Friday, June 27, 2014

South Carolina Rump Group Files Frivolous Appeal

In its latest bid to delay the start of the trial scheduled for July 7, the rump group that calls itself "the Episcopal Church in South Carolina" (ECSC) has filed a Notice of Appeal from an interlocutory order of the trial court that denied its "motion to reconsider" for a fourth time a ruling that refused to allow it to add additional individual parties to the case. As such, the appeal is purely a stalling tactic, and is thus frivolous in the extreme.

As Judge Goodstein's June 6 order (attached to the Notice of Appeal) explains, ECSC on three prior occasions in the case sought the court's leave to add additional parties and assert additional claims against them. She first denied a motion to add 23 individuals to the case last October 1.  In November, ECSC asked her to reconsider that ruling, and also filed a new motion to add just four (of the 23 it had sought to add earlier) individuals to the case: Bishop Mark Lawrence; his canon to the ordinary, the Rev. Jim Lewis; and two additional clergy who formerly served on the Diocese's Standing Committee.

Judge Goodstein denied the motion to reconsider at a hearing on December 30, 2013, and ECSC did not appeal that order. (Instead, it appealed another order entered after that same hearing that denied ECSC's motion to reconsider a different ruling -- a refusal of ECSC's request that Bishop Lawrence produce all of his communications with his attorneys. In May of this year, that appeal was finally resolved in Bishop Lawrence's favor by the South Carolina Supreme Court.)

At the same time, Judge Goodstein indicated she would deny ECSC's second motion to add additional parties, but her written order to that effect was not filed until May 20, 2013 (because of the delays while her earlier order was on appeal). Thus when ECSC filed its motion to reconsider that ruling, it was the fourth time that they had asked Judge Goodstein for essentially the same thing: to add individual counterclaim defendants so as to be able to multiply the claims to be tried in the case (and incidentally, of course, to greatly increase the costs of defense).

Judge Goodstein filed her order denying that motion to reconsider on June 6. And on June 23, ECSC filed its Notice of Appeal from that order.

In South Carolina, even an irregular appeal from an interlocutory (i.e., not final) order of the trial court -- normally such orders are not subject to appeal -- apparently divests the trial court of jurisdiction pending the resolution of the appeal. Thus if this latest appeal is dealt with as was the earlier one, the first thing that will happen is that an individual appellate judge will reject the appeal as improperly filed from an order that did not finally dispose of all the issues in the case. Then ECSC will ask the full appeals panel to consider the appeal, and if they, too, deny the appeal, ECSC will file a petition for rehearing.

Once the appellate court denies that petition, ECSC could ask the South Carolina Supreme Court to review the denial. (That Court could also shorten the matter by ordering the appeal transferred to it directly from the Court of Appeals, as it did with ECSC's earlier appeal.) Thus ECSC will probably be successful in stalling the start of the scheduled trial well past July 7 -- even with the Supreme Court's expediting matters, it still took four months to resolve the earlier appeal.

This, time, however, there ought to be sanctions for filing a frivolous appeal -- one that has no merit, and that is interposed solely, as here, for the sake of delaying trial. For the issue which ECSC is appealing is utterly devoid of merit, and has zero chance of success.

First of all, as Judge Goodstein carefully explains in her first (May 20) order, ECSC is seeking to add additional defendants for the purpose of stating brand-new and independent claims in the case against them: they are not the same claims as those already asserted in ECSC's counterclaims against the Diocese and its parishes. Thus they are not really what in law is called a "counterclaim" against a party already in the case, but independent "third party claims" against persons who have not yet been joined. By bringing its motion as one to amend its counterclaims, rather than as one for leave to file third-party complaints, ECSC brought it under the wrong procedural rule, and that alone was grounds enough for denying the motion.

But Judge Goodstein did not stop her analysis there. She painstakingly went through each of the fifteen proposed new claims and showed how most of them would be improper, in any event; the few that could possibly state a claim would unduly complicate the current action, and were best brought in a separate lawsuit.

