop? Any reaction to her blasphemy about St. Paul in the Western press?

Zero. Zip. Nada.

Only a few fellow Episcopalians even bothered to take notice.

-- Oh, that's right. The same Catholic reporter who explained Pope Francis' sermon managed to write about the Presiding Bishop's sermon, as well. And a few continuing Anglicans, and -- what do you know? -- even one other Episcopal bishop. (Not even her supporters in the House of Bishops could manage to utter a word of empathy for her.)

But for all practical purposes, as I say, the reaction was miniscule in comparison to the reaction to the Pope's sermon. No atheists (or even LGBTs) trumpeted her putdown of St. Paul. No feminist theologians jumped on her bandwagon.

Instead, the reaction could pretty well be summed up as . . .

Embarrassment. Yes, that's it -- shame and embarrassment among Episcopalians; shrugs and "so what?" from all others.

While most Catholics and other Christians took heart at the Pope's affirmation of traditional doctrine -- because he expressed it in a new way. A way charged full of hope in renewal of the Holy Spirit -- without having to put down St. Paul, or to twist the narrative in Acts to selfish ends.

Yes, Virginia, that is the difference between Roman Catholics and Episcopalians.

The Catholics have their old fuddy-duddy, Pope Francis, who breathes new life into traditional doctrines.

And we Episcopalians have to make do with -- Katharine, who with her every utterance manages to deaden and stultify the gospel of the saints.

Monday, May 13, 2013

Confusion (among Amateur Canonists) about California Ruling

Now comes a task I would rather not face, given that I count many non-canon lawyers who are bloggers on Episcopal matters at least as colleagues, if not as personal friends. But in the wake of my commentary on the recent St. James ruling, a host of lay would-be canonists have rushed in to assure everyone that the ruling is not as bad as it is, or that it does not really say what it says. The latest comes from the estimable Father Haller, but he and others have also been contributing to the comments on other blogs. (Note that no one has seen fit to come here and question me directly.)

Let's clear up one simple matter first: the ruling is not yet precedent for California courts, because it is only the decision of a single trial judge in Orange County, California. As I pointed out in my original post, it will become problematic only if it is affirmed upon appeal.  (But as I also pointed out in my post, all of the appeals taken thus far by St. James in this case were decided against them initially by the Court of Appeals.)

Next, let's wade into the legal realities. Forget all talk about "alienating parish property."  That never occurred in the St. James case.  Far from alienating any real property in 1991, St. James acquired it.  Those (like Fr. Haller) who cite Canon I.7.3 about needing the permission of the Standing Committee in addition to the permission of the diocesan bishop to waive the Dennis Canon upon the acquisition of property are barking up the wrong tree here. Unlike the Dennis Canon itself, that Canon simply does not apply to a parish's acquisition of property.

Because no alienation of property was involved, the Orange County judge did not rule upon the application or effect of Canon I.7.3 to the case. So nothing in her ruling bears on that Canon, either.

The narrow issue decided by the judge was that the trust automatically imposed by the Dennis Canon on all newly acquired parish property, from the moment that title is put into the parish's hands, cannot be waived by any diocese, or its bishop, with or without the "consent" of the diocesan standing committee.  She held that the only body competent to waive the application of the Canon to newly acquired property (or indeed, to any parish property whenever acquired) was the body that created the Canon, namely, General Convention itself.

Now, here is the first canonical problem which that ruling creates: if neither the Diocese of Los Angeles nor its bishop could waive the automatic imposition of the trust on the property which the donors acquired for St. James in 1991, then they made a false representation to those donors that they had the authority to do so.  And whether or not that representation was intentionally false (which I do not claim in the slightest, because the real problem here is the later "about face" performed at the instance of Bishop Bruno) does not matter. It was a misrepresentation upon a matter on which the bishop was supposed to be informed and competent, namely, his own Church's canons. And because it was not true (or because the Diocese and its later Bishop chose to make it false), the Diocese of Los Angeles could now very well become liable to the donors for a full return of all moneys they are out of pocket as a result of their reasonable reliance upon the bishop's and the Diocese's misrepresentation.

