Wednesday, April 15, 2009

Having Celebrated Easter, Let's Get Back to Business

The Episcopal Church (USA)----that is how I wanted to start this post, at least. But as I thought more about what I was going to write, I realized that to begin with those words would be to succumb to the mind-trap that the Presiding Bishop and her minions would like everyone to fall into: that she, and she alone, is "the Episcopal Church (USA)." So let me begin again:

The Presiding Bishop of the Episcopal Church (USA) is at it again. Easter is over, with its message of love so great that it could overcome even death on the Cross. "A new commandment I give to you: that you love one another as I have loved you." That was then; this is now, post-Easter. Time to get back to the courts, and get the message out again: "The Presiding Bishop gives the commandments in this Church. All else is as nothing, and the courts are bound to recognize that fact, because they are forbidden by the First Amendment to question anything that is done in her name."

In the District Court of Tarrant County, Texas, the Presiding Bishop has caused a petition to be filed. (And before anyone protests that she had nothing to do with it, that it was only loyal ECUSA supporters in Ft. Worth who were responsible, wait until I show you just what the petition says.) The plaintiffs are "the Episcopal Diocese of Fort Worth, the Corporation of the Episcopal Diocese of Fort Worth," and---you guessed it---"The Episcopal Church". The defendants are the five persons who currently serve as the Trustees of the Corporation of the Diocese of Fort Worth, Bishop Jack Iker, and "the Anglican Province of the Southern Cone's 'Diocese of Fort Worth,' holding itself out as 'The Episcopal Diocese of Fort Worth'".

Now that should give anyone pause. We have a corporation (the "Corporation of the Episcopal Diocese of Fort Worth") coming in to court to sue its own Trustees. (Think of the Trustees as the equivalent of Directors---they hire the management, and oversee the running of the corporation.) So just who is bringing the suit on behalf of the plaintiff corporation, since it cannot be its trustees? The suit does not say.

And what about the other local plaintiff, the unincorporated association which is "the Episcopal Diocese of Fort Worth"? Who claims the authority to file on its behalf? Again, the suit does not say. It simply alleges that these entities are before the court as plaintiffs, on the sole authority of the attorneys who signed and filed the petition.

[UPDATE 04/16/09: It turns out that ECUSA has followed the pattern it set in San Joaquin even more closely than I thought. Before filing the lawsuit, it filed "Amended and Restated Articles of Incorporation" with the Texas Secretary of State, by which it claimed to have replaced wholesale all the directors and the chairman of the Diocesan Corporation in one fell swoop, as you can read in this well-researched article. The author suggests that in doing so, those perpetrating the deed may have violated a Texas criminal statute. Things will soon get very interesting in the Lone Star State---and Bishop Iker is not even back from meeting with the GAFCON primates yet!] 

Now this is a fine ploy. What is to stop, say, some attorney from filing a petition in the name of General Motors, and claiming some more bailout money on its behalf? Apparently, in Texas, nothing but the attorneys' having to stand behind the pleadings they sign. The petition has not been verified---that is, read through by someone with an actual office in, or position of authority with, the entities in whose name the suit is brought, who then signs a statement under penalty of perjury that everything in the petition is true.

The lack of any verification immediately raises an issue of standing. Courts cannot recognize just anything that is filed with them as a legitimate "case or controversy", to use the words that are in Article III of the federal Constitution. Out of those two words, "cases" and "controversies", has grown an entire body of case law attempting to lay down rules for just what is a "case or controversy" within the meaning of the Constitution.

One of the most fundamental requirements is that the plaintiff bringing the case actually be the person who he, she, or it claims to be. If you file a suit claiming to be General Motors Corporation, you actually have to be that corporation, and no one else. The reason is that the courts will not consider a trumped-up lawsuit.

