Wednesday, September 30, 2009

Nightmares

Taking off on Franz Kafka's The Metamorphosis, David Kahane at National Review Online describes some of a liberal's worst nightmares:

I have a nightmare.

I have a nightmare that sometime before the 2010 elections, the scales will fall from your eyes and you will see us as we really are.

I have a nightmare that you will read C. S. Lewis’s The Screwtape Letters and realize that it is not fiction.

I have a nightmare that you will read Plunkitt of Tammany Hall and get firsthand instruction in how we steal elections.

I have a nightmare that you will read Machiavelli’s The Prince and realize that we got there way ahead of you.

I have a nightmare that you will read Ayn Rand’s The Fountainhead and recognize us in the figure of Ellsworth Toohey -- the “friend” who is in fact your mortal enemy.

I have a nightmare that you will read Dickens’s Bleak House and see us in the character of Mrs. Jellyby, the “telescopic philanthropist,” who lets her own family go to hell while she frets over the fate of an African tribe.

I have a nightmare that you will re-watch Saving Private Ryan and realize that Corporal Upham, the liberal stickler for process played by Jeremy Davies, saves the German prisoner’s life only to get most of his platoon killed, including Tom Hanks. And then commits the very war crime he tried to stop.

. . .

I have a nightmare that you will go back and watch any B-movie made between 1933 and 1963, like Gun Crazy, and see an America that was not afraid of inanimate objects like firearms, and instead blamed the man for the crime.

I have a nightmare that some of you are old enough to recall a time when the law was an honorable profession, the Constitution was not so deconstructed that, essentially, all that is left of it is the Commerce Clause, and your doctor charged a fee for service and made house calls.

I have a nightmare that when you think of the late Ted Kennedy, resting peacefully at Arlington Cemetery, all you will be able to see is Mary Jo Kopechne, gasping for air in the Oldsmobile while the senator returned to his hotel room and went to sleep.

I have a nightmare that you will remember that Sirhan Sirhan was a Palestinian who hated Bobby Kennedy because of his support of Israel.

I have a nightmare that you’ll realize that, far from being a right-wing nut, Lee Harvey Oswald was a self-proclaimed Marxist who defected to the Soviet Union, came home with a Russian wife, agitated on behalf of Castro’s Cuba, tried to re-defect to Russia, returned to Dallas, brought his rifle to work, and killed JFK with a classic marksman’s shot group: miss, hit, kill.

I have a nightmare that you’ll remember that, in the week leading up to the murders of George Moscone and Harvey Milk, there was no right-wing “climate of hate” in San Francisco as Nancy Pelosi, aka Maerose Prizzi, would have you believe. Instead, the city was riveted by the murders of Congressman Leo Ryan and journalists Don Harris, Bob Brown, and Greg Robinson at the Port Kaituma airstrip on Nov. 18, 1978. This was followed by the “revolutionary suicides” of hundreds of Jim Jones’s radical-leftist Peoples Temple followers, most of them African American. One of the suicide notes read, “I, Marceline Jones, leave all bank accounts in my name to the Communist Party of the USSR.”

I have a nightmare that people will eventually realize that Dan White, who shot Moscone and Milk not over gay rights but over Moscone’s refusal to give him back his seat on the Board of Supervisors, was a Democrat.

. . .

I have a nightmare that one day, perhaps during another Great Awakening, the Supreme Court will overturn Murray v. Curlett, which outlawed school prayer in a lawsuit brought by Madalyn Murray O’Hair, the founder of American Atheists. In 1995, O’Hair was murdered along with her son and granddaughter by another American atheist, who chain-sawed their bodies into bits.

I have a nightmare that one day the Supreme Court will overturn Roe v. Wade, thus returning abortion to the states -- although, alas, we will never get those 40 million dead souls to pay into the Social Security system.

I have a nightmare that I will still be alive when the Mother of All Ponzi Schemes finally beggars the nation, and the heroic, eco-friendly childless couples starve to death as they realize they forgot to manufacture their old-age meal tickets.

I have a nightmare that you will finally understand what the Manchurian Candidate, “mmm mmm mmm / Barack Hussein Obama,” meant by “fundamental change.”

. . .

I have a nightmare that, one day soon, the New York Times will collapse into irrelevance, along with Time, Newsweek, and The New Yorker, and no one will be there to set the TV networks’ agendas, forcing you to once more think for yourself.

. . .

I have a nightmare that you will come to understand the truth of Goya’s axiom that “The Sleep of Reason Produces Monsters.”

I have a nightmare that Sarah Palin will get the Republican nomination for president in 2012.

I have a nightmare that she will win, scattering us like so many scuttling Gregor Samsas [the protagonist of Kafka's book, whose nightmare is that he awakens transformed into a cockroach].

I have nightmare that#...#

Nah. Never happen. You’re too stupid.


Maybe we are. Let's try, though, adding a few conservative ones of our own:

I have a nightmare that Israel, finally realizing that its "friends" are its worst enemies, and left with no alternative but to await the delivery of an atomic bomb on Tel Aviv, will open World War III by bombing Iran.

I have a nightmare that the CIA, seeing its employees prosecuted by a special counsel appointed by Attorney General Eric Holder, will go on an undeclared strike, and fail to obtain from an interrogation crucial information about a plot to smuggle a dirty bomb into the United States.

I have a nightmare that the plot involves a Guantanamo detainee, released to Afghanistan by the Obama administration, who returns with a dirty bomb that causes 75% of the population of Manhattan, Bronx and Queens to die a slow, painful and horrible death from radiation overdose.

I have a nightmare that the event causes a wipeout of the Dow Jones and S&P so great that all the mega-banks which had derivatives tied to the market fail simultaneously, beyond the ability of the Treasury and the Federal Reserve to rescue them.

I have a nightmare that the almighty dollar becomes so worthless in peoples' eyes that no amount of paper money will suffice to buy even a single 1/10th-ounce gold coin.




Feel free to add your own in the comments.

Tuesday, September 29, 2009

Illogic Flourishes in a Vacuum

Definition: vacuum, n. theoretically, an entirely (in practice, an almost completely) empty space.

The recent decision of the South Carolina Supreme Court in All Saints Parish Church Waccamaw et al. v. The Protestant Episcopal Church in the Diocese of South Carolina, et al. (No. 29724, September 18, 2009) has managed to put to the test the workings of the Episcoleft blog network, in a manner in which I never thought we would see so openly demonstrated.

To start with, I have been covering the background issues involved in this lawsuit extensively since beginning this blog in March 2008. (I have put up posts touching upon the issues involved here, here, here, here, and here.) Not one of those posts has ever been cited at what the Episcoleft is proud to call its "Eyes Left" blog roll.

OK, so that is just a personal gripe -- the Episcoleft do not like citing to you, Anglican Curmudgeon, because you are so "right-wing" and "biased." Besides, as many of them are fond of saying, my views may be dismissed as "irrelevant" because "I am never right" (i.e., the courts always decide contrary to what I think they should decide).

Enter the Supreme Court of South Carolina -- which decided unanimously (5 - 0) a case in the way I had argued it should be decided. (I do not claim any influence on the decision itself; just that I argued the state courts should follow common sense, and not allow a trust to be created by the Dennis Canon when the owner of the property had not signed a paper consenting to the trust.) Does the Episcoleft regard this decision as a correct decision under the law?

Not on your life. They regard it as an aberration, an anomaly, which is a blot upon the otherwise beautiful fa├žade of the Church as they would have it established. In their vacuum of a blogworld, they cite themselves in endless circles to show how the decision is unworthy of serious consideration.

Since I believe in the concept of proof, let the unadulterated voices of the Episcoleft convict themselves in this affair. As far as I can determine, here is the unaltered history of the reporting of the decision by the Supreme Court of South Carolina in the blog world, with special attention paid to those blogs listed in "Eyes Left", as well as here:

1. The decision was filed on Friday, September 18, 2009. Thereafter, it was made available that same day on the official Website of the South Carolina Supreme Court. News of the decision appears to have been spread first by the Anglican Mission in America (AMiA), whose parish in Waccamaw was the beneficiary of the decision.

2. The first blog which I can find responded to AMiA's announcement was Titus 1:9, whose elves saw the importance of the news at once, and did not wait for Canon Kendall Harmon to write a post about it: they simply put up a link to the decision itself at 1:49 EDT on September 18. Next came the StandFirm Website, at about 2:30 pm EDT. Thereafter (according to Google) the next site to post the news was the American Anglican Council, which was followed closely by the Rev. Andy Morgan, of Prince George Episcopal Church in Georgetown, South Carolina, at 4:21 pm, and by Baby Blue, who put up her post at 5:13 EDT (linking to the AAC Website), and then a little later by the Rev. Steve Wood (who follows Baby Blue's blog), of St. Andrew's Church in Mt. Pleasant, South Carolina, at Treading Grain, and by David Virtue at his Website.

3. Meanwhile, in response to the StandFirm post, yours truly began cranking out an annotated version of the decision at 3:47 pm EDT, and had it posted some two and a half hours later. No other blogs, as far as I can tell, carried any news of the decision on September 18.

4. September 18 was a Friday, and so the blogworld posted other stories about the decision on Saturday, September 19, beginning in the UK with Stephen Sizer's post (at 7:33 am GMT). Back in the United States, there were posts by K. Crary, at Internet Scofflaw, at noon (linking to StandFirm); by Fr. John Slavin, at 4:53 (linking to David Virtue), and by a local paper in Georgetown, South Carolina.

5. It was not until Monday, September 21, that the Episcoleft began to show any awareness of the decision and its significance -- and even then, it was not through any post by a blog author. Around 10:00 am, a commenter at Episcopal Cafe noted the fact of the decision in adding a comment to a post on another topic, and a second commenter on the same post claimed in response (at about 2:30 pm, without any explanation) that the decision would be overturned.

6. Meanwhile, bloggers and news media from other points of view continued to write about the decision. The Beaufort Tribune in South Carolina published on September 21 a very astute and well-informed article, which observed in part:
According to Wikipedia, the Dennis Canon is named after the attorney and later Suffragan Bishop of New York Walter Dennis, who drafted it. It was passed by the Episcopal Church’s 66th General Convention in 1979.

The Dennis Canon purports to codify an assumed trust relationship TEC claims regarding property held by parishes. The parishes, through their vestries, are supposedly trustees of the property for the benefit of their local dioceses and the national Episcopal Church.
If the Dennis Canon is assumed to be valid, a vestry could be accused in civil court of breaching its fiduciary trust if it transfers property to another ecclesiastical jurisdiction, such as happened in the Waccamaw situation.

Adoption of the Dennis Canon followed the turbulent 1960s and 1970s, when parishes left the Episcopal Church and attempted to retain the parish property for reasons including the admission of women to Holy Orders, the adoption of the 1979 Book of Common Prayer, and the belief that some bishops held heretical views.

In recent years, TEC has been embroiled in a variety of theological disputes concerning its doctrine, discipline, and worship. Because of these disputes, parishes and entire dioceses have left the Episcopal Church bringing with them the property and assets owned by their congregations and dioceses. State and federal appellate courts are deeply divided over the legitimacy and applicability of the Dennis Canon and the existence of a trust relationship on behalf of the Episcopal Church.

