Time for Logic in Fort Worth

With the full transcripts posted of both sessions (links on this page) of the hearing held in Fort Worth on the defendants' motion under Rule 12 of the Texas Rules of Civil Procedure, now it becomes possible to see more clearly where this case is headed. The defendants in the case, Bishop Iker's Episcopal Diocese of Fort Worth and the six trustees (including Bishop Iker) of the Corporation which holds the property of that Diocese, had brought the motion to disqualify the plaintiffs' attorneys from claiming to appear in court on behalf of that same Diocese and Corporation.

First, the condensed version of the proceedings to date. The plaintiffs in the lawsuit call themselves "The Episcopal Diocese of Fort Worth", "The Corporation of the Episcopal Diocese of Fort Worth", and -- of course -- "The Episcopal Church." They filed an original petition, and then amended it after Bishop Iker responded with a motion to dismiss it.

On the same day they filed the amended petition, the plaintiffs filed a motion for a "partial summary judgment" -- meaning they wanted the court to enter judgment in their favor on the first part of their petition without holding a trial. (Documents making up the motion are linked at this page.) The date set to hear the motion is October 15.

Before that date, however, the defendants brought two motions (linked at this page): the motion under Rule 12 challenging the authority of the plaintiffs and their counsel to file suit on behalf of the entities they claim to be and to represent; and a motion to bring in as third-party defendants (i.e., defendants to an additional petition to be filed by the original defendants) Bishop Gulick and the other five persons claiming to have been elected as "Trustees" of the Diocesan Corporation at a special convention held on February 7 of this year. The plaintiffs responded with a request to postpone the hearing on the second motion until after the hearing on their motion for a partial summary judgment. The hearing on the Rule 12 motion, however, began on September 9, and after the court ran out of time, the hearing resumed again on September 16.

From the very outset of the hearing on September 9, the court appeared to have grasped the larger picture -- that Bishop Iker's diocese had voted to leave the Episcopal Church (USA) the previous November, that the people filing the current lawsuit were the minority who had not agreed to leave, and that the main dispute was all about who owned the Diocese's property:

THE COURT: Okay. And I don't mind doing that. I mean, I've read through that. Even if we grant it [the motion to postpone the hearing], we may still stay here and talk for a while just to figure out what's going on. Is the basis of this the piece of property? I mean, in general, are we talking about whether or not the property goes back to the main --

MR. NELSON: Your Honor, it involves Diocesan property, it involves the use of the seal, it involves holding oneself out as being the Bishop of the Episcopal Diocese, those kinds of things that are taken up in the declaratory judgment part of the petition.

THE COURT: Because if 30,000 people want to leave a church, I mean, they can, and they can go somewhere else and start their own church. I don't think that that's the problem. The problem is whether they get to keep the property, and whether or not they get to keep the seal and -- okay; is that basically what we're talking about?

MR. NELSON: Yes, Your Honor.

We see right away from this exchange the slanted view of the big picture which Mr. Nelson, one of the attorneys for the plaintiffs, is trying to sell to the Court: that the plaintiffs have a claim to the property of the Diocese, because it is Bishop Iker who is "holding [him]self out as being the Bishop of the Episcopal Diocese . . .". This, of course, is untrue, and just leads to a lot of unnecessary confusion later. The one thing Bishop Iker is not doing is "holding himself out as the Bishop" of a Diocese within the Episcopal Church (USA). He merely says he remains the Bishop of the Episcopal Diocese of Fort Worth, and that is not the same thing (although the plaintiffs want to claim it is).

"Episcopal" simply means "of or pertaining to a bishop." It is not a trademark of the Episcopal Church (USA), as may be seen from a glance at a list of the 38 provinces of the Anglican Communion. There are eight other provinces with that word in their title, including the Scottish Episcopal Church, from which the American Church took its name. The fact that the Episcopal Diocese of Fort Worth left the Episcopal Church (USA) in no way required it to drop the word "Episcopal" from its name. ECUSA's insistence that it has to shows, in fact, the category confusion that is rampant at 815, in its promotion of the name "The Episcopal Church", or "TEC". 815 would like everyone to believe there is only one "Episcopal Church, and that they are it. (That is why I refuse to use that name or acronym to describe them on this Weblog.) In doing so, ECUSA has forgotten the very meaning of the word "Episcopal" -- even if, for the moment, it is about the most bishop-driven Protestant church I know.