So there had better be a pretty good reason why the people responsible for this petition in Tarrant County have the authority to sue the Corporation's own trustees, as well as its chief executive officer, Bishop Iker. In the first place, a religious corporation such as the one filing the petition generally does not have shareholders, as in the usual case of a secular corporation. And as we read through the petition, we find that the trustees of the Corporation of the Episcopal Diocese of Fort Worth are self-electing, that is, they elect their own successors. Given that fact, there is no need for the Corporation to have members, either, whose function (akin to secular shareholders) is to elect the Board of Trustees. The question therefore naturally arises to this skeptical lawyer's mind: exactly who has claimed the authority to assume the right to speak for this Corporation, and how did they manage to do so lawfully?

Let us begin to go through the petition, therefore, and trace the theory under which it claims to be filed by the real "Corporation". As we do so, I shall have occasion to note the pattern of allegations which is the same, whether it be in San Joaquin, Pittsburgh, Fort Worth, or wherever else the Presiding Bishop has filed or joined litigation and claimed to do so on behalf of the Episcopal Church (USA). It is a pattern that is dictated by the Presiding Bishop's grand strategy for domination of the Church, as I discussed in this post.

Notice how the petition describes its rival:
Defendant The Anglican Province of the Southern Cone's "Diocese of Fort Worth" (hereinafter the "Southern Cone Diocese") is an entity of unknown form which has no relation to the plaintiffs Church or Diocese and purports to be affiliated with the Anglican Province of the Southern Cone. The Southern Cone Diocese holds itself out and is doing business as "The Episcopal Diocese of Fort Worth.". . .
The contempt fairly drips from this paragraph: "an entity of unknown form" which "has no relation to the plaintiffs Church or Diocese" and "purports to be affiliated with the Anglican Province of the Southern Cone. How can the entity be "of unknown form", when one plaintiff is claiming to be that very entity? How can the Diocese of which that plaintiff pretends to be the continuation "have no relation to" the plaintiff Diocese? And notice how much communion is implied exists between ECUSA and the Province of the Southern Cone, whose dioceses only "purport" to be its members.

Having set the tone, the petition continues in the same vein. The Episcopal Church Constitution and Canons "are binding on every subordinate unit and member of the Church", although the word "binding" or its equivalent nowhere appears in those documents. The several Dioceses "belong to, are subordinate to, and are under the jurisdiction of the international body . . .". You might be surprised to learn, a few words later, that local parishes are also "under the jurisdiction of the Church". Oh, really? So now all parish rectors and vestries are subject to the Presiding Bishop's jurisdiction? When did that amendment to the Constitution get adopted?

Just to be clear, the petition sets out the authority of the Presiding Bishop in these words:

12. The "Presiding Bishop" is the "Chief Pastor and Primate" of the Church. The Presiding Bishop is elected by the General Convention and is charged with responsibility for leadership in initiating and developing policy and strategy in the Church and speaking for the Church as to the policies, strategies, and programs authorized by the General Convention.

I guess that among the "policies, strategies and programs" she has been charged with responsibility in initiating and developing is the Church's litigation strategy---I must have missed the General Convention session that conferred that authority upon her. But wait---I thought that the Episcopal Church (USA) never initiated lawsuits? So how can the Presiding Bishop get involved in "developing" them, if she doesn't initiate them?

Next, the petition acknowledges, at least, the existence of the Anglican Communion:
14. The Church is a member of the Anglican Communion, a worldwide fellowship of 38 autonomous regional churches generally known as "Provinces." The historic tradition of the Anglican Communion is that each Province forms its own constituent units and exercises jurisdiction within its own geographic territory, and not within the geographic territory of any other Province.
Isn't that strange? Is it by following the "historic tradition" of the Communion that the Episcopal Church acquired dioceses "within its own geographical territory", from Taiwan to Haiti to Europe? I thought the name of the Church was the "Protestant Episcopal Church in the United States of America." Must be my mistake, again.