The SC Supreme Court’s decision is a strike against the Dennis Canon and against TEC’s claim that it can prevent an Episcopal congregation from severing its ties with the national church and the diocese.
7. A little later, the first extended commentary by any Episcopal loyalist blogger was put up by Eric Von Salzen at the Anglican Centrist Blog. Mr. Von Salzen is a South Carolina attorney specializing in real property law; his commentary was very knowledgeable, and written so that a non-lawyer could understand and appreciate the significance of the decision, even though he felt the Dennis Canon should have been enforced. He was followed by Dean Nicholas Knisely of Trinity Cathedral in Phoenix, Arizona, who in a post at Episcopal Cafe attempted to put the decision into perspective by citing a comment made by Texas lawyer Dale Rye at the Titus 1:9 blog:

The problem with this is that the decision simply assumes (without considering the matter) that South Carolina can switch from being a ‘deference’ state to a ‘neutral principles’ state without thereby interfering with anybody’s established property rights.
As the opinion notes, until 13 years ago both the Episcopal Dioceses in South Carolina and all the parishes in the state were subject to the ‘deference’ principle, under which the congregations and members of a hierarchical church were assumed to have acceded to the authority of the denomination by virtue of having joined that denomination rather than one organized on a congregational basis. All these entities conducted their business with one another under the assumption that their respective legal interests (and the ecclesiological assumptions underlaying them) would not be abrogated by state action. Not only was South Carolina a ‘deference’ state until 1996, but its courts had insisted that this was the only constitutionally possible regime… which it arguably was until the US Supreme Court allowed the ‘neutral principles’ alternative in 1979. So, in 1987 when The Diocese of South Carolina expressly adopted the Dennis Canon, there was clearly established local law that gave General Convention and the Diocese the authority to make rules that were binding on local congregations.

[...]At the time the Diocese of South Carolina adopted the Dennis Canon in 1987, it had every expectation that it was binding on all the diocese’s congregations because that was actually the law at the time. It was not an effort to impose a trust from outside on a non-consenting independent corporation (as this decision holds), because South Carolina Episcopal parishes were not independent corporations in 1987. This judgment, in effect, holds that the adoption of “neutral principles” in 1996 divested the Diocese and National Church of their existing property interests without any compensation.
This comment (which is much longer than the quote just given) received a number of pointed responses at the Titus 1:9 blog from people who agreed with the Court's decision -- none of whom, however, was acknowledged in Dean Knisely's post. (See, for example, this comment, and this, and this.) They were simply invisible to the eyes left, because those eyes rarely, if ever, look right.

8. The commentary kept coming in, but not (except as noted) from the left. Another well-informed attorney and author in Kentucky, David Trimble, who left the Episcopal Church in disagreement over where it was going, put up his favorable reaction to the decision on his blog, Still on Patrol. He was followed by a short comment on the decision from a law professor, Howard M. Friedman, at his Religion Clause blog -- which drew on the Episcopal Cafe post and also mentioned the comment by Dale Rye. Over at a blog which specializes in news of the Presbyterian Church, Doug Clements described the consequences of the decision by using quotes from All Saints Waccamaw's rector and chancellor; another and more extended commentary on the decision from the Presbyterian point of view appeared at The Layman Online. In South Africa, Fr. David McGregor put up a post on the decision which cited to David Virtue's account.

9. Finally, five days after the decision, the reporter for Episcopal News Service, Mary Frances Schjonberg, published a straightforward account of the decision which quoted a reaction to it from the Presiding Bishop:
A statement issued by the Presiding Bishop's office said that the opinion was "particularly disappointing in the light of the long struggle in which the Episcopal Church and the Diocese of South Carolina have worked cooperatively to preserve the property of this parish for the mission of the church and the diocese."

"Time has not permitted a careful analysis of the opinion or of the options that confront the church and the diocese at this point," the statement said.
And that was pretty much it -- until yesterday. (I have not cited to blog posts which simply quote one of the posts already cited above.) All of the blog posts mentioned were unexceptional in their treatment of the decision, which (after all) was very straightforward, and clearly written, as I explained in this post. Apparently, however, some on the left could not leave things at that -- as with Dale Rye, it simply rankled that the Dennis Canon could not be allowed to override State law regarding how a trust interest in real property could be created. And so we come to the latest salvo from the left, by way of a lay person from Pittsburgh who experienced "considerable dismay" at the decision, and who as a result enlisted a local attorney to provide him with an analysis of it. This analysis is such a remarkable statement, coming from an attorney on the left who does not represent (as far as I know) the official views of the Episcopal Church (USA), that I am singling it out for comment here.

The Pittsburgh attorney (who, it must be remembered, is aligned with the group from Calvary Church and other parishes who opposed Bishop Duncan's move to separate the Diocese from ECUSA) begins with an attempt to put the decision into some perspective:
The Supreme Court decision is a rare loss for The Episcopal Church in property litigation, but one has to look behind the immediate outcome to get a better sense of what this decision is and is not. The two issues of interest here are the Court’s treatment of the Dennis Canon and the cavalier way it approved the disassociation with The Episcopal Church.
A "rare loss" it may be, but it is a significant one, because it deals a forthright blow to the heart of the Dennis Canon. The Church tried to circumvent the traditional law of trusts by enacting its Canon, and while it has gotten away with its maneuver in States like New York, California, Colorado, New Jersey and others, this was the first decision in some time that reasserted the control of a State over its own laws, and a refusal to defer to the machinations of ECUSA in trying maintain a death grip on parish property without accepting any of the responsibility or liability for its cost or upkeep. The Pittsburgh lawyer goes on to give his view of why the decision is not such a death knell for the Dennis Canon:
The negation of the Dennis Canon is not as shocking as it seems. While all Episcopal Church parishes are assumed to have a trust relationship with their dioceses (and The Episcopal Church), the diocesan trust here was rendered null and void in 1903, when the Diocese of South Carolina signed a quitclaim deed giving any property interest the diocese had to the parish. (At issue was a question about the validity of the parish’s incorporation.) It is sometimes overlooked that the Dennis Canon did not and could not create a trust where none had existed before. The underlying assumption of the Dennis Canon is that there is always a trust relationship between a parish and the diocese dating from the establishment of the parish. To date, state courts have agreed with this. In this case, the diocese had given up its trust rights, so that there was nothing for the Dennis Canon to attach to.
I have put in bold the most remarkable thing about this opinion: "It is sometimes overlooked that the Dennis Canon did not and could not create a trust where none had existed before." The attorney attempts to explain this assertion with the next sentence: "The underlying assumption of the Dennis Canon is that there is always a trust relationship between a parish and the diocese dating from the establishment of the parish."

I very much beg to differ. As I have explained at length in numerous posts about the Dennis Canon (all linked at this page), and most recently in this satirical post about the "free advice" that gave rise to Bishop Walter Dennis' last-minute submission to General Convention 1979, the "underlying assumption" behind the Dennis Canon was nothing of the kind. The idea of a "trust relationship between the parish and the diocese" (where does that leave the Episcopal Church [USA]'s claim of a trust, by the way?) which dates "from the establishment of the parish" has particularly no application to All Saints Waccamaw, whose establishment (in 1767) predated that of both the Diocese of South Carolina (in 1778) and of the Protestant Episcopal Church (in 1789).

Even if the dates had been different, however, the doctrine of an implied trust with regard to parish property, in favor of the general denomination, came into disfavor with the Supreme Court's 1871 decision in Watson v. Jones, and was ruled entirely unconstitutional by the Court in 1969 (in the Hull Church decision, as I explained in this post). The Hull decision preceded the enactment of the Dennis Canon by ten years. Bishop Dennis had been a lawyer before entering the Church, and it was his reading of the Court's 1979 majority opinion in Jones v. Wolf that gave him the idea for the Canon which bears his name. Thus neither he, nor General Convention 1979, could possibly have been thinking of codifying the implied trust theory by enacting the Canon -- the theory had been completely discredited and discarded by then.

Moreover, the argument that the 1903 quitclaim deed from the diocese to All Saints Waccamaw somehow served to make the trust declared by the Canon in 1979 ineffective again has no application to ECUSA itself. There is a doctrine called "estoppel by deed" which is recognized in South Carolina; essentially the idea is that if you give someone an outright deed to property which you own, you cannot later come into court and claim that you made a mistake, and meant to reserve a trust interest. But this was a quitclaim deed, which (as the link in the quote above explains) carries no guarantee or assertion that the person signing it owns any interest in the property at all. Its only effect is to transfer whatever interest the grantor may have in the property, without determining the extent of that interest. And having thus transferred in 1903 any interest it might have had, the diocese was "estopped" (judicially prevented) from claiming that it had a trust interest in 1979 -- unless something had happened between 1903 and 1979 to allow it to claim such a trust interest. And the argument the Diocese had made to the Court was that something did happen in that interval: the Church enacted the Dennis Canon.

Strictly speaking, therefore, one is going in circles when one states that "there was no interest created in 1979 by the Dennis Canon because any interest had been conveyed away in 1903." The whole point of the Dennis Canon was to manufacture such an interest out of whole cloth, regardless of whatever had gone before. To admit that any interest thus declared by the Dennis Canon was even capable of having been conveyed away by an earlier deed is to give away the whole ball game. (To take just one example, the Diocese of Los Angeles could not have prevailed in their case against St. James parish in Newport Beach, because there, too, the Diocese had given the parish a deed to the property in order to get it started, after it had incorporated in 1949.)

Moreover, since the Episcopal Church (USA) has never owned any property on its own (as a common-law association, it has always been incapable of holding title to any real property in its name), there never could have been any earlier grant from it to a parish which would have estopped it from declaring a trust interest by means of the Dennis Canon. And yet, the South Carolina Supreme Court held that the Dennis Canon was ineffective to create any trust for it in the parish's property, as well.

So the holding of the South Carolina Supreme Court with respect to the invalidity of the Dennis Canon cannot be spun as the Episcoleft would like to spin it. It does not depend in any way upon the giving of the 1903 quitclaim deed -- that was just an extra fact for the Court to put into its quiver. No, the central holding of the South Carolina Supreme Court is that the Dennis Canon -- alone and all by itself -- was insufficient in law to create a trust in favor of either the Church or the Diocese. And the reason it was insufficient is that it attempted to create a trust without complying with South Carolina law -- which requires, as nearly all States do, that the owner of the property being placed in trust sign a writing to that effect.

The analysis by the Pittsburgh attorney of the decision by the South Carolina Supreme Court does not, however, stop there. It goes on to find "troublesome" the second part of the Court's decision, recognizing that All Saints was free to amend its corporate articles under South Carolina law so as to remove its accession to the Diocese and the national church. (All Saints was free to do that because there was no limitation placed on its power of amendment, and because there was no requirement that the Diocese, or the Church, ratify or approve any amendment once made.) And why should this holding -- again, a straightforward application of State corporation law -- be so troublesome? Oh, it's that darn diocesan "accession clause" again:
This conclusion of the Court is troublesome because nowhere in the opinion was the accession clause of the diocesan constitution (see Article I) mentioned or explanation given as to why it did not apply to this case. If an accession clause had been found present and effective, the actions of the parish, even if they had been unanimous, would have been beyond their authority and therefore of no effect.
I am afraid that this argument, however, is as nonsensical as the earlier one. In the first place, the much-vaunted accession clause does not specify which is the version of the national Constitution or Canons to which it applies; it just says that the diocese "accedes to and adopts" them, without more. I will leave to others more knowledgeable in South Carolina to tell us when this current version of Article I of the South Carolina diocesan Constitution was adopted, but I will wager that it was long before 1979 -- it may even go back to language first adopted in 1789, or shortly thereafter. The national Canons have changed hundreds of times since then. Does that mean that each generation of South Carolinians must be held to have foreseen, and agreed in advance to be bound by, whatever little strategem bishops like Walter Dennis might conceive as advantageous hundreds of years later -- particularly when it tries to take away the property they have held and developed by themselves for so long? (Watch out -- do not go back to an implied trust argument again.)

