Sunday, December 13, 2009

Fresno Bee Features San Joaquin Appeal

In a lengthy front-page story in its Saturday edition (H/T: Virtue OnLine), the Fresno Bee has provided a good summary and some interesting perspective on the dispute between the Episcopal Church (USA) and its former Diocese of San Joaquin over the ownership of the diocese's real and personal property. In particular, the story draws on the recent filings in the writ proceedings in the California Court of Appeal for the Fifth Appellate District, which stem from the earlier order by Fresno County Superior Court Judge Adolfo M. Corona.

The perspectives offered on the litigation come from local clergy on the ground, and from two professors whom the reporter John Ellis contacted (Prof. Robert Tuttle, "a church-state expert at George Washington University Law School"; and Prof. Frank Kirkpatrick, who teaches religion at Trinity College in Hartford, Connecticut, and whose survey articles on Episcopal litigation I have cited in earlier posts). Apart from his biased terminology (he consistently calls Bishop Schofield's diocese a "rebel" diocese, when it is ECUSA that has rebelled against Scripture), Mr. Ellis did a good job of marshaling the different viewpoints, and of interweaving them with the arguments from the briefs on appeal. You should read the entire article to get the full benefit from the contrasts it contains.

However, Mr. Ellis is not a reporter on legal matters, and this blog is. While I can commend the article to you for its lay points of view, you should not form your opinion about the merits of the case before the Court of Appeal simply from reading the article, or from the quotes of the two professors. Instead, read the briefs themselves, for which the on-line version of the story helpfully provides links to downloadable .pdf versions -- the petition and opening brief filed by Bishop Schofield, seeking an writ from the Court of Appeal commanding Judge Corona to vacate (erase) his order; the return to the petition filed by the Episcopal Church (USA) and Bishop Lamb; and the petitioners' reply to that return. In addition, there are links to download the latest version (fourth amended) of the complaint in the case, and copies of Judge Corona's order granting judgment on the first cause of action in the complaint regarding title to the property, as well as of the Court of Appeal's order directing the Episcopal Church (USA) and Bishop Lamb to respond to Bishop Schofield's petition.

Thus you can now find, in one convenient place, all the documents you need to understand the issues before the Court of Appeal: the complaint (whose allegations in the first cause of action have remained unchanged since the original filing), the trial court's order, and the arguments pro and con concerning that order.

The first and most basic issue is very simple: may a diocese of ECUSA leave the church? As discussed in numerous posts on this blog, ECUSA is a voluntary, common-law association of independent dioceses, each with its own constitution and canons. ECUSA's own constitution requires that a diocese "accede" to it in order to join the association; it does so by (usually, but by no means always) including language of accession in its constitution.

So the first important sub-issue addressed by the briefs is this: what does the word "accede" in this context mean? For ECUSA, Bishop Lamb and Judge Corona, it meant to join irrevocably. As Judge Corona put it in his order (pp. 6, 9):
Currently, new dioceses must express "unqualified accession to the [ECUSA] Constitution and canons" before they can be in union with the general convention and admitted to the Episcopal Church. . . .
. . .
Defendants contend that there was no legal impediment to their 2006 amendment . . . deleting the accession clause entirely and withdrawing from the Episcopal Church. Defendants are incorrect. The original accession clause itself prevents such amendment. If the Constitution of the Diocese incorporates and accedes to the Constitution and Canons of the Episcopal Church, which require accession, then the Constitution of the Diocese cannot be amended to remove such language.
Bishop Schofield and the other defendants sued by Bishop Lamb and ECUSA explained what was wrong with this holding, at pp. 31-32 of their opening brief on appeal:

The question for the Respondent Court therefore, pursuant to section 1644 of the Civil Code ("The words of a contract are to be understood in their ordinary and popular sense ... "), was: what is the "ordinary and popular sense" of the word "accede"? Here are the etymology and the definition of "accede", according to Merriam-Webster:

Etymology: Middle English, from Latin accedere to go to, be added, from ad- + cedere, to go
Date: 15th century

1 a: to become a party (as to an agreement) b: to express approval or give consent: give in to a request or demand . . .