On to the next paragraph (aren't you learning things you never knew?):
15. The next level of the Church's organization and governance is the diocese. A diocese may be formed only by action of the General Convention, and only with an unqualified accession to the Church's Constitution and canons. . . .
I wonder why the petition does not mention the Diocese of Washington, which required an Act of Congress to bring it into being, and which has no accession clause of any kind, let alone an unqualified one, in its Constitution? Or the Dioceses of Maryland, Central New York, Haiti or Long Island, which also do not have any such accession clauses? This allegation is flatly untrue.

Now watch carefully the next little trick:
20. Canon I. 17(8) of the Church, "Fiduciary Responsibility," applies to all officers at each level of the Church's governance and provides that "[a]ny person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of [the] Church and ofthe Diocese in which the office is being exercised. "
In my copy of the Canons, the words "Fiduciary Responsibility" appear as an editorial explanation of the Canon in the margin, and are not part of the official text. The actual title of the Canon, which the petition is careful not to quote, reads as follows: "CANON 17: Of Regulations Respecting the Laity". The Laity, in case the plaintiffs need reminding, are not the same as the Clergy, who form half of the membership of any diocesan Standing Committee. But you would not know any of that from reading this Petition.

The heart of the entire case---the gist of this lawsuit---is set forth casually, in just 22 words:
22. Under the Church's Constitution, canons, and polity, no diocese or parish may unilaterally divide or separate or otherwise disaffiliate from the Church.
"Under the Church's Constitution"? No---there are no words in the Constitution that say any such thing. "Under the Church's canons"? Again, there are no such provisions---and anyway, as we have seen, there are a number of Dioceses who do not even accede to the Church Constitution or its canons. And under its polity? Pray tell, how does one discern what makes up the Church's polity, and how does one know whether a given Diocese has agreed to that discernment? Isn't this what one would call a circular argument? Yet as I say, it is the heart of the plaintiffs' case.

The untruths continue in paragraphs 23, 24 and 26, which simply repeat the allegations I have shown to be untrue above. (Paragraph 25, which describes "Missionary Dioceses", is wholly irrelevant.) Next, the petition goes on to set up the plaintiffs' case, by sketching the history of how the Diocese of Fort Worth came into being in 1982. It quotes the original accession clause that was in the Diocesan Constitution as approved by General Convention, but it does not quote (are you surprised?) the amendment clause in that same Constitution, which placed no restriction whatsoever on the powers of the Diocese to amend its Constitution, and which in that unrestricted form was also approved by General Convention.

So how will the plaintiffs claim that the recent amendments made to the Diocesan Constitution were unlawful and void? Oh, just watch them:

38. Diocesan Canon 11 (now Canon 17) provided that the Diocesan Corporation would be governed by a "Board of Trustees of five elected members, all of whom are either Lay persons in good standing of a parish or mission in the Diocese, or members of the Clergy canonically resident in the Diocese, in addition to the Bishop of the Diocese who shall serve as Chairman of the Board or may designate the President or other officer of the corporation to serve as such."

Pay attention to that language "persons in good standing". For it seems that in 2006, there were certain changes made to the corporation's articles: these changes (1) deleted "provisions of the 1983 Articles describing the property held by the Diocesan Corporation as property 'acquired for the use of the Episcopal Diocese of Fort Worth'  . . . [and] stating that the aforesaid property 'shall be administered in accordance with the Constitution and Canons of the Episcopal Diocese of Fort Worth'; [and (2) inserted] provisions purporting to give the Trustees of the Diocesan Corporation the 'sole authority to determine the identity and authority of the Bishop [of the Episcopal Diocese of Fort Worth]' and, in the event of a vacancy in the office of Diocesan Bishop, 'appoint ... a Chairman of the Board' for the Diocesan Corporation; and [(3) inserted language to] provide for election of Trustees by the Board itself, instead of by the Annual Diocesan Convention as required by Diocesan Canon 17.3."

The petition next alleges that these changes were unlawful, because they conflicted with---guess what?---not the Diocesan canons as such, but "the individual defendants' constitutional
and canonical obligations described in paragraphs 20 and 21 above"---i.e., the "obligations" imposed by ECUSA's Canons, on the "laity" by Canon I.17.8, and on the clergy by their oath of conformity subscribed at ordination. How those "obligations" spelled out whom the Board must appoint as a chairman in the absence of a Bishop is, well, not spelled out in the petition.

