Tuesday, April 30, 2013

Fresno Judge Denies ECUSA's Motion for Summary Judgment

There is very good news for the Anglican Diocese of San Joaquin, now under the leadership of Bishop Eric Menees. Last Thursday, the Fresno Superior Court (Jeffrey Hamilton, J.) filed his decision adopting his tentative ruling of March 6 as his final ruling with respect to the Motion for Summary Judgment / Summary Adjudication filed by the plaintiff rump diocese and its bishop, Bishop Talton, and joined in by ECUSA itself.

The ruling denies ECUSA and its totem plaintiffs any summary judgment, because it finds that there are disputed issues of fact still to be resolved in connection with the Diocese's right to withdraw from ECUSA, as it voted to do in December 2007. In so doing, it adopts the "neutral principles of law" approach prescribed by the Court of Appeals, and it correctly applies that approach to find that the plaintiffs failed to show, as a matter of law, that anything in ECUSA's Constitution or canons, or anything in its long history with the Diocese, restricts the right of a Diocese to disaffiliate.

Now ECUSA will have to go to trial against Bishop Schofield on its claims that he was not authorized to lead his Diocese out of the Church. Since there was no canonical or constitutional provision which Bishop Schofield's Diocese could be said to have violated when it voted to disaffiliate, the present ruling will make it that much more difficult for ECUSA to prove its claims at trial.

However, ECUSA is not out of arrows in its quiver yet. It has filed reply papers in the federal court litigation in South Carolina which attempt to make a wholly new argument for its priority in being able to decide, as a matter of federal law under the First Amendment, that Dioceses are not free to leave the Church without the consent of General Convention. But as you might well imagine, that is a very far-fetched and tenuous argument which will require the Curmudgeon to devote an entirely new post to its refutation. So, stay tuned!

Wednesday, April 24, 2013

The "Big Bang Theory" and What It Tells Us about Man's Capabilities

This piece, by Ken Masugi, on the popular TV show "The Big Bang Theory," at The Library of Law and Liberty, goes far to explain why our post-modern/modernist culture (it doesn't matter what term you apply to it) has nothing to offer for mankind but the fragile and built-in frailties of man himself. Please do take the time to read it in its entirety, even if you are not a regular of The Big Bang Theory,  because it tells you all you need to know about the self-imposed inadequacies of science, per se, either to explain or to accommodate the primary aspects of our God-given reality.

Science excludes the hypothesis that there could be a God a priori [from the very outset], because it has no means by which to test such an hypothesis, given its assumed and agreed [i.e., a priori] methods of observation and experiment. The situation is precisely as though a group of scientists were to announce: "We shall base our entire observations and conclusions about the universe on what we can derive from the infrared spectrum, because our instruments do not allow us to detect any phenomena outside of that spectrum."

In fact, of course, scientists base their observations and conclusions about the universe on what they can derive from the entire electromagnetic spectrum, including the ultraviolet as well as the infrared -- and beyond. Since God, however, has not made any manifestations of His existence obvious within the complete span of the electromagnetic spectrum since the Resurrection (and its record preserved on the Turin Shroud), the scientists who have objectively examined the evidence of the Shroud are divided. Some say it embodies phenomena which science currently cannot explain. Others reject its evidence entirely, on the ground of its (faulty, but only) radio-carbon dating [NB: another scientific "hypothesis" masquerading as the "only admissible" evidence under the rules of science].

But as Ken Masugi so eloquently lays out, the sphere in which science offers us its data and conclusions is severely limited, by its own materialist hypotheses. And our society's mistake in accepting science's (within its realm) well-established conclusions is to assume (along with the scientists) that it must cover the entire realm of observable experience, because (by hypothesis) "if it is not 'observable' to us, then it cannot form the basis for science."

And please note (in the article linked above) how (on The Big Bang Theory) Sheldon Cooper's evangelical mother makes short shrift of that contention.

Indeed, to ask a question that Sheldon's mother might well ask: what is this "science" that demands we observe only what it can observe?

Answer: It is a construction of man himself.

That should be the end of the inquiry. "Science" is, in our day, no more and no less than the Tower of Babel was in its day -- an attempt by man to occupy the known universe, including the very heavens themselves, by dint of only his own efforts. God had no role to play in the erection of the Tower of Babel, and God has no role to play in today's "science." Let's see: from ca. 2000 BC to 2000 AD, there has been no change in man's evaluation of the role which God has to play in man's world -- yep, that is sure evidence of man's "progress", under his own head of steam.

Has the root contradiction of such a view escaped the reader thus far, due to the impersonal language employed? Let's begin again:

If God exists, then God is supreme in all respects of our human existence -- and God, as such, is the repository and source of all "knowledge" about this world and its existence to which humans could possibly attain (as well as with respect to many other possible things -- but we do not need to go there just now).

If God is supreme, as He must necessarily be if He exists, then man must be inferior to Him.

Therefore, man can never know all that God knows, or man would be capable of being omniscient as God is already omniscient.

What man knows to this date in the world is called by him "science."

But what God knows must necessarily be greater -- otherwise, man would be equal to God, which makes "God" superfluous, because then man can do it all himself.

Accordingly, what man's science knows cannot supply the entire picture of what is -- if God exists.

Thus, your entire world-view depends on how you regard God's existence: if you regard it as a given, then you acknowledge that you by definition are incapable of attaining to all His knowledge (including knowledge of whether He exists). But if you deny His existence from a priori (i.e., man-assumed) grounds, then you preclude yourself, equally a priori, from any knowledge of Him, or His existence.

