High Noon in Fort Worth

A momentous confrontation is occurring right now in Fort Worth. At issue is ECUSA's "go-for-broke" litigation strategy against departing dioceses. According to the official guideline for this strategy (as conveniently published in ENS), as soon as a diocesan convention has voted to amend its Constitution so as to remove the language by which it accedes to the Constitution and Canons of ECUSA, the steps that follow are these (not always taken in the same order):

1. If not done already, obtain a letter from the Title IV Review Committee charging the bishop of the diocese in question with "abandonment of communion."

2. Obtain permission from the three most senior diocesan bishops in the Church (currently -- for a little while longer, at least, +Frade, +Lee, and +Walker; when +Lee steps down this fall, it will be +Frade, +Walker, and +Howe) to the renegade bishop's inhibition, issue an inhibition, and bring a resolution to depose before the next House of Bishops meeting.

2a. If #1 is possible, but not #2, inhibit the bishop anyway, and declare that Canon IV.9 cannot be interpreted in such a way as to allow any senior bishop the ability to prevent the Presiding Bishop from "doing her duty."

2b. If neither #1 nor #2 is possible, take any announcement to the press by the renegade bishop of the Convention's decision as a "renunciation of ministry" pursuant to Canon IV.8, and sign a certificate of renunciation.

2c. If the required number of bishops (a majority of all active and resigned (retired) bishops with a seat in the House) does not attend the meeting, take a voice vote on the resolution anyway and declare -- no matter what opposition is made -- that the vote to depose carried because there were no objections (or because you overruled in advance any that could be made), and sign a certificate of deposition immediately afterwards.

3. Having gotten rid of the diocesan bishop by one of the means in Step #2, declare that you no longer recognize the Standing Committee of the departing Diocese as legitimate (unless one or more of its members swears allegiance to you, in which case use that one or more to appoint new loyal members to the positions on the Committee which have become suddenly vacant).

4. Exercising your claimed authority as Primate of the Church, convene a special diocesan convention in the affected area as soon as possible. Never mind requirements for notice, call or quorum; just require everyone attending to sign an oath of conformity to ECUSA.

5. Meanwhile, send a letter to the banking institutions at which the departing diocese maintains its accounts, and suggest that they might want to freeze all those accounts if they do not wish to be held responsible for disbursing funds to "anyone claiming to be the Diocese [in dispute] without first informing us."

6. At the special convention you called, take the following actions:

• Pass a resolution rescinding all the amendments made by the previous Convention as having been ultra vires and void.
• Elect (or confirm in office) persons to a Standing Committee and to any other positions you declare are "vacant" by reason of the opponents' departure.
• Have the Convention approve your designation of a "Provisional Bishop" to act for the "Diocese" in all matters.
• Pass a resolution authorizing the newly designated provisional bishop to file suit against the departing bishop, and to file any necessary amendments to the latter's corporation sole (if one exists), so as to claim title to all of the departing diocese's assets.

7. Immediately announce that you "recognize" the Standing Committee and the provisional bishop as the Standing Committee and diocesan of the departed Diocese, express your regret for the people who chose to leave, but maintain that the "door remains open" for them to return, and reaffirm the principle that "people may leave the Church, but Dioceses cannot".

8. As is convenient, have other branches of the Church (the Executive Council, the President of the House of Deputies, etc.) "recognize" the provisional bishop and Standing Committee as well; obtain invitations as necessary for them to any events where they can represent the national Church, and seat their deputies in the House of Deputies and their bishop in the House of Bishops. But do not, repeat: do not, have the "Diocese" apply for admission to General Convention, or have General Convention pass any kind of resolution admitting the "Diocese": that could be taken as an admission in a court of law that the "Diocese" which you set up is not the same entity as the one that claimed (illegally) the right to depart.