Now I must have missed the part where the Articles of the Diocesan Corporation require that all its trustees conform their conduct and articles of incorporation to the "Constitution and Canons of the Episcopal Church". Even the court judgment approving the transfer of property to it recited only that (as alleged in paragraph 39):
"Plaintiff, Corporation of the Episcopal Diocese of Fort Worth ... is a Texas non -profit corporation, duly organized under the Constitution and Canons of the Episcopal Diocese of Fort Worth."
(Emphasis supplied.) Nevertheless, according to the plaintiffs, these same traitors later voted to amend the Diocesan Constitution to take the Diocese out of ECUSA, and that is when they violated Canon I.17.8:
51. Those individuals comprising the former leadership of the Diocese, including each of the individual defendants, who supported the purported withdrawal of the Diocese from the Church and the purported affiliation of the Diocese with the Anglican Province of the Southern Cone by those acts left the Church, violated their obligations under the Church's Declaration of Conformity and/or Church Canon 1.17(8), and ceased to be eligible to hold any office in the Church, the Diocese, or any of the Church's or the Diocese's other subordinate units, including but not limited to the Diocesan Corporation; and their offices became vacant.
Now you see the strategy: if their conduct was not sufficiently bad to make their positions vacant in 2006, well, it certainly was by 2008, after they voted to leave. But again I must be missing something here: where in Canon I.17.8 does it say that the position of a lay officer becomes automatically vacant when that officer fails to abide by its terms? And what about the clergy members of the Standing Committee? Canon I.17.8 simply does not apply to them---and before they can be removed as clergy, and their positions declared vacant, there is a certain procedure in Canon IV.10 that has to be followed.

Don't let a little detail like that detain us, however. Plunge on: the petition alleges the facts of the new convention that was held (on whose call? it does not say) and the new bishop that was installed, and the new Standing Committee that was elected. Then it says:
54. The Church recognizes the plaintiff Diocese as the continuing Episcopal Diocese of Fort Worth. The Church and the Diocese recognize the bishop described in Paragraph 53 above as the bishop with Episcopal oversight of the Diocese, the persons elected to the Standing Committee described in Paragraph 53 above as the Standing Committee of the Diocese, the persons described in Paragraph 53 above as the Trustees of the Diocesan Corporation; and the persons described in Paragraph 53 above as the elected deputies or representatives of the Diocese to the Church's General Convention.
Isn't it all just marvelously clear? "The Church recognizes . . . the Church and the Diocese recognize . . ." And just who is this "Church"? Has General Convention met yet? Have all the other Dioceses voted to admit this plaintiff "Diocese"? I don't think so.

So it all comes down to the fact that the Presiding Bishop is "the Church", for purposes of the present petition. She is the one deciding whom and what to recognize, and her act ipso facto becomes recognition by "the Church." And she is the one who goes into Court and alleges that all the Dioceses are subordinate to---the Church (meaning, once again, the Presiding Bishop).
Once again, we are going in circles. The Church does this because the Presiding Bishop says she is the Church, which means that if the Presiding Bishop is the Church, then she is the one doing this as the Church . . .", and on and on, in a never-ending loop.