It really is that simple. (Go back over the logic if you are not yet convinced.)

And for those who still deny God's existence on the evidence they have assessed to date, I have a simple proposition for you.

Please accept an invitation to what I assure you will be an excellent, multi-course dinner, with fine wines accompanying each course, at a place of the Curmudgeon's choosing. You will have no role to play, other than to show up at the agreed time and place.

But if you do accept the invitation, you must agree to come on the condition that the dinner will be at your expense if you cannot supply a rationally satisfactory answer to the following question:

"You have enjoyed this marvelous dinner and these wines with me here tonight. And I am grateful that you could share them with me. But as you see, I remained in your company the entire time, while the dinner and wines were brought to the table. Now, please explain: if you believe that you indeed consumed and enjoyed this food and this wine here tonight, do you believe that there was a cook? And do you believe that there was a winemaker?"

I rest my case -- Q.E.D.

P.S.: Please, in light of these remarks, do read the Masugi article in its entirety. If you are a regular fan of The Big Bang Theory, you will enjoy it even more. But even if you have never heard of the show, you will be able to relate what has been said above to what you will read in his post.

Friday, April 19, 2013

Problems with the Virginia Supreme Court's Decision

For a judge, there is nothing so safe as subscribing to precedent, particularly if you do not have to re-examine it. You simply pronounce that you are following precedent, and add an entire string of case citations to "prove" you know what you are doing.

So it is with Justice Cleo E. Powell of the Virginia Supreme Court, the author of the decision in The Falls Church v. Protestant Episcopal Church (USA), which awards all of the real and personal property of what was once the largest parish in the Diocese of Virginia to that entity. (The Diocese is unable to put the property to the full use of which it is capable -- the remnant parish cannot even fill the main chapel -- and so the multi-million-dollar property comes to it as a wholly unearned windfall. No doubt the Diocese will eventually sell the property --to any entity except the congregation from whom it seized it -- in order to recoup some of the costs incurred in fighting for it.)

In one of her first major opinions since joining the Court in 2011, Justice Powell takes refuge in a coppice of previously planted judicial underbrush to justify her quixotic result. That underbrush can conceal a multitude of judicial sins, consisting chiefly of abdications of judicial responsibility. It serves at best as a trap for the unwary, into which the tyro all too easily falls. But at its worst, as we see Justice Powell deploy her precedents in the Court's opinion, it simply grows and expands, without order or restraint.

For the congregants of The Falls Church, in Virginia, a post mortem of the decision can offer scant relief. What does it matter that the Court got it wrong, since it has the final word in that State? Like Pilate, the Court says "What I have written, I have written" -- and passes to the next case on its docket.

The Court says that Virginia is a State that follows and applies "neutral principles of law," but don't let that fool you. What exactly is so "neutral" about (a) judges creating a trust out of whole cloth that the parties themselves never formalized, so that (b) a church like ECUSA can secure a windfall for the unjust enrichment of one of its dioceses?

Justice Powell's result rests entirely upon her finding that a "fiduciary relationship" existed between The Falls Church and the national Church. But she spends no time whatsoever in examining the particulars of such a relationship, or deciding just when and how it actually came into being.

Fiduciary relationships are very special in the eyes of the law. A fiduciary is a person or entity in whom one confides (such as a client with his attorney, a patient with his psychiatrist, or a penitent with his priest) -- or it can also be a person or entity to whom one entrusts money or property, such as a client with his stockbroker or banker. Or it can simply be the trustee who holds certain property in trust for what the law calls the beneficiary of that trust -- the person for whose benefit the trust was established.

The law holds fiduciaries to the highest standards of duty of care, and of loyalty to the beneficiary (no self-dealing with the property at the beneficiary's expense). As Justice Powell cites one case authority (opinion, pp. 18-19):
It is well settled that where one person sustains a fiduciary relation to another he cannot acquire an interest in the subject matter of the relationship adverse to such other party. If he does so equity will regard him as a constructive trustee and compel him to convey to his associate a proper interest in the property or to account to him for the profits derived therefrom.
Let's unpack that quotation a bit. As Justice Powell applies it, it is saying that The Falls Church, acting as a fiduciary towards the national Church, could not "acquire" an interest in its own property that was adverse to the national Church. Supposedly, that happened when The Falls Church voted in 2006 to disaffiliate from the Diocese of Virginia -- but what did The Falls Church "do" at that point to acquire the property? It already owned it. 

Assume for a moment that in 2006 the property was held by The Falls Church as a trustee for the Diocese. Then presumably by declaring itself free of the Diocese, it attempted to make its property free of that trust. And Justice Powell concludes it could not accomplish that step without betraying its fiduciary duty to keep the property available for the use of Diocese, and those loyal to the Diocese.

All right, but what about the relationship of the Diocese to The Falls Church all the time the latter was a member of the former? Was not the Diocese a fiduciary as well, in relation to The Falls Church? Did not The Falls Church rely upon the Diocese and its bishops to uphold the "doctrine, discipline and worship of [the national] Church" as that Church received them from the mother Church of England?

And what happened to that trust? The national Church and its Dioceses breached it in 2003, and breached it further in 2006 -- well before The Falls Church ever took its vote to disaffiliate in response to those breaches of trust.