For example, the motion to add the four new defendants sought to assert claims against them individually that would have had to be asserted against the diocesan corporation, of which they served as officers. If you claim that a corporation did something unlawfully, you do not make that claim individually against its president or secretary; you sue the corporation in its own name.

Still other claims which ECSC sought to assert against the four clergy were based on alleged violations of ecclesiastical law as expressed in ECUSA's canons. Not only could a civil court not adjudicate such claims, Judge Goodstein points out in her order, but ECUSA's own Canon IV.19.2 ("No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons") forbids its clergy from bringing such claims in the secular courts. (It is nice to have a judge throw ECUSA's own canons back at its bishops, who violate them constantly with such impunity.)

For all of these reasons, therefore, Judge Goodstein properly denied all of ECSC's motions and motions to reconsider, and the attempt to appeal her rulings before the trial can be held is simply a delaying tactic. That realization, if the Court of Appeals (or the Supreme Court) sees things the same way, should result in the imposition of sanctions against ECSC and its attorneys for taking a frivolous appeal.

[Note:  I removed the earlier update, as it appears it was based on a report that was inaccurate. My story stands as originally posted.]

Thursday, June 26, 2014

Friday, June 20, 2014

Arguing the Quincy Case in Appellate Court

On Wednesday, June 18, your Curmudgeon was present to hear the oral arguments in ECUSA's appeal from the decision of Judge Thomas M. Ortbal last September, which held that the Diocese of Quincy had the ability to leave, and did leave, ECUSA in 2008. Consequently, Judge Ortbal ruled, neither the rump replacement diocese (now merged into the Diocese of Chicago) nor ECUSA itself had any claims to the real property or bank accounts of the (now) Anglican Diocese of Quincy. (The bank accounts, however, remain frozen at the request of ECUSA pending its appeal.)

The Presiding Bishop's Special Assistant for Property Litigation, Mary Kostel, argued the case for the appellant Episcopal Church; the Presiding Bishop's Chancellor, David Booth Beers, was also at her table. Quincy Chancellor Tad Brenner argued the case for the withdrawing diocese and its bishop (whom ECUSA sued personally, as it has in every such case), with Kent Schnack of Quincy assisting him.

The Fourth District Court of Appeals hears cases in a small but ornate third-floor courtroom in downtown Springfield. There were three justices on the panel: Justice Lisa Holder White, Justice M. Carol Pope, who presided for the panel, and Justice Thomas M. Harris, Jr. Apart from the attorneys, the justices and their clerk, the Rev. John R. Spencer of the Anglican Diocese and I were the only other persons present.

You may download the entire argument and listen to it from a link at this page on the Court's Website.
Mary Kostel began with the appellant's argument, which urged that courts must always defer to a "hierarchical" church like ECUSA. She did not get far before Justice White interrupted her with a question: "Do we have to resolve that [ecclesiastical] question [of whether a diocese may leave the Church] before we can resolve who is entitled to this property?"

Ms. Kostel reiterated her view that courts may not resolve that question, because it is purely ecclesiastical in character. Justice White then asked her (echoing Judge Ortbal's ruling) if it was not the case that there was no highest body in the Episcopal Church which had already ruled on whether a diocese may leave, so that there was no decision by the Church on that issue to which the civil courts would have to defer. Ms. Kostel claimed that to the contrary, there were two decisions before Quincy voted to leave in 2008 -- decisions by "the highest body in ECUSA that had been assigned by the General Convention to make these decisions" -- and she clarified that she meant by that the House of Bishops.

This point was typical of how Ms. Kostel's argument picked on elements of the record with which civil judges could not be expected to be familiar. General Convention, of course, has never "assigned" to the House of Bishops the jurisdiction to decide whether or not a Diocese may leave the Church. Judge Ortbal's minute and careful examination of the record had concluded that there was no judicatory body in ECUSA with any jurisdiction over that issue.

