II. A Tale of Two Dioceses
As noted in Part I, a Diocese of The Episcopal Church has a dual existence: it is canonically recognized as a Diocese by The Episcopal Church, and it is legally recognized as a separate entity by the State in which it geographically exists. Thus the Diocese of San Joaquin was recognized both as a diocese belonging to Province VIII of The Episcopal Church, and within California it was recognized as an unincorporated association by the State of California.
An "unincorporated association" is just a gathering of two or more people to accomplish some lawful purpose. Other groups of people in California could come together at any time and call themselves a diocese, but without more formalities, they would not be recognized as such by The Episcopal Church. Likewise, The Episcopal Church could through its General Convention create two new dioceses out of an old one, but until the second diocese filed its papers with the Secretary of State, it would not receive official recognition by the State of California.
Thus to fulfill its role and function properly in both the spiritual and the temporal domains, a diocese has to satisfy both the formal requirements of religious canon law, and the formal requirements of secular law. It cannot ignore one for the other, and it cannot avoid complying with both sets of requirements.
Because an association is just that---an association, or a coming together, of persons---an association can also split up into two (or more) separate groups. If it does, then there are two possibilities: one group can claim continuity with the former combined group, and carry on its name and governing principles, while the second group can form a new association of its own, with a new name, and with freshly adopted governing principles (which could be identical with the former ones; they would just have to be formally adopted by the new association).
The second possibility is that each of the two splinter groups can claim continuity and identity with the former combined group. In that event, only the courts can settle the matter, absent a compromise agreement. The State will not allow two separate entities to have the same legal name, so only one of the two groups can be declared the successor to the former organization, its name, and its articles of association (or Constitution and Canons, in the case of a religious diocese).
This is what has happened in San Joaquin. As detailed in the chronology in Part I, the unincorporated association known legally as "The Diocese of San Joaquin" was until December 2007 acknowledged as a Diocese of the Episcopal Church. With the changes made to its Constitution and Canons in December 2007, however, that unincorporated association made it impossible for it to continue to be so recognized. It aligned itself with the Province of the Southern Cone, whose synod authorized the alignment---notwithstanding that Province's Constitution, which limits its geographical territory to South America---on a temporary and "emergency" basis.
The decisions taken by the unincorporated association to amend its Constitution and Canons in December 2007 were not unanimous ones. A number of clergy and laity who had until then been members of the association disagreed with the move, and wished to remain in The Episcopal Church. But the amendments were passed by the constitutionally required number of votes at two successive annual conventions, the conventions were duly and lawfully noticed and had the required quorums of members present, and all requirements of California and local canon law were scrupulously followed in the process. What, then, becomes of the dissenters?
As explained in a previous post, the dissenters who have since gone to court took the legal position that all of the changes and amendments in December 2007 were null and void, on the ground that they exceeded the authority of the association to make. On March 29, 2008, these dissenters held a "special convention" and passed motions which rescinded all of the December 2007 changes, and confirmed a new Provisional Bishop to lead them. This put the dissenters in the position of claiming that their association was the only true continuation of "the Diocese of San Joaquin", and that whatever the other organization might be, it was not entitled to call itself "the Diocese of San Joaquin", or to hold title to any of the property or bank accounts which were owned by the Diocese before December 2007.
Despite the claim of continuity, however, the case was not that simple. The former "Diocese of San Joaquin" had its headquarters in Fresno, and was headed by Bishop Schofield. The new claimant to the title has its headquarters in Stockton, and chose Bishop Lamb as its provisional leader. The new association must therefore have adopted resolutions making these changes, while the old association did not. Thus the conclusion is unavoidable that while there may be only one "Diocese of San Joaquin" in the eyes of The Episcopal Church, there are currently two of them in the eyes of California law. In order to keep the discussion from being too confusing, I shall use in this memorandum the following terminology: "the Diocese of San Joaquin" refers only to the unincorporated association of that name as it existed up until the changes adopted on December 8, 2007; "the Anglican Diocese of San Joaquin" refers to the entity that made those changes, whose headquarters are currently in Fresno, and whose leader is currently Bishop Schofield; and "the Episcopal Diocese of San Joaquin" refers to the unincorporated association who met in special convention on March 29, 2008, whose Constitution and Canons are restated versions of the ones that existed before the December 2007 changes, and whose leader is Bishop Lamb.
As I noted earlier, the Episcopal Diocese of San Joaquin, and The Episcopal Church itself, took the position in court that the EDSJ was the only valid entity under California law which was the true continuation of the former Diocese of San Joaquin. And indeed, the Anglican Diocese of San Joaquin did not take issue with the right of those remaining to organize themselves---but it was not about to concede that the minority could take over the majority's entity, which had lawfully voted to remove its affiliation with The Episcopal Church. The dispute thus came down to who now rightfully owned the property and assets of the Diocese of San Joaquin.
There were, and are, two ways of analyzing this question. One, based on neutral principles of (California) law, looks at the matter in this way: (1) On December 7, the assets were held by the Diocese of San Joaquin; (2) on December 8, the Diocese made certain changes to its Constitution and Canons which did not, however, change or affect in any way the title to those assets; and (3) from and after December 8, the same legal entity, minus a few members, has continued to hold title to those assets. Moreover, the entity still has the same offices in Fresno, and the same person designated as its Bishop, who forms a corporation sole which it has authorized to govern it. Consequently, no other or different entity can have a valid claim to the assets.