In the second place, the accession clause on its face applies only to the Diocese, and not to All Saints Waccamaw. The two entities are by no means the same. So there is a huge step missing in the analysis: by virtue of what language does the adoption of language by a diocesan convention in the eighteenth or nineteenth century even conceivably bind a parish created in 1767, and reincorporated again in 1778?

And finally, this argument represents the same pleading for a special meaning to be given to the word "accede" that ECUSA, and only ECUSA in the entire English-speaking world, contends it means. Any standard dictionary will tell you that the word means "to agree to be bound by, to consent." It does not mean, and you will find no dictionary defining it to mean, "to agree forever to be bound by; to consent irrevocably." To be irrevocable, a voluntary consent must be stated to be so, by using the word "irrevocable" or its equivalent. Otherwise, all consents in law are revocable at any time. As I have pointed out elsewhere, nations have acceded to the Articles of the United Nations, and they have also withdrawn their accession. To repeat: even if the parish articles contained language acceding to the diocesan and national constitution and canons, there was no restriction on the power of All Saints to amend those articles.

Our Pittsbugh attorney is not quite done with his criticism of the decision. He has one more bone to pick:
Moreover . . . the Diocese of South Carolina’s Canon XXX, Section 1 (see canons here), would seem to prohibit what the Supreme Court of South Carolina has allowed:
It shall not be lawful for any Vestry, Trustees or other body authorized by laws of any State or Territory to hold property for any Diocese, Parish or Congregation, to encumber or alienate any dedicated and consecrated Church or Chapel . . . without the previous consent of the Bishop, acting with the advice and consent of the Standing Committee of the Diocese.
It would seem that the court is saying that the only document that need be considered is the parish charter; the diocesan constitution and canons count for naught. The failure of the South Carolina Supreme Court to address this issue is both surprising and distressing.
Can you spot the flaw here? It's simple: there was no "encumbering or alienation" of the property! All Saints Waccamaw owned the property outright before it amended its articles, and it continued to own the property outright afterwards. This is another example of reading into the text something that just is not there.

All this is standard stuff for any regular reader of this blog, and I apologize for taking you through it yet one more time. But what we have here, as I chronicled at the outset, is a studied refusal by those on the left to engage with, or even read, blogs such as this one which try to present rational arguments based just on the law and the actual words in a document, instead of making up the law to fit a preconceived and desired outcome, and ignoring the facts (and text) to get there. All the blogs on the left -- from "Thinking Anglicans" to "Episcopal Cafe"-- simply cite to each other, and never to anyone outside of their tight little circle. (Here is just the latest example from the first-mentioned blog.) As a result, they are caught by surprise when a rational decision proceeds to apply settled law to the actual words of a governing document -- and they have no clue as to what could be wrong.

We are seeing the same blindness in Fort Worth, as I analyzed in this earlier post. The Episcopal Church (USA) may be able to pull the wool over the eyes of some courts -- even of the California Supreme Court -- but any argument so based in illogic and contradiction cannot fool all of the courts, all of the time. The meaning of "accede" has not changed for over five hundred years, and if some courts misread it for a while, they will eventually set themselves straight. The point is that the life of the law is logic. No legal system can long survive without remaining true to that principle. Illogic is like a cancer, a fatal disease for the stability that the law is supposed to represent and embody. If a law (or a legal term) means one thing one day, and another the next, no one can build any rational plans for going forward with their affairs.

ECUSA is currently advancing nothing but illogic in the courts. It is a strategy doomed to fail in the long run, because it undermines the very courts themselves. The law moves slowly and ponderously, and by no means gets it right all the time.

And when it can no longer get it right at all, people no longer recognize its authority. "When in the course of human events . . . ."







Saturday, September 26, 2009

Your Health Care Plan Is Toast

Thanks to the Kennedy family and their subservient politicians in Massachusetts, the Democrats now once again have a filibuster-proof majority of 60 in the Senate, just in time to pass their pending health care legislation. (Massachusetts will not hold its special election to replace Senator Kennedy until January 2010. However, certifying that there was an "emergency" need to fill the post immediately, Governor Patrick appointed Kennedy family trusty Paul G. Kirk, Jr. to provide Democrats with their sixtieth vote.)

And now it is on the record that the Democrats are unwilling to provide a failsafe mechanism to keep their legislation from causing you to lose your own private health-care plan. On Thursday Senator Orrin Hatch offered a simple amendment to the current draft of Senator Max Baucus' health care proposal being considered by the Senate Finance Committee. He explained what it was, and why he was proposing it:
The purpose of this amendment is simple. If the secretary of Health and Human Services certifies that more than 1 million Americans would lose the current coverage of their choice because of this bill, then this bill would not go into effect.

It seems like a very, very simple but perfect amendment for those of us who have integrity. This amendment is simply trying to safeguard President Obama's pledge to the American people, you'll get -- that you will get to keep what you have.
Yes, President Obama did make that promise -- and we all know that he does not lie, don't we?

Not a single Democrat on the Committee was willing to back up President Obama's promise, however. Here was the roll call vote on Senator Hatch's proposed amendment:

BAUCUS: Roll call has been requested. Quickly call the roll.

CLERK: Mr. Rockefeller.

ROCKEFELLER: No.

CLERK: Mr. Rockefeller, no. Mr. Conrad.

CONRAD: No.

CLERK: Mr. Conrad no.

Mr. Bingaman.

BINGAMAN: No.

CLERK: Mr. Bingaman no.

Mr. Kerry.

(UNKNOWN): No by proxy.

CLERK: Mr. Kerry no by proxy.

Mrs. Lincoln.

LINCOLN: No.

CLERK: Mrs. Lincoln no.

Mr. Wyden.

WYDEN: No.

CLERK: Mr. Wyden no.

Mr. Schumer.

(UNKNOWN): No by proxy.

CLERK: Mr. Schumer no by proxy.

Ms. Stabenow.

STABENOW: No.

CLERK: Ms. Stabenow no.

Ms. Cantwell.

CANTWELL: No.

CLERK: Ms. Cantwell no.

Mr. Nelson.

NELSON: No.

CLERK: Mr. Nelson no.

Mr. Menendez.

MENENDEZ: No.

CLERK: Mr. Menendez no.

Mr. Carper.

(UNKNOWN): No by proxy.

CLERK: Mr. Carper no by proxy.
(H/T: Powerline.) This vote proves the Democrats are out to replace your private plan with what will eventually be a uniform national plan, after the government-backed "option" slowly eliminates all of its competition. (Even the Washington Post admits that the bill will cause "changes" in private plans.) For some common-sense talk about health-care options, see this article.

Oh, but wait -- there will be one plan that will survive the government option: it's the plan that Congress provides for its own members. That plan is also government-sponsored, you see, so it will not have to compete with the public option. But you cannot obtain it unless you are elected to Congress.

Why are the Democrats willing to do this? It ought to be political suicide for the House and Senate Democrats running in 2010, but they know that most private plans will still be around at that time, since they won't start wiping out the competition until after that election. Plus, they are counting on the voters to have a short memory.

[UPDATE 09/27/09: It turns out that part of the Obama Health Care Plan is already in place --- I wager you had no idea, right? It was part of the "Stimulus Bill" than Congress passed without reading it first. Read the details in this post. Then read this well-researched article, as well. Things are getting not just creepy anymore, but downright disturbing. This country is bent on a course from which there will be no turning back until after it has all gotten very bad indeed. As usual, you cannot count on regular media to stay informed.]

Let's prove them wrong. A vote for the Baucus health care bill should be a one-way ticket back home.

Friday, September 25, 2009

With Forked Tongue

Jesus said (John 14:6): "I am the way, and the truth, and the life. No man comes to the Father except through me."

The Right Reverend J. Jon Bruno says: "Not so fast -- there are other ways; Jesus is not the only way."

Jesus said (Mt 19:4-6): “Have you not read that from the beginning the Creator made them male and female, and said, ‘For this reason a man will leave his father and mother and will be united with his wife, and the two will become one flesh’? So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”

The Right Reverend J. Jon Bruno says (in 2007): "It [blessing of same-sex unions] does not happen in my diocese with my permission." Meanwhile, in 2004, none other than the Right Reverend J. Jon Bruno blessed the union of the Very Reverend Malcolm Boyd and Mark Thompson. (I guess it must have occurred without his "permission".)

Jesus said (Mark 12:31): " . . . and the second commandment is this: Love thy neighbor as thyself. On these two commandments hang all the law and the prophets."

The Right Reverend J. Jon Bruno says: "Ubuntu expresses the thought that 'I am because you are.' This concept echoes our Baptismal Covenant as Episcopalians 'to respect the dignity of every human being.' This ubuntu way of living compels us to serve Christ in one another both locally and globally. . . . We are committed to building new community. We are committed to serving with generosity."

But a little more than three years earlier, the Right Reverend J. Jon Bruno (Bishop of the Episcopal Diocese of Los Angeles) said:

I have received word this afternoon that the congregation of St. Luke's-of-the-Mountains Episcopal Church, La Crescenta, voted on February 13 to sever its ties with the Diocese of Los Angeles and the Episcopal Church in the United States of America, and align itself with the Diocese of Luweero, Uganda.

I am deeply disappointed in the actions taken by the congregation and its clergy. We have worked in the past to resolve differences between the rector and parishioners of St. Luke's and the diocese and the national Church. It is a painful matter to me to know that they have abandoned all attempts at reconciliation, which is at the heart of our Christian witness. We still hope and pray that we may come together again with our brothers and sisters of St. Luke's Church. . . .

The Episcopal Church is a church of thinking people, and it is inevitable that its members will think differently about many matters of faith and practice. Dissension will not undercut the great work being done by Episcopalians here in the Diocese of Los Angeles, which is a vital and growing branch of Christ's kingdom, bringing abundance to the people of Southern California.
Jesus said (Luke 6:29-31): "To the person who strikes you on the cheek, offer the other as well, and from the person who takes away your coat, do not withhold your tunic either. Give to everyone who asks you, and do not ask for your possessions back from the person who takes them away. Treat others in the same way that you would want them to treat you."

The Right Reverend J. Jon Bruno, Bishop of Los Angeles, says:
The congregation's claim on the property of St. Luke's Church is clearly illegal according to the canons of our diocese and the national Church and to the laws of the State of California. It is my pastoral and fiduciary duty to this diocese to protect its property rights, and we will pursue this matter.
St. Paul said (1 Cor. 6:1-7):
When any of you has a legal dispute with another, does he dare go to court before the unrighteous rather than before the saints? Or do you not know that the saints will judge the world? And if the world is to be judged by you, are you not competent to settle trivial suits? Do you not know that we will judge angels? Why not ordinary matters! So if you have ordinary lawsuits, do you appoint as judges those who have no standing in the church? I say this to your shame! Is there no one among you wise enough to settle disputes between fellow Christians? Instead, does a Christian sue a Christian, and do this before unbelievers? The fact that you have lawsuits among yourselves demonstrates that you have already been defeated. Why not rather be wronged? Why not rather be cheated?