But Ms. Kostel was evidently referring to the House of Bishops' illegal depositions of two bishops -- the Rt. Rev. John-David Schofield of San Joaquin and the Rt. Rev. Robert Duncan of Pittsburgh, both of which had occurred before the Quincy vote. In Ms. Kostel's view, you see, voting to depose those bishops for leading their dioceses out of the Church was the same as deciding that a diocese may not leave the Church.

Never mind that the votes were the acts of the dioceses involved, and not of their respective bishops. Never mind also that under ECUSA's peculiarly insular view of holy orders, ECUSA first has to depose any cleric whom it proposes to replace -- and it was certainly necessary to replace Bishops Schofield and Duncan after their dioceses had left the Church, because those bishops left with their dioceses. All this becomes, in Ms. Kostel's ecclesiology, tantamount to a decision by the Church's "highest body" that dioceses may not leave the Church.

Presiding Justice Pope then jumped on Ms. Kostel, and forced her to admit that there was no language in ECUSA's Constitution or Canons that attempted to prohibit member dioceses from withdrawing. She went on to note that had General Convention simply adopted a Supremacy Clause (such as is in the United States Constitution), "we would not be here today." (General Convention, of course, expressly rejected such a Clause at its meeting in 1895, and the topic has not been raised since.)

Undeterred by the questioning, Ms. Kostel continued to advance her own interpretations of the record: she claimed, for instance, that "the accession made by parishes to a diocese is the same as the accession that a diocese makes when it joins the national Church." Again, the technical point may be correct -- "accede" is the word used in both cases. However, Ms. Kostel failed to note that in the vast number of reported cases where a diocese prevailed over a withdrawing parish, the parish bylaws contained language making it "perpetually subordinate" to the diocese, or words of similar import, and that no diocese has ever used any similar words of subordination upon acceding to ECUSA's Constitution.

The panel's questions to Mr. Brenner were relatively mild, and posed no problems for his presentation, which was a comprehensive rebuttal of ECUSA's chief case for deference. He stressed that under "neutral principles of law," which is the rule in Illinois, no deference of any kind is necessary -- the courts simply look at the language in the applicable governing documents, deeds and other instruments, and the state statutes. Under all of those measures, the Diocese of Quincy acted properly in amending its own Constitution so as to remove itself from membership in ECUSA.

You may download the argument from the link above and listen to its full length at your leisure. It makes for a dramatic and succinct synopsis of the differing views of the two sides on the legal issues at stake, and thus will let you know where things stand as the other diocesan cases move forward. (The trial in the South Carolina case starts July 7, and the judge in the Fort Worth case will hear oral arguments on summary judgment motions on December 17. The case in San Joaquin awaits a final decision from the trial judge before there will be an appeal.)

Look for a written decision from the Illinois Court of Appeals by September, or possibly a little earlier.

Wednesday, June 4, 2014

'Animal Farm' at 815 Second Avenue?

Over at Episcopal Café, there is an article by former Executive Council member Del Glover, who served as Chair of the Council's Finances for Mission Committee. Entitled "Should We Sell the Church Center?" (Part I), it is guaranteed to draw attention and comment.

The "Church Center", otherwise known as 815 Second Avenue (in New York City), is of course the eleven-story building which has served as the headquarters for ECUSA since it was built in 1963. Located in Turtle Bay, just behind the United Nations, it used to contain the entire staff of the Presiding Bishop, the General Convention, a bookshop selling Church publications, a chapel, and much more.

However, with the decline in ECUSA's membership (accelerated in 2003 by the consecration of V. Gene Robinson as a bishop) and the consequent decline in donations and diocesan assessments, budget strictures have dictated the downsizing of much of the staff, the closure of the bookshop, and the leasing out of a number of floors to provide rental income. The building no longer serves the functions it once did, and thus there has been widespread discussion about selling it.