How can this be? Well, over in Pittsburgh, the Diocesan attorney---er, that is, the chancellor for the "Diocese" which the Presiding Bishop recognized as a Diocese has filed a pleading (CAUTION: big .pdf file) in the court there which makes it all perfectly clear. (Sources tell me that the court will hold a hearing on April 17 to sort out just which diocese is what, and whether the Morgan Stanley accounts should have been frozen.) Listen now as he quotes from a portion of the transcript of the court hearing held last October on releasing Calvary Church's funds from escrow, and in which he explains to the Court what happened following the vote by the Diocesan Convention to amend its Constitution so as to remove it from ECUSA (I have added the bold for emphasis):
[Chancellor Roman:] We then subsequently informed -- Reverend Simons subsequently informed the presiding bishop's office -- the presiding bishop is the bishop who is elected by the general convention of the Episcopal Church. It may have -- it may be the House of Bishops who elects her, Your Honor. In this case it happens to be a woman.
THE COURT: She's the presiding Bishop of the Anglican -- of the Episcopal Church --
MR. ROMAN: Correct.
THE COURT: -- of the United States?
MR. ROMAN: Correct.
THE COURT: All right.
MR. ROMAN: She was informed of what proceeded, of what happened. She requested that Reverend Simons send letters to the other eight members -- the other seven members of the Standing Committee to glve them a chance to say that: no, they did not support the efforts to realign. None of the other seven members of the Standing Committee responded that they agreed with Mr. -- with Reverend Simons. And so on the basis of that information, she made an ecclesiastical determination--- exercised her jurisdiction---her ecclesiastical jurisdiction under the Constitution and canons of the Episcopal church. She determined that Reverend Simons was the sole remaining member of the Standing Committee of the Episcopal Diocese of Pittsburgh.

She made an ecclesiastical determination.

That ecclesiastical determination was conveyed to Reverend Simons, and we have provided Mr. Fletcher's clients with that documentation. Our position is, Your Honor, there is only one Episcopal Diocese of Pittsburgh: we are -- we represent that Episcopal Diocese of Pittsburgh, that it is founded on an ecclesiastical determination. And ultimately, to the extent that we have to apply to the courts to enforce that determination, we would be asking the courts to defer to that determination because it is an ecclesiastical matter.
So that settles it, does it not? The Presiding Bishop---er, should I now say---the Supreme Head of the Episcopal Church (USA) has made an ecclesiastical determination that is binding pro urbe et orbe---upon the Church, the courts, and, well, the whole world.

As I say, forget Easter. It's back to business as usual with the Episcopal Church (USA).


  1. Dear Anglican Curmudgeon,
    Who is playing the role of Iago here?
    Is is DBB or KJS or someone else? Obviously you have become the able and singular narrator of this drama.

  2. I have informed our host that I will not be commenting in the future, but since he and I are not the only ones involved in discussion, I am posting here the text of the e-mail that I sent Mr. Haley: " While I have found my exchanges with you on your blog interesting, I am once again finding that the contempt which, IMV, you show the Presiding Bishop is an obstacle to my engaging with you in any intelligent way. I will continue to read your posts, but will not, at least for the present, respond."

  3. Wow! Thank you so much for all your efforts to shine the light in these (many, many) cases. As a layman I can never quite muddle through the documents myself, but with your excellent commentary the farce at hand becomes abundantly clear.

  4. Dear Curmudgeon,
    The plot get even murkier. See your email for a copy of the Amended and Restated Artilce of Incorporation which was filed just before the suit. Later when I get a free minute, I will send you more details of errors included in the Petition. By the way, good job of taking this apart. I always enjoy your analyses.

  5. Dear Mr. Haley,

    After reading the quoted portions of the filed petition, and your analysis thereof, I am curious as to several points.

    1. Are attorneys in the State of Texas not considered officers of the Court, and thereby under some legally enforceable obligation to ensure their filings are not patently untruthful?

    2. With respect at least to the question of the person signing the [emphasis mine] "statement under penalty of perjury that everthing in the petition if true," what is the penalty for perjury in the State of Texas.

    3. Does Texas have laws against barratry, and if so, do they apply only to members of the bar? Secondarily, must one be a member of the Texas bar in order to represent a plaintiff in a civil suit brought before a Texas court?

    4. The last question: Do you, as I suspect, see the several places toward which my thoughts are going on this matter?

    Blessings and regards,
    Keith Toepfer

  6. Peace be with you, Father Weir. I cannot refuse to speak out against such blatant abuse by one person of the law, the ECUSA Constitution, and its canons, when so many others accept it as the norm. If that appears as contempt, then so be it. Honi soit qui mal y pense.