Regardless of what St. Paul said, the Bishop of Los Angeles filed a lawsuit against the rector and vestry of St. Luke's Church, demanding that he be given immediate possession of all of its property. In June of this year, the Fourth District Court of Appeals affirmed the trial court's grant of summary judgment in favor of Bishop Bruno and his Diocese, and awarding them possession of the Church's property under the Dennis Canon, as made applicable to Episcopal parish property by a special State statute. (The parish of St. James, in Newport Beach, has petitioned the U. S. Supreme Court to review this ruling, and we should know by October 5 if the Court will grant review.) The trial court had granted a stay of the enforcement of its judgment pending the parish's appeal. Last Monday, September 21, the Court of Appeal's decision became final (subject only to discretionary review by the U.S. Supreme Court -- a move the parish is presently considering), and the case was returned to the trial court.

Jesus said (John 21:15-17): “Simon, son of John, do you love me more than these do?” He replied, “Yes, Lord, you know I love you.” Jesus told him, “Feed my lambs.” Jesus said a second time, “Simon, son of John, do you love me?” He replied, “Yes, Lord, you know I love you.” Jesus told him, “Shepherd my sheep.” Jesus said a third time, “Simon, son of John, do you love me?” Peter was distressed that Jesus asked him a third time, “Do you love me?” and said, “Lord, you know everything. You know that I love you.” Jesus replied, “Feed my sheep.”

The Right Rev. J. Jon Bruno, Bishop of Los Angeles, says the future mission of St. Luke's, now under his direct pastoral control, will be to focus on "deepening our understanding of what it means to be reconciled, welcoming and healthy people of God."

The Rev. Rob Holmann, rector of St. Luke's, said that he and the 200-member congregation "would very much like to stay" in the 83-year-old river-rock building, considered a cultural, architectural and historic local landmark.

But the Right Rev. J. Jon Bruno says:
The long history of the Episcopal Church in La Crescenta will continue with new leadership and the potential for sustained growth, and as an open source of full inclusion for all humanity . . . .

It is important that we preserve the essence of St. Luke the healer and the ongoing maintenance of the historic church building. It is a jewel in the crown of La Crescenta, and a blessing to the people of the Diocese of Los Angeles.
As part of the essence, no doubt, of "St. Luke the healer", and as part of his avowed mission to "serve Christ in one another . . . [and] serving with generosity", the Right Reverend Jon J. Bruno instructed his attorneys, on the day after the appellate court returned the case to the trial court, to write the Church's counsel as follows:
The California Court of Appeal, Fourth Appellate District, Division One (Appeal No. D051669) issued its remittitur yesterday, transferring jurisdiction to the superior court. As a result, Plaintiffs are entitled to immediate enforcement of the judgment entered on July 26, 2007, which has now been affirmed with finality. (A copy is attached for your reference.) The judgment requires Defendants to immediately relinquish ownership and possession of all real and personal property held by or for the benefit of St. Luke's on or before February 13, 2006 (the "Property"), and requires Defendants to provide the Diocese a full accounting of all Property from the date of St. Luke's last parochial report filed with the Diocese . . . .
The judgment (a copy of which is attached to the letter) says nothing about the (ridiculous) date of February 13, 2006, which is the date on which the Diocese filed its complaint against St. Luke's. (And how could it? A judgment is entered at the close of the whole case, after there has been a trial. If it were to say that the defendants had to hand over possession of the property "on or before the date on which the complaint was filed", the judgment would be impossible to carry out, and would deservedly earn the condemnation of Charles Dickens' Mr. Bumble.)

What the judgment (view after the two-page letter) in fact says is this (notice there is no specific date given):
IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT . . . Defendants shall a) relinquish ownership, possession, and control of the Property to the Priest-In-Charge appointed by the Bishop and b) render to the Diocese a full accounting of all Property held by or for the benefit of St. Luke's from the date of St. Luke's last parochial report filed with the Diocese through and including such date as all Property has been relinquished to the Diocese and fully accounted for.
And this judgment was drafted by Bishop Bruno's attorneys, so they have no one to blame for the lack of a specific date but themselves. That does not stop them, however, from reading in a specific date of their own:
We assume your client has made contingency plans for this eventuality, and is prepared to comply with the final judgment. Although the Diocese is entitled to immediate possession of the Property, it is willing to provide St. Luke's an additional period to vacate the Property in an orderly manner. To that end, we request your immediate confirmation that St. Luke's will vacate and release the Property to the Diocese by noon on Friday, September 25, 2009, and provide the full accounting required by the final judgment on or before September 29, 2009. Representatives of the Diocese will be present at noon on September 25, 2009, to take possession of the Property.
This is the kind of officious nonsense which makes people despise lawyers so much. They turn a judgment which has no definite date in it, and signed by a court which granted a stay of execution of the judgment which has not yet been lifted, into a monumental chicken-and-egg problem. For the judgment (which they drafted, remember) says expressly that the defendants are to render to the Diocese a full accounting of all the parish property from the date of its last parochial report to the date on which all such property "has been . . . fully accounted for." At the same time, that date is defined in the judgment to be the same date as of which all of the Parish's property has been "relinquished to the Diocese."

So the attorneys for Bishop Bruno simply invent a requirement, under the threat of "further proceedings", that St. Luke's vacate its property by noon today, and then account to the Diocese for all of the property as of that time some four days later. The problem is that there is nothing in the judgment itself which allows the attorneys to set such a timetable before the trial court lifts its stay.

When a court imposes a stay, it expires in accordance with the terms set by the court, and not as the attorneys may wish to have it expire. I do not have access to the language of the stay, but if it had expired by now under its own terms, I would have expected Bishop Bruno's attorneys to point out that fact in their letter. Instead, they never even mention the stay.

I recall that the Diocese of Central New York showed a similar charity toward the Reverend Matt Kennedy and his spouse, the Reverend Anne Kennedy, when the decision awarding their parish's property to the Diocese became final as well. What we have here are two examples of the Episcopal Church (USA) showing its true philosophy of "inclusiveness" and Christian fellowship: "with malice toward some, and charity for a few", it's "Katy, bar the door" for the rest.





Friday TED Talk:Taryn Simon Photographs Hidden Things

Taryn Simon is a professional photographer who is not deterred by receiving a "no" in response to her requests for access to sites which most people are not allowed to see. She spoke at the TED Global 2009 Conference, and showed extracts from her collection An American Index of the Hidden and Unfamiliar, as well as from an earlier collection, "The Innocents" -- pictures of people convicted of crimes they did not commit, showing how they were misidentified. She ends her talk with a demonstration of how our eyes are easily deceived:






You can read more about Taryn Simon at this page, and watch her talk in high-res video from this link. Download different versions of her talk from this page, and there are more notes about her work at this link.

Wednesday, September 23, 2009

Episcopal Church Sues Justice's Estate for Malpractice

(ENS, Prairie City) - The Presiding Bishop of The Protestant Episcopal Church in the United States of America, the Most Reverend Katharine Jefferts Schori, announced today from her headquarters at 815 Second Avenue in New York City that she has instructed her Chancellor, David Booth Beers, to file a lawsuit against the estate of deceased Supreme Court Justice Harry Blackmun of Minnesota for malpractice. In a statement released today, she explained: "On the advice of my Chancellor, and with the approval of my Council of Advice, I have authorized the filing of a suit by the Church for legal malpractice against the Estate of former Supreme Court Justice Harry A. Blackmun. The decision by the Supreme Court of South Carolina earlier this week has shown that the advice he gave to Bishop Walter Dennis of this Church in 1979 was wrong, and we think he -- or rather, his estate -- should compensate the Church for the attorneys' fees and other losses that have resulted from following his advice."

When questioned about the nature of the advice which Justice Blackmun gave, the Presiding Bishop referred this reporter to the following passage in the decision authored by Justice Blackmun in the 1979 Supreme Court case of Jones v. Wolf:

Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.
She then explained that, relying on this legal advice, Bishop Walter Dennis of New York had introduced the text of the Dennis Canon in the last days of General Convention 1979, and that by adopting the Canon, the Church had done exactly what Justice Blackmun had advised it to do: the Church's canons were "made to recite an express trust in our favor." "But now," she continued, "the South Carolina Supreme Court has said that our Canon didn't do the trick. As a result, the Church has lost its claim to property worth around $5 million, and has incurred several million dollars worth of legal fees trying to enforce the Canon in South Carolina since we were first sued for asserting a claim there ten years ago."

A reporter for Church Legal Times present at the announcement put this question to the Presiding Bishop: "But did the Church actually follow Justice Blackmun's advice? He said that the constitution of the general church could be made to recite an express trust, and you just said that it was the canons which were amended, not the Constitution." The Presiding Bishop replied: "In our view, it doesn't make any difference -- other than that it would have taken the Church four years to amend the Constitution, while we were able to change the Canons in just a few days, without anyone even noticing it. All dioceses of the Church are subject to the canons just as much as they are to the Constitution, so it comes down to the same thing. We followed Justice Blackmun's advice, all right, and now we find out that it wasn't any good."

When contacted, a spokesperson for the Blackmun family said they had heard about a lawsuit, but had not yet been served with any papers. The spokesperson said that the family, however, doubted that the Justice's estate could be found liable for any malpractice, because he did not receive any legal fees for the advice he gave. "The advice he gave in that opinion was free," the spokesperson said. "No charge -- zip -- nada. And it is common knowledge that legal advice is worth what you pay for it."

Asked to respond, a spokesperson for the Presiding Bishop replied: "That's not true that the advice Justice Blackmun gave was 'free.' He was paid a handsome salary by all of us taxpayers to sit on that bench and dispense legal advice." When it was pointed out that the Church, as an exempt organization, paid no taxes, the spokesperson continued: "The Church may not have paid any taxes, but Bishop Dennis did, and Bishop Sauls did, and so did the other Property Task Force members -- they all relied on the advice he gave in the Jones opinion. So we maintain that his estate is definitely liable."

Legal commentators across the Web were taken aback by the South Carolina ruling. Said one renowned scholar (who maintained anonymity, however, for this post):
The U[nited] S[tates] S[upreme] C[ourt] ruling [in Jones v. Wolf] specifically states and advises that "the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form". The Dennis canon was adopted to do exactly this. Guess the S[outh] C[arolina] Supremes missed that bit.
Another legal commentator opined that the South Carolina decision was no "blockbuster":
The case . . . limits its discussion to the Dennis Canon to a short paragraph:

"It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property."

In other words, where the Diocese transferred its interest in the property in 1903, it could not create a trust in 1987,or enforce it in 2000.

I'm not sure that decision is right, in view of the canon and overall polity, but it's not a blockbuster, even if it is.
When asked why the giving in 1903 of a quitclaim deed by the Diocese would block the Episcopal Church (USA) from asserting its trust in 1979 -- when it, too, did not have any interest in the property before that date -- the commentator indicated further research would be in order.

Finally, a third legal expert complained that the switch by the South Carolina Supreme Court from its previously announced "deferential" approach to a "neutral principles" approach, first announced in a 1996 decision, was too sudden, and unfair to the Episcopal Church (USA). "The Church published its Dennis Canon relying on the fact that, as a hierarchical church, the courts would have to defer to its ecclesiastical determinations," said this expert. "Then the South Carolina Supreme Court goes in 1996 and changes all the rules on us. That's not fair."

When it was pointed out to him that Justice Blackmun's advice, given in Jones v. Wolf, was itself in a case announcing that the "neutral principles" approach would now pass constitutional muster, and refusing to apply the "deferential" line of cases, the expert made no reply. Asked further how a decision announced in 1996 could come as a surprise to the Diocese and the Church when it recorded its claim to the property in Pawley's Island in 2000, the expert kept his silence, and turned away.

"There are a lot of us [Episcopalians] who are very disappointed with the approach taken by the South Carolina Supreme Court," said a regular churchgoer. "They took the same approach to the law that the so-called 'orthodox' take to the Scriptures - any and all facts to the contrary notwithstanding, it has to mean exactly what they want it to mean, and only that."