Indeed, Resolution D-016 passed by General Convention in 2012 began as a direction to the Executive Council to sell the Church Center, but as finally adopted by both Houses, it stated only:
"Resolved, That it is the will of this Convention to move the Church Center headquarters away from the Church Center building at 815 2nd Avenue, New York City."
Moving the headquarters "away" from 815, of course, can happen without selling it; the building would be a pure source of rental income, and ECUSA just a landlord. Is that, however, a proper function of the Church's mission -- to be a New York landlord?

And of course, if the Church sells the building, the headquarters will have to move, so Resolution D-016 would be fulfilled. It thus appears on the surface that there is little to no difference between moving the headquarters and selling the building.

It is fascinating to observe how liberal Episcopalians will go to any length to ascribe the changes that are being forced upon ECUSA to causes which do not include the 2003 consecration of a bishop in a same-sex relationship, in an outright betrayal and jettisoning of its mandate from Scripture. Mr. Glover's article, in typical fashion, points the finger at "the changing dynamics in society, in the marketplace, shifting global financial structures, demographic shifts, and advances in technologies ...". These will serve as tokens for almost any organization encountering the cultural winds; they are so general as to be decidedly unhelpful in this specific case.

The questions to ask are these:
  • Why has a headquarters built for the Church in 1963 become obsolete (or superfluous, or non-functional -- choose your poison) in a bare half-century?

  • How has the Church's mission so changed in just fifty years that it no longer can sustain its structure?

  • If the headquarters are moved and the building is sold, what better and improved structure will replace it?  Or, said another way: just how will ECUSA be better off?

It appears that not even the Task Force on Re-imagining the Church (TREC) has any idea of what  answers could be given to these questions. Its most recent product is all over the map -- no doubt due to the fact that TREC is empowered only to propose, and not to dispose.

The severity of the decline in 815's functionality may best be seen in this anecdote, told by a commenter on Mr. Glover's article, who recounts his recent attempt to pay a visit to the headquarters:
I'll share here a story I told Gay Jennings a few weeks ago.

As a South Carolina Episcopalian, I've been involved in the transition of our diocese, and much of that transition has been informed by the need to reconnect with our Episcopal heritage, since many of our now-departed leaders dedicated themselves to tearing TEC down.

I was in Manhattan on business a few months ago, and decided to visit 815. I'd never been, and I figured I could pick up some materials (like the tracts one finds in TEC churches), browse the bookstore, or even pray in the chapel.

Admittedly, I didn't have an appointment. But I didn't really have an agenda, either--just wanted to visit the HQ of my Church...feel connected to the larger organization. You can't imagine how precious that connection is in our diocese these days.

So I enter the lobby of 815 at about 1pm on a Wednesday. A security guard who I can only describe as annoyed asks me my business. I'm a little thrown--there's no welcome center, no sign beyond the facade that I'm in a place associated with religion. I ask if there's a reading room or information desk.


I ask if there's any brochures, newsletters, or TEC printed media I can take back home.


So I stand there like a chump and then head back out onto Second Avenue.

I'm not qualified to comment on real estate values, but selling the current "church center" might allow our leaders to re-imagine what a "church center" can be. If right now the "center" of our church is little better than Trump Tower in terms of atmosphere and outreach, what good is it?
Once again, the denial of what has brought matters to this point is astonishing. ("[J]ust wanted to visit the HQ of my Church...feel connected to the larger organization. You can't imagine how precious that connection is in our diocese these days.") But the fact remains: if 815 has become a barricaded citadel for ECUSA's elite, akin to the farmhouse in George Orwell's novel, then it is not serving the Church. (And the elite are not serving the rest of the animals on the farm, either.)

Actions have consequences. Pretending that there were no consequences from 2003, or that if there were, they were completely acceptable, simply allows those consequences to multiply.