9. Once the lawsuit authorized in Step #6 has been filed, bring a motion for summary judgment as soon as possible to have the court declare that the departing group (remember, you cannot call it a Diocese) and its bishop must turn over all of their assets to the new provisional bishop. Justify the motion by showing how the national Church "deposed" the departing bishop and replaced him with a new bishop which it recognizes as the lawful head of the "Diocese", and tell the Court that the First Amendment prevents it from making any inquiry into the matter -- that it must accept your recognition of the latter as an "ecclesiastical determination" which is not reviewable in any court of law.

That, at any rate, is the official strategy. But last week it ran into a little difficulty, known to lawyers as Rule 12 of the Texas Rules of Civil Procedure, in Tarrant County's 141st District Court. For the judge refused for the time being to go along with the program. The Rule provides in part:

A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act. . . . At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings . . . .

In their lawsuit filed in the Tarrant County District Court, the plaintiffs had styled themselves as "The Episcopal Diocese of Fort Worth, The Corporation of the Episcopal Diocese of Fort Worth, and The Episcopal Church." Then they made the following allegations:

2. Plaintiff Episcopal Diocese of Fort Worth (the "Diocese of Fort Worth" or "Diocese") is a non-profit unincorporated association that was formed effective January 1, 1983, and that at all relevant times has been a constituent and subordinate unit of the Episcopal Church. The Diocese has its principal office in Fort Worth, Texas, and is comprised of the Episcopal worshipping congregations located in all or part of 24 Texas counties, including Tarrant County.

3. Plaintiff The Corporation of The Episcopal Diocese of Fort Worth ("Diocesan Corporation" or "Corporation") is a Texas non-profit corporation with its principal office in Fort Worth, Texas, formed on or about February 23, 1983, pursuant to the provisions of the Constitution and canons of the Diocese and subject to the provisions ofthe Constitutions and canons of the Diocese and The Episcopal Church.

I have pointed out before the hubris involved in these claims. The plaintiff "Episcopal Diocese of Fort Worth" claims to be the only Episcopal Diocese of Fort Worth, because under the grand litigation strategy, dioceses may never leave the Episcopal Church (USA). Thus the group that went with Bishop Jack Iker, even though it insists it retained its legal identity as the Episcopal Diocese of Fort Worth, cannot be recognized as such if the strategy is to succeed. So instead of referring to it as "the defendant Episcopal Diocese of Fort Worth", call it by some other name that describes its affiliation with the Anglican Province of the Southern Cone; the same goes for the defendant diocesan Corporation. And that is what the plaintiffs did here.

The plaintiffs' amended petition was filed in unverified form (I do not imply there was any requirement to do so), signed on their behalf by two attorneys: Jonathan D. F. Nelson and Kathleen Wells. It was thus tailor-made for a challenge to the attorneys' authority to file, under Rule 12 as quoted above. For the defendant Diocese and Corporation, who not unreasonably continue to regard themselves as the only entities under Texas law which answer to the descriptions given in the quoted allegations (i.e., founded in 1983 and not 2009), had not authorized Mr. Nelson or Ms. Wells to bring any lawsuit in their names, whether against them or not.

They therefore filed a simple motion under Rule 12 with the District Court, in which the six trustees of the diocesan Corporation (including Bishop Jack L. Iker) swore under oath:

We know that we are the Trustees of The Corporation of The Episcopal Diocese of Fort Worth and have been in our offices since each of us was elected as a trustee by the Annual Convention of The Episcopal Diocese of Fort Worth; that we have never authorized nor requested Jonathan D.F. Nelson or Kathleen Wells to file any litigation on behalf of The Corporation of The Episcopal Diocese of Fort Worth; and that any other individual who did authorize or request them to do so holds no position of authority with the Corporation that would authorize that person to retain or request any attorney to act on behalf of the Corporation for any purpose.

