Monday, October 12, 2009

The Trojan Canon

Over at the Big Hollywood blog (linked at the right, under "Cannon Fodder"), film producer Leigh Scott has put up a post entitled "Debating Leftists Is Like Debating Charles Manson." (Now, how is that for a title to provoke controversy and backlash?) He makes his central point in this way:
Debating leftists is like debating Charles Manson. It’s crazy talk. When you debate a leftist you never get to debate the policy. You debate their intended outcomes and their perception of who you are.
I have reluctantly come to the same conclusion -- well, not that it's the same as debating Charles Manson, but that it is crazy-making, for precisely the reasons Mr. Scott cites. Once cannot logically debate anything with those on the left, because they are immune to logic and its capacity to convince, or even persuade. They are not interested in following Step A to Step B to Step C and so on to see if one can get to Outcome (Conclusion) X. No, for them, if they react emotionally to it, then Outcome X is a foregone conclusion, and they simply go right to it, never mind how they get there. Recent decisions such as those by the trial courts in San Joaquin and Pittsburgh give them no trouble at all, because the results (outcomes) are right in their view: "You have to turn over the property, you orthodites [or radicals, or homophobes -- or insert some other but equally pejorative term], because it's ours, not yours!"

And when they say the property is theirs, of course, they mean it belongs to the Diocese and to the Episcopal Church (USA). And just how did it come to be the property of those entities, who never paid a dime for it, or for its upkeep? Here is what passes for an explanation among those on the left:

Here's a link to the press release from the St. James (Anglican) press release about this week's Supreme Court decision refusing to hear the suit of the Schismo-palians against the Diocese of Los Angeles. It includes their determination to keep on keepin' on by continuing to litigate, with the "spin:" In our diverse and freedom-loving land, no one should have their property confiscated over religious belief.

Couldn't agree with them more. The problem -- of course -- is that it isn't "their" property to begin with. Belongs to the Diocese of Los Angeles. They know it. They don't like it. And so they continue to use the deep pockets of those funding this whole Schismatagora to keep the lawsuits coming -- all the while blaming those who want to STAY in the Episcopal Church for the whole bloody mess.

(As you might be able to tell, I'm pretty much out of patience/on my last gay nerve with it all)
How is this illogical? Let me count the ways . . .

To begin with, St. James Parish did not file the lawsuits. The Diocese of Los Angeles did, and then was joined by the Episcopal Church (USA), who brought a separate lawsuit against St. James.

Next, St. James had not even answered those complaints at the time of the ruling by the California Supreme Court, which they asked the United States Supreme Court to review. Before a case can be over, the defendant must first answer the complaint; then there is a trial. But to the writer just quoted, St. James's filing its answers, and asking the Supreme Court to review a decision made before those answers, constitutes the offense of "keep[ing] the lawsuits coming."

"It isn't 'their' property to begin with. Belongs to the Diocese of Los Angeles." That's not what the deeds say. Ask for a title report on the St. James property, and the title company will tell you (and will agree to insure what it tells you) that the owners of the property are the wardens and the vestry of St. James Parish. The claim that it "belongs" to the Diocese is based on the Dennis Canon -- but even there the writer cannot get it straight. Take a look at the language of the 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 existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.
The "property . . . is held in trust for this Church and the Diocese thereof . . ." All right, so we have a trust, and we have some specific beneficiaries. But who is the trustee? The trust is expressed in the passive voice: "is held in trust". Normally, to create a legal trust, the language used is as follows: "I, AB, convey my land Blackacre to CD, trustee, to hold the same in trust for EF on the following terms and conditions . . .". The Episcopal Church (USA), however, did not even try to create that kind of trust when it enacted (if it ever did) its Dennis Canon. It did not own the property, so it could hardly say: "The Protestant Episcopal Church in the United States of America hereby conveys the land of St. James Parish in Newport Beach, California to X, as trustee, to hold the same in trust for it and for the Diocese of Los Angeles . . ."

Can the trustee be the Parish of St. James itself? Normally, again, a trustee is not given unlimited power and authority over the property held in trust. The trust document spells out the limitations on just what the trustee may do. Here again, the only limitation on the parish, if it is the trustee of the property it owns outright in fee (a contradiction in terms again -- either you own property outright, or you own it in trust, but not both simultaneously), is that it remain a part of the Episcopal Church (USA).

So what we have here is not a real trust, but a conveyance subject to what the law calls a "condition subsequent". For example, A might deed Blackacre to the City of C "for use as an airport, for as long as the City continues to use it as an airport." If the City tries to use the land for something other than an airport, it forfeits its right to own the property, and the land reverts to A.

The way the Dennis Canon seems to operate, then, is this: land which is held in "fee simple absolute" (to use the technical legal term, i.e., held outright) by the vestry of a parish is converted in some mystical way, simply by the enactment of an obscure national canon, into a "fee simple determinable", which comes to an end on the occurrence of a condition subsequent to the original conveyance -- namely, the ceasing of the parish in question to be a part of the Church, and subject to its Constitution and canons. And yet there is no "original conveyance" to the parish which imposes the condition subsequent! All there is, is the Canon -- which is scarcely a deed or conveyance.

Not only is there no conveyance upon an express condition, but the condition expressed, that the parish remain part of the Church, is made a condition of the capacity to remain as the unnamed "trustee" of the property. In other words, it serves as a qualification upon the "right" to be a trustee, and not upon the right to use the land. (The Canon in no way tries to express what limitations are placed upon the trustee's "power and authority" if it ceases to belong to the Church; it simply implies that the trustee is then no longer qualified to be trustee.)

But as we saw above, there is no trust actually created, because the "trustee" (if we assume it is the parish) can do whatever it likes with the property so long as it remains a part of the Church! It can let the property go unmaintained; or if the property is destroyed in a fire, it has no obligation (under the Dennis Canon, anyway) to rebuild it!

