Monday, November 30, 2009

The Ceremony for the Ordination of a Bishop (Updated)

From a Report of the Standing Commission on Liturgy and Music, concerning proposed revisions to the Service for the Ordination of a Bishop (BCP, pages 513-19; revisions are given in red):

The Presentation

The bishops and people sit. Representatives of the diocese, both Priests and Lay Persons, standing before the Presiding Bishop, present the bishop-elect, saying

N., Bishop in The Episcopal Church of God, the clergy and people of the Diocese of N., trusting in the guidance of the Holy Spirit, and in our ability to choose the candidate who makes us most comfortable with ourselves, have chosen N.N. to be a bishop and chief pastor. We therefore ask you to lay your hands upon him and in the power of the Holy Spirit to consecrate him a bishop in The one, holy, catholic, and apostolicEpiscopal Church.

The Presiding Bishop then directs that testimonials of the election be read.

When the reading of the testimonials is ended, the Presiding Bishop requires the following promise from the Bishop-elect

In the Name of the Father, and of the Son, and of the Holy Spirit, I, N.N., chosen Bishop of the Church in N., solemnly declare that I do believe the Holy Scriptures of the Old and New Testaments to be the Word of God, except when they declare things I know to be contrary to our modern experience, and to contain all many things necessary to our collective (and not individual) salvation; and I do solemnly engage to conform to the doctrine, discipline, and worship of The Episcopal Church as declared and defined from time to time by her Reverence, our Presiding Bishop.

The Bishop-elect then signs the above Declaration in the sight of all present. The witnesses add their signatures.

All stand.

The Presiding Bishop then says the following, or similar words, and asks the response of the people

Brothers and sisters in Christ Jesus, you have heard testimony given that N.N. has been duly and lawfully elected to be a bishop of the Church of God to serve in the Diocese of N. You have been assured us of his suitability and you know that the Church has approved him for this sacred responsibility. Nevertheless, if any of you know any reason why we should not proceed, let it now be made known.

If no objection is made, the Presiding Bishop continues

Is it your will that we ordain N. a bishop?

The People respond in these or other words

That is our will.

Presiding Bishop

Will you uphold N. as bishop?

The People respond in these or other words

We will.

The Presiding Bishop then says

The Scriptures tell us that our Savior Christ spent the whole night in prayer before he chose and sent forth his twelve apostles. Likewise, the apostles prayed before they appointed Matthias to be one of their number. Let us, therefore, follow their examples, and offer our prayers to Almighty God before we ordain N. for the work to which we trust the Holy Spirit has called him.

All kneel, and the Person appointed leads the Litany for Ordinations, or some other approved litany. At the end of the litany, after the Kyries, the Presiding Bishop stands and reads the Collect for the Day, or the following Collect, or both, first saying

The Lord be with you
People And also with you.

Let us pray.
O God of unchangeable power and eternal light: Look favorably on your whole Church, that wonderful and sacred mystery; by the effectual working of your providence, carry out in tranquillity the plan of salvation; let the whole world see and know that things which were cast down are being raised up,
those who were excluded are being included, and things which had grown old are being made new, and that all things are being brought to their perfection by him through whom all many things were made, your Son Jesus Christ our Lord; who lives and reigns with you, in the unity of the Holy Spirit, one God, for ever and ever. Amen.

The Ministry of the Word

Three Lessons are read. Lay persons read the Old Testament Lesson and the Epistle.

Psalm 40
For the music director; by V. Gene, a psalm.

40:1 I relied completely on the Lord,

and he turned toward me

and heard my cry for help.

40:2 He lifted me out of the watery pit,

out of the slimy mud.

He placed my feet on a rock

and gave me secure footing.

40:3 He gave me reason to sing a new song,

praising our God.

May many see what God has done,

so that they might swear allegiance to him and trust in the Lord!

40:4 How blessed is the one who trusts in the Lord

and does not seek help from the proud or from liars!

40:5 O Lord, my God, you have accomplished many things;

you have done amazing things and carried out your purposes for us.

No one can thwart you!

I want to declare them and talk about them,

but they are too numerous to recount!

40:6 Receiving sacrifices and offerings are not your primary concern.

You make that quite clear to me!

You do not ask for burnt sacrifices and sin offerings.

40:7 Then I say,

“Look! I come!

What is written in the scroll pertains to me.