When a trustee breaches the terms of a trust, the law does not award him the property held in trust as his reward. Yes, we may assume for the purposes of argument that The Falls Church held its own property in trust for the national Church and the Diocese -- but the only reason for the creation of that trust was the undertaking, by the national Church and its Diocese, to guard and preserve the faith. So the second trust was entirely dependent on the pre-existence of the first.

And when the national Church and the Diocese breached that first trust in 2003, the reason for the  second trust ceased to exist. Justice Powell takes absolutely no notice of that crucial fact (other than to observe that there was "a long-standing conflict within TEC that arose in 2003"). For her, the second trust is the only one the law can actually enforce, since the courts cannot make a church hold true in matters of doctrine, discipline and worship. But she utterly ignores the consideration for the second trust, which was the establishment of the first trust when The Falls Church joined the denomination in 1836.

Thus even though the first trust is not civilly enforceable in the courts, it nonetheless furnished the quid pro quo for the creation of the second. And when that first trust ceased to exist, the Virginia Supreme Court had no justification for continuing to enforce the second trust. The Court should have shied away from any use of the term "trust" altogether, and told the parties that it could not enforce the property trust without assessing the failure of the consideration that had been given for its creation. That would have left the parties where the court found them.

Thus the trust analysis in Justice Powell's opinion is highly problematic, and ignores more issues than it resolves. But even how she manages to get to the second trust is an exercise in contradictory logic. Consider her chain of reasoning, which is as follows:

1. In Virginia, from its earliest times until 1993, a "hierarchical" church was prohibited from creating any trusts, express or implied, in its favor.

2. Thus the Dennis Canon, enacted in 1979, had no force or effect in Virginia at the time.

3. But in 1993, the Virginia legislature abolished that rule in part, and enacted a statute which allowed such a trust, in these words:
Every conveyance or transfer of real or personal property, whether inter vivos or by will, which is made to or for the benefit of any church, church diocese, religious congregation or religious society, whether by purchase or gift, shall be valid.
4. Even though the Dennis Canon could have no operative effect to create a trust in Virginia, it nevertheless described the relationship that had always existed between the national Church and the properties of its parishes.

5. Therefore, from and after 1993, that relationship suddenly became enforceable, and so we (the Court) will enforce it now, even if we must use a constructive trust (one created entirely by judicial decision) to do so.

Do you see the problems with that reasoning?

Look at the words of the statute that changed Virginia law, quoted above. It begins: "Every conveyance or transfer of real or personal property ...". If trusts in Virginia stand or fall by the law in effect when they were created (opinion, p. 17), then what conveyance or transfer of The Falls Church property took place after 1993 to give rise to the existence of any trust as described by the Dennis Canon?

The Court cannot have it both ways (but Justice Powell tries to do just that). Either the trust in question arose at a time when it was invalid under Virginia law, or it arose at a time when it was valid, i.e., after 1993. And to arise and be effective as declared by the statute, it had to be part of a conveyance of transfer upon terms of trust executed after that date. If it "arose" out of a course of conduct or dealing, then it does not come within the language of the statute -- and so it would remain invalid under Virginia law.

I see no way out of the corner into which the Court's faulty reasoning has painted itself. It should never have purported to try to resolve the case upon principles of trust law, because they simply do not apply to the facts. As a result of its attempt, the principles applied by the Court are anything but "neutral."

Would the Court even listen to a petition for rehearing along these lines? That is for the plaintiff's  attorneys to judge, but since it got things so wrong the first time, I doubt it will have the capacity to see its error.

"Quod scripsi, scripsi" -- to quote Pontius Pilate again. Right or wrong, the Court has spoken.

Tuesday, April 16, 2013

An Overview of the Complex Situation in South Carolina

Lawsuits in San Joaquin and Quincy have prevented me from doing an update on the situation in South Carolina, and one is sorely needed. The litigation there has greatly intensified since I last wrote. Let's recap, with links for those who want to view some of the actual pleadings, which are (sometimes sizable) .pdf downloads.

1. Bishop Lawrence's Diocese and its Trustees, if you recall, brought the initial complaint in the Circuit Court for Dorchester County in Prince George on January 4, joined as plaintiffs by the sixteen individual parishes. The only defendant named was the Episcopal Church (USA), and the lawsuit sought a declaratory judgment against it that the plaintiff Diocese and congregations were the sole owners of their respective names, registered marks (including the Diocese's traditional seal) and real properties. Copies of the complaint were served upon the Presiding Bishop, the Church's Treasurer, and its South Carolina counsel (Mr. Thomas Tisdale) within a few days of its filing.

2. A little over two weeks later, ECUSA's representatives had not yet filed any appearance in the lawsuit, although they had known about it since January 7 (and Mr. Tisdale was served the same day the complaint was filed, on January 4). The Diocese filed an amended complaint which added another fifteen parishes as plaintiffs, and also filed an application for an emergency temporary restraining order against ECUSA. (The latter's Presiding Bishop had noticed, for January 26, a special convention of the entity that was then calling itself by the same name as Bishop Lawrence's Diocese, "the Episcopal Diocese of South Carolina", and was threatening to infringe upon the registered name and marks of Bishop Lawrence's Diocese.)

3. On January 22, Circuit Court Judge Diane Goodstein held an ex parte hearing (meaning a hearing held on an urgent basis, with less than the usual notice to the other side) on Bishop Lawrence's request for a temporary restraining order against ECUSA. Judge Goodstein issued the restraining order the next day, January 23, after Bishop Lawrence and his Diocese had posted the required bond.

