The Law Inches Forward in Fort Worth

To understand the significance of the rulings today, you might first want to review two earlier posts explaining what has happened up to this point: here and here. Here is the official post from the Diocese of Fort Worth.

Judge Chupp in Fort Worth had three motions before him today. The first was a motion by the defendants Bishop Iker and his co-trustees of the Diocesan Corporation to continue (postpone) the court's hearing of the plaintiffs' motion for partial summary judgment (without having a trial) on the first claim in its complaint: asking the court to declare that Bishop Iker and his co-trustees were replaced on the Board of the Diocesan Corporation by the "Special Convention" held on February 7, 2009. The court GRANTED this motion and continued the hearing from October 15, 2009 to January 22, 2010 to give time for discovery concerning the issues.

The second motion asked Judge Chupp to reconsider the order he signed at the end of the Rule 12 hearing on September 16. This order declared that the plaintiffs' attorneys could not represent Bishop Iker's Diocese or its Corporation, but refused to strike the pleadings they had filed on behalf of those same entities. The Court DECLINED to revise its Order.

The third motion was to grant Bishop Iker et al. leave to file a third-party complaint joining Bishop Gulick, chancellor Kathleen Wells and the persons elected as the "Standing Committee" in February as defendants, and to make them prove that they were lawfully elected to their positions. The Court GRANTED this motion.

Now let me try to put these rulings into some kind of perspective.

The granting of Bishop Iker's counsel's request to postpone the hearing on the motion for partial summary judgment was not unusual or unexpected; several lawyers who practice in Texas have told me that such motions are routinely granted when a party moves, as the plaintiffs did here, for summary judgment so soon after filing their complaint, and before any meaningful discovery of the evidence pro and con has taken place. What is unusual, however, is that according to the plaintiffs' Website, they did not oppose the request to postpone the hearing. In other words, having filed the motion and set the date for the early hearing, the plaintiffs really just wanted to get their motion on file? And give the defendants over three months in which to prepare to meet it? There must be more here than meets the eye. Let's come back to this after looking at the other two motions, which were interrelated.

The original motion under Rule 12, as I explained in the first post linked above, called on the plaintiffs' attorneys to prove they had the authority to file pleadings on behalf of the "Episcopal Diocese of Fort Worth" and its "Corporation", given that those two entities, first organized in 1983, already had a Bishop (Iker) and trustees elected at the Diocese's previous Annual Conventions. The attorneys responded to the motion by disclaiming any intent to represent the entities which were under Bishop Iker's control; they maintained that the entities they were representing still belonged to the Episcopal Church (USA), because the vote to leave the Church taken at the last Annual Convention of the Diocese had been beyond its powers. Thus neither the "Diocese" nor its Corporation had ever really left, they argued: only their bishop and officers had left, and the Presiding Bishop had kindly stepped in to call a "Special Convention" (since there was no Bishop or Standing Committee left to do so) to fill the vacancies thus created. And once a new bishop and standing committee had been elected, they were the ones who authorized the plaintiffs' attorneys to file suit in the name of the Diocese Which Had Never Left, and Its Corporation Which Never Left Either.

At the two sessions of argument held on the Rule 12 motion, as again explained in the second of the two posts linked earlier, the Judge clearly did not buy the argument that the vote by the Annual Convention in November 2008 to leave the Church had been beyond its powers. He pressed the plaintiffs' attorneys again and again to cite to him chapter and verse from either the national Constitution and Canons, or their Diocesan counterparts, that placed any kind of restrictions upon a member Diocese leaving the voluntary association of Dioceses which makes up the Church. They were unable to point to any such language, and so the Judge ordered that they could not represent the Diocese Which Left Lawfully, or Its Corporation.

However, as I also pointed out in the earlier posts, both the complaint (petition) filed by the plaintiffs, as well as the amended one filed a few months later, stated in unequivocal language that the plaintiff "Diocese" had been started in 1983, as had the plaintiff "Corporation." Now maybe in the spiritual realm it is possible for one religious corporation to split into two, which then can be superimposed on one another to still look like one, but that does not fly in the temporal world. There is and can be in law only one Corporation of the Episcopal Diocese of Fort Worth which was incorporated under the Texas statutes in January 1983. And likewise, there is and can be under Texas law only one voluntary association called "the Episcopal Diocese of Fort Worth" that was formed in 1983, as well.