40:8 I want to do what pleases you, my God.

Your law dominates my thoughts.”

40:9 I have told the great assembly about your justice.

Look! I spare no words!

O Lord, you know this is true.

40:10 I have not failed to tell about your justice;

I spoke about your reliability and deliverance;

I have not neglected to tell the great assembly about your loyal love and faithfulness.

40:11 O Lord, you do not withhold your compassion from me.

May your loyal love and faithfulness continually protect me!

40:12 For innumerable dangers surround me.

My sins overtake me

so I am unable to see;

they outnumber the hairs of my head

so my strength fails me.

40:13 Please be willing, O Lord, to rescue me!

O Lord, hurry and help me!

40:14 May those who are trying to snatch away my life

be totally embarrassed and ashamed!

May those who want to harm me

be turned back and ashamed!

40:15 May those who say to me, “Aha! Aha!”

be humiliated and disgraced!

40:16 May all those who seek you be happy and rejoice in you!

May those who love to experience your deliverance say continually,

“May the Lord be praised!”

40:17 I am oppressed and needy!

May the Lord pay attention to me!

1 Timothy 3
Qualifications for Bishops

3:1 This saying is trustworthy: “If someone aspires to the office of bishop, he desires a good work.” 3:2 The bishop then must be above reproach, the husband of one wife, temperate, self-controlled, respectable, hospitable, an able teacher, [pause for laughter] 3:3 not a drunkard, not violent, but gentle, not contentious, free from the love of money. [Pause for great laughter.] 3:4 He must manage his own household well and keep his children in control without losing his dignity. [Pause for a consecrating bishop to interject: "I'd like to have a word with whoever it was who selected this reading."] 3:5 But if someone does not know how to manage his own household, how will he care for the church of God? 3:6 He must not be a recent convert or he may become arrogant and fall into the punishment that the devil will exact. 3:7 And he must be well thought of by those outside the faith, so that he may not fall into disgrace and be caught by the devil’s trap. [Wait for laughter to die down before continuing.]

Then, all standing, a Deacon or a Priest reads the Gospel, first saying

The Holy Gospel of our Lord Jesus Christ according to St. Luke.
People Glory to you, Lord Christ.

Luke 24
Jesus’ Final Commission

24:44 Then he said to them, “These are my words that I spoke to you while I was still with you, that everything written about me in the law of Moses and the prophets and the psalms must be fulfilled.” 24:45 Then he opened their minds so they could understand the scriptures, 24:46 and said to them, “Thus it stands written that the Christ would suffer and would rise from the dead on the third day, 24:47 and repentance for the forgiveness of sins would be proclaimed in his name to all nations, beginning from Jerusalem. 24:48 You are witnesses of these things. 24:49 And look, I am sending you what my Father promised. [Pause for consecrating bishop to interject: "That's more like it."]

The Sermon

The Sermon is to take as its text the following passage from The Collected Sermons of the Right Rev. Frank Griswold III:
Broadly speaking, the Episcopal Church is in conflict with Scripture. The only way to justify it is to say, well, Jesus talks about the Spirit guiding the church and guiding believers and bringing to their awareness things they cannot deal with yet . . . this has led the church to in effect contradict the words of the Gospel.
After the Sermon, the Congregation sings, to the tune "A Mighty Fortress Is Our God", a this hymn with words by Dr. Louie Crew.

The Examination

All now sit, except the bishop-elect, who stands facing the bishops. The Presiding Bishop addresses the bishop-elect

My brother, the people have chosen you and have affirmed their trust in you by acclaiming your election. A bishop in God’s holy Church is called to be one with the apostles in proclaiming Christ’s resurrection and interpreting the Gospel, and to testify to Christ’s sovereignty as Lord of lords and King of kings.

You are called to guard the faith, unity, and discipline of the Church; to celebrate and to provide for the administration of the sacraments of the New Covenant; to ordain priests and deacons and to join in ordaining bishops; and to be in all things a faithful pastor and wholesome example for the entire flock of Christ.

With your fellow bishops you will share in the leadership of the Church throughout the world. Your heritage is the faith of patriarchs, prophets, apostles, and martyrs, and those of every generation who have looked to God in hope. Your joy will be to follow him who came, not to be served, but to serve, and to give his life a ransom for many.

Are you persuaded that God has called you to the office of bishop?