The problem, in fact, has not been created by Bishop Iker. All his Diocese did was meet in an Annual Convention which he (as Bishop) had duly called in November 2008, with a full quorum of both laity and clergy present, and vote overwhelmingly in both orders to adopt on second reading amendments which removed the language by which the Diocese acceded to the Constitution and Canons of the Episcopal Church (USA). As Judge Chupp made clear several times in the course of the hearing, they acted perfectly within their powers under Texas law when they did so (09/09/09, pp. 60-61):

THE COURT: Yeah, but, I mean, you're still talking about a body that voted to do something, and they voted something that you didn't like. And what I've got to figure out is, I guess, did they have the -- obviously, they have the authority to do that. They can vote and do what they want to do, that group of people. I -- well, I say that, I don't see where it says they can't.

Counsel for Bishop Gulick tried virtually every trick in the book to get the Judge to see things his way. First he overstated the law, and misrepresented what "courts" had decided (id. at 51):

MR. NELSON: And you're absolutely right, there isn't anything in there that says that specifically, nevertheless, the Courts have held that they cannot leave.

In actual fact, of course no appellate court of record anywhere has held that a Diocese may not leave ECUSA. When the Judge asked Mr. Nelson to see the "cases" decided by "the courts" to that effect, all Mr. Nelson could point him to was the interim ruling by the trial court in the San Joaquin litigation. (Trial courts are not published courts of record -- meaning that their rulings and decisions are not collected and published anywhere for other courts to read and follow. Citing to the ruling of a trial court -- and not a final one, but an interim one at that -- is about as useful as citing to your grandpa. And in California, attorneys are actually forbidden by Court rule from citing to unpublished and unpublishable decisions.)

Next, Mr. Nelson told the Court another whopper, and claimed that the Bishop Iker's Diocese could not keep its property when it voted to leave, because of the Dennis Canon (id. at 52):

THE COURT: But they [the Episcopal Church] claim that they own—do they really claim that they own the property, or does the diocese own the property?

MR. NELSON: It depends on what property we’re talking about. Some property is held by the diocese and some is held by the corporation.

THE COURT: Okay. Well, either way, do they—the group on top, the Province, the Episcopal Church Province, do they claim they own any of the property?

MR. NELSON: Yes, under the Dennis Canon, which is 1.7.4, there is a trust provision that imposes a trust on property for the use and benefit of the—the wording is the Episcopal Church and a Diocese thereof; that is, of the Episcopal Church.

Now here is the actual language of the Dennis Canon:

All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. . . .

The Dennis Canon has no language that would apply to any property owned by a Diocese, but Mr. Nelson tried to claim that it would allow his group to take over Bishop Iker's diocesan bank accounts. The Judge could see that the fight was all about property, and that he did not have to resolve the ownership issue just yet. The Rule 12 motion challenged only the authority of the persons who hired the plaintiffs' attorneys -- whether they had the authority to represent the Diocese and the Corporation which they claimed to represent.

The Court was also troubled by the illogic of Mr. Nelson's argument that the vote to leave was ultra vires (beyond the Convention's powers, and hence void), but that by virtue of the Convention's holding the vote, the elected Trustees of the Corporation had automatically lost their seats on the Corporation (id. at 67-68):

THE COURT: Here's what I want y'all to do. I want y'all to write something to me, and I want you to write something to me saying that the convention in November didn't have the authority to vote. And what ultra vires means is they did something that's outside what they can do, I mean, whether it's illegal activity or anything like that. And you don't have to give me the whole booklet of canons, just cut and paste them, and show me where it says they don't have the authority to do that. And if they don't have the authority to do that, then what they did is probably -- could be void, and at that point in time they would have the authority to be here, because the board would be the board.

