Lawsuits Are a Symptom; the Disease Is Terminal

In my legal career, spanning more than 40 years, I can say that I have had experience with more than a thousand lawsuits (that's only an average of two per month---it was probably closer to twice that). In the course of that experience, I have learned a few things about how a lawsuit gets started.

A lawsuit nearly always starts with one party to a dispute taking a position that surprises, angers, and finally provokes the other party into doing something which that other party never intended to do in the first place. Example: you have been living in the same rural home for the last thirty years. You have always reached your home by way of a dirt or gravel road that takes off from a county road and winds its way through three or four other properties before reaching your parcel (and maybe it continues through yours to go on to still more parcels before it dead-ends). The neighborhood has settled into a well-known pattern, and everyone is comfortable with the arrangement.

Now one of your neighbors along the road, say one of the ones whose property you have to cross, retires, moves away, or dies---so that his parcel eventually is sold to a new owner. That new owner, say, comes from a fairly large urban or suburban environment, and has dreams of retiring to the country. But no one told him that there were three or four other owners down the road who would be driving through his property twice a day.

Unhappy about having what he sees as his rural peace and quiet disturbed, he consults a surveyor, and learns that there are no recorded easements over the road through his property. So he hires a contractor, puts up big metal gates across the road on each side of his property, and locks them.

You and your neighbors are outraged at having your principal access blocked. (This being the country, there may be an alternative route you can use to get to your home, but it is much less convenient---perhaps it is very poorly maintained, and floods out during the winter months, or perhaps it takes you way out of your way.) You take a bolt cutter and cut the locks, and continue to use the road as before. You probably do not bother to close the gates.

In a week or so, you find special, hardened-steel locks on the gates which your bolt-cutters cannot cut through. At this point, depending on your degree of anger, you either (a) rent a small bulldozer and knock down the gates, or (b) bring a lawsuit. (And if you choose the first alternative, then the owner of the gates starts the lawsuit, and sues you, or has the sheriff arrest you for vandalism.)

Who "started" the lawsuit? As you can see, it is not necessarily the person who filed it. But under the facts I have given, it is easy to pinpoint the action that changed the status quo that had prevailed for over thirty years: it was the decision to block the road by the owner who had just moved in. For better or for worse, he simply assumed he "knew" what the law was, and took a position (that the road could not be used by those who were using it) which he assumed the law would support, based on the lack of any recorded easements.

But the law is not so black-and-white. In time, our hypothetical neighbor will learn about "prescriptive rights"---the right to use a road even without a deeded easement. If a person uses someone else's road openly and without asking or receiving permission, and continues that use regularly for what the law defines as the "prescriptive period" (in California, it is five years; in other States, it can be ten or even twenty years), then that person acquires a "prescriptive easement" to continue that use, which the law will recognize and protect.

The doctrine of prescriptive easements stems from a social policy that favors the active use and development of land, and discourages passive, absentee ownership. If you live in San Francisco, and visit your rural property only once every six months for a week or so, you might never notice the tire tracks that indicate someone else is using your road on a regular basis. And if more than five years go by before you finally find out, you will most likely lose any lawsuit you bring to stop the use.

Now, to the point of this piece: I want to ask---has the prescriptive user "stolen" anything from you? In one sense, of course, he has: he has acquired an easement across your land without having to compensate you for the diminution in value which your parcel will suffer as a consequence of having an easement across it. But in the eyes of the law, you have done the same thing as granting him a deeded easement without charging him for it. The law simply presumes that if five years have gone by without your objecting to the use, or trying to do anything to stop it, you must have no objection to what your neighbor has been doing.

(At this point, let us pause to recall the immortal words of Mr. Bumble in Charles Dickens' Pickwick Papers. When told that the law "presumed" that a wife acts under the direction of her husband, Mr. Bumble replied:

If the law supposes that, . . . the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.

Objecting to what the law "presumes", or "supposes", will not get you very far, as Mr. Bumble learned to his chagrin. In the same way, the landowner who objects to the presumption behind prescriptive rights will receive short shrift from the court.)

All right, let's bring the lesson home. As reported on several blogs, the HoB/D Listserv has carried a somewhat extensive debate on the appropriateness of the Episcopal Church (USA)'s spending some $2 million on legal fees in church property disputes over the past year. Those who suggested that the money might have been better devoted to the Church's mission were generally met with argument to the effect that "the ones who are leaving started the lawsuits", or "the departers forced us to sue, because they took the property with them, and it belongs to us." I think I am not being unfair if I summarize the general argument thus:

By canon law [the Dennis Canon], all parish property is held in trust for ECUSA. Therefore, while the members of a parish may choose to leave the Church, they cannot take the property with them---that is theft. Acts of theft leave us with no choice but to file suit. It is the only way the Church can preserve its property for future generations. Thus the $2 million had to be spent, and much more will have to be spent on lawyers before this is over.