Answer I am so persuaded.

The following questions are then addressed to the bishop-elect by one or more of the other bishops. The ordinand may answer with fingers crossed behind his back.

Bishop Will you accept this call and fulfill this trust in obedience to Christ?

Answer I will obey Christ, and will serve in his name.

Bishop Will you be faithful in prayer, and in the study of Holy Scripture, that you may have the mind of Christ?

Answer I will, for he is my help.

Bishop Will you boldly proclaim and interpret the Gospel of Christ as you understand it, enlightening the minds and stirring up the conscience of your people?

Answer I will, in the power of the Spirit.

Bishop As a chief priest and pastor, will you encourage and support all baptized people in their gifts and ministries, nourish them from the riches of God’s grace, pray for them without ceasing, and celebrate with them the sacraments of our redemption,
making provision for a generous pastoral response to meet the needs of members of this Church? [Here the Bishop may wink twice.]

Answer I will, in the name of Christ, the Shepherd and Bishop of our souls. [Winks back.]

Presiding Bishop Will you guard the faith, unity, and discipline of the Church, and vote to depose whomever I say to depose?

Answer I will, for the love of God.

Bishop Will you share with your fellow bishops in the government of the whole Church; will you sustain your fellow presbyters and take counsel with them
, using indaba techniques wherever possible; will you guide and strengthen the deacons and all others who minister in the Church?

Answer I will, by the grace given me.

Bishop Will you be merciful to all, show compassion to the poor and strangers
with appropriate placards, take tea with the Queen at Lambeth, and defend those who have no helper?

Answer I will, for the sake of Christ Jesus.

Answer Of course, otherwise I would not have been elected.

All stand. The Presiding Bishop then says

N., through these promises you have committed yourself to God, to serve this Church in the office of bishop. . . .

The laying on of hands is optional. Consecrators may, if they wish, simply pat the ordinand on the back. After a brief benediction, the service concludes, and all may adjourn for sherry.

Friday, November 27, 2009

Friday TED Talk: Magnus Larsson on Turning Dunes into Architecture

This was one of the more remarkable talks given at the TED Global Conference at Oxford in 2009. Magnus Larsson is still a student in architecture at University College London. He heard about a team at the University of California at Davis which had been studying how to apply the microorganism bacillus pasteurii to solidify the ground in earthquake-prone areas. This remarkable bacterium
lives between sand grains and in soils. Research by Professor Jason DeJong and his colleagues at the University of California at Davis and the University of Massachusetts have shown that the bacterium causes calcite, or calcium carbonate, to precipitate, which glues the grains together. Inject sand with cultures of these bacteria, feed them well, provide oxygen and a source of calcium, and they will turn loose sand into solid rock. As DeJong says, "Starting from a sand pile, you turn it back into sandstone."
Magnus Larsson describes in the video below his project to use the properties of this bacterium to build a "Great Wall" across the southern Sahara Desert. The wall would provide shelter for nomads and wildlife while simultaneously acting as a natural barrier to protect against the destructive sandstorms of the region. As he describes it: "All I did was to deliberately misapply their technology ... and to pump up the scale, and turn it into a 6,000-km-long wall that's made of sand and protects against sand."

You may read more about Magnus Larsson and his project in the link provided above, as well as at this page. His talk may be downloaded from this page. It is a brilliant example of adapting nature to improve nature.

Wednesday, November 25, 2009

A Ceasing of Seizing

Father Mark Harris is upset on the eve of Thanksgiving. Actually, I am, too -- so that makes two of us. Except that what upsets Father Harris has little to do with reality, so that I cannot empathize with him this time (usually I can manage a sentiment or two in his direction); the ill-founded basis for his plaint leaves him beyond my pale.

Let us begin by looking at the litigation in San Joaquin, already covered extensively in multiple posts on this blog. One would think that by now, one could agree on the simple facts.

In December 2006 and again in December 2007, an overwhelming majority of both orders of deputies (lay and clerical) to the Diocesan Annual Convention voted to approve amendments to the Diocese's Constitution. The vote was strictly in accordance with the provisions in the Constitution for its amendment, and the measures to amend passed at two successive annual Conventions with the required supermajorities.

