Friday, January 2, 2009

California Supreme Court Announces Impending Decision on Episcopal Church Cases

The docket announcement, published at 10:00 a.m. PST, is here.

Full text of the announcement is here.

The opinion itself will be published on the Court's Web site on Monday, January 5, 2009 at 10:00 a.m. PST.


  1. Care to speculate? What do you think we should expect?


  2. It's always risky to try to speculate from oral argument, BB. I would say that the following might reasonably be concluded, based on the questions asked of each counsel at oral argument:

    Justice Corrigan seemed most swayed by the fact that when St. James came into being as a mission of the Diocese in 1946, it signed on in its articles of incorporation to be "forever" bound by the ECUSA and Diocesan Constitution and Canons. She also felt that Corp. Code section 9142 implemented the Dennis Canon for purposes of State law.

    Justice Ming Chin seemed highly influenced by the fact that most out-of-State court decisions (or all, as ECUSA's counsel wrongly told him) had to date upheld the Dennis Canon trusts.

    Justice Werdegar seemed to go along with Justice Corrigan, and seemed most swayed by the argument that section 9142 enabled the Dennis Canon to take effect in the State.

    Justices Baxter and Moreno didn't seem to be buying the section 9142 argument, and appeared to feel that under the neutral principles approach, State trust law requires the owner of property to create a trust, so the Dennis Canon could not apply.

    Justice Kennard was easily the Justice most engaged in the arguments on both sides. On balance, I think she sided more with Justices Baxter and Moreno, though at one point she supported Justice Corrigan's questioning.

    Chief Justice George will probably be the deciding vote. He was also the most difficult to read, asking hard questions of both sides.

    Preliminarily, then, there are at least three very likely votes in favor of TEC and the Diocese, and two in favor of St. James and the other parishes.

    If Justice Kennard goes with the parishes, then it will be 3-3, with the tie decided by the Chief Justice. Under that scenario, it will be a 4-3 vote either way.

    But if the Chief Justice comes down in favor of ECUSA/Diocese of LA, then Kennard probably will, too, and thus we could have a 5-2 decision against the parishes.

    The oral argument raised some fascinating issues. If I have time, I will put up a post this weekend sketching them as sort of a "preview of things to come."

  3. This is very helpful. I've been feeling rather pessimistic, although the point about the trust - that's hard to overthrow. And what investigation has there been done regarding the Denis Canon itself? It came up in the Virginia Court that if the Denis Canon was the law of TEC, then the diocesan bishops were mandated to return to their home dioceses and require the local parishes to abolish their trusts and transfer the properties into the Bishop's name (as the Roman Catholic Church has done). But that wasn't done - and when the Diocesan counsel were asked why it wasn't done by the court, they said it would have wreaked havoc, to coin a phrase.

    And that is because the bishop in Virginia does not have the authority to do that. His office was designed to be limited.

    But again, I think that an illiterate laity not only biblically illiterate but legislatively illiterate is necessary in order for things like the Denis Canon to even be thought of - it was a political action, handled like anything we might see in the Rhode Island legislature in a past episode of Brotherhood. It's politics and the Denis Canon was not a canon for law, but a political action to silence critics, unless those critics wake up and realize that it's a scam.

    The other problem that the remaining parishes in TEC have if this ruling goes in favor of the Diocese is that no lay person in their right mind is going to invest in a parish that the laity have no control over. If the bishop "owns" the church, what's the sense in investing in the property? Tell the bishop to take care of it, and when children get hit by cars in the parking lot on Sunday morning, let the bishop get sued instead.

    There's a lot of responsibility that goes with owning property and these bishops - thinking it's a political action - have no idea what a hornets nest they are stirring up.

    So, if the People lose this ruling, the TEC bishops have far more of a problem on their hands than parishes departing over heretical doctrine. Send all the bills to the bishop - the properties are now his problem.

    "Be careful what you wish for, you might get it."


  4. Thank you for those comments, BB; they are very astute. I agree with everything you say about the Dennis Canon being an ignorant and short-sighted political maneuver---the kind of thing that politicians do in the back rooms of bars, and not the kind of thing we expect from elected bishops. Let them, as you say, take on the financial responsibilities for the properties they so covet!

    The evidence about the Dennis Canon which you cite has not yet been put before the courts. The case was decided below on just what was alleged in the pleadings, as a matter of law. If the California Supreme Court rules in favor of the Diocese and ECUSA, the case will not be over. St. James will then have to answer the complaint, and if it can raise an issue of disputed fact as to whether the Dennis Canon was validly enacted, it will have an opportunity to put the kind of evidence you cite before the trial court.

    BTW, my first post on the issues to be decided by the Supreme Court is now up. I will add more later today.

  5. If the Diocese prevails in this lawsuit, the "people" will have prevailed ... the people of the Episcopal Church who are committed to moving this church forward in its historic mission and ministry.

  6. Thank you for your comment here, Susan Russell. The victory of the people to whom you refer may turn out to be a Pyyrhic one, unless there are enough of them to support the expenses of maintaining the property and the staff required to run it.

    If the Diocese eventually wins, and ends up selling the property to someone who wants the land for other uses, who are the "people" who will have prevailed then? What point will have been made, and cui bono?

  7. I have heard that the ruling will take place 10:00 am Monday from a reputable source.
    Thank you for your analysis of the justices it was very helpful to me. I look forward to more.