Next, here is the second canonical problem which the ruling creates: how can we now be certain that the Dennis Canon trust is automatically released when a parish stays in the Church, but sells its property with the advice and consent of the bishop and the diocesan standing commission, as per Canon I.7.3?  (Note that the judge's decision does not discuss this problem; instead, her precise holding raises it.)

Let us get the easy case out of the way first. The Dennis Canon applies by its terms to all parish property, both real property (land) and personal property (everything from candlesticks to old library books and Bibles). Canon I.7.3 applies only to real property.  So if the latter Canon helps us at all, it cannot save the case of how the Dennis Canon trust is automatically released upon the sale or alienation of personal property.

And how could Canon I.7.3 purport to release the Dennis Canon trust, if it does not mention the Dennis Canon? (The reason it does not do so is that Canon I.7.3 came before the enactment of the Dennis Canon.)  So the first real problem for those who tout its efficacy is that the Dennis Canon could be seen as an addition and alteration to Canon I.7.3, since it is later in time.

That is to say, Canon I.7.3 allows a parish to alienate its real property upon the proper consents, but even as so alienated, the property still remains subject to the terms of the national Church's Dennis Canon, i.e., a cloud remains upon the title until the trust is properly released (because the court held it may be so properly released only by General Convention).  A Diocese giving its consent pursuant to Canon I.7.3 would thereafter be estopped to assert its own Dennis Canon interest, to be sure, but no such estoppel doctrine could apply to ECUSA's interest under the Dennis Canon, absent action by General Convention.

Think that is far-fetched? Put yourself in the place of a title company attorney who is trying to make sense out of the mishmash of property law made by all the Dennis Canon cases brought by ECUSA and its Dioceses.  The Diocese of South Carolina, for example, issued quitclaim deeds to all of its incorporated parishes while it was still in ECUSA, as were the parishes also, but ECUSA is now challenging the validity and efficacy of those deeds at the time they were made.  In other words, ECUSA agrees with the Orange County judge that no Diocese or bishop may waive the Dennis Canon -- even though those deeds were issued under the consent of the diocesan bishop and the diocesan standing committee.

So please do not put any credence in Canon I.7.3.  ECUSA's current leadership does not think it applies, and that is all, if you are a title company attorney, you have to rely upon in refusing to guarantee that the buyer of church property would hold title free and clear of the Dennis Canon.

But, say others, surely the Dennis Canon itself contains the language guaranteeing its release upon a proper sale (i.e., by a parish still in ECUSA at the time, and with the consents required by I.7.3)?  It says that so long as the parish remains "a part of, and subject to, this Church and its Constitution and Canons," the Canon places no limit upon its power "otherwise existing over such property ..." (emphases added). 

What does that little word "otherwise" accomplish?  It means the power the parish has over its property apart from the Dennis Canon.  But according to stalwart Episcopalians like Fr. Haller and David Booth Beers, the Dennis Canon  was not a "new" trust in 1979, but simply "expressed", or "formalized", a trust relationship that had existed since the very first property Canons in the 1860's (Fr. Haller), or since the Revolutionary War (Beers).

And that means: even apart from the Dennis Canon, the power of a parish over its own property was still subject to a pre-existing trust in favor of ECUSA. And only ECUSA, speaking through its only authorized body (the General Convention), could release that trust -- again, since (in Mr. Beers and 815's current view) no diocese, or diocesan, has the authority to speak on behalf of ECUSA. (Vide the prosecutions of the nine Fort Worth and Quincy bishops for daring to imply otherwise.)

So once again, as the attorney for a title company, you are asked to opine whether any sale of real property made by any Episcopal parish in Orange County since 1980 could have been free and clear of the pre-existing trust "formalized" by the adoption of the Dennis Canon in 1979. You have already concluded that, for the reasons stated above, Canon I.7.3 is of no assistance. And now, for the reasons just given, you have to conclude that the language of the Dennis Canon itself provides no assistance, either.

That is why this decision, if upheld, will place a cloud on the title of all such property in California.  (It is bad enough that it is effective now upon all such property in Orange County.)

And that is also why those who are not trained in law and the canons, and how they interact with each other when the issues are forced upon the civil courts, should forbear from wading into such complex waters.