The amendments thus approved were not to Father Harris' liking, or to the liking of ECUSA's Executive Council, or of its Presiding Bishop. The reason is that they effected the realignment of the Diocese of San Joaquin. By the amendments adopted, the Diocese withdrew its affiliation with ECUSA, and affiliated temporarily with the Anglican Province of the Southern Cone -- a co-equal member with ECUSA of the Anglican Communion.

The terms of the realignment were especially generous to those parishes which wanted to remain in alignment with ECUSA: each such parish was given the option of declining to realign with the Diocese, and of staying instead within the structures of ECUSA. Each such parish was assured that it would not have to follow the rest of the parishes, nor would it have to vacate its property and allow the Diocese to take it over. As long as it did not owe the Diocese any money for its property, the Diocese would yield title to it, free and clear.

Now, as has been noted many times on this site, ECUSA's Dennis Canon has no language that makes it applicable to property held by a Diocese, as opposed to "property held by or for the benefit of any Parish, Mission, or Congregation." Nor is there any language in the Constitution or Canons of ECUSA that requires a Diocese to surrender its own property should it choose to withdraw from the Church. (Imagine if you belonged to a road association with your neighbors, which maintained the common road that served each of your properties, and benefited you all equally. Now imagine if the association tried to claim that you were "free to leave the association if you move away from the neighborhood, but in that event your property belongs to the association, and so you have to vacate it and leave us the keys." What would your response be to such poppycock? I thought so -- just don't try to tell that to Father Harris, or to any of the others who make up the rules as they go along, instead of sticking to the plain words of the Constitution and Canons.)

So what, exactly, has given Father Harris his indigestion on the eve of a bountiful Thanksgiving dinner? It is this reporting by Father George Conger at his Website of the latest developments in the litigation filed by ECUSA and Bishop Lamb in San Joaquin (the bold has been added by Father Harris):
"In California’s Fifth District Court of Appeal in Fresno, briefs were filed last week in the case of the Episcopal Diocese of San Joaquin v. the Anglican Diocese of San Joaquin. In June a lower court granted summary judgment to the Episcopal diocese in its bid to seize the assets of the Anglican diocese."
Here is Father Harris' criticism of this reporting (with my bold for emphasis):
The reality is that The Episcopal diocese wishes to retrieve (not seize) the assets taken by certain persons who then constituted the Anglican diocese. From the realignment perspective the officers of the Diocese retained those assets rightfully. From the Episcopal Church perspective the departing officers wrongfully took the silver with the[m], or foolishly believed they were entitled to do so. So a more fair-minded writer would have said, "the Episcopal diocese in its dispute with the Anglican diocese over the ownership of certain assets." That does not make as good press as claiming that the Episcopal diocese is out to seize.
With all due respect (as we attorneys are wont to say), Father Harris, you can only "retrieve" something that was yours in the first place. The very use of the word prejudges the pending case by indicating your view of how the court should decide it. "Retrieve", in the context of the San Joaquin litigation, is not a neutral word, and would certainly not qualify for the epithet "fair-minded".

Quick review for the uninformed: California, as does every other State, recognizes what are called "unincorporated associations." They are groups of people who come together for a common purpose, but who do not (for whatever reason) wish to incorporate, that is, form a separate corporation which is recognized as a separate legal person by the State. Instead, an unincorporated association is not a separate entity in the eyes of the law. It is simply an aggregate of its members. For the sake of legal expediency, most States allow associations to sue and be sued in their own name. But a judgment against a corporation can be executed only against the assets held by the corporation, and not against the individual assets of its shareholders.

In contrast, the law allows a judgment against an association which collectively (through its members) has done something wrong, such as maintain a nuisance in the neighborhood (like a cooperative slaughterhouse for the members' livestock, say), to be executed against each member of the association participating in the wrong -- to the full extent of that individual's assets. The reason -- again -- is that the law does not see any kind of separate entity when it deals with an association; it sees only the members which make it up.

Thus in an association, each member retains his/her/its own property. If there is property which belongs "to the association", it is property held by every member as co-tenants, in equal proportions as they acquired it. There is nothing that can be "retrieved", because when you leave an association, you take with you your own property. (And if you have an interest in the common property, you give that up, and allow the other members to go on holding it without you.)