Under the provisions of the Rule, this action was sufficient to place the burden upon Mr. Nelson and Ms. Wells to show two things: (1) that they were indeed authorized to act for the entities they claimed to represent when they filed their papers; and (2) that the persons they claim authorized them indeed had the authority in law to retain them for that purpose.

The nature of the evidence as to the first part of their burden could be gleaned from these further allegations in the amended petition:

52. Church Canon III.13 provides that "[a] Diocese without a Bishop may, by an act of its Convention, and in consultation with the Presiding Bishop, be placed under the provisional charge and authority of a Bishop of another diocese or of a resigned Bishop, who shall by that act be authorized to exercise all the duties and offices of the Bishop of the Diocese .... "

53. The Diocese held a special meeting of its Convention on February 7, 2009. At that meeting, a provisional bishop of the Diocese was elected pursuant to Church Canon III.13; other vacant offices in the Diocese, including the Standing Committee, the Executive Council, and the Trustees of the Diocesan Corporation, were filled; resolutions declaring the constitutional and canonical amendments described in Paragraph 46 above void and of no effect were passed; and the Diocese's clergy and lay deputies to the Church's forthcoming 2009 meeting of the General Convention were elected.

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 ofthe 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.

This is straight out of the litigation playbook described above, is it not? It represents steps 4 and 6 outlined earlier. But now we get to the crux of the matter. It is not sufficient to show that the persons who currently claim to be the "Trustees of The Corporation of the Episcopal Diocese of Fort Worth" hired you as their attorneys; in order to satisfy Rule 12, you must also show that those persons are who they claim to be, and indeed have the required authority to authorize you, as an attorney, to file suit in an entity's name. Stated another way: you cannot respond to a Rule 12 motion by saying "Joe Doakes at XYZ Corp. authorized me to bring suit for it, and he's the Vice President for Legal Affairs." You have to show that there actually is a Joe Doakes, and he has to prove that the corporation (through its Board of Directors, or President) gave him the authority to hire attorneys to institute litigation in the corporation's name.

Thus in order to have the requisite authority, the persons claiming to be the "Trustees of The Corporation of The Episcopal Diocese of Fort Worth" would have to show that they were duly appointed to that office in accordance with The Corporation's Articles and bylaws. And here they encounter an obstacle. For the Diocesan Canons (Canon 17) provide for one of the Board's Five Trustees (the Bishop is an ex officio Trustee and Chairman) to be elected at each Annual Convention to a staggered five-year term. When a Trustee does not serve out his term, and a vacancy occurs, the bylaws specify that the remaining Trustees have authority to appoint an interim Trustee to serve until the next Annual Convention, as I noted in this previous post.

Under the way the Presiding Bishop and her Chancellor view things, the Trustees of the Corporation hold lay positions "in this Church" for the purposes of Canon I.17.8, which I previously discussed here. (Never mind that their only requirement is that they be clergy or lay communicants in good standing of a parish or mission in the Diocese; the Diocese is part of "this Church", don't you see?) And as persons subject to that Canon, they become instantly disqualified to hold their position once they do anything that the Presiding Bishop and her Chancellor regard as disloyal to the Church as a whole (never mind the Diocese again).

We do not know whether any of the five Trustees also served as deputies to the Diocesan Convention that voted to leave. ECUSA's petition simply alleges that the five individual Trustees "supported" the Convention's vote to leave, and not that they themselves so voted; apparently that is disloyalty enough, from 815's standpoint, to cause the Canon's unstated "ejector-seat mechanism" to spring into action. In such a way does the national Church claim the unprecedented authority to swoop down into a Diocese and "remove" locally elected people from office by the simple expedient of "derecognizing" them.

Thus with all members of the Board gone (Bishop Iker declared to have renounced his ministry, and the other five Trustees "derecognized"), how can any interim appointments be made to fill the vacancies? (From the Presiding Bishop's standpoint, there is no time to wait until the "Diocese" can hold an Annual Convention -- it needs a lawsuit filed right away in order to claim the bank accounts it has asked to be frozen.)