Recently, however, facts about the Dennis Canon have emerged which tend to cast the foregoing argument in a slightly different light. For one thing, from what appears in the official records of the 1979 General Convention, the Canon may not have been adopted in the same form by both Houses concurrently, as would be required for it to take effect. And for another thing, it does not appear that the enactment of the Canon was reported to the parishes that were directly affected; the first mention of the Canon in the Episcopal News Service Archives does not occur until 2001---some twenty-one years after its supposed adoption. (I have commented in this post on the disconnect between the deputies elected to General Convention and the parishes that elect them.)

What we have here is a form of "prescriptive right" to parish property that was established in a rush under questionable circumstances, in the waning days of the 1979 General Convention, and then lay dormant for years until a property dispute required its disinterment in 2001. The recognition it has received in some courts in the years since has tended to give it full legitimacy in the eyes of those who invoke it.

But those court decisions simply assumed, without deciding, that the Dennis Canon was a properly enacted provision of Church canon law. The question has now been squarely presented to a trial court in New York, which is one of the States whose highest court has assumed the legitimacy of the Canon heretofore as a given. (Indeed, New York is unique in also having a statute that assumes the existence of the Canon, and purports to legitimize the trust relationship it claims to establish.) No matter what the trial court decides, there is certain to be an appeal; and the question ultimately will have to be decided anew in each State where it arises. Talk about having to fund litigation---just you wait!

Those of you who sympathized with the absentee landowner who woke up one day to find his property subject to an established prescriptive right may now, perhaps, commence to understand why a parish might be surprised to learn that it holds its property in trust for a remote organization who never contributed one penny to either its acquisition or its upkeep. And not only that, the parish might well be completely taken aback by the vehemence of those who insist that it is not free to continue to have its name on the deed if it elects to join another diocese---that it forfeits the property in such a case, on pain of being accused of "theft" if it attempts to hold on to it.

I submit that the sudden attempt to adopt the Dennis Canon in 1979, as a knee-jerk reaction to some dictum that had appeared in a decision by the United States Supreme Court just a few months earlier, was the "surprise change in position" by one side to the dispute which set the stage for future lawsuits---every bit as much a surprise as the landowner who suddenly blocks a road that had been used without objection for years. Those who now insist on the "rightness" of their position, based on the assumption that the Dennis Canon indeed was properly adopted in 1979, are no different from that landowner, who came into the midst of a settled neighborhood and decided it was not to his liking, because his property was not entirely under his control. And such a landowner is naive if he believes he can change long-settled expectations suddenly, without notice or negotiation of any kind, and avoid a lawsuit.

In exactly the same way, deputies to General Convention 1979, and the bishops who benefited from the legislation, suddenly (and without any notice or fanfare) changed the centuries-old expectations of the parishes that if they paid for their property, and raised the funds to improve it and keep it up for all the intervening years, they and they alone controlled it. Indeed, the very fact that those deputies did not come back and report to each parish what they had done, and ensure that they had the parishes' blessing upon and consent to their little canonical change, is for me proof enough that General Convention had already, by 1979, come loose from the moorings which anchored it at the founding of PECUSA just shy of 200 years earlier. And that drift from its moorings is one of the chief factors in the current decline of the Church.

Deputies to General Convention actually brag that they do not represent the parishes and dioceses that elect them---no, indeed, they cannot be bound in that fashion; they must be free to vote as the Holy Spirit guides them, or as their conscience dictates. While such a sentiment might be considered admirable on questions of doctrine and spiritual guidance, it is, I submit, an abomination when it comes to issues of Church property and governance.

The entire early history of PECUSA, which I have sketched at length in this post, is the history of how a solution was found to the problem of uniting sovereign and independent dioceses (State churches) into a national body that suited the new revolutionary character of the United States of America. It could not be an established Church; and no single State church wanted to surrender its sovereign polity---its right to call clergy and to elect bishops, and to meet in diocesan conventions to deal with local matters. From the earliest beginnings of the call for a new national church, there was a strong belief in the principle of subsidiarity, or as the Church in Pennsylvania expressed it, "[t]hat no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations."

A power over the disposition of parish property is precisely the kind of "Power . . . [that can] conveniently be exercised by the Clergy and Vestries in their respective Congregations"---and which therefore could never have been delegated to the national church by those who founded PECUSA. It is all the more important, therefore, that we ask: what has changed in the character of ECUSA that could make the delegation of such a power to the national church appropriate today?

Does the national church contribute any funds at all to the acquisition or maintenance of parish properties? Does it exercise any kind of control over how much is spent on those objects? Does it regulate the design of such churches, or the materials used in their construction? Does it even provide the basis for the property tax exemption which local churches enjoy? The answer to all of these questions, and others similar in nature, is "No." On what basis, therefore, can the national church be said to have any kind of natural claim to local parish property?

There are only two reasons that even remotely come to mind. The first is the one often expressed by the current Presiding Bishop: that such properties "are a legacy . . . for the use of generations [of Episcopalians] yet to come." To which I respond: but is that the Church's actual track record with its property?