4. Certain members of the remnant group tried to make much of the fact that Judge Goodstein issued the Temporary Restraining Order without their counsel having received notice of the hearing. This criticism, however, ignores the fact that their counsel had not yet responded to the complaint, or otherwise entered an appearance in the action. Until an attorney files a pleading with the court which constitutes an official appearance on behalf of a named party, that attorney is not entitled to any notice of anything in the case.

5. The criticism also ignores how such TROs function. A TRO is always issued on an emergency basis, to prevent an impending harm. Because of the urgency (which must be shown in the application, and which must justify the issuance of immediate relief in order to maintain the status quo of the existing situation against some threatened injury), TROs are always issued on very short notice, and quite frequently upon no notice at all. For that reason, they are always of very short duration -- up to ten days maximum. And in this case, Judge Goodstein set a hearing on issuing a lengthier injunction for February 1, and directed that plaintiffs give ECUSA and its counsel immediate notice of that hearing. They were in fact served on January 24 -- two days before the convening of the "special convention", and eight days before the scheduled hearing.

6. But the hearing was never held as scheduled. On behalf of ECUSA, Mr. Tisdale notified Judge Goodstein on January 29 that his client had no objection to the indefinite extension of the TRO. However, there is no provision in law for such an extension, and since ECUSA had now (through Mr. Tisdale) appeared in the lawsuit, the Court issued a temporary (preliminary) injunction to replace the TRO, and provided that it would last until such time as it issued a further decision following any hearing on the matter requested and noticed by ECUSA. (To date, the injunction remains in force, because ECUSA has never requested a hearing, but has pursued remedies in South Carolina federal court, as explained below.)

7. ECUSA requested, and received, from plaintiffs an extension of time within which to respond to the complaint. Meanwhile, more parishes continued to join in the lawsuit, and the complaint was amended a few more times in the interim by consent of all parties. One of the amendments, on February 28, also added as a defendant the Episcopal Church's remnant group, which now called itself "the Episcopal Church in South Carolina" in order to comply with Judge Goodstein's injunction.

8. Thus, up through the end of February 2013, all proceedings to date had taken place in the Circuit Court of Dorchester County, South Carolina. But on March 5, everything changed. On that date, Bishop vonRosenberg made the litigation personal, by instituting a lawsuit in his own name in the federal District Court of South Carolina, in Charleston, against Bishop Lawrence as an individual defendant. The lawsuit claimed that Bishop Lawrence was violating the federal trademark Act ("Lanham Act"), by using what Bishop vonRosenberg claimed were marks and names that belonged to his "Protestant Episcopal Church in the Diocese of South Carolina." (Note that, despite his counsel's having consented to the entry of an injunction against Bishop vonRosenberg and others which forbade them from using that name in South Carolina, Bishop vonRosenberg blatantly used the name in his pleadings in the federal District Court.)

9. Two days later, on March 7, Bishop vonRosenberg's attorneys filed and served a motion for a preliminary injunction, supported by voluminous affidavits, in the federal court Lanham Act lawsuit. This motion sought the issuance of an order from the federal court which would do exactly the reverse of what Judge Goodstein had already ordered -- without objection from ECUSA!

10. Bishop vonRosenberg's moving papers, as you can see, mentioned the state court injunction only in these words, and did not attach a copy of the order itself (see pp.26-27 of the previous link):
The state court plaintiffs also sought an injunction prohibiting The Episcopal Church from such uses [of their name and seal]. Id. On January 31, 2013, the state court issued a temporary consent injunction.
11. On March 28, 2013, Bishop Lawrence's attorneys responded to the federal court Lanham Act suit by filing a motion to dismiss, or alternatively to stay or abstain from all proceedings pending the outcome of the state court action. The ground for this reasonable request was that Bishop vonRosenberg had not told the federal court the full story of the state court action, or about the injunction which that court had already issued. In accordance with well-settled federal precedent, some of which I discussed in this earlier post, Bishop Lawrence asked the federal court to take no further action in the case until the state court case could proceed to judgment -- if not to dismiss the federal case altogether at this point. (Of especial note is the fact that Bishop vonRosenberg's request for a preliminary injunction did not even mention for discuss the federal Anti-Injunction Act, which is designed to keep federal courts from interfering in just these kinds of state-law disputes.)

12. Next, the saga returned to the State court, where on the following day -- March 29, 2013 -- ECUSA and its rump diocese each filed answers to the complaint for declaratory relief, and then added counterclaims for all of the properties and assets of each of the (by now) thirty-five individual parishes which had joined the state court lawsuit, together with all of the assets and properties of Bishop Lawrence's Diocese. Using a by now standard tactic, they also sued individually the rectors and vestries of each of the thirty-five parishes, and alleged that they had "usurped control" of their respective parishes. (ECUSA's answer and counterclaims may be downloaded here; the rump diocese's pleadings are here.)

13. The counterclaims, as may be imagined, multiplied the issues and parties in the state court action a thousandfold, and turned the litigation into a juggernaut on the scale of that currently pending in Fort Worth. However, ECUSA and its attorneys were not done yet with introducing still further  complications.

14. Having responded to the State court action, Bishop vonRosenberg's group (which -- remember, is claiming that they are the rightful occupants of the incorporated religious organization which filed the original state court complaint, and that Bishop Lawrence and his trustees are mere temporary interlopers) now filed on April 3, 2013 a pleading which removed the state court action to the same federal District Court in which the Lanham Act suit was pending.