To replace the five derecognized trustees, the "special convention" called in February 2009 by the Presiding Bishop first authorized her pick, the Rt. Rev. Edward Gulick of Kentucky, to serve as "Provisional Bishop" for the "Diocese." Then, acting as ex officio Trustee of the Corporation, Bishop Gulick exercised his purported authority under the bylaws to "fill" the five vacancies with interim appointments until the "Diocese" could hold its next Annual Convention. (The candidates he chose were those "recommended" to him by another vote at the "special convention.") These people then immediately met as a "Board" with Bishop Gulick and authorized the bringing of a lawsuit in the name of the "Corporation," while Bishop Gulick on his own authorized the same for the "Diocese" which he now headed.

So far, the litigation script was being followed to the letter. There is just one slight problem, however: the Presiding Bishop was the one who called the "special convention" into existence -- without any authority to do so under the national Constitution or Canons, and in direct violation of the Diocesan Constitution. The latter provides:

ARTICLE 4
SPECIAL MEETINGS OF CONVENTION

The Bishop, or a majority of all members of the Standing Committee, may call a special meeting of the Convention upon thirty (30) days notice thereof. When there is not Bishop, the Standing Committee shall have power to call a special meeting of the Convention, giving thirty (30) days notice thereof. At any special meeting of the Convention, the only business to be transacted shall be specified in the call.

(Bold emphasis added.) As one should well know by now, the Presiding Bishop operates outside, and not within, Church law and canons -- they simply are read not to apply to her actions. Her grand litigation strategy says that there is a continuing Diocese, notwithstanding its vote to disaffiliate from the Church, so the continuing Diocese must be able to hold a special convention. And if there is no "Ecclesiastical Authority" left in the Diocese to call one, she will call the convention herself. (God forfend we should have to conclude that there was no Ecclesiastical Authority because there was no Diocese. That would mean that we would have to go to the trouble of organizing a new one, and of admitting it to General Convention all over again.)

Since the "special convention" was not called in the manner provided by the diocesan Constitution, it could not be considered a legally invoked gathering of the Diocese -- whether the real one or the pseudo one, it does not matter which. And this legal infirmity affects all of the actions supposedly taken at it.

But there is more. The next requirement for the interim Trustees to have been validly appointed is that the convention which cloaked the bishop with authority to make the appointments had the Constitutionally required quorum present to conduct business:

ARTICLE 5
QUORUM

At any meeting of the Convention of this Diocese a quorum necessary to transact business shall consist of one-third (1/3) of the Clergy entitled to seats therein and Lay Delegates from one-third (1/3) of the Parishes and Missions in union with the Convention; but a smaller number shall have the power to adjourn from day to day until a quorum is obtained.

Needless to say, this Constitutional requirement was not met, either. (According to this report from ENS, there were only 19 clergy attending, and 62 lay delegates representing 31 congregations [the current Website lists just nineteen, so that latter number may have been a stretch]. While there might have been a quorum of congregations represented, there were far more than 57 clergy canonically resident in the Diocese in February 2009 -- there were 57 separate parishes in the Diocese as of 2007 -- and so 19 clergy could not have constituted a legal quorum of at least one-third their number. This is the same problem that occurred with the "special convention" called in San Joaquin.)

The Court is thus faced with two rival groups and two rival corporations, each claiming to be the only true entity under Texas law. The Trustees of the one Corporation have been properly elected in accordance with diocesan Canon 17: one at each of the five previous Annual Conventions. But the Trustees of the other Corporation are all serving interim terms, having been "approved" en masse at a "special convention" which was not called by the proper authority and which did not have a quorum present. The latter group of Trustees claims to have authorized the bringing of the lawsuit in the name of the Corporation; the former group states they gave Ms. Wells and Mr. Nelson no such authorization.