By "acceding" to the national Constitution, therefore, the Diocese became a party to it, just as would take place in the case of a treaty. And indeed, "accede" is the word commonly used to signify a party's consent to join in a treaty among (or between) autonomous entities. (E.g., Terlinden v. Ames [1902] 184 U.S. 270, 276; Avero Belgium Ins. v. American Airlines, Inc., supra, 423 F.3d 73, 79, n.7 ['''Accession' is 'the act whereby a State accepts the offer or the opportunity of becoming a party to a treaty already signed by some other States'"].)
And here is ECUSA/Bishop Lamb's response to that argument (Real Parties brief, pp. 39-40):
The court's conclusion represents the best and most sensible reading of the (undisputed) documents considered in the light of the Church's structure. Since the Church is hierarchical, its dioceses are subordinate by definition to the governance of the larger Church. Each diocese's promise to accede to the Church's governance, therefore, merely reflects the hierarchical nature of the Church. . .

It would be nonsensical to suggest that the Church requires accession for the instant that diocesan status is granted, and then permits a new diocese to abandon, in the next instant, that accession - whether by openly revoking its accession promise or by otherwise contravening the Church's governance. Indeed, it is undisputed that the Church has mechanisms for disciplining those in the Church who contravene its governance: Its canons provide for the discipline of bishops and other clergy who "abandon[] the communion" of the Church or who violate the Constitution or canons of the Church, and require any person accepting an office in the Church to "perform the duties of that office in accordance with the Constitution and canons" of the Church. . . . In this way, the Church ensures that its subordinate entities continually accede to the Church's governance.
To which Bishop Schofield and his attorneys replied as follows (Reply Brief, p. 18):
"Accession" is a term that usually applies to sovereigns or autonomous entities, and not to subordinates. (See Pet., at 31-32.) Real Parties [Bishop Lamb and ECUSA] have not offered a different definition; instead they have misconstrued recent decisions as discussed above. Use of the term "accedes to" in the national Church's Constitution is thus consistent with the principles of association law that membership is revocable and that a member may withdraw at any time. The unrestricted and unqualified nature of the Diocesan Constitution's power to amend is likewise fully consistent with the conclusion that the Diocese is an autonomous entity; only an entity responsible legally to no one but itself would have an unlimited and unrestricted right to amend its constitution. The term "accedes to," then, does not mean "become forever subordinate to." For a diocese to join the association known as the Episcopal Church, it must "accede" (agree to abide by) the national Constitution, just as any member on joining an association agrees to abide by its governing instrument. So long as the member continues to so agree, he remains a member. And when he decides to leave, he no longer abides by it - he no longer "accedes" to it. The Church's Constitution makes the act of accession a condition only of joining; after a Diocese has joined, General Convention does not regulate or supervise further changes to its governing documents in any way.
And with regard to whether an accession once made could be treated as being irrevocable, the Petitioners replied (ibid., p. 19):
Nor can a promise to "accede" be interpreted as calling for perpetual accession (performance). In Nissen v. Stovall-Wilcoxson Co. (1953) 120 Cal.App.2d 316, 319, the court said: "It is not often that a promise will be properly interpreted as calling for perpetual performance. (Williston and Thompson on Contracts, § 38.) 'A construction conferring a right in perpetuity will be avoided unless compelled by the unequivocal language of the contract.' (17 C.J.S. "Contracts", § 398.) 'A contract will be construed to impose an obligation in perpetuity only "when the language of the agreement compels that construction.'" [Citation omitted.]" (See Cooper Companies, Inc. v. Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094, 1103 [" ... construing a contract to confer a right in perpetuity is clearly disfavored."]. )

In sum, to apply the rules of contract interpretation together with the law of associations permits of only one legal conclusion: nothing in the Diocese's Constitution limits its right to amend any of its provisions, including the accession clause.
Who has the better argument? (See also this earlier post on the same topic.) At least until the Fifth District Court of Appeal speaks, you may be the judge. (No date has been set yet for oral arguments; conceivably, the Court could even issue its decision without holding an argument, if it found that the latter unnecessary. Stay tuned.)

By a similar process of juxtaposition, it is now possible, thanks to the servers at the Fresno Bee, to evaluate the strengths and weakness of each of the arguments and responses made in the writ proceedings. As time permits, in coming posts I will present more of the arguments and responses in this fashion.


  1. 'Since the Church is hierarchical, its dioceses are subordinate by definition to the governance of the larger Church. Each diocese's promise to accede to the Church's governance, therefore, merely reflects the hierarchical nature of the Church. . .'