15. With this measure, Bishop vonRosenberg's group (and ECUSA itself) have now doubled down on their attempts to get this matter out of the South Carolina State court system, and into the South Carolina federal courts. Any defendant to a state-court lawsuit which could have been brought in federal court originally may, within a specified time period, remove that case to the local federal court, as though it had been filed there in the first instance. But the key to this trick is that the complaint, fairly read, must state claims under federal law. It is only by virtue of such claims that the federal court may take jurisdiction of the claims (since there is no diversity of citizenship between the parties here).

16. And here is where ECUSA and its attorneys will have their work cut out for them. On April 7, 2013, Bishop Lawrence and his attorneys filed a motion to remand the removed action back to the state court. This pleading states very well all the reasons why the original complaint could not have been heard by a federal court in the first instance, and also shows why Bishop vonRosenberg's and ECUSA's filings in State court constituted a waiver of their right to argue that federal claims were involved in the state-court action.

So that is where matters stand in South Carolina as of this writing. The ball is clearly with the federal judge in the federal District Court in Charleston (the two cases have separate file numbers at present, but they are in front of the same judge -- the Hon. C. Weston Houck, who has senior status on that court (meaning that he is semi-retired, and hears cases only that he agrees to hear). He and his law clerks are no doubt now sorting through the welter of pleadings that have cascaded into his court in recent weeks. It is up to him whetehr or not he will schedule a hearing on the various motions, or will simply issue a ruling once all the reply memoranda have been filed.

If Judge Houck does return the original case to state court, for want of a well-pled federal question on the face of the complaint, then the issue for Judge Goodstein will be whether to impose any sanctions on ECUSA, Bishop Rosenberg and/or their counsel for their disregard of her injunction in filing their pleadings with the federal court.

In other words, the fight has just begun in South Carolina.

Sunday, April 14, 2013

Trial in Quincy Commences

The long-anticipated trial in the case of Diocese of Quincy, et al. v. The Episcopal Church (USA) and the Domestic and Foreign Missionary Society, etc. began last week in Quincy, in the Circuit Court for Adams County, Illinois. The court had set aside three days for the testimony of the plaintiffs' expert historian witness, Dr. Jeremy Bonner, a former resident of Pittsburgh (but now resident once more in his native England). Judge Thomas Ortbal, who earlier had denied ECUSA's motion for summary judgment in the case on the primary claim that it was a "hierarchical" church, presided.

The main body of the trial will resume on April 22 in the same courtroom, and before the same judge. Plaintiffs will call the remainder of their witnesses, and then the defendants and counterclaimants will call theirs -- chiefly Bishops Buchanan and Franklin of ECUSA, and Dr. Robert Bruce Mullin, who is ECUSA's primary (and well-compensated) expert historian witness. (The latest information indicates that his total compensation for all the cases in which he has offered testimony on ECUSA's behalf is now in excess of $1 million.)

Diocesan Chancellor Tad Brenner, and his co-counsel Kent Schnack, both of Quincy, gave opening statements on behalf of their clients. (Mr. Brenner represents Bishop Alberto Morales of the Diocese of Quincy, whom ECUSA and its rump diocese sued as counterclaimants.) David Booth Beers gave the opening statement on behalf of ECUSA and the counterclaimants. Mary Kostel, the Presiding Bishop's special assistant counsel for litigation, cross-examined Dr. Bonner, while your Curmudgeon and Tad Brenner handled his direct and re-direct examination.

At issue in this first phase of the trial was the nature of the organization that is ECUSA, and whether anything in its polity, governing documents or structure prohibits a diocese from withdrawing its affiliation. Dr. Bonner testified for his first time as an expert witness, as well as for his first time ever in any court.

Because the court thus far has heard only Dr. Bonner's views, there is no basis as yet on which to make any predictions about outcome. Nevertheless, the following extract from the concluding portion of his direct examination will serve to indicate the substance of Dr. Bonner's principal opinions (this is the only portion for which a transcript is as yet available):

Q. You've also testified that a number of dioceses -- I believe 25 of them -- continue as full members of ECUSA despite not having appropriate accession clauses in their constitutions. Has General Convention ever tried to do anything about that situation?

A. Again, not that I've seen.

Q. What could it do, if it wanted?

A. It's debatable what it could do under the current non-supremacist arrangements.

Q. Did a recent incident happen with regard to the trial of a bishop where they tried to compel production of documents from a diocese?

A. Yes, it did.

Q. Did that diocese refuse?

A. Yes, it did.

Q. What were they -- What was the court able to do with regard to compelling production of those documents?

A. The court said that the Diocese of Los Angeles was an autonomous body and that they could not compel them to provide information, or words to that effect. ...

Q. So, Dr. Bonner, based on your research and the facts to which you've testified here, how you would characterize then the organization known as ECUSA?

A. An extremely decentralized association of state churches, for want of a better word.

Q. Or dioceses?

A. Or dioceses. I don't like that word even though it's the correct pronunciation.

Q. In your opinion, is the organization itself greater than any of its constituent parts?

A. No, not in the absence of a supremacy clause.

Q. What are the closest models to its form of organization in your opinion?

A. Again, we alluded to them earlier, but the situation -- the political situation under the Articles of Confederation is the most obvious example. The Anglican Consultative Council and the United Nations are [also] analogous but perhaps less obvious.