Asked about the praise for the decision given on a blog known as the "Anglican Curmudgeon", another Episcopal regular replied: "I've stopped reading him. He's too biased in everything he writes. A curmudgeon should be balanced and objective, open to all points of view, and he's just not."

In a later announcement, the office of the Presiding Bishop stated that she had asked her Chancellor to review other cases in which judges had offered legal advice on which the Church had relied to its detriment. Since the fund-raising campaign announced by her office had not gotten off to a very strong start, observers speculated whether malpractice lawsuits might not be seen as an entirely new and refreshing way to replenish the Church's dwindling coffers.

Tuesday, September 22, 2009

Appellate Court Issues Order to Show Cause in San Joaquin

Word was received this afternoon that the Fifth District Court of Appeal has formally accepted Bishop Schofield's petition to review the ruling and order entered by the trial court granting Bishop Lamb's and ECUSA's motion for summary adjudication. This means that the trial court's decision and ruling are suspended pending a determination by the Court of Appeal, and the entry of a new order either vacating the trial court's ruling, or directing the entry of a new summary adjudication.

Here is a link to a copy of the Order. This is great news for the Anglican Diocese of San Joaquin, and should stop ECUSA and Bishop Gulick's attorneys in the Fort Worth litigation from continuing to cite the trial court's ruling as "the law". See this comment over at StandFirm for more detail on the significance of the Order, and what it means.

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.



Friday, September 18, 2009

Dennis Canon Loses in South Carolina

The Supreme Court of South Carolina has just delivered a unanimous decision in the oldest still-pending court dispute involving the application of ECUSA's Dennis Canon to a parish's property: All Saints Parish Church Waccamaw v. the Protestant Episcopal Church in the Diocese of South Carolina (No. 26724, September 18, 2009). (For some background on the origins of the case, see the discussion toward the bottom of this post.) The opinion presents a clear and thoroughly common-sense refutation of ECUSA's outlandish claims: that as a hierarchical Church, it has the power (1) to decide which congregation/vestry is the "true" congregation/vestry in a given parish; and (2) to override State law by imposing a trust on all parish property everywhere in its Dioceses without its being the owner of any of that property.

The opinion is so clear and well-written, in fact, that there is scarcely any need to translate the greater part of it for a lay person. So I shall present here, for the edification and benefit of those visitors to this blog who have been following with me the vicissitudes of ECUSA's Dennis Canon in the various State courts, a lightly annotated version. (Instead of the traditional, indented quotation format, I shall present the opinion below in normal format, and then put my comments in indented form [with purple text].) Let us begin with the Court's well-laid-out presentation of the basic facts:


CHIEF JUSTICE TOAL: This case presents two questions that arise out of a dispute over church property and corporate control: (1) whether the trial court correctly determined that a trust deed, executed in 1745 for the establishment of a Parish in the Waccamaw Neck region of South Carolina,[1] remains valid; and (2) whether the trial court correctly determined that the vestry representing a minority group of the congregation were the officers of the congregation’s corporate entity, All Saints Parish, Waccamaw, Inc.

FACTUAL/PROCEDURAL BACKGROUND

Underlying this appeal are two lawsuits that were consolidated for trial in Georgetown County. The first lawsuit (“the 2000 Action”) was a declaratory judgment action filed by All Saints Parish, Waccamaw, Inc. against the Episcopal Church in the United States of America (“ECUSA”) and the South Carolina Diocese (“Diocese”). The 2000 Action was precipitated by the Diocese’s recording of a notice with the Georgetown County clerk of court by which it purported to put the public on notice that the congregation of All Saints Parish held its property in trust for the Diocese and ECUSA.

After the congregation fractured, the second lawsuit (“the 2005 Action”) was filed by a minority faction of the original congregation against its majority which had voted to sever ties with the ECUSA and the Diocese. The minority faction remained loyal to the denominational authorities and was represented by a vestry led by Guerry Green (“the minority vestry”). The majority group was represented by a vestry led by W. Russell Campbell (“the majority vestry”). In the 2005 Action, the minority vestry sought a declaration that they, and not the majority vestry, were the officers of All Saints Parish, Waccamaw, Inc. The 2000 Action and the 2005 Action were consolidated and tried in March 2006. This appeal is from the trial court’s order.

Keep that in mind as we continue: there were two separate lawsuits which were consolidated for trial, but with two separate judgments involving different parties, and hence two different appeals being addressed in this one opinion. The Episcopal Church (USA), for example, is a party (defendant) only to the first suit, filed in 2000.

The facts relevant to this appeal date to the early eighteenth century. By the Church Act of 1706, the South Carolina Commons House of Assembly (“Commons House”) established the Church of England as the official religion of colonial South Carolina and created the first parishes in the colony. Parishes were regionally defined and served as ecclesiastical and political entities. All Saints Parish, however, was not formed at that time.

In 1734, George Pawley, a member of the Commons House, was appointed by legislative enactment to erect church buildings in the St. John’s and the Prince George Parishes. He was “authorized to accept and take any grant or conveyance of any lands within said parishes respectively, to them and their heirs, in trust, for the inhabitants of said parishes.” Act No. 567 at § 6, 3 S.C. Stat. 374, 375 (1734). In 1745, Percival and Ann Pawley transferred approximately 60 acres to George Pawley and William Poole. The language of this trust deed (“the 1745 Trust Deed”) provided that George Pawley and William Poole were deeded the land “forever in Trust For the Inhabitants On Waccamaw Neck for Use of A Chapel or Church for divine Worship of the Church of England established by Law…”. Consideration for this transfer was “the Sum of one hundred pounds current Money of South Carolina.”[2] The terms of the 1745 Trust Deed did not bestow any duties upon the trustees, and there is no evidence to suggest that the trustees exercised any duties relative to the 1745 Trust Deed.

This is also important to keep in mind: as the Court will explain in greater detail later, the land was put "in trust" for the "Inhabitants On Waccamaw Neck" only because at that time (1745) there was not yet an incorporated parish which could hold title to any real property. The Trustees named in the Deed were only nominal trustees, with no real duties as such.

On December 10, 1766, the inhabitants of the Waccamaw Neck formally petitioned the Commons House requesting the establishment of their own parish. In 1767, an Act of the Commons House carved out a piece of the Prince George Parish, thus creating a new Parish named All Saints in the Waccamaw Neck region. Subsequently, on January 2, 1767, the 1745 Trust Deed was recorded in Charleston.[3] By 1774, both George Pawley and William Poole had died. Neither the 1745 Trust Deed nor the trustee’s wills named a successor trustee. By all accounts, the property at issue has been actively used as a place of worship since at least 1767, if not before.

This is another crucial fact, as we shall see: the property has been in continuous use as a church since "at least 1767, if not before."

The relationship between South Carolina’s colonial parishes and the Diocese of London was severed during the Revolutionary War. Nonetheless, the South Carolina General Assembly re-established All Saints Parish in 1778. Even though the Church of England was formally disestablished as the official religion of South Carolina in 1790, the property at issue continued to be used as a place of worship.

"Disestablishment" of the English Church in South Carolina was the event that enabled the Diocese of South Carolina to come into being as an independent, autonomous collection of parishes in the newly formed State -- before there was every any such entity as the "Protestant Episcopal Church i9n the United States of America." See my posts here and here for more detail on how PECUSA began and came together.

In 1820, the South Carolina General Assembly passed an Act which officially incorporated the wardens and the vestry of All Saints Parish. The Act expressly enabled the congregation to “have, hold, take and receive” both real and personal property. The congregation’s incorporation was only effective for a period of fourteen years. In 1839, the South Carolina General Assembly renewed the incorporation for an additional fourteen years and, in 1852, the General Assembly did so indefinitely.

An 1880 Act of the South Carolina General Assembly established that title to any property belonging to inactive Episcopal corporations, churches, or dormant parishes was held in trust by the Trustees of the South Carolina Episcopal Diocese.

This is why I asked that you note earlier that the facts showed the property had continuously been used for church purposes since 1767. The 1880 Act therefore did not apply to All Saints Parish, because it had never become "inactive."

The record makes clear that in 1902, due to the 1880 Act, the All Saints congregation became concerned over the status of their incorporation and the status of title to church property. Evidence in the record also indicates that this concern was exacerbated by the destruction of certain property records in a “great storm.”

In May 1902, as a result of its concern, the congregation asked the Diocese to “cooperate with [them] in having the charter of th[e] Parish renewed.” The Diocese’s Chancellor responded positively and not only suggested that the congregation formally incorporate with the Secretary of State as a South Carolina eleemosynary corporation, but also indicated that the Diocese would execute a quit-claim deed transferring to the congregation any interest the Diocese may have had in the All Saints property.

Therefore, at the direction of the Diocese, the congregation re-incorporated in 1902 under the name “All Saints Parish, Waccamaw, Inc.” Shortly thereafter, in 1903, the Trustees of the Diocese signed a quit-claim deed (hereinafter the “1903 Quit-Claim Deed”) transferring any interest the Diocese may have had in the congregation’s property to All Saints Parish, Waccamaw, Inc. The Diocese did not retain any interest in the property, reversionary or otherwise. The 1903 Quit-Claim Deed was recorded in the Georgetown County public records on May 30, 1903.

Thus the Diocese of South Carolina, by recorded deed in the official records, confirmed that it claimed no interest in the All Saints property. This fact is fatal to its later claim based on the Dennis Canon, as we shall see below.

In 1987, the Diocese amended its constitution and canons so as to include the “Dennis Canon.” The Dennis Canon purports to declare a trust, in favor of the ECUSA and the Diocese, on all real and personal property held by any congregation.[4] No such property canons existed in 1902 when the Diocese directed the congregation to incorporate, or when it executed the 1903 Quit-Claim Deed in favor of the newly created All Saints Parish, Waccamaw, Inc.

The Court is sending strong signals here of how it will reach the result in this case. The Dennis Canon only "purports" to declare a trust; it does not in fact establish an effective trust under South Carolina law, because the person declaring the trust -- the national Church -- does not own the property being "declared" as subject to a trust in its favor. And the Court points to the fact that the 1902 deed came well before the 1979 (highly questionable) passage of the Canon. (Its enactment was a last-minute, knee-jerk reaction of New York Suffragan Bishop and erstwhile lawyer Walter Dennis to the then-recent free legal advice offered by Justice Blackmun in Jones v. Wolf, as I discuss in this post. The Episcopal Church (USA) may yet rue the day when it decided to act on that advice -- remember that legal advice tends to be worth what you pay for it.)

In August 2000, due to concern over the status of title to its property, the All Saints congregation conducted a formal title examination. The examiner concluded that the 1745 Trust Deed and the 1903 Quit-Claim Deed were the only recorded deeds pertaining to the congregation’s property.

Thus the professional title examiner, trained in South Carolina, could find no record of the Episcopal Church's (and the Diocese's) putative "trust" interest in the All Saints property. And no wonder -- how could he have found it? Nothing had been placed of record in the official title documents. Even ECUSA's own Episcopal News Service did not show any awareness of the Canon's existence until after this Pawley's Island lawsuit started. (A search of ENS archives turns up no mention of the words "Dennis Canon" until the story just linked -- even its account of the 1979 General Convention which supposedly adopted the Canon leaves out all mention of it.) If there was ever a "stealth action", unworthy of Christians, it was ECUSA's last-minute attempt to enact the Dennis Canon. Now watch how the Diocese tried to correct the situation:

Soon thereafter, in September 2000, the Diocese recorded a notice in Georgetown County purporting to declare that the congregation held its property, pursuant to the Dennis Canon, in trust for the benefit of the ECUSA and the Diocese (“the 2000 Notice”). Because of the 2000 Notice and the 1745 Trust Deed, the congregation was unable to acquire title insurance.