    It strikes me that the logic here is circular. They're trying (ultimately) to prove that the Dio SJ is subordinate to TEC; in order to do that, they have to prove that TEC is hierarchical, which they do by appealing to 'accession.' However, when forced to defend accession as implying hierarchy, they assert that TEC's hierarchical nature provides the correct definition of accession in this case, not seeming to realize that that hierarchical nature is what they're trying to prove.

    I think several people involved here just failed Introductory Logic.

  2. You have that exactly right, TK+ -- their argument is completely circular. Let us hope the Fifth District Court of Appeals is well schooled in logic.

  3. TK+,

    One truly distressing aspect of the failure you cite is that one of the people therein involved appears to be Mr. Justice Corona.

    It is a most troubling matter when a justice of the court fails not only logic, but mastery of basic language, i.e., the simple and straightforward meaning of the word accede (I do not think Webster's to be vague in its definition). It should be troubling to all of us for what it portends for the future of our society, and for the future of the Rule of Law. If Mr. Justice Corona is unable to correctly understand things this simple, what justice can one expect in his court, even granting that he may lack any unjust intent.

    The decline in the general level of literacy and ratiocination that infects our society has demonstrably found its way onto the benches of our judicial system, at the least in this instance.

    Pax et bonum,
    Keith Töpfer

  4. I wanted to ask something, and it relates to this thread (or perhaps is a topic for another?). I am not a lawyer, but working in insurance I have had to study contract law in order to understand contracts of insurance. So I want to understand the contract-law implications of the Episcopalian conflict.

    Here is part of what I have had to learn: Contracts of insurance are considered contracts of adhesion, because one party (insurer) sets all the conditions and the insured either accepts (adheres) or else there is no contract. That being so, the courts regard the contract as inherently one-sided in favor of the party who invented it. To somewhat compensate for that one-sidedness, the courts will interpret any ambiguity in a contract of adhesion (such as insurance) in favor of the party that did not dictate the terms (for example, the insured).

    Now I have never heard anybody bring up this idea in any discussion of recent church cases, and I wonder if this legal theory might favor the right of dioceses to secede. For, the constition of the national church seems to be a contract of adhesion, requiring an "unqualified" accession for a new diocese to be united to the national church. Well, that being so, the deck seems to be stacked in favor of the national church (they wrote the contract, not the acceding diocese of X). And therefore, ought not the courts construe any ambiguity in favor of the diocese of X, if they want out? For, it seems obvious that reasonable people could at least agree that the national church constitution at least leaves the topic of a diocese seceding ambiguous (by not saying anything about it). That ambiguity, plus the contract-of-adhesion nature of the constitution, ought to be reason enough for the court to interpret in favor of the diocese of X.

    What do others think?

  5. AllsVanityAll,

    One might think that principle could be applied to the court case, except that I would suspect (I am not an attorney) that there is a fundamental difference which places the two examples (insurance contract law vs. the law applicable to TEC, its constituent dioceses and parishes) in different classes of law.

    The latter is an unincorporated association of what are essentially equals, as the Curmudgeon has often pointed out, whereas the relationship between an insurance company and an insured is a matter of contract law. I would surmise that the two instances are in some sense(s) incommensurable.

    Pax et bonum,
    Keith Töpfer

  6. I can't help but think of this (and this may be better for a previous post), but it's interesting that, e.g., in Ft. Worth, the TEC Diocese of Ft. Worth and 815 believe they are the true Diocese of Ft. Worth. If so, why have a Provisional Bishop? If they are so sure that they are THE Diocese of FTW, why not install a "regular" Bishop and be done with it? A.S. - perhaps you have some insight?

  7. Yes, there is a reason, DavidJ -- and it is this: each of the four "dioceses" in question has been personally called into "convention" by the Presiding Bishop. She claims to have the authority to do this under Canon III.13.1, which provides (emphasis added):

    "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 until a Bishop is elected and ordained for that Diocese or until the act of the Convention is revoked."

    Without the Presiding Bishop, some of the "dioceses" might have managed to get together and organize on their own, and invite in a Bishop to assist them (Canon III.13.2 gives them that power). However, that would have taken too long to suit the PB, because she needs to have a plaintiff to go to court and sue the departing Bishop for all of the diocesan property ASAP. By appointing a Provisional Bishop, the "diocese" chooses one of her hand-picked candidates who will then bring the litigation the PB wants.

    So that is why those "dioceses" all have "Provisional Bishops."