Q. Does the constitution of ECUSA represent, in your opinion, a form of agreement among its member dioceses?

A. Yes.

Q. Its fifth article governs how additional members will be allowed to join in that agreement?

A. It does.

Q. Is there any article or part of the same constitution which addresses the power of the diocese once admitted into ECUSA to withdraw from ECUSA?

A. No.

Q. How would a diocese accomplish such a withdrawal?

A. It would rescind its existing accession to the constitution and canons of the national church ...

Q. If they rescind it, though, they no longer consent to accede to the constitution and canons; is that correct?

A. Yes.

Q. So accession lasts for how long?

A. As long as consent is given.

Q. What did the Diocese of Quincy do when it amended its accession clause in 1993 with regard to indicating how long its consent would continue?

A. It declared that its continued involvement in the General Convention of the national church was subject to its continuing consent.

Q. What did the diocese of Quincy do with its accession clause in its constitution in 2008?

A. It repealed it. Well, I'm not sure what the correct political, legal language would be, but it revoked it.

Q. Making it what with regard to the polity of ECUSA?

A. An independent, a separate and autonomous entity outside ECUSA.

Q. No longer affiliated with ECUSA?

A. No longer affiliated with it.

MR. HALEY: Thank you, Dr. Bonner. No further questions.
And that's it, for now -- watch for further updates as the trial continues after next week.

Thursday, April 11, 2013

The Litigation Lottery in California: Same Facts, Different Outcomes

The Litigation Lottery for the parishes of the Anglican Diocese of San Joaquin continues in the courts of California. I mentioned in an earlier post that as a result of a poorly reasoned decision by a trial court judge in Bakersfield, which granted summary judgment to Bishop Talton's rump diocese, two parishes in Kern County had decided to move out of their church buildings rather than carry the fight on to the appellate level -- even though the decision was so obviously wrong.

Now comes another trial court decision -- based on exactly the same underlying facts -- which denies summary judgment to Bishop Talton and his diocese. The Superior Court of Tulare County ruled on Tuesday of this week that there were disputed issues of fact remaining with regard to the ability of St. John's in Porterville to disaffiliate from ECUSA.

The reason that the three cases all involved the same facts is that all three parishes -- St. John's, Porterville; St. Paul's, Bakersfield; and St. Michael's, Ridgecrest -- belonged to Bishop Schofield's Diocese of San Joaquin, and left ECUSA after that Diocese amended its Constitution in December 2007 to become the first diocese to disaffiliate in modern times. All three operated under the same Constitution and Canons, and all three took exactly the same steps after the Diocese's vote: during the period of discernment extended to them by Bishop Schofield, they held vestry and parish meetings, discussed the matter, and took votes which ratified the Diocese's decision. Then they amended their articles to reflect their continued affiliation with the (now) Anglican Diocese of San Joaquin.

For a good number of years before 2007, the (Episcopal) Diocese of San Joaquin had a canon which allowed any of its parishes to disaffiliate with "the written consent of the Ecclesiastical Authority of the Diocese." (Canon 20.01[g] -- it was even set forth verbatim in the rump diocese's complaints against each of the parishes, and it is still a part of the rump diocese's Canons today!)

In the months leading up to the diocesan convention held in December 2007, at which the second successive vote would be taken on the proposal to amend the diocesan Constitution to remove the clause by which it acceded to ECUSA's Constitution, Bishop Schofield sent to each parish, for reading aloud at Sunday services, a series of pastoral letters outlining the choices for the Diocese, and for its member parishes.

He informed the parishes that they would not have to do anything on the spur of the moment, and that each and every parish could have a period of discernment in which they could decide either to stay with Bishop Schofield and his Diocese, or remain with ECUSA.  No matter how a parish decided, it would also be allowed to retain its property, so long as it was not indebted to the Diocese, or the Diocese was not a co-signer on any parish loan.

At the convention itself, and just to be certain that the requirements of Canon 20.01 (g) had been carried out to the letter, Bishop Schofield signed and dated a handwritten statement declaring that he gave his consent to any parish that wanted to disaffiliate. This statement became a part of the records of convention.

The attorneys for the rump diocese made exactly the same argument to the two different California judges on their motions for summary judgment: they argued that notwithstanding the language of the diocesan canon, Bishop Schofield's consent had been ineffective as a matter of law, because (a) the pastoral letters sent to each parish constituted only an "implied" consent to withdraw, and did not state that consent expressly; and (b) the express written consent signed by Bishop Schofield at the convention was never delivered to any of the individual parishes, but remained with the records of convention.

In other words, they asked the courts to rewrite Canon 20.01 (g) to insert into it requirements that a written consent (a) be in express language; and (b) physically delivered to the congregation in question.

The results of this argument? The judge in Bakersfield rewrote the Canon, as requested. He ruled that, as a matter of law, there could be no dispute that Bishop Schofield's consent had not been given as the canon required. The judge in Tulare County, however, held that these same facts created a triable issue for a jury to resolve on whether or not the requisite consent had been given.

Same facts, same arguments, same Canon, and same California law applicable: but two diametrically opposite results. And two parishes will lose their properties as a result (though to be accurate, I believe that they have shaken the dust off their feet, and are prepared to move on to a new future in new facilities).