  7. Martial Artist, the answers to your first and last questions are both "Yes". As for the second, I assume in Texas, as in most other places, the penalty for perjury is some time in jail, plus maybe also a fine. Your third question is in two parts; the answer to the second part is also "Yes." As for the first part---when "barratry" was committed by a non-lawyer at common law, it was called "maintenance", or if it involved the buying and selling of legal claims, it was "champerty". I do not know to what degree these are still torts (or crimes) in Texas; they have never been such in California, except that there is a crime of barratry, but it requires the bringing of three or more improper lawsuits (which means that ECUSA is now there!).

  8. Mr. Haley,

    Thank you for the response. I would suggest that signing the required "statement under penalty of perjury" would amount to a fool's errand. With your extracts from the filing, but even lacking the legal analysis you provided, I would certainly never consider signing such a statement.

    Despite some limited (military) education in aspects of the law, the plain language of the canons, the history of the establishment of TEC and its Constitution and Canons by Mr. McCall, and my simple literacy in the English language would deter me from asserting the truth of such a distorted representation as has been filed against the "Episcopal Diocese of Fort Worth" by the recently non-existent, and magically summoned, "continuing" Episcopal Diocese of Fort Worth.

    Were it not for my ignorance of the jurist who will be expected to adjudicate the case, leaving any prediction at the mercy of a member of the bar addressed as "Your Honor," I would actively hope that the Presiding Bishop might sign the required statement, if for no other reason than her own education in each of the law, the English language, and simple ratiocination. It is probably not particularly charitable of me to hold such a wish, painful as that lesson would be for its recipient, but it is clearly necessary that it be granted.

    Blessings and regards,
    Keith Toepfer

  9. Martial Artist,
    " by the recently non-existent, and magically summoned, "continuing" Episcopal Diocese of Fort Worth."
    This turn of phrase may be one of your finest yet!

  10. This may be a minor point in the grand scheme of things, but...

    I do not understand your point about verification. It's one you touch on a couple of times:

    "It simply alleges that these entities are before the court as plaintiffs, on the sole authority of the attorneys who signed and filed the petition."

    "Apparently, in Texas, nothing but the attorneys' having to stand behind the pleadings they sign. The petition has not been verified---that is, read through by someone with an actual office in, or position of authority with, the entities in whose name the suit is brought, who then signs a statement under penalty of perjury that everything in the petition is true."

    Complaints are just allegations though -- as you pointed out in earlier columns about the Los Angeles cases that led to the California Supreme Court decision in January. In most instances (at least in my state), complaints are not required to be verified, and in fact most complaints are not verified. There's nothing improper or sinister in the least about that.

    "The lack of any verification immediately raises an issue of standing."

    In the way that you appear to be talking about it, the filing of a lawsuit raises an issue of standing (whether the plaintiff is who they claim to be). Verification has nothing to do with it.

    And the answer to your question -- "What is to stop, say, some attorney from filing a petition in the name of General Motors, and claiming some more bailout money on its behalf?" -- is an easy one: sanctions.

  11. DavidH, in a manner of speaking, you answer your own question. Yes, unverified complaints are the norm, but then as you say, there are sanctions for the attorney who abuses the right to file them. Maybe you would take the risk, but if I were filing a complaint in the name of a corporation suing all of its directors and charging them with civil theft, i.e., conversion, I would want to have it verified by the person claiming the authority to bring it on behalf of the corporation. As you say, every complaint presents an issue of standing, but most of the time it's not a problem to prove you are who you say you are. In this particular case, with no verification, and no allegations explaining just how the corporation came into the hands of unnamed persons whom the attorney vouches (by his signature on the complaint) are authorized to sue all the named directors on its behalf, then I would say that the issue of standing leaps to the forefront.

  12. Thanks, A.S. Haley. Another wonderful job of shining the light on murky waters. Texas should be able to move this petition quickly since the Law is orderly and requires clear thinking, something we are seeing less and less of from TEC headquarters.