So I do not know what type of Southern stimulant the persons who hired Kathleen Wells and Jonathan Nelson to file this lawsuit were ingesting when they did so, but what I do know is that it was not the Corporation or the Diocese Which Left Lawfully, both of which were the only such entities organized under Texas law in 1983. So if we are to take the plaintiffs' Website at its word, and accept at face value their assurance that they never at any time claimed to represent those entities, then what entities, pray tell, do they represent? When were the entities which they say they represent organized -- if not on February 7, 2009 or shortly thereafter?

The motion for reconsideration which the Court denied today simply asked the Court to revisit its ruling, and accept the logical consequences of it: if the entities hiring the plaintiffs' attorneys could not have existed prior to February 2009, then why not strike their pleadings, which allege they were organized in 1983? Why not make them file new pleadings which conformed to what they claimed actually to be?

And, to take the matter a little further -- why would the plaintiffs themselves and their counsel not want to do so on their own? What possible advantage can they gain from leaving on file pleadings which on their face are false? How can they even ask for summary judgment on behalf of entities which they admit they do not claim to represent?

It seems to me that the Judge, who is still getting his judicial stripes after having been on the job for about only a month, has not yet acquired the confidence to go where the logic of his own rulings actually takes him, to follow things through to where they lead. He can see that there can only be one Corporation and one Diocese organized in 1983, and that the plaintiffs do not and cannot represent those entities, but he can also see that there is a lot of money and property at stake, and that there are some very wealthy Texans (including Anne T. Bass) who are taking sides on this matter. So he is proceeding cautiously for the time being, and leaving the plaintiffs' presumably well-compensated lawyers to sort out what they should be doing, rather than deciding for them what they have to do.

We come thus to the third motion, which gives Bishop Iker and his counsel leave to file a "third-party petition" -- meaning a complaint which brings in additional parties, outside the circle of the current plaintiffs and defendants. This petition names as (third-party) defendants Bishop Gulick, the diocesan chancellor Ms. Wells, and the standing committee elected at the "Special Convention" on February 7, 2009 -- including the aforementioned Anne T. Bass. A copy of this pleading is attached to the motion to file it, which is linked at this page.

As you will see from reading the third-party petition, it squarely challenges the authority of the named defendants to hold themselves out as duly elected (or appointed) officials of entities which style themselves as "the Episcopal Diocese of Fort Worth" and "the Corporation of the Episcopal Diocese of Fort Worth." It is about time someone called the Presiding Bishop's bluff in this contest, and this petition will do just that.

There are two levels of action playing out here -- one in the Church and the other in the courts. Churches are protected from secular court interference in their internal affairs by the Free Exercise Clause of the First Amendment. At the same time, however, the Establishment Clause of that same Amendment prohibits the secular courts from preferring any one church over any other under the law. The two clauses create a tension between them, and that tension is what is creating the problems for the court and the parties in this case.

As the Episcopal Church (USA) sees things, it gets to claim all sorts of things as a church which it says the courts must not question: it says it gets to say what is a diocese and what is not, and what dioceses can do and cannot do, who is a bishop of a diocese and who is not, and what can happen to diocesan property. Some of these arguments can indeed be made, such as who the church says is one of its bishops, but some cannot -- such as whether a diocese may lawfully leave or not when there is no express language to which that diocese agreed which would preclude its withdrawal. The Church has to be under the law just like every other part of society. If it wants to form a religious corporation, it has to comply with the secular formalities in doing so. And if it wants to break up or dissolve a religious corporation that it earlier formed, it again has to comply with the statutory requirements in order to achieve any such result. (Also complying with its own canonical requirements would not be a bad idea, either.) The Presiding Bishop cannot simply bring a diocese or a religious corporation into existence under the law by fiat, and ignore the Church's own Constitution and Texas law in doing so.

The secular courts can enforce only the secular law, including the First Amendment. When the plaintiffs in Fort Worth come into court and play games -- "now we are the Diocese and the Corporation, but not that Diocese or that Corporation" -- it will get them only so far. They have postponed, for the time being, their day of reckoning for a little while yet. (And perhaps that explains why they dropped their opposition to postponing their motion for partial summary judgment -- they recognized that they could use a little time to regroup, to rethink, and to reorganize.)

The law may be slow, but it is inexorable. Come next January 22, it must recognize the real Episcopal Diocese of Fort Worth, and leave the impostor to its own devices.