Post scriptum: As a real property lawyer of more than forty years' experience, the only means of circumvention which I could suggest for a hapless buyer of property from an Episcopal parish subject to this ruling would be to convince the title company attorney that I (as buyer) gave reasonably equivalent value in exchange for the property, so that the Dennis Canon switched from the property sold to me to the funds the parish acquired in exchange for it. Alternatively, I could argue that I (as a secular buyer, again) had no notice of the Dennis Canon trust, and gave reasonably equivalent value for the property, so that I qualify as a bona fide purchaser whose acquisition without notice extinguished the Dennis Canon trust then and there. But either of those is an uphill argument to have to make, and could require either a contemporary appraisal of the property, or a court judgment, or both, to back up such a position. (It does solve the rummage-sale problem, at least: de minimis non curat lex.) And the inquiry would still have to be made (and satisfied) in each and every instance.

Saturday, May 11, 2013

A Musical Break in Dispiriting Times

Somehow, with all the shame surrounding the lamestream media's handling of Benghazi (notice how the truth will shine like a beacon through the fog -- every time?), and the mixed news from all the church litigation that is ongoing, I cannot find it in me to write anything just now about either law or politics. There is little there to celebrate, and much to lament.

In such moments, I find it lifts up one's spirit to take refuge in music. One of my favorite pieces for the cello is a piece written over 130 years ago by the great Franco-German cellist and composer, Jacques Offenbach, called "Les Larmes de Jacqueline," or "The Tears of Jacqueline." Here is a superb version of it, arranged for cello and ensemble and played by Werner Thomas-Mifune (unfortunately no longer in distribution, but misattributed here to Jacqueline du Pré, no doubt due to the name of the piece):

A few years back, I imagined and wrote a short story about how such beautiful music may have come to be written (apart, that is, from the fact that one of Offenbach's daughters was named "Jacqueline" -- that seemed to be too easy). If, after hearing the piece, you would like to read it, the link is here.

Thursday, May 2, 2013

Judge's Ruling in St. James Case Puts Cloud on Many Former Episcopal Properties in California

Judge Kim Dunning of the Orange County Supreme Court handed down on May 1 a surprise ruling in the case involving the property of St. James's parish in Newport Beach, and held that St. James could not retain title to its property after it voted in 2004 to disaffiliate from the Episcopal Church (USA). But due to the bizarre reasoning she used to reach that conclusion, the ruling -- if upheld on appeal -- would put a cloud on the title of every previous sale or disposition of any Episcopal parish property in the State since 1980.

The wrinkle in the St. James case -- a feature which distinguished it from the cases of two other parishes in the Diocese of Los Angeles (St. David's Hollywood; and All Saints, Long Beach) which Judge Dunning ruled last September could not retain their properties either -- was that St. James had been given an explicit letter from the Diocese in 1991 prior to purchasing the property at issue here, and undertaking the multi-million-dollar expense of developing it. The letter, written by then Canon to the Ordinary D. Bruce MacPherson (who resigned last year from his later jurisdiction as the bishop diocesan of Western Louisiana), told the parish (its text is reproduced on page 5 of the opinion linked above, and a facsimile of the original may be viewed on page 12 of the brief linked here; I have added the bold emphasis below):
The Rector, Wardens and Vestry of Saint James' Parish, Inc. of Newport Beach, are given permission by the Bishop of Los Angeles, the Rt. Rev. Frederick H. Borsch, to purchase and own the property on 32nd Street in Newport Beach, in the name of the Rector, Wardens and Vestry of Saint James' Parish, Inc. and not held in trust for the Diocese of Los Angeles, or the Corporation Sole.
On the strength of that letter, St. James said in its papers opposing the Diocese's motion for summary adjudication as to the ownership of the property, it had "changed its position to its substantial detriment" by investing millions of dollars in the acquisition and development of what was then (and still is) prime real estate in one of the wealthiest areas of Orange County.

