815's Day of Reckoning Approaches

The Episcopal Church (USA) currently is a party to some sixty lawsuits across the United States. Its litigation budget from 2006-2012 could approach $7 million, or more than $1 million per year -- and that is according to just the official, published figures. There is another considerable amount going out to prop up its Potemkin dioceses in San Joaquin, Fort Worth, Pittsburgh and Quincy.

Those are the four dioceses which have thus far voted to leave the Church, and each departure has spawned a lawsuit. ECUSA from the beginning has adopted a high-stakes, winner-take-all strategy which depends for its success on its ability to prove in court the proposition that a diocese is not free to withdraw from the voluntary unincorporated association which ECUSA has been since its formation at common law in 1789.

By contending that its dioceses may not withdraw, ECUSA maintains the fiction that its Potemkin creations -- clergy and laity hobbled together into a hastily, but illegally, called "special convention" and programmed to vote for a new "standing committee" and (perhaps) a provisional bishop -- are the real continuing diocesan entities in the eyes of the law. The people voting earlier to amend the diocesan Constitutions acted beyond their lawful powers, the argument goes. The lay deputies to the diocesan Conventions are thereby supposed to have violated Canon I.17.8, which reads:

Any 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 this Church and of the Diocese in which the office is being exercised.

Forget that the language "any office in this Church" has to be stretched far indeed to reach lay deputies elected to a local diocesan convention; that is a minor leap compared to the interpretation given to this Canon by the Presiding Bishop and her Chancellor. They contend that by the very act of voting to amend the diocesan Constitution, the deputies are in violation of this Canon and from that very moment disqualified further to act as deputies.

The inverted logic of this argument should be apparent to any mind that loves reason. The Presiding Bishop and Chancellor first contend that ECUSA's Constitution and Canons prohibit any Diocese from amending its Constitution so as to withdraw from the Church. They can point to no language in the national Constitution and Canons which says as much; they argue that the prohibition against leaving is implicit. Then they contend that because it is forbidden implicitly to withdraw, a vote to do so pursuant to the express power to amend spelled out in the diocesan Constitution (which, in the form approved by General Convention when the diocese in question was admitted, was an unlimited power to amend the document in any manner whatsoever) violates that implicit prohibition. So an implicit and unwritten understanding overrides the express language of amendment: the latter does not mean what it says, because despite its unrestricted language, it is to be understood that certain amendments are out of bounds. And it is further understood (although nowhere expressly written) that you are out of office the moment you choose to follow the express language in a manner that is implicitly prohibited.

To recap: a diocese approves a Constitution which has an unrestricted power of amendment, and applies to join ECUSA. General Convention approves the diocesan Constitution with its unlimited power of amendment. Then, when the diocese tries to exercise its power of amendment so as to withdraw, it is told that such an amendment is implicitly forbidden. The joining of ECUSA, it is told, was an irrevocable act.

Well, what proof can the Presiding Bishop and her Chancellor offer of such an implicit understanding? Certainly the nine dioceses that withdrew at the outset of the Civil War had no such understanding. (To be sure, the ones that remained kept the places available and continued to call the roll for the absent dioceses at General Convention; this facilitated the ease with which the latter rejoined after the South lost the War. But during the War, those nine dioceses came together in a new and independent Protestant Episcopal Church in the Confederate States of America. By forming, and then dissolving, that Church, they proved twice over that dioceses are free to associate together with such Churches as they choose.)

The fact is that ECUSA has never -- until now -- had to prove its unwritten prohibition against leaving in a court of law. But there are four court cases currently pending in which it will have to do so, sooner or later.

In Pittsburgh, Judge James currently has under submission a motion to enforce a previously agreed stipulation to settle the suit brought by Calvary Church. The question has been avoided there for the time being; the parties stipulated that for purposes of enforcing the stipulation, the Diocese of Pittsburgh could be deemed to have withdrawn from ECUSA lawfully. However, the question will eventually rear its head, because even if Judge James rules that there is nothing to enforce in the stipulation, ECUSA and its Potemkin creation have intervened to assert their right to all of the diocesan assets. A ruling on the motion to enforce the stipulation is not expected until later this month, or perhaps in October.

In Quincy, ECUSA has requested to change the venue of the diocese's suit for declaratory relief to a different county in Illinois. That motion is under consideration for the time being, and so the main issue will not be reached at any time soon. But the court (in whichever county the lawsuit ends up) will eventually have to sort out whether ECUSA can assert any claims to the diocesan assets under its theory that a diocese may not withdraw.

In San Joaquin, the Fresno Superior Court made an initial ruling on summary adjudication in which it agreed with ECUSA, and declared that the Diocese was restricted from withdrawing. Bishop Schofield asked the Court of Appeal to review that ruling, and the Court has recently asked ECUSA and its diocesan creation to respond to the petition. It should decide whether or not to grant review by the end of October. If it does, it will be the first appellate court in the country to take up the question.

In Fort Worth, the question is now being presented at the trial court level. Bishop Iker and his diocesan corporation have filed a motion challenging the authority of the plaintiff "trustees" appointed by Bishop Gulick pursuant to a recommendation by the "special convention" to claim to be the Board of the corporation, and to bring suit in its name. The plaintiffs defend their position based on the argument that Bishop Iker and his trustees left the Church when the diocesan convention voted to amend its Constitution. Thus, according to the plaintiffs, the seats on the Board were automatically vacated by the implicit "ejector seat" provision which they read into Canon I.17.8, quoted above. And once the seats became automatically vacant, they claim to have moved lawfully to fill them again at the earliest opportunity.

The motion challenging the authority to bring the lawsuit will be heard by the Court on September 9. The court could rule at the close of the hearing, or take the matter under submission for a ruling later. One way or another, however, the power of the Diocese to amend its Constitution -- and hence the authority to act for the diocesan corporation -- will have to be addressed.

Four lawsuits in four different courts, each with the same underlying question: what prohibits a diocese from leaving a voluntary association of dioceses when there is no express language prohibiting withdrawal?

ECUSA will have to hope and pray that the four courts will each give the same answer. For if even one does not, there will be a precedent against it; if two or more courts reject ECUSA's position, it will be a disaster for its "winner-take-all" strategy. Three of the decisions will be by lower courts, and hence subject to appeal. But the decision in the San Joaquin lawsuit, if the court accepts review, will be at the appellate level already, from which further appeals are discretionary.

That is why I say that, one way or another, the day of reckoning for 815 and its grand legal strategy slowly but surely approaches.