This is why litigation is a last resort (and probably also why St. Paul told the Corinthians that they should not take their disputes to the secular authorities for resolution, but work it out among themselves as Christians). Nevertheless, your Curmudgeon will continue to chronicle the vicissitudes of the ongoing parish and diocesan litigation, if only to record how haphazard and frustrating it all is. There is much more to report about events in South Carolina, and I will also have a report on the trial in Quincy soon. The Anglican Diocese of San Joaquin also still awaits news that Judge Hamilton of Fresno County has made his tentative ruling of March 13 a final one.

Friday, April 5, 2013

Reposting: the Church, (P)ECUSA, and the DFMS

Your Curmudgeon is currently in Quincy, Illinois, working with co-counsel to prepare for the upcoming trial, which starts next week, in the case of The Diocese of Quincy, et al. v. The Episcopal Church, et al., in the Adams County Circuit Court. For some background, and to learn about the trial judge's previous decision in this case, see this post, and see generally this page for more.

Consequently, blogging will take a back seat for the next week or so. However, there are a significant number of new readers of this blog who never saw my earlier posts on key aspects of the Episcopal Church (USA) -- which will be very much at issue in this trial. I am going to repost some of those in the coming days, so that we all will be on the same page when the trial is reported. I begin with this post, which first appeared here in October 2009, called "The Church, (P)ECUSA and the DFMS", with newly updated links and facts:

* * * *

I have been asked to explain the difference between "the Protestant Episcopal Church in the United States of America" and the "Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America." In law, the first is a voluntary unincorporated association of dioceses; the second is a religious corporation, formed under New York law. A little history is in order.

You see, PECUSA originally came together as a common-law voluntary association of individual churches which constituted the successors, in each of the respective States represented, of the established Church of England. Those churches in each State became referred to as "dioceses", by analogy to the Church of England.

However, as a common-law association of dioceses, the Church could not hold title to any property, or receive gifts or bequests. At first this did not matter, because the individual parishes in each diocese held the title to their property, and received gifts and bequests. There was no need for the national Church to have any assets, since it consisted solely of a gathering which met for just ten days or so every three years.

All of this changed when a wealthy New Yorker, Clement C. Moore (of "'Twas the Night Before Christmas" fame), offered to make a gift of sixty lots in New York City for the building of a school for the training of Episcopal clergy. For some years previously, the Church had been discussing the founding of such a "theological school", and how to raise funds for such a purpose; a campaign was begun, and a trust established under Connecticut law with which to receive donations. The "Theological Seminary" had opened its doors in New Haven in September 1820 in rented premises, and begun its first year of classes. But with the proffered gift from Clement Moore (whose father had been the second Bishop of New York), there was a substantial incentive to locate the Seminary in New York City, and hence the need to create a corporation under the laws of that State able to receive donations and administer Moore's gift.

General Convention in May 1820 had hastily approved a "Constitution of the Protestant Episcopal Missionary Society", to be governed by a board of twenty-four managers, "twelve of whom shall reside in or near the city of Philadelphia," with the Presiding Bishop as President and the other bishops in the Church as vice presidents. This proved unworkable, as no provision was made for how the bishops would function together with the "managers". The managers made a proposal to the bishops which was not accepted, and the society disbanded soon afterwards.

The need to form a society under New York law became more urgent when in March 1821 it was learned that a Mr. Jacob Sherred of New York City had died and left a bequest amounting to some eighty thousand dollars (approximately $ 1,278,000 in today's terms) conditioned upon the establishment of an Episcopal Seminary in the State of New York under the direction of General Convention. Presiding Bishop William White accordingly called a Special General Convention of the Church to meet in Philadelphia over the period October 30 to November 3, 1821 in order to address how best to meet the terms of the gift. The result was the establishment of a separate entity under New York law to operate the Theological Seminary under the terms of Moore's and Sherred's gifts.

In response to a report from its managers, the Special Convention of 1821 also took up the plight of the stillborn "Missionary Society". With the seminary provided for separately, it was decided to establish a permanent corporation for the mission of the Church on the model of the Church of England's Society for the Propagation of the Gospel in Foreign Parts. An amended Constitution was approved by both Houses, after further negotiation on the role to be played in its governance by the bishops of the Church, and the Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States of America formally came into being. Its members were designated as all bishops and deputies in General Convention, plus any others who should subscribe at least $3 annually to its mission.

The Society thus formed operated chiefly out of Philadelphia for its first twenty-five years, and went through several revisions to its Constitution. It was finally incorporated in its present form under the laws of New York in 1846.The provisions of its Constitution are incorporated into the Canons of the Episcopal Church (USA) as Canon I.3. Its first two Articles are as follows:

ARTICLE I This organization shall be called The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, and shall be considered as comprehending all persons who are members of the Church.

ARTICLE II The Executive Council, as constituted by Canon, shall be its Board of Directors, and shall adopt By-laws for its government not inconsistent with the Constitution and Canons.
Thus every person who is a member of an Episcopal parish or mission, and every licensed member of the clergy, are in some unspecified way deemed part of the DFMS. However, Canon I.3 does not use the word "member", and the DFMS does not have "voting members" as such. Its affairs are controlled and run by another canonically created body, the Executive Council (which recently itself underwent an "informal" reorganization). The Presiding Bishop is ex officio the President of the DFMS, and the President of the House of Deputies is one of two Vice Presidents of the DFMS; the other Vice President is the person actually hired as the Executive Director of the Society. The Financial Officer and the Secretary of the Executive Council, respectively, are ex officio the Treasurer and the Secretary of the DFMS.