The hearing on the Rule 12 motion resumed this afternoon at 2 p.m. in Judge Chupp's courtroom in Fort Worth. After hearing the arguments from both sides, the Judge ruled from the bench that a Diocese had the right to leave the Episcopal Church and to take its property with it. This meant that the plaintiffs could not, in law, be the same legal entities as were associated with Bishop Iker -- i.e., the Diocese and the Corporation which were each founded in 1983. The Judge then signed an order with the following text:

ORDER GRANTING RULE 12 MOTION

On 9th day of September, 2009, came on to be heard Defendants' Motion Challenging the Authority of Attorneys to Prosecute This Suit on Behalf of The Episcopal Diocese of Fort Worth and The Corporation of The Episcopal Diocese of Fort Worth. Movants appeared by and through their counsel of record along with Jonathan D. F. Nelson and Kathleen Wells. All parties announced ready for the hearing, which began and recessed until September 16, 2009. Movants once again appeared by and through their counsel of record along with Jonathan D. F. Nelson and Kathleen Wells and announced ready for the resumption of the hearing. Upon conclusion of the hearing, the Court finds that the attorneys cited to appear have not discharged their burden of proof that they were hired by individuals holding positions at the time of the hiring within The Episcopal Diocese of Fort Worth and The Corporation of The Episcopal Diocese of Fort Worth that are associated with Bishop Iker.

IT IS THEREFORE ORDERED that Jonathan D. F. Nelson and Kathleen Wells are barred from appearing in this suit as attorneys for The Episcopal Diocese of Fort Worth and The Corporation of the Episcopal Diocese of Fort Worth that is associated with Bishop Iker.

The effect of this Order on ECUSA's pending motion for summary adjudication is unclear, since the Judge deleted language from the proposed Order which would have stricken the pleadings filed by the plaintiffs' attorneys. However, what does seem clear is that the grand litigation strategy of pretending to be the original Diocese has been foiled, at least for the time being. The plaintiffs will now have to differentiate themselves from Bishop Iker's Episcopal Diocese of Fort Worth and acknowledge that their "Diocese" is a new unincorporated association that began its existence only in February 2009. The plaintiff "Corporation" of that new Diocese will have to file incorporation papers with the State of Texas, which will serve to distinguish it from the Corporation that was formed in 1983.

Then the big question will be: how can the 2009 "Diocese" claim to be a Diocese in ECUSA when there was no resolution to admit it as such adopted by General Convention in July 2009? Will the "Diocese" now have to wait until 2012 before it can be recognized, or will the Presiding Bishop and her Chancellor once again flout the Constitution and Canons, and "recognize" the Diocese without any formal action? This decision, and what the Presiding Bishop and her Chancellor do in response to it, is bound to have significant ramifications for the other cases involving departing Dioceses.

Thus while somewhat confusing for Bishop Iker and his group, the Order cannot be good news for the plaintiffs. It sounds as though the Court has already, in effect, ruled that they cannot prevail on their motion for summary adjudication to obtain title to the diocesan assets, since he ruled that nothing prevented Bishop Iker's Diocese from leaving the Church with its property.

Let's wait for the dust in Fort Worth to settle a bit, and then I will have more. I am told that Bishop Iker's office will issue a statement shortly -- the statement is now out, and may be read here. It adds even more detail to what the Judge said at the hearing, and reinforces my conclusions above.

[UPDATE 09/18/2009: The original Diocese of Fort Worth has now posted a link to the official transcript of the first day's hearing (September 9) -- an 83-page Adobe Acrobat document -- on its home page. Again, the transcript bears out a lot of what I said above, and I will have more to say in a later post. The Diocese promises that it will put up a transcript of the proceedings on September 16 next week. (Notice that it is not the other "Diocese" which is facilitating the publication of the transcripts -- I could not find any link to the first transcript on their site.) I have a sense that a lot more will happen in Fort Worth between now and October 15. Stay tuned for updates and further posts.]