Whoever heard of such a crazy trust? Yet the left doesn't bother to analyze it -- the left simply looks at the outcome it desires, and says: "Aha! You've left the Church! the property is now ours!" And stranger still, courts in a number of States have gone along unthinkingly with this non-thinking.

But that does not make the Dennis Canon a proper trust. Nor is it a proper conversion of title from fee simple absolute into a fee simple determinable. It is neither fish nor fowl, neither a trust nor a conveyance. It is a crazy hybrid concoction of the illogical left.

As I say, if you meet the left on their "terms", they will make you think you are crazy. The Dennis Canon -- never properly drafted, never properly enacted, and never properly interpreted -- is a recipe for madness. No wonder so many millions are being spent on both sides to sort out what it means legally. It should be called the Trojan Canon.


  1. Great post. You have me totally convinced that the Dennis Canon can not stand objective legal scrutiny. Is there good language in the South Carolina Supreme Court ruling that rejects the claims of the Denis Canon?

    Also, great link to the Leigh Scott essay.

  2. It takes an extraordinary amount of time, patience, and skill to methodically debunk the cunning sophistry of TEC and its blind sheep following.

    Thank you once again for an additional continuing education segment in "TEC Manipulation and Propaganda 101".

  3. Mr. Curmudgeon: I agree with you completely in your analysis. What I find truly appalling though is that the courts are mostly letting this schlock of an argument win. It boggles my mind how the courts can carve out such a gaping hole in ordinary trust/property law specifically for "hierarchical" churches. First, there does not appear to be any specified legal test for what constitutes a "hierarchical" church (other then a claim made by the church leadership, who clearly have a vested interest in making such a claim); and second, does not the wholesale setting aside of ordinary trust law to benefit a church, not violate the Establishment Clause?

  4. A Question from across the pond.

    Mr Haley, to what extent, if any, are litigants' lawyers able to select the judge/s to hear their cases? If not overtly, does the advance listing of cases permit manipulation, timing, or perhaps informed guesswork to get a particular judge who may be more sympathetic than another?
    Further, as counsel and judge are of the same grouping outside the courtroom, does this allow for what what might be termed 'masonic fellowship'.
    One imagines that there is (for instance), a homosexual community within the legal and judicial professions, and could this be any part of an explanation as to some of the utterly perverse readings of property law, church canons etc., together with what can only be described as a bewildering submission to the nebulous notion of 'deference'.

    Best wishes,
    Chris Baker, 'The Incompetent Organist' - Durham UK

  5. Anglican Curmudgeon: "Once [sic] cannot logically debate anything with those on the left, because they are immune to logic and its capacity to convince, or even persuade."

    This may be so, but you, my dear Anglican Curmudgeon whom I'm fond of jesting with, has previously told me in no uncertain terms that the outcome is certain, i.e., that Logic must prevail in the end!

    Since in the spirit of good-natured jesting I don't expect you to retract or modify your assertion since to do so is to concede to my argument that emotionalism and feelings do trump reason and logic from time to time, I have no other recourse than to teasingly replay your words to me whenever you lament specious legal decisions however interim and temporary they may be.

    Anglican Curmudgeon, Logical Reality demands that you concede that Logic doesn't always prevail!

    Demur, defer, and concede to me, the Super Curmudgeon!


  6. This question came up the other day over the issue of separation of church and state and how the courts can be involved in "church matters."

    When the church by changes in its canons, attempts to become the purveyor of deeds without going through the secular system of title transfer etc., does it (the church) not open itself up to involvement of the secular courts? If so, then the Dennis Canon rather than prevent churches from leaving, opened the door to settle the issue once and for all via the U.S. justice system.

  7. James, yes -- allowing any church to impose a "trust" (or a determinable fee, or whatever it is) by enacting a simple bylaw goes well beyond the rules of contract, and amounts to the establishment of religion in violation of the First Amendment.

    chorale, in most trial courts you are assigned a judge -- if not when you file your complaint, then when the case is ready for trial. Some courts have only one civil judge, so you end up with that one. The sloppy legal reasoning that I complain about here is not, I am convinced, the product of any particular orientation, but rather the result of an imperviousness to logic that is the hallmark of a liberal mind.

    And yes, TU&D, even though you and I both love to jest about it, logic has to win out in the end, or else society and civilization as we have enjoyed it are toast. Maybe we are on the eve of Armageddon, and the band is playing on as we head for disaster -- who can say? But the reason logic must win in the end, even if civilization disappears in the near future, is that logic entails truth, and if you are a Christian, you believe that Truth will be victorious.

    That doesn't mean that Satan and his minions won't have some fun at our expense along the way (apparently in Norway, of all places!) -- aided and abetted by those who can't think!

    The current best example of what I am talking about, by the way, may be viewed over at the Patum Peperium blog.

  8. Mr. Haley,
    The question that comes to my mind is why the judges are not seeing all this? It seems like property law 101. This is literally stuff we went over business law classes in the MBA program (as opposed to more intricate coursework leading to a JD)- not legal rocket science. Are lawyers for the Anglican Churches assuming that the average district court judge is steeped in real estate law, and just not presenting it?

  9. A.S. - perhaps you might educate this lay person on what a "Trust" is, with regards to church property. Is parish property put into Trust to the Diocese in the event, for example, the parish vestry and all parishoners and clergy leave without taking the property with them?

  10. David J, I am going to refer you to this page where you can learn more about the Dennis Canon. Your guess at how it works (when a court decides to enforce it) is roughly correct.

    Thomas, most judges just see a bandwagon, and climb on it. It is one of the purposes of this blog to get the arguments out there for more lawyers defending their parishes to use. Maybe we can turn the bandwagon around.