The second approach is based on older principles of law as applied to religious organizations which are hierarchical in form: (1) The entity which existed on December 7 was a constituent diocese of a "hierarchical" organization, namely, The Episcopal Church; (2) The Episcopal Church does not recognize the validity of the acts which created the ADSJ; therefore (3) the ADSJ is not a true canonical entity, and only the EDSJ can hold title to assets which were placed and held in trust for The Episcopal Church, because it is the only true continuation of the entity that existed before December 2007.
Notice that the second approach entails proofs which are quite different from those involved in the first approach. Proof of the first approach involves nothing more than showing that the annual conventions were duly noticed, that required quorums were present, and that the amendments passed with the requisite majorities, but they did not change the structure of the association, which continued as before, with the same leader and the same headquarters. To establish the second approach, the burden was on the EDSJ as plaintiff to prove that (1) TEC meets the definition of a "hierarchical church" in the eyes of the law; (2) that the highest authority in TEC has definitively determined that dioceses cannot leave the Church; and (3) that TEC has in place a rule, or canon, that declares that all property of a diocese is held in trust for TEC.
There is also another burden of proof, applicable in this instance because the EDSJ chose to file suit as a plaintiff. One of the constitutional requirements for a court to be able to entertain a plaintiff's lawsuit is that there be an actual "case or controversy" for it to decide. In other words, courts will not entertain manufactured or hypothetical disputes that are unrelated to real parties disagreeing about real issues. And one of the indicators of a genuine "case or controversy" is that the plaintiff is the real party in interest---that is, he/she/it is the person whose interests are actually at stake, as opposed to a puppet, a nominee, or an impostor. This requirement is satisfied by the plaintiff's demonstrating that he has a real and genuine connection to the issues at stake. The courts refer to this concept as a plaintiff's standing to sue.
A second requirement which the plaintiff must meet in any lawsuit is that he, she or it has the capacity to sue as plaintiff. This means, for example, that the plaintiff is not a minor, or an incompetent person---such people lack the capacity to sue in a court of law by themselves, and must be represented by court-appointed guardians. In the case filed by the EDSJ, it had to show that it was an actual diocese of The Episcopal Church---that is, that it properly adopted a Constitution which acceded in the required language to TEC's Constitution, and that General Convention had acted to approve its accession. Moreover, as another party plaintiff, Bishop Lamb had to show that he was the duly appointed and acting head of the EDSJ, because he alleged in the complaint that he was suing "in his capacity as the Episcopal Bishop of San Joaquin."
Note that the requirements of a plaintiff's standing cannot be waived, while the requirements of capacity to sue can, if the defendant makes no proper objection. (If you are sued by an incompetent person, you may want to waive the requirement and not object.) The requirements of standing, necessary for a court to have jurisdiction, go to a court's ability to hear the case, while the requirements of capacity are designed to ensure that the court has a plaintiff who is appropriate under the claims that are made. In California, if a plaintiff lacks standing, the court must dismiss the case, while if the plaintiff lacks capacity to sue, the court must dismiss only if the defendant objects and the plaintiff does not substitute in an appropriate party with the requisite capacity.
In the lawsuit filed by the EDSJ, therefore, the objections made by the defendants were not surprising: they objected to both the capacity and the standing of the plaintiffs EDSJ and Bishop Lamb to sue, and they objected to the standing of the third plaintiff, TEC itself. In support of these objections, they showed: (1) that the "special convention" had not been called by the Ecclesiastical Authority of the Diocese, as required by its Canons; (2) that insufficient notice of the measures to be adopted at the special convention had been given in conformity with the Diocesan Canons (which require at least 60 days' notice, when the convention was called on less than 30 days' notice, immediately following the March 12 "deposition" of Bishop Schofield); (3) that there was not a sufficient quorum of clergy present who had been canonically resident in the Diocese for the three months preceding the convention; (4) that objections to the convention's going forward had been validly interposed by canonically resident clergy and by parishes who had been excluded from the process by which the convention was convened and the delegates qualified and seated; and (5) that there had been no act of General Convention approving the new entity as a diocese of The Episcopal Church. Consequently, the court found that Bishop Lamb had not been properly designated as the Bishop, and lacked both the capacity and the standing to sue, that the EDSJ had not validly rescinded the actions of the December 2007 Diocesan Convention, and that the unincorporated association which was the EDSJ was not the lawfully organized successor to the Diocese of San Joaquin, and so lacked both the standing and the capacity to sue. With regard to the standing of The Episcopal Church, the court found that nothing in TEC's Constitution and Canons imposed a trust on diocesan property and assets. The "Dennis Canon", relied upon by TEC, applied only to property held by or for individual parishes:
All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons. [Canon I.7.4; emphasis supplied.]
Since TEC's lawsuit sought only the return of diocesan assets, and it was not a beneficiary of any trust that could be imposed on such assets by the terms of the Dennis Canon, the court concluded that TEC lacked the standing to sue for those assets. As a result, the court dismissed the lawsuit, without having to decide whether the hierarchical or neutral principles approach applied in the case.
This result caused a great backlash within TEC itself, and ultimately led to your election as Presiding Bishop Jefferts Schori's successor. You have indicated that in your approach to the situation, you wish only to follow the Constitution and Canons of The Episcopal Church insofar as they could properly be applied. In the concluding portion of this memorandum, I shall show what steps can properly be taken under our Constitution and Canons to rectify the current unresolved situation in San Joaquin.
Part III of this Memorandum is here.
Part III of this Memorandum is here.