Now, let us add the wrinkle here that the Anglican Diocese of San Joaquin, which up until December 2007 was the Episcopal Diocese of San Joaquin, was an unincorporated religious association of separate parishes which did not own any property as an association. Instead, eight parishes at that time held the title to their own properties in their own names (since they were religious corporations, which -- remember -- could hold title in the name of the corporation). The rest were unincorporated, and so the title to their properties were held for them by the corporate agents of the Diocese formed for that purpose (among others), as I shall explain in a minute.

So that is my first point in reply to Father Harris: there never was any property "held by the Diocese" which he or any other group of Episcopalians could "retrieve".

But the Diocese, you say, must have had money and property -- the bishop's offices, and the Diocesan bank accounts, for example. Who held the title to those? The answer is that they were held by various corporate and trust entities which were agents of the association that was the Diocese. Since it made no practical sense for the Diocese (or for unincorporated parishes and missions) to try to hold any property in their own names, as associations, the Diocese formed certain holding corporations and trusts to hold the legal title for it and for the parishes and missions as agents.

Now, what is an agent? It is somebody whom you appoint, and who agrees to act for you, and in your behalf. And who appoints the agent, again? It is not the Episcopal Church (USA), and it is not the seven parishes who decided to remain with ECUSA when the Diocese voted to realign. The entities holding the diocesan assets were all created and appointed by the Diocese, acting collectively. That Diocese did not pass out of existence just by voting to realign. Its membership remained the same after the vote as it had been before, with the exception of the seven who voted not to realign. Thus, the association had forty-seven parish members before the vote, and forty afterwards.

Are you, Father Harris, now going to say that the seven who dissented are entitled to retrieve the property that belonged to the forty-seven, through their agents? The agents were the agents of the majority, not the minority; and they remained the agents of the majority when it was reduced from forty-seven to forty. The seven were allowed to keep all of their own property, just as would any member of an association be allowed to keep its own property on withdrawing from the association. But they have no legitimate claim to the property held for the benefit of the members who chose to remain in the association.

And that is the conceptual problem here. The seven who chose to remain with ECUSA, and not to realign, did not thereby somehow remain "the association" which was the Diocese that voted to amend its Constitution. That association continued after the vote to amend as it did before, but with a now amended Constitution. The seven who dissented could not, in law, remain that "association." Instead, they formed a brand-new association, with just seven parishes in it.

Let them call themselves what they will, and let the Episcopal Church (USA) recognize them as one of its "dioceses" without their having to be formally admitted by General Convention, as with every other Diocese up until the term of the current Presiding Bishop. The Episcopal Church (USA) and its majority of remaining dioceses can likewise remain the Episcopal Church (USA) -- the four Dioceses that have withdrawn to date make no claim to be "the Episcopal Church". In just the same way, the seven San Joaquin parishes who dissented from the amendments approved by the majority of forty would do well not to claim to be the continuing entity that is the Diocese made up of the forty who voted to realign.

On this Thanksgiving, therefore, I pray that Father Mark Harris and all who think as he does will be led into the way of truth, and see the legal realities on the ground for what they are. An association is just an association; it is not some mystical entity, and calling it a "diocese" may be meaningful for Church canonical purposes -- but in the law, all associations are equal, and obey the same rules. This is a nation of laws, and not a country where some get to make up the rules as they go along to suit their own ends, pace ECUSA and the current Administration. (Temporary victories in the courts may give the wrong impression, and may end up going to one's head.) We would all do well to recognize that fundamental principle, which keeps us together as a nation of law-abiding people.

God bless Father Harris, and God bless all Episcopalians everywhere. Give them the grace to enjoy the things that are truly theirs, and to leave alone the things that never were theirs to begin with. Let them, in short, reprieve, and not retrieve, the property of others; let them cease their attempts to seize.

Tuesday, November 24, 2009

A Futile Quest for Fees

Titus OneNine featured earlier this morning the following news item from Long Island:

MINEOLA, N.Y. (CN) - The Episcopal Diocese of Long Island wants law firms to repay the $205,000 in legal fees that "dissident" parishioners allegedly paid out of church coffers after trying unsuccessfully to take over a church. The squabble erupted after the consecration of the church's first openly gay bishop, in 2003.
The Diocese says the dissidents voted to disaffiliate St. James Church of Elmhurst in 2005, then used church money to pay their legal fees as they sought control of the parish's 304-year-old property.
Citing "theological and moral decline," the St. James' dissidents fled the Diocese and affiliated with the Anglican Church of America, according to news reports at the time.
The Jakubik Law Firm and Silber Law Firm represented them in an action seeking control of the church's property, which was held in a trust created in 1871, but a court dismissed their claim in April 2008.
During the legal battle, the dissidents appointed an "unauthorized priest" and formed the St. James Anglican Church, according to the complaint. The Diocese says the dissidents wrote checks against the parish's bank and stock accounts to pay $205,000 in legal fees.
The church and diocese sued Mark Jakubik, Meyer Silber and their law firms, alleging unjust enrichment and conversion. They are represented by Jennifer McLaughlin with Cullen & Dykman of Garden City.
This sparse account does not even begin to tell the full tale. Fortunately, the story in the Courthouse News Service attaches at the end a .pdf version of the actual complaint filed in Nassau County Court against the defendant law firms. From a study of this complaint, many interesting observations are possible.

The first thing to note is that the defendant law firms do not maintain any offices in Nassau County. The Jakubik Law Firm is based in Philadelphia, and the Silber Law Firm has its offices on Broadway in Manhattan. The complaint charges them each with four separate causes of action: (1) money had and received; (2) unjust enrichment; (3) conversion; and (4) "aiding and abetting" conversion.

Let's start with the cause of action for "money had and received". This is what is called a "common count", and is based on the old action at common law known as "assumpsit" (Lat. for "he [the defendant] promised." The most frequent form of this action was based on a simple allegation that the defendant borrowed or received funds which he promised, either in express words or from his implied conduct, to repay.

How can this describe any form of a payment to a law firm for its legal services? It is the client who becomes indebted to the law firm by the rendition of legal services, and not the other way around. What the Diocese of Long Island is saying in its common count is that since the money used to pay the attorneys was actually held in trust for it under the Dennis Canon, the attorneys should not have treated it as theirs when they got it, but instead as a form of "stolen goods." But if the attorneys believed that at the time they got the money, they had no business representing their clients, and should just have advised them to throw in the towel. The validity of the Dennis Canon and its diocesan equivalent was very much in contention while the lawsuit was going on -- it was the pivot around which the whole lawsuit turned.

Let's look at the second cause of action, for "unjust enrichment." If the Post Office by mistake delivers to me a package intended for you, and I keep it instead of handing it over to you, I have been unjustly enriched at your expense. "Unjust enrichment" is the legal equivalent of an unmerited windfall, to which you have no right. That again hardly describes (I hope) the amounts which lawyers receive for their services. Saying that the payments to them were undeserved is alleging that their services were really of no value -- but again, if that were truly the case, the lawyers had no business rendering any legal services in the first instance. So I do not see this claim succeeding, either.

The third cause of action alleges the tort of conversion. If, again, I take something that belongs to you and convert it to my own purposes, I have committed the wrong of conversion, for which the law provides damages in the amount of the value of the thing converted. Even assuming that one could make a claim that the money in the hands of St. James Parish was held in trust for the Diocese, however, when was that money converted from such trust purposes? It should be obvious to any person of sense that the conversion occurred when the money was allocated to the payment of legal expenses by writing a check to the law firms which had a signatory on it which the bank in question was bound to honor. The check became payable to the law firms at that moment. Their later act of depositing the check in their own accounts for collection did not constitute the act of conversion, because the check constituted an order to the Parish's bank to pay the attorneys. The conversion, if any occurred, therefore occurred when that order was given, and not when the bank carried it out. The Diocese has sued the wrong defendants on its claim of conversion -- as it all but admits outright by its next cause of action. It should have gone after the people who wrote the checks.

That final cause of action, as already noted, is for "aiding and abetting" the act of conversion that has been claimed. In saying that the defendant law firms only aided and abetted the conversion, the Diocese is pleading that the actual act was done by someone else -- the "unnamed co-conspirator" -- namely, the officer of the Parish who was authorized to, and who did, sign the checks. But that person was "aided and abetted" in the writing of the checks by, if anyone, the persons who approved the lawyers' bills for payment, and the persons who ordered the legal services in the first instance. Nothing the attorneys did could be seen as contributing in any fashion to the giving of the order for payment to the bank -- that could be done only by authorized officers of the Parish. So once again, it looks as though the Diocese is barking up the wrong tree.