But after St. James voted to disaffiliate in 2004, the current Bishop of Los Angeles, the Rt. Rev. J. Jon Bruno, reneged on the prior understanding and filed suit for all of the parish's properties -- including that which it had purchased in 1991. ECUSA added its voice to the property claims by filing a complaint in intervention. And now Judge Dunning has ruled that the letter, "as a matter of law ... was not effective to erase the trust under which the St. James Parish properties were held" (italics added).

The trust that the letter could not erase was, of course, the Dennis Canon, purportedly passed by General Convention in 1979 (the key records that would show its consideration and passage by both houses of that body have since mysteriously been lost, or else never existed in the first place). California courts have held that its unilateral declaration of a universal trust on all Episcopal parish properties everywhere was authorized by a specific statute which took effect in 1980 (Corporations Code Section 9142 [c]), and that the Dennis Canon has the force and effect of law in California as a consequence.

Now comes Judge Dunning, however, and rules that a diocesan bishop is without authority to release the trust on behalf of ECUSA, no matter what. She bases this conclusion on the authority of affidavits  submitted by ECUSA's well-paid historian, Prof. Bruce Mullin, and by the Rt. Rev. John Buchanan (provisional bishop of the rump diocese of Quincy), which contended that no one Episcopal bishop has any authority to alter or suspend the canons in his diocese, or to speak for or to bind ECUSA in any matter.

(Those opinions might come as a surprise to those bishops who have suspended the marriage canons in their diocese to provide a "pastoral response" to gay couples, or who have suspended the applicability of the canon requiring that all persons partaking of Holy Eucharist be baptized. And of course, no one said anything about the self-contradiction inherent in Bishop Buchanan's proclaiming, on behalf of ECUSA, that no one bishop may speak for ECUSA.)

So according to Judge Dunning's May 1 ruling, the trust imposed on all Episcopal parishes in California may only be dissolved in the manner by which it was imposed in the first place -- by a canon duly enacted by General Convention.

Do you understand now the huge impact this ruling could have if it is affirmed on appeal?

According to it, since no sale of any California property owned by an Episcopal parish ever received any release of the Dennis Canon by General Convention, then all of those properties that have been marketed and sold since 1980 -- parking lots, rectors' residences, and auxiliary properties, to say nothing of church buildings themselves -- are still subject to the Dennis Canon trust, no matter what any diocesan bishop or standing committee purported to allow. They were not the General Convention.

To reach her ridiculous conclusion, therefore, that no one diocesan or standing committee may waive or release the Dennis Canon on behalf of any Diocese, or on behalf of the national Church, Judge Dunning has managed at one stroke to cloud the titles of hundreds, perhaps thousands, of pieces of property sold and conveyed by Episcopal parishes in California since 1980.

And that is just one problem with her seriously flawed decision, which relies upon circular reasoning and deliberate misreadings of parish governing documents, as well. The decision is not only a travesty of justice, but as I say, it should make title companies all across California fear for all of the various policies they have issued to buyers of church property since 1980.

[UPDATE 05/03/2013: Of course, the impact of this ruling on the Diocese of Los Angeles itself has probably not yet dawned upon Bishop Bruno and his allies. It means that the Diocese will not be able to offer free and clear marketable title to any of the properties it has confiscated over the years from so many of its former parishioners: St. Luke’s in the Mountains, St. David’s, All Saints ... and now St. James. Unless and until the Diocese can obtain an amendment to the Dennis Canon from General Convention, the Court’s ruling means that all those properties remain impressed with a trust in favor of ECUSA, which cannot be modified, altered, waived or released in any way. Moreover, lenders will now not loan against ECUSA parish properties for purchase or construction unless General Convention agrees to subordinate its Dennis Canon to the loan in every case. Watch out what you ask for, Bishop Bruno! And good luck with recovering the millions you have spent on property fights.]

Making a mish-mash of the law of the several States in this fashion must be what ECUSA really wants, because that is just what it has systematically been doing over the past ten years (and more). It cares not about the effects or difficulties that its arguments may cause for other law-abiding property owners, just so that it can pursue its scorched-earth policy to let no disaffiliating parish go unpunished, anywhere.

And God save us from unthinking and unaware judges who have no clue to what they are holding, finding, or deciding. Save for a random and capable judge here and there, the majority of them have shown themselves less than equipped for the tasks which these cases present.