What does the DFMS do? First and foremost, it holds and invests the assets of (P)ECUSA. As explained in the latest edition of the Trust Fund Book [CAUTION: 3+MB .pdf download], the DFMS is the custodian of around $300 million in accumulated trust funds donated to PECUSA, primarily for missionary purposes, although there are many gifts as well which were unrestricted when made. These funds are all invested, and the Church uses the income to supplement its other sources, such as government grants and voluntary contributions by dioceses. (For more detail about the Trust Funds and their relation to the Church's current litigation expenses, see this earlier post. To obtain copies of the latest budget and audited financial statements of the Church, go to this link.)

The DFMS also coordinates and organizes the missionary work of the Church that is not carried on at the diocesan or parish level.

So this is the way things work in practice. (P)ECUSA itself -- the voluntary association of Dioceses -- is not itself a church; it is a denomination. It also, under its Constitution, has no officers as such: instead, General Convention has its officers, including the Presiding Bishop of the House of Bishops, and the President of the House of Deputies, and so forth. There is, therefore, no "President" or CEO of (P)ECUSA. The Constitution leaves it an unincorporated association, and since its members are all individual dioceses -- who themselves are mostly unincorporated associations -- there are no members who are individuals who could even occupy the position of "President" or "CEO" of (P)ECUSA.

General Convention is the vehicle by which (P)ECUSA's member dioceses come together to work for the common purpose and good of "the Church" -- which is just a handy collective noun for all of the thousands of parishes which make up the member Dioceses. General Convention itself is not "the Church" -- nor could it be, because it comes into existence for just two weeks out of every 156 weeks in a given triennium.

As you can see, this creates a vacuum at the very top of "the Church". The Dioceses could not hold any property or assets of the Church collectively, so they formed the DFMS to do that. As a corporation, DFMS had to have officers, including a President, a Vice President (or two), a Secretary and a Treasurer, and it had to have a Board of Directors. The Church Canons -- not the Constitution -- fill all those positions from the officers of General Convention and the members and officers of the Executive Council, which itself is another canonical (and not constitutional) creation.

Because the Presiding Bishop, the President of the House of Deputies, and the Executive Council have by canon been appointed to manage all of this accumulated property and money that has been donated to the DFMS over the years, they have tended with time to see themselves as the real "officers of the Church." Their high profile in all the news about the Church lends support to that image. But it is well to remember that the real Episcopal Church (USA) is not General Convention, not the DFMS, nor the people at 815. Instead it is the over 7,000 individual parishes and missions who are the real Church; without them, there would be no "Church" as the ordinary person understands that term. The bureaucracy is supposed to work for the parishes and missions, and not the other way around.

And that is why this and other Episcopalian blogs get so exercised when the bureaucracy acts as though they were "the Church."

* * * *

In the comments to the original post, there occurred this useful exchange:

Fr. Daniel Weir said...
I thank Mr. Haley for a clear explanation of what I knew about DFMS as well as things that I did not know. I do, however, have three comments, one somewhat picky and the other two more significant:
1. 'However, Canon I.3 does not use the word "member",' is correct, but I.3 uses, as Mr. Haley quoted it, "members." I seem to be unable to grasp the point that Mr. Haley is making here.
2. While Mr. Haley may be legally correct in stating that '. (P)ECUSA itself -- the voluntary association of Dioceses -- is not itself a church; it is a denomination.' in the Anglican Communion, it is a Church, one of the member Churches of the Communion.
3. I agree with Mr. Haley that the Episcopal Church is all of us in our congregations and dioceses - all of us as members of the DFMS. We are the members and the missionaries, but so are the members of the General Convention and the Executive Couincil. So are the Presiding Bishop and the officers of the DFMS. So are the members of the Church Center staff.
A. S. Haley said...
Father Weir, there are generally two forms of non-profit corporations: those which have members, and those which do not, but which just have boards (directors or trustees). In the member type of corporation, members join by meeting some qualifications; they usually pay some sort of dues; and then they participate in elections of the officers and directors. In a religious corporation which does not have members, the officers are usually appointed/hired by the board, and the board is elected or appointed by some body with which the corporation is affiliated -- or the board selects its own successors.

DFMS does not have any provision for "members" who participate in it in the way I have described. Instead, the Constitution, as I quoted it from Canon I.3 above, says only that DFMS "comprehends" (in some mysterious way) all those who are members of [a parish, mission or congregation in] the Church. It does not say that members of the Church are in any way "members" of DFMS, because to do so would mean that members would get to vote for the DFMS Board, to amend the DFMS Constitution, and on other such matters.

Instead, the Directors of DFMS are the Executive Council, which is chosen by General Convention and the Synods of the nine Provinces, and the officers are mostly people who hold their position by virtue of another position they already have in General Convention or the Executive Council.

In the sense you are using the word "Church" -- as a Church in the Anglican Communion -- most people would understand it as synonymous with "denomination." For instance, in the complaint it filed when it intervened in the Pittsburgh litigation, ECUSA alleged in the second paragraph: "The Episcopal Church is a hierarchical religious denomination . . .". To call it a "Church" is thus a terminology which I try to avoid when I am speaking of a church which has a place of worship where it holds regular services of worship, and where in particular the sacraments (baptism, confirmation, holy communion, etc.) are celebrated. ECUSA is a "Church" in that sense only when one is really speaking collectively of its 7,000 or so individual parishes, missions and congregations.