Well, in actuality, if -- here's the problem I think y'all have, too, though, if the board was voted on, regardless of the actions that they did, aren't they the ones that still have to hire you?

MR. NELSON: No, Your Honor.

THE COURT: Because if their actions become void, then they're still the board.

MR. NELSON: No.

THE COURT: Sure they are. They were voted on to be the board. That -- you're not going to tell me that them becoming board members is somehow void, are you?

MR. NELSON: That's exactly right. What I'm saying is in November of 2006, when they voted to align, everyone who was on those boards is gone, because they are no longer loyal Episcopalians.

"November 2006" may have been a slip of the tongue (the Convention actually passed the amendment in November 2008). But the argument that votes by elected deputies to a Diocesan Convention could automatically unseat the elected Trustees of a Board (who were not shown to have been deputies, or to have voted any particular way) struck the Judge as particularly bizarre, and inconsistent with the way such things work. Bodies who do things which are ultra vires and void accomplish nothing. If the vote to leave was null and void, then the Diocese did not leave, and then the elected Board members remain in their positions until their normal terms expire -- so the "Trustees" who were elected in February 2009, and who hired Mr. Nelson to file suit, did not have any authority:

THE COURT: Well, then you don't have the authority.

MR. NELSON: No, we had a special convention.

THE COURT: I don't think you have the authority if you're going to say that, I don't, because the problem I think you have is the Fort Worth Diocese voted, and they made a vote, and you're claiming their vote is void. And then, if you want to claim their vote is void, then they're still the board, because they didn't leave, right? I mean, what -- because the -- they voted -- you're saying two things. You're saying that they didn't have the right to leave, okay, and that should be void based on this case, right? And so if they didn't leave, then the board that was in place in November is still the board, because they would have been the board then, and your meeting wouldn't have been inclusive of them.

MS. WELLS: They're gone.

MR. NELSON: Their act --

THE COURT: They're not gone. If it's void, they're not gone, right? I mean, if that action is void, then your church is -- or the Diocese is still part of the Episcopal Church Province, isn't that -- that's what this case says, is that the Fort Worth Diocese is still part of the Province, the Episcopal Church Province. If I follow this case, that's what that would say. And, therefore, the board, which is the Fort Worth Diocese board is still the same board, except y'all went in and elected a different one at a special meeting, which I think is void, then.

The Judge was telling counsel he can't have it both ways: either the vote was invalid and the Diocese did not leave, in which case the Trustees would have had to resign their positions for their seats to become vacant; or the vote was valid, and the Diocese went to the Southern Cone Province -- along with its Corporation. In either case, the plaintiffs' attorneys could not have been hired by anyone with authority for the Diocese or for the Corporation. The Judge's logic was impeccable.

And this is the fatal flaw that lies at the heart of ECUSA's "winner-take-all" strategy. It tries to argue that a Diocese may never vote to leave, and that the only result of such a vote is that people leave, but the structure remains intact. But the people in question do not conveniently resign their positions, because in their view, they are leaving and taking the entire diocesan legal structure with them. So in their view, they are keeping their positions. Thus ECUSA has to come up with a way of claiming that those positions are in fact vacant. It goes through the charade of "deposing" the Bishop with far less than the required number of votes, but that does not solve the problem. The clergy deputies who voted for the amendment cannot be summarily removed without deposing them as well -- a process that takes six months. And there is no mechanism whatsoever for summarily "deposing" or "removing" a lay deputy from office.

Without such resignations, and without any mechanism for removing lay Convention deputies, the very next "special meeting" of the Diocese which is called is null and void itself. For the duly elected deputies from the last Convention are the ones who should be seated, but they are barred from attending by the unconstitutional device of imposing a "loyalty oath". And there cannot be a legal (one-third) quorum of loyalist clergy, because nearly nine-tenths of them went with Bishop Iker.