There is that word "purport" again. The Diocese, like ECUSA itself, was trying to declare a trust interest in the property by enacting a canon, without actually owning the property it was trying to place in trust. All it did with its notice, in the Court's view, was put a cloud on the parish's title so that it could no longer obtain title insurance. This resulted in the Parish bringing an action against both the Diocese and ECUSA to "quiet" its title -- that is, to obtain a judicial declaration that neither the Diocese nor the national Church owned any kind of interest in its property. Today's decision by the South Carolina Supreme Court, some ten years later, is the final declaration which clears All Saints' title for once and for all.

In October 2000, the congregation, in the name of its corporate entity, All Saints Parish, Waccamaw, Inc., filed a declaratory judgment action against the ECUSA and the Diocese in which it sought an order declaring that the congregation held title to its property or, in the alternative, held its property in trust for the benefit of the inhabitants of the Waccamaw Neck pursuant to the 1745 Trust Deed. The Diocese and the ECUSA answered and counterclaimed asserting that the property was subject to their canons and the 2000 Notice.

By consent order, a guardian ad litem was appointed to represent the interests of John and Jane Doe, the unknown heirs of the original trustees to the 1745 Trust Deed, George Pawley and William Poole.

The parish was covering its bases here. The 1745 Trust Deed named initial trustees, but no successors. When the two trustees so named died, they did not name any persons in their wills to be the successor trustees. And by the year 2000 -- more than 225 years after their deaths -- it had become impossible to trace who George Pawley's and William Poole's current descendants were (as though the "trusteeship" descended by law through their families -- which it did not, as we shall see). So to cover for that contingency, "John and Jane Doe" were named as their unknown descendants (although one descendant of George Pawley, Evelyn Labruce, had joined the suit as a plaintiff), and a local attorney appointed as their "guardian ad litem", or representative appointed by agreement to represent the Trustees' interest, if any, in the lawsuit. That representative, as we next read, quickly took issue with the claim of ECUSA and the Diocese to be the beneficiaries of yet a different trust in the property:

The Does and the congregation filed joint motions for summary judgment. The motions were granted and, pursuant to the 1745 Trust Deed, the trial court found that the Does held legal title to the property at issue and that the inhabitants of the Waccamaw Neck held equitable title as beneficiaries to the 1745 Trust Deed. The matter was remanded to the probate court for further fact finding with respect to the identity of the parties to the 1745 Trust Deed.

So the initial outcome of the 2000 lawsuit was a declaration that the successors to the original trustees, whoever they now were, would still hold title to the parish property in trust for the "inhabitants of Waccamaw Neck", who were the beneficiaries of the trust. The trial court gave no recognition to the "Dennis Canon trust" -- which caused the Diocese and ECUSA to appeal its decision. The remanding of the case to the probate court was so that it could determine who were the appropriate successor trustees, some 225 years after the fact (good luck with that).

The ECUSA and Diocese appealed. The court of appeals found that there were genuine issues of material fact concerning whether the trust created by the 1745 Trust Deed failed when the Church of England ceased to be established as the official religion of South Carolina and whether the Statute of Uses operated to execute the trust. Accordingly, the court of appeals remanded the case to the circuit court. All Saints Parish, Waccamaw v. The Protestant Episcopal Church in the Diocese of South Carolina, 358 S.C. 209, 595 S.E.2d 253 (Ct. App. 2004), cert denied, July 2005.

As appellate courts are wont to do, the South Carolina Court of Appeals saw things differently than did the trial court. It was of the view that when the Church of England's authority ceased to have any effect in this country following the revolution, the 1745 trust of the property established for the purpose of opening a "Chapel or Church for divine Worship of the Church of England established by Law" could no longer be given effect, and so failed. A failed trust meant there were no longer any trustees, so the court of appeals sent the case back to the trial court to determine who now owned the property. In the time it took for the appeal, however, the troubled waters of ECUSA were roiled even more with the confirmation of V. Gene Robinson's election to the see of New Hampshire -- an event to which the Court alludes only indirectly:

In August 2003, prompted by events that are not relevant here, the congregation appointed a committee to recommend whether it should leave the Diocese and the ECUSA. On December 9, 2003 the committee recommended that the corporate charter of All Saints Parish, Waccamaw, Inc. be amended so as to delete references to the canons and rules of the Diocese and the ECUSA. Specifically, the committee recommended that “Article Fourth”[5] of the 1902 Certificate of Incorporation be amended to read:

"The purpose of All Saints Parish, Waccamaw, Inc., also known as All Saints Church, is to create an environment in which all people and especially the inhabitants of the Waccamaw Neck come to know Jesus Christ: to Love Him, to Worship Him, to Learn of Him, to Proclaim Him, and to Minister in His Name."

Furthermore, the committee recommended that the congregation additionally amend its charter so as to affirmatively sever its affiliation with the ECUSA and the Diocese.

On December 17, 2003, after learning of the proposed amendments, Edward L. Salmon, Jr., Bishop of the Diocese, sent a letter to the congregation’s wardens and each member of the vestry stating that the congregation’s status was reduced from that of a parish to a “mission.” In his letter, Bishop Salmon also declared that the members of the congregation’s vestry had abandoned their offices.[6]

On December 21, 2003, sixty members of the congregation signed a “Request for Special Congregational Meeting.” The purpose of this meeting was to discuss and vote on whether the congregation should take the committee’s recommendations and vote to amend its charter so as to change its corporate purpose and sever its affiliation with the ECUSA and the Diocese. Notice of the meeting was sent to the congregation’s members on December 23, 2003.

On January 8, 2004, five-hundred and seven of the congregation’s members attended the Special Congregational Meeting and more than a two-thirds majority voted to amend the congregation’s 1902 Certificate of Incorporation adopting the aforementioned amendment to “Article Fourth.” Additionally, more than a two-thirds majority voted to amend the charter so as to withdraw from the Diocese and the ECUSA, but remain part of the Anglican Communion by affiliating themselves with the Episcopal Church of Rwanda and its Anglican Mission in America.[7] Accordingly, the corporate secretary for All Saints Parish, Waccamaw, Inc. prepared and signed the Articles of Amendment to the 1902 Certificate of Incorporation. These Articles of Amendment were filed in the South Carolina Secretary of State’s office on January 15, 2004.

The Court's history of events within the parish here is excellent, and needs no elaboration. As the Court will later observe to emphasize the result it reaches, the vote to amend the Articles actually passed by an even greater majority: 464 out of 507, or greater than 90%.

On January 9, 2005, a small group of members who remained loyal to the Diocese and the ECUSA met with Bishop Salmon and purported to elect a new vestry for the congregation – the minority vestry. Subsequently, on January 16, 2004, the majority group of members re-elected the vestry removed by the Bishop – the majority vestry.

There is that word again, which signals that the Court does not agree that Bishop Salmon had any authority under South Carolina law to fire the vestry. This was the first attempt by anyone in ECUSA to apply an "ejector-seat" mechanism to those voting to disaffiliate. Since that time, some Dioceses have incorporated such a power into their canons, but to have any effect on lay positions, appropriate acknowledgments would ordinarily have to be put into the parish corporate articles, as well. Nevertheless, compare the Court's rejection of Bishop Salmon's summary removals with the California courts' upholding of the same action taken by Bishop Mathes in San Diego, as discussed in this post.

On January 20, 2005, the minority vestry filed the 2005 Action against the majority vestry alleging that they forfeited office by recommending that the congregation sever its affiliation with the ECUSA and the Diocese. The minority vestry sought a declaration that they were All Saints Parish, Waccamaw, Inc.’s true officers. Additionally, they sought the return of the congregation’s real and personal property. The Diocese and Bishop Salmon joined in the action. Subsequently, the trial court consolidated the 2000 Action and the 2005 Action.

The consolidated cases were tried and, after each of the parties presented its case, the trial court decided both underlying actions as a matter of law. With respect to the 2000 Action, the trial court held that, pursuant to the terms of the 1745 Trust Deed, legal title to the real property remained in the unknown Heirs of George Pawley and William Poole, while beneficial title was possessed by the “inhabitants of Waccamaw Neck.”[8]

Thus with respect to the earlier lawsuit over title, the trial court maintained, despite the appellate court's holding that the 1745 Trust had failed, that legal title to the property still remained in the hands of whoever were the current trustees, and it again kicked the case over to the probate court to answer that question. But as the Supreme Court's opinion goes on to explain, the trial court's resolution of the second (2005) lawsuit was what really changed the landscape:

As to the 2005 Action, the trial court held that members of the minority vestry were the true officers of All Saints Parish, Waccamaw, Inc. In its original bench order, however, the trial court declined to eject the majority group from the real property because the identity of the parties to the trust created by the 1745 Trust Deed was yet to be determined by the probate court. Nonetheless, upon a motion for reconsideration, the trial court ordered the Secretary of State to cancel the Articles of Amendment filed by the majority group, ejected the majority vestry from the property it occupied which was not granted to the congregation by the 1745 Trust Deed, and restrained the majority vestry from acting as the officers of All Saints Parish, Waccamaw, Inc.

QUESTIONS PRESENTED

This Court granted certiorari to review the decision of the trial court and the parties raise the following issues for review:

I. Did the trial court err in holding that the trust created by the 1745 Trust Deed remains valid?

II. Did the trial court err in holding that members of minority vestry were the corporate officers of All Saints Parish, Waccamaw, Inc.?

In this manner, the Court frames the actual legal questions it will decide in the two appeals. Next, it explains the legal principles it will follow in addressing those questions, in a section entitled "Standard of Review" which I shall omit here, as being of interest only to attorneys. Let us go right on to the Court's analysis, which begins with an excellently educational summary of the current state of church property law in the United States, under the decisions of the U.S. Supreme Court:


LAW/ANALYSIS

In this case, we are called upon to adjudicate two disputes. The 2000 Action is a dispute between a congregation and its denomination over title to church property. The 2005 Action is a dispute among the congregation’s members over corporate control. Because church disputes are very often prompted by disagreements over religious doctrine and belief, the civil courts in this country have addressed them carefully, keeping the First Amendment in mind. The decisions of the Supreme Court of the United States concerning church dispute litigation make clear that there is no constitutionally prescribed rule for a civil court’s disposition of such matters. Nonetheless, there is a general constitutional command, based in the First Amendment, mandating that civil courts to “decide church…disputes without resolving underlying controversies over religious doctrine.” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976).

Within the context of this general constitutional command, the Supreme Court of the United States has expressly approved two methods for a civil court’s resolution of church disputes. These approaches have become known as the “deference approach” and the “neutral principles of law approach.” We hereby explicitly reaffirm that, when resolving church dispute cases, South Carolina courts are to apply the neutral principles of law approach as approved by the Supreme Court of the United States in Jones v. Wolf, 443 U.S. 595 (1979), and expressed by this Court in Pearson v. Church of God, 325 S.C. 45, 478 S.E.2d 849 (1996). The following context is necessary for a clear understanding of this rule and its application to the facts presented by this case.