Consider the case of this church, or this list of five "closed church properties" in the Diocese of Pennsylvania, with a special assistant in charge of their sale (see the second page, under "Diocesan Staff Changes"). Consider these criteria imposed by the Presiding Bishop on any sale of Church property by a diocese, including a prohibition on their sale to any former congregation that joins another branch of the Anglican Communion. And consider, finally, just how much preservation of property "for future generations" can a Church afford that is unable to replace its aging members with new, younger ones?

Thus spare me, please, the pious talk about "preserving the assets for future Episcopalians." The only other possible justification that can be offered for the Dennis Canon is precisely that which has in fact occurred: it makes it that much more difficult for a given parish to decide to leave the Church. But why should that be a desirable goal for a church? It is nothing but a "dog-in-the manger" philosophy that says: "We may not be able to use the property if you leave, or keep it on a self-sustaining basis, but we certainly can't let you enjoy it, either." Such a philosophy is all about buildings and property, and not about the people who actually form the essence of a church. It gets the spiritual emphasis exactly backward, and simply exacerbates the emotional trauma of a split. Like a divorcing couple arguing over the community property, it encourages each side to try to use the property as a means to wound or trip up the other, and actually fosters litigation. Thus it is disingenuous in the highest degree for those Episcopalians who back the Dennis Canon to claim that litigation is "forced on them" by those who leave and want to keep their property. It is not those who leave who force ECUSA and its dioceses to bring lawsuits; it is the Dennis Canon itself that does so.

I repeat: nothing in the character of the national Church has so changed in the last hundred years that congregations and their clergy can no longer be trusted with decisions about their local property. Such decisions are routinely made by vestries and clergy month in and month out, with no oversight of any kind from either the diocese or the national church, and matters have been that way ever since the first parish was founded in Jamestown in 1607. The drastic change in these long-standing arrangements attempted with the Dennis Canon must be judged as a ruinous departure from tradition, a failure of leadership and vision that has only increased, and not limited, the fractures visible in the Church today.

I will go further, and predict that unless General Convention can be returned to its moorings, and be made a body that is responsive to the dioceses and parishes that elect its deputies (at least in matters of property and governance), the disconnect that is presently evident between electors and legislature will enlarge, and eventually engulf the entire Church structure. The budget of General Convention is already unsustainable in a church that is suffering declining attendance and contributions. The budget for lawsuits which its legislation has fostered is out of even General Convention's control, and the Presiding Bishop's decision to have recourse to private slush funds to finance litigation will result in an even larger disconnect between the legislative and the executive branches of the Church. This will, in turn, prove fatal to the Church's central mission.

Thus, all the debate about "inside strategy" versus "outside strategy" is in the end rather academic. There is already forming an "inside" and an "outside" within ECUSA itself: at present, the Presiding Bishop and her staff, along with General Convention, are on the "inside", while the dioceses and parishes that cannot bother even to track what they are doing, or to observe or much less implement the resolutions they adopt, are on the "outside." Meanwhile, the Presiding Bishop is on a course of her own to make her fiefdom a separate and independent "inside" that will inevitably cut off General Convention---which, after all, comes into its Brigadoon-like existence for just two out of every 156 weeks that go by---from any supervisorial function whatsoever, and transform it into an irrelevant body on the "outside" as well.

(A striking example of what I am talking about appeared just yesterday. I would ask that you read and carefully compare two documents available right now on the Web. The first is the Presiding Bishop's letter to the House of Bishops, explaining why she felt it appropriate to declare that the Rt. Rev. Jack L. Iker of Ft. Worth had "voluntarily renounced" his orders in the Church. The second is the written version of the "State of the Diocese" address given by the Rev. Dr. James L. Simons to those wishing to "remain Episcopal" gathered in a special convention in Pittsburgh on December 13. The two documents are only eight days apart in time, but they are light-years apart in perspective. You will readily see that those in Pittsburgh and those at 815 are already speaking different languages, and occupying different worlds. It remains to be seen whether Ft. Worth's remnant group will follow Pittsburgh's example, or will allow themselves to be led by 815.)

The ultimate result will be a headquarters at 815 that is completely dependent on wealthy, private supporters, and a General Convention that goes off on whatever activist binges it can manage to scrounge up funding for in the 154 weeks during which it does not meet. The dioceses, meanwhile, will continue on their annual cycles of budgeting and meeting, and their voluntary contributions to 815 will diminish as 815 itself turns more and more to private sources for funding. (Likewise, their contributions to the expenses of deputies to attend General Convention will decline as the deputies increasingly see themselves as independent from the dioceses, and look to activist organizations to fund their causes.) In consequence, the dioceses will increasingly have no use for the topheavy bureaucracy at 815, and will come to view the idealistic and irrelevant activism that characterizes General Convention as a luxury, for which funds are better kept at home.

My point is this: a ship that loses its moorings is ill-equipped to weather a storm. ECUSA has lost its moorings, and there are plenty of storms on the horizon.