The problem of ECUSA and its remnant "Diocese" is that they just will not follow their own procedures to organize and become legitimate in the eyes of the law. Mr. Nelson, Bishop Gulick's attorney, even (unwittingly) described his own clients to the court and spelled out what they ought to have done (id. at 57):

MR. NELSON: What I'm saying is that the body gets together, and then it must be approved by the general convention in order to be a valid diocese. It can get together and call itself a diocese, but until it's approved and until that diocese agrees to accede to the constitution and canons of the Episcopal Church, it is not a diocese and cannot be a diocese.

Precisely, Mr. Nelson, precisely. Your clients are not a "diocese", and cannot be one until they have gone through the requirements to be approved, and admitted into union with General Convention.

It remains to be seen what the plaintiffs will now do, in light of the trial court's order barring them from representing the "Diocese or Corporation associated with Bishop Iker." Their motion for partial summary judgment (75-page .pdf download link at this page) is unequivocal that one of the plaintiffs seeking the partial summary judgment is the Diocesan Corporation that was formed in 1983 (from p. 20 of the motion):

In February 1983, the Diocesan Corporation, which is the corporate plaintiff in this action, was formed in accordance with these constitutional and canonical requirements.

There is, and can be, in fact only one Corporation of the Episcopal Diocese of Fort Worth that was formed under Texas law in 1983, and that is the Corporation currently associated with Bishop Iker. The court has already in effect recognized its existence in its Rule 12 Order, because it 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 language in bold was written into the Order in the Judge's own hand, and thus there can be no mistake about what it means: the plaintiffs' attorneys are barred from representing the Corporation which they claim is seeking the partial summary judgment.

It would appear that the plaintiffs and their counsel are utterly blind to this problem. On their Web page appears the following "explanation" of the Judge's Rule 12 order (bold emphasis in text added):

What the legal language of the September 16 order means

What the legal language of the order (click here to read it and note that the hand-written portions of the order are in the judge's own hand) means is this: essentially the court refused to strike the pleadings i.e. it ruled that the reorganized Episcopal Diocese of Fort Worth and the Corporation had the right to continue to sue the defendants and establish our right to seek declarative judgment. The defendants lost on their main argument that we should not be able to sue the defendants because they are the rightful diocese. This was the main objective of former Bishop Iker's attorneys, and they did not achieve it. The court left that determination for a later hearing.

The order also barred our attorneys from appearing on this suit as attorneys for the entities associated with Jack Iker. Our attorneys have, of course, never asserted that.

As is clear in the order, no other rulings were made. The judge did make comments and he did ask questions, but he made no other rulings.

Balderdash and poppycock. If there is and can be only one Diocesan Corporation organized in 1983, and that Corporation is still in the control of Bishop Iker and his co-Trustees, as plaintiffs admit on page 32 of their motion, then how can the plaintiffs still pretend to represent it, and to seek relief in its name? And how can they say they never claimed to represent it before?

There is only one way out of this quandary for the plaintiffs. They are going to have to form a new corporation under Texas law, and call it whatever they want. But it will not be the same Corporation as the one incorporated in 1983. Nor, for the same reason, will the "Diocese" which will now have to re-convene and re-appoint new Trustees, be the same Diocese which formed and was admitted to General Convention in 1983. To become a Diocese of the Episcopal Church, that group will have to follow the procedures spelled out by their attorney, Mr. Nelson, in the quote I gave above. By 2012, they should have their house in order -- if they can first remove the scales from their eyes.

Note: the same home Web page of the Fort Worth group under Bishop Gulick reports that the defendants have filed a motion to continue the hearing on the motion for partial summary judgment. Judge Chupp has set the motion for a continuance for hearing on October 2. Look for him to grant the motion, if only on the ground that the attorneys who filed it, Mr. Nelson and Ms. Wells, are barred from arguing it, for the reasons set out above.

The force of logic is about to be felt in Fort Worth.