The importance of this holding for parishes in the State of South Carolina cannot be overemphasized, as I shall explain below. The Supreme Court has now made clear what was only implicit in its 1996 decision of Pearson v. Church of God: courts in the State are to apply "neutral principles of law" in resolving church property disputes. The Court goes on to explain what is bad about the "deference" approach which it followed before 1996:

The Supreme Court of the United States first approved the “deference approach” in 1871. See Watson v. Jones, 80 U.S. 679 (1871). Under this approach, a court must only determine whether a church is “congregational” or “hierarchical” in nature.[9] If the church is congregational, the court will resolve the dispute by deferring to a majority of the congregation. However, if the congregation at issue is part of a hierarchical organization, the court will defer to the decision of the ecclesiastical authorities.

Because the deference approach was, for a long time, the only approach explicitly approved as constitutional by the Supreme Court of the United States, this Court has issued a handful of opinions that are consistent with the deference approach. See Bramlett v. Young, 229 S.C. 519, 93 S.E.2d 873 (1956) (holding that a minority group of a local, hierarchical Presbyterian church’s members were entitled to ownership and control of church property because they were recognized as the true congregation by the hierarchical authorities); Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d 442 (1975) (holding that where a majority of a local Presbyterian congregation voted to sever its connection with its hierarchical authorities, the minority faction which the hierarchical authorities recognized as the true congregation was entitled to control of the church properties); Seldon v. Singletary, 248 S.C. 148, 326 S.E.2d 147 (1985) (holding that a local church was part of a hierarchical denomination, thus, the minority group of members recognized by the hierarchical authorities were entitled to possession and control of church property). In each of these cases we applied the deference approach and analyzed the issues by determining whether the church at issue was congregational or hierarchical in nature and deferred accordingly. This short analysis disposed of those cases and, in so doing, these decisions complied with the First Amendment’s command that “civil courts…decide church property disputes without resolving underlying controversies over religious doctrine.”[10] Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976) quoting Presbyterian Church v. Hull Church, 393 U.S. 440, 449 (1969).

The deference approach, which the Supreme Court of the United States never explicitly held was the only constitutional method of adjudicating church disputes, is rigid in its application and does not give efficacy to the neutral, civil legal documents and principles with which religious congregations and denominations often organize their affairs. Thus, throughout the country, other approaches to the resolution of church disputes have slowly developed.

In 1979, the Supreme Court of the United States expressly approved the use of a second method of resolving church disputes. In Jones v. Wolf, the Supreme Court affirmed a Georgia court’s use of the neutral principles of law approach to resolve church disputes. 443 U.S. at 603 (holding that a state is constitutionally entitled to adopt the neutral principles of law approach as a means of adjudicating church disputes). This method “relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice.” Id. at 603. Church disputes that are resolved under the neutral principles of law approach do not turn on the single question of whether a church is congregational or hierarchical. Rather, the neutral principles of law approach permits the application of property, corporate, and other forms of law to church disputes.

A clear recitation of the neutral principles of law approach as adopted by this Court was enunciated in Pearson v. Church of God. In Pearson, we articulated the rule that South Carolina civil courts must follow when adjudicating church dispute cases. We reaffirm and more fully explain this rule here. The Pearson rule provides:

(1) Courts may not engage in resolving disputes as to religious law, principle, doctrine, discipline, custom, or administration; (2) courts cannot avoid adjudicating rights growing out of civil law; (3) in resolving such civil law disputes, courts must accept as final and binding the decision of the highest religious judicatories as to religious law, principle, doctrine, discipline, custom, and administration.

325 S.C. at 53, 478 S.E.2d at 854.

The Pearson rule establishes that where a civil court can completely resolve a church dispute on neutral principles of law, the First Amendment commands it to do so.

Frankly, I do not see where it says that in the language in which the Court summarizes the holding in Pearson (which did not involve a dispute over church property), but I am not going to quibble. Whatever it said or did not say in Pearson, the Court now makes it clear: South Carolina courts are to apply neutral principles in church property cases. And as we shall see below, this means that neutral principles of State law are to be followed even when a church claims it is "hierarchical", so long as it means that no decision of a "church judicatory" with respect to matters of "religious law, principle, doctrine, discipline, custom, and administration" will be set aside or contradicted.


Nonetheless, where a civil court is presented an issue which is a question of religious law or doctrine masquerading as a dispute over church property or corporate control, it must defer to the decisions of the proper church judicatories in so far as it concerns religious or doctrinal issues. See Serbian Eastern Orthodox Diocese, 426 U.S. at 709 (finding that the controversy before the Court “essentially involve[d] not a church property dispute, but a religious dispute the resolution of which…is for ecclesiastical and not civil tribunals.”).

In the Serbian Eastern Orthodox case, the underlying dispute was whether the Church had properly deposed one of its bishops. Property was involved only because the bishop, by virtue of his office, held the title to certain church property. Thus which person was entitled to be bishop of that Church's diocese -- the one deposed, or the one whom the Church designated to replace him -- controlled who owned that Diocese's property. The United States Supreme Court reversed the decision of the Illinois Supreme Court requiring the Church to reinstate its deposed bishop, and held that such secular court interference in Church disciplinary matters violated the First Amendment. The South Carolina Supreme Court recognizes that principle, but is saying it is not at stake here.

It is with the Pearson rule in mind that we now turn to the two issues before us in this appeal. We remain mindful of the First Amendment and its protections of religious liberty. Nonetheless, adjudication of this matter does not require us to wade into the waters of religious law, doctrine, or polity. We find that the Diocese and ECUSA organized their affairs with All Saints Parish in a manner that makes the complete resolution of the questions presented achievable through the application of neutral principles of property, trust, and corporate law.

I. Property Ownership

Turning to the 2000 Action, the trial court held that the trust created by the 1745 Trust Deed remained valid and that legal title is held by the unknown heirs of George Pawley and William Poole while the beneficial title is held by the “Inhabitants of Waccamaw Neck.” We disagree.

Based upon an application of the relevant neutral principles of law, we hold that the trial court erred in determining that the trust created by the 1745 Trust Deed remains valid. Further, we hold that this trust was executed by the Statute of Uses and that title to the property is held by the congregational corporate entity – All Saints Parish, Waccamaw, Inc.

The Statute of Uses is a wonderfully arcane old law passed under Henry VIII in 1535 to facilitate his grab of monastery lands for the crown. "Use" was the old word for "trust" in English law -- the typical deed was "A grants Blackacre to B, for the use of [in trust for] C." What the Statute of Uses says, in effect, is that "If you put land in trust for a beneficiary, but do not give the trustee any real duties to carry out, this statute prevents the courts from making up duties for the trustee out of whole cloth. Instead, the courts will be required to treat the 'trust' as nonexistent, and to treat the beneficiary as holding title to the property outright, in fee simple absolute." That is called "executing [extinguishing] the use." Although adopted by many of the earliest States as part of the heritage of English law, the Statute generally was never adopted by later States (such as California), since situations for its application became rarer with the passage of time. South Carolina did adopt it, as one of the original Colonies, and it applies to these facts because -- remember? -- the 1745 Trust Deed gave the trustees nothing to do.

A. The Statute of Uses

It is well established that “where there is a conveyance to one for the use of another, and the trustee is charged with no duty which renders it necessary that the legal estate should remain in him to enable him properly to perform such duty, the Statute of Uses executes the use and carries the legal title to the [beneficial] use.” Faber v. Police, 10 S.C. 376, 389-90 (1877).[11] Further, in a trust where the trustees have no duties, “the legal and equitable titles are merged in the beneficiaries and the beneficial use is converted into legal ownership.” Johnson v. Thornton, 264 S.C. 252, 257, 214 S.E.2d 124, 127 (1975). Nonetheless, the Statute of Uses will not operate to execute a trust where there is no beneficiary capable of taking legal title. See Bowen v. Humphreys, 24 S.C. 452, 455 (1886) (holding that the Statute of Uses cannot execute a trust where there is no identifiable beneficiary capable of holding title).

Therefore, there are two questions that must be asked in order to determine if the trust created by the 1745 Trust Deed was executed by the Statute of Uses: (1) whether the trustees had any duties relative to their office, and (2) whether there is a beneficiary capable of taking title. We hold that the trustees of this trust did not have any duties relative to their office and that the congregation of All Saints Parish was the intended beneficiary and, upon its formation, was clearly capable of taking title.

Now the Court goes into the facts in more detail, to show why there was never any real "trust" involved with regard to the land of All Saints Parish.

1. Trustees’ Duties

We hold that the 1745 Trust Deed did not impose any duties upon the trustees, George Pawley and William Poole. Pawley and Poole were colonial appointees given the authority to accept conveyances of land for the purpose of establishing parishes. When named trustees to the 1745 Trust Deed, they were acting as appointees of the colony, not as trustees with traditional duties. This conclusion is supported by the relevant legal realities of that time. The court of appeals in All Saints correctly stated that “in colonial times, churches could not be recognized by the government until they owned property, and they could not own property until they had been officially recognized.” All Saints, 358 S.C. at 225, 595 S.E.2d at 262. “As such, a colonial practice arose in which a settlor placed property in trust for a congregation until such a time as the government recognized the church.” Id. (citing Town of Pawlett, 9 U.S. (Cranch) at 330 (holding “no parish church…could have legal existence until consecration and consecration was expressly inhibited unless a suitable endowment of land.”)). Pawley and Poole did not have any duties relative to the trust, but simply acted as custodians of the property at issue until All Saints Parish was officially established. This conclusion is supported by language of the 1745 Trust Deed which did not expressly impose any duties upon them, nor is there any evidence in the record which suggests that either of the trustees performed any acts relative to their office as trustee.

Further, Percival and Ann Pawley were not traditional settlers of a trust. Rather, they sold the property at a price far above nominal value. They were clearly sellers of property to colonially appointed commissioners for the establishment of a parish, purposes specified by the colonial government.

So the original grantors did not give the land to the established colonial Church, but the Colony of South Carolina bought it from them, so that its citizens in Waccamaw could have a place to worship. (We refrain from inquiring whether Percival and Ann Pawley were the parents or relatives of George Pawley, the first co-trustee, and just who determined the price that was paid for the land.)
The next requirement for the Statute to apply is that there be an actual beneficiary (person for whose benefit a trust is established) who is capable of taking title to the property in fee once the trust ("use") is extinguished ("executed"). This requires the Court to determine just whom this phrase in the 1745 deed identifies: "the Inhabitants of Waccanaw Neck". Watch how it brings history to bear to interpret those words:

2. Beneficiary Capable of Taking Title

Holding that the trustees to the 1745 Trust Deed had no duties, we now analyze whether there was a beneficiary capable of taking title. According to the terms of the 1745 Trust Deed, the beneficiaries were “the Inhabitants of Waccamaw Neck.” This term is ambiguous and parole evidence should be used to ascertain its meaning. See Shelley v Shelley, 244 S.C. 598, 606, 137 S.E.2d 851, 855 (1964) (holding that parole evidence is admissible so long as its admission is merely intended to explain and apply what the settlor has written).

Based on the following application of parole evidence, we hold that the term “Inhabitants of Waccamaw Neck” was used by the settlors of the trust as an expression referring to the yet-to-be-created All Saints Parish. Early South Carolina colonial statutes used the term “inhabitants” when referring to the colony’s parishes. For instance, The Church Act of 1706 contains multiple uses of the term “inhabitants” referring to parishes. See Act No. 256 at §§ 7, 10, 12, 13, 19, 21, 22, 29, 30, 35, 2 S.C. Stat. 284-89 (1706). Additionally, this understanding of the term is supported by the historical context in which the 1745 Trust Deed was executed. In 1745, the inhabitants of Waccamaw Neck were parishioners of Prince George’s Parish. They were clamoring for the establishment of their own Parish congregation and had already been worshipping on the land at issue for approximately eight years. It was within this historical context that the 1745 Trust Deed was executed in expectation that the subject property would be for the benefit of the yet-to-be formed All Saints Parish.

Additionally, according to the express terms of the original Church Act of 1706, a colonial Parish could hold title to land. The Act specifically empowered commissioners “to take up by grant from the Lords Proprietors, or purchase the same for them, or any other person, and have, taken and receive so much land as they think necessary for the several sites of the several churches.” Act No. 256 at § 8, 2 S.C. Stat. 284. Thus, when the Church Act of 1767 formed All Saints Parish, the Statute of Uses operated to execute the trust created by the 1745 Trust Deed and title vested in the intended beneficiary, the congregation of All Saints Parish.

Now the Court wraps up its conclusion that the Parish holds title to the property by pointing out that the defendant Diocese recognized and acknowledged that fact when it gave the Parish its quit-claim deed in 1903:

B. 1903 Quit-Claim Deed

Moreover, the 1903 Quit-Claim Deed makes clear that All Saints Parish, Waccamaw, Inc. holds title to its property. The All Saints Parish congregation was officially incorporated in 1820. In 1902, due to doubt over the status of the congregation’s incorporation, the Diocese directed it to re-incorporate as “All Saints Parish, Waccamaw, Inc.” Shortly thereafter, in order to settle any doubt as to the status of title to Parish property, the Diocese voluntarily executed the 1903 Quit-Claim deed. The 1903 Quit-Claim Deed makes clear that title to the property at issue is currently held by the congregation’s corporate entity – All Saints Parish, Waccamaw, Inc.

And with that buttressing of its analysis, the Court now proceeds to make short shrift of the Dennis Canon, as well as of the Diocese's counterpart, because neither complied with State law about how a trust is to be established (so much for arguments that the Dennis Canon is "self-executing"):

C. 2000 Notice and Dennis Canon

Furthermore, we hold that neither the 2000 Notice nor the Dennis Canon has any legal effect on title to the All Saints congregation’s property. A trust “may be created by either declaration of trust or by transfer of property….” Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property.

For the aforementioned reasons, we hold that title to the property at issue is held by All Saints Parish, Waccamaw, Inc., the Dennis Canons had no legal effect on the title to the congregation’s property, and the 2000 Notice should be removed from the Georgetown County records.

And that, folks, is all that needs to be said about the Dennis Canon in South Carolina. Parishes there, so long as they have not adopted or made themselves subject to the Dennis Canon or the Diocesan equivalent in their own Articles, should hold a "Parish Independence Day" to celebrate the fact that their properties are now free and clear of claims by ECUSA and the Diocese (which latter, if I understand the Diocese's and the Bishop's recent declarations aright, no longer wanted to make them, anyway). The key sentence here is: "The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property." In other words, the passage of the Dennis Canon, if indeed it ever occurred in 1979, accomplished nothing in South Carolina, because it did not, either alone or in combination with Diocesan canons, comply with the requirements of South Carolina law to create a valid trust in real property. The Court now turns to the question raised by the separate lawsuit brought by the minority vestry in 2005 -- whether the Church could "eject" the dissident (majority) vestry members, again under applicable provisions of South Carolina law:

II. Corporate Control

Turning to the 2005 Action, we find that the trial court applied the deference approach, determined that the congregation was part of a hierarchical organization, and deferred to the Diocese’s ecclesiastical authority’s determination that members of the minority vestry were the true officers of All Saints Parish, Waccamaw, Inc. We disagree.

While it is true that “[c]ourts may not engage in resolving disputes as to religious law, principle, doctrine, discipline, custom, or administration,” Pearson, 325 S.C. at 53, 478 S.E.2d at 854, the resolution of the 2005 Action does not require such judicial meddling. The 2005 case turns on a determination of whether the Articles of Amendment approved by the members of All Saints Waccamaw, Inc. on January 8, 2004 were adopted in compliance with the South Carolina Non-Profit Act. See S.C. Code Ann. § 33-31-1001, et. seq. We find that the Articles of Amendment were lawfully adopted and effectively severed the corporation’s legal ties to the ECUSA and the Diocese. Therefore, we find that the members of the majority vestry are the true officers of All Saints Parish, Waccamaw, Inc.

Again, this is a key part of the Court's holding. What it says is that the fact that the Episcopal Church may be "hierarchical" does not give it the power to override State law provisions about how parish articles may be amended. If a parish is to be restricted as to how it may change its articles, those restructions must be spelled out in so many words in the Articles themselves. The Court goes on to explain how "majority rule" apples in force here:

Pursuant to the South Carolina Non-Profit Act, a religious corporation may amend its Articles of Incorporation to add or change a provision permitted in the articles or delete a provision not required in the articles. S.C. Code Ann. § 33-31-1001. Amendment to a corporation’s articles, to be adopted, must be approved by (1) the board of directors, (2) the members “by two-thirds of the votes cast or a majority of the voting power, whichever is less,” and (3) any person whose approval is required by the Articles of Incorporation. S.C. Code Ann. § 33-31-1003(a)(1-3). The passage of the Articles of Amendment approved by the congregation on January 8, 2004 complied with all three of these requirements.

First, the Articles of Amendment were approved by the board of directors. On December 8, 2003, while still in good standing with the Diocese, the majority vestry, acting as the corporation’s board of directors, approved the Articles of Amendment at issue here. Thus, the passage of the Articles of Amendment met the requirements of S.C. Code Ann. § 33-31-1003(a)(1).

Second, the Articles of Amendment were approved by the members of All Saints Parish, Waccamaw, Inc. by two-thirds of the votes cast. Five hundred and seven members of All Saints Parish, Waccamaw, Inc. were present at the January 8, 2004 meeting which was called to discuss and vote upon the Articles of Amendment. Of the five hundred and seven members present, four hundred and sixty-four votes were cast in favor of amending the Articles of Incorporation. Therefore, more than nine-tenths of the votes cast were in favor of the amendments, clearly more than the two-thirds statutorily required. There is no evidence in the record to suggest that the members present and voting were not in good standing at the time of the vote. Thus, the passage of the Articles of Amendment clearly met the requirements of S.C. Code Ann. § 33-31-1003(a)(2).

And now comes the clincher:

Finally, nothing in the All Saints Parish, Waccamaw, Inc. by-laws or the Constitutions and Canons of the ECUSA or Diocese requires third-party approval for amendments to the congregation’s corporate charter, therefore the congregation’s adoption of the Articles of Amendment complied with the requirements of S.C. Code Ann. § 33-31-1003(a)(3). The statutory provisions pertaining to a religious corporation’s amendment of its corporate charter were amended in 1994 so as to add the option of third-party approval. See 1994 S.C. Acts 384. There is no evidence in the record that, since that time, the Diocese has ever attempted to gain approval power over amendments to the All Saints Parish, Waccamaw, Inc. corporate charter.

The facts presented by this case demonstrate that the congregation, in compliance with relevant statutory provisions and applicable bylaws, passed the Articles of Amendment, thus removing any reference to the ECUSA and Diocese and explicitly severing any legal relationship with those organizations. Therefore, through the application of neutral principles of law, it is clear to us that the true officers of All Saints Parish, Waccamaw, Inc. are the members of the majority vestry.

If the trial court in San Joaquin had followed the same reasoning, it could not have concluded that the amendments which took the Diocese out of the Church were void and ultra vires. For there were no written restrictions on its powers to amend its Constitution either.

The Court now wraps it up:


CONCLUSION

For the foregoing reasons, we reverse the trial court’s decision with respect to both the 2000 Action and the 2005 Action.

WALLER, BEATTY, JJ., Acting Justice James E. Moore and Acting Justice Perry M. Buckner, concur.

___________________________
[Endnotes]

[1] The Waccamaw Neck is a geographical area bounded by the Waccamaw River and Winyah Bay on the west and south, the Atlantic Ocean on the east, and the North Carolina line in the north.

[2] According to the “Average Earnings Index,” one hundred (100) British Pounds in 1745 was worth One Hundred Forty-One Thousand, Eight Hundred Twenty-Five (141,825) British Pounds or Two Hundred Seventy-Seven Thousand, Seven Hundred and Seventy-Eight (277,778) U.S. Dollars in 2007.

[3] At the time, Charleston was the only place in South Carolina at which land instruments could be recorded.

[4] Presumably, the Dennis Canon was enacted in reaction to the Supreme Court of the United States’s opinion in Jones v. Wolf, 443 U.S. 595 (1979). In Jones, the Supreme Court established that the First Amendment did not require a civil court to defer completely to ecclesiastical authorities when adjudicating church disputes.

[5] Prior to the amendment, “Article Fourth” read: “The purpose of the said proposed Corporation is to conduct Religious services, and prosecute religious works under the forms and according to the canons and rules of the protestant Episcopal Church, and as a component part of the Diocese of said Church in South Carolina.”

[6] In his letter, Bishop Salmon did not opine as to the status of the congregation’s members in so far as it concerned their ability to meet and vote on corporate action.

[7] The Anglican Communion is the worldwide body of Episcopal Dioceses. The Episcopal Church of Rwanda is the Rwandan equivalent of the United States’ ECUSA.

[8] The trial court made its ruling on the 2000 Action pursuant to Rule 39(b), SCRCP.

[9] “A congregational church is an independent organization, governed solely within itself…, while a hierarchical [or ecclesiastical] church may be defined as one organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head.” Seldon v. Singletary, 284 S.C. 148, 149, 326 S.E.2d 147, 148 (1985).

[10] This command applies to state courts by way of the Fourteenth Amendment.

[11] England enacted the Statute of Uses during the reign of Henry VIII. 27 Henry VIII ch. 10 (1535). It was adopted by the South Carolina Commons House of Assembly in 1712. Act No. 322, 2 S.C. 401 (1712) at 466.


[END OF SOUTH CAROLINA SUPREME COURT DECISION]

* * *


As I say, this is truly an historic decision for all Episcopal parishes in the Diocese of South Carolina and of the Diocese of Upper South Carolina. Watch now for the revisionists, if they think they have the power, to press for parishes to execute and record documents which will create the necessary trust interests under South Carolina law. (The effect of provisions in Parish Articles is a more complex question, which I will address in a subsequent post. Suffice it to say that the Diocese of South Carolina has some unusual provisions in its Constitution and Standing Resolutions which might muddy the waters for Parishes having any such provisions. See, for example, the comment here.) Should they be so reckless as to try such a move (and I think it is safe to say that there is no chance of that in the Diocese of South Carolina itself, under Bishop Lawrence), the result would probably be a mass exodus of parishes from the Church in that State, and a further weakening of ECUSA.

Do you see now why I sometimes wonder whether Bishop Walter Dennis was the equivalent of a Trojan Horse for the Episcopal Church (USA)?

[UPDATE 09/22/09: Here is another well-written summary of the case, in words that a layman can understand. The ending (and the idea that the execution of a use by the Statute of Uses is an "abuse") is written from a loyalist point of view, but I can understand. Nevertheless, I cannot resist asking: if in this case the Statute of Uses is the bad guy, what does that make the Dennis Canon in States like New York and California? (California does not recognize the Statute of Uses, by the way, and never adopted it.) In the South Carolina case, the Statute of Uses kept the Episcopal Church (USA) and the Diocese from claiming that they were the successor beneficiaries of the 1745 "use". But in New York and California, the Dennis Canon was allowed to override another ancient statute, the Statute of Frauds.]