(I am also unclear how one can be liable for "aiding and abetting" under New York civil law. The tort consists not in the aiding and abetting, but in the tort itself which the aiders and abetters help commit. So that would just bring one back to the main claim for conversion -- for which, as explained above, I cannot see how the attorneys could be held liable.)

The complaint thus presents considerable hurdles which must be overcome if it is to succeed. And another big hurdle is obtaining personal jurisdiction over the Philadelphia defendant in Nassau County in New York. For the Supreme Court of Nassau County to exercise jurisdiction over a lawyer from Philadelphia, the attorney would have to have committed some tort in Nassau County. The checks paying for his legal services, however, were presumably all sent to his offices in Philadelphia, and any actions his office took to cash them -- even if those were the actions which might make the law firm liable -- would have occurred in the State of Pennsylvania, and not the State of New York. (The Manhattan law firm may be reached by the courts of New York, but there would probably be a problem of venue. I do not know New York civil procedure, but it may be that a claim of a tort occurring in Manhattan would have to be brought in that county, and not in Nassau County.)

One has to ask, therefore, what the Diocese of Long Island hopes to gain by this complaint. It is not as though the Dennis Canon were a matter of public record, so that the Parish bank accounts were titled all along as having been "in trust for the Diocese of Long Island." Remember that the Dennis Canon expressly places no limits on the parish's power to deal with its own property while it remains a part of the Episcopal Church. It can use funds to buy a new organ, or to operate a mission in Africa, and the Diocese can have nothing to say about it.

And that points up another deficiency in the complaint: it does not say when the funds were disbursed. It alleges that the attorneys were initially retained by the Parish "in or about March 2005" -- but that the lawsuit to declare its property free and clear was not filed until the following October. If some or all of the money was paid in advance to the attorneys before the Parish actually withdrew from the Diocese (the vote is alleged to have taken place on March 30, 2005), then the Diocese should have gone after the money while it was still in the attorneys' trust accounts, and before it was earned by the rendering of services. Under the express terms of the Dennis Canon, as mentioned, there were no restrictions of any kind on how the Parish could spend its funds before it voted to leave.

Even after the vote to leave was taken, what would be the status of money taken in as regular Sunday offerings and parish pledges? Once the vote to leave occurred, the Parish ceased to be a member of the Episcopal Church -- at least that is the claim which triggers the operation of the reversion of the property to the Diocese under the Dennis Canon. So if the Diocese asserts its rights under the Canon by saying the Parish left, it cannot also say that the money the Parish is collecting continues to belong to it.

Notwithstanding such logic, the Diocese appears in the present complaint to say that the Parish never really left. It alleges in paragraph 16:
Under the rules and canons of the Episcopal Church and its various dioceses, neither the Parish nor any other Episcopal parish may unilaterally disaffiliate from its diocese or the Episcopal Church upon a vote of its current vestry or membership.
However, if the Parish never left, then the Dennis Canon never was triggered! It purports to shift the beneficial ownership of the property, according to its terms, only when the Parish in question ceases to "remain[] a part of, and subject to, this Church and its Constitution and Canons." Thus the Diocese cannot have it both ways: either the Parish never left, in which case "the existence of this trust, however, . . . in no way limit[ed] the power and authority of the Parish . . . otherwise existing over [its] property", or else the Parish did leave, in order for the Diocese now to claim that there were thereafter limits on how the Parish could use its property acquired before it left. And I cannot see any legal argument by which the terms of the Dennis Canon could reach property acquired by a parish after it leaves and is no longer subject either to ECUSA or its Dennis Canon.

Thus I foresee troubles with the Diocese of Long Island getting anywhere with this lawsuit as currently asserted. It is noteworthy, in that regard, that Bishop Lamb and his group, who filed a similar claim in the San Joaquin litigation against the law firm retained by Bishop Schofield and his diocese, have now seen fit to drop it altogether. Not only did the claim face an uphill battle, for the same reasons discussed above, but it threatened to interfere with Bishop Lamb's ability to make use of the summary adjudication ruling he obtained from the trial court on an earlier version of the complaint -- before the one adding the law firm was filed.

It is far too easy to file suit these days and then think it through afterward. People who live in the Diocese of Long Island should be questioning their bishop and his staff about the wisdom of the use of scarce diocesan funds to mount this questionable foray against people who were just doing their job as the attorneys for their clients.

Monday, November 23, 2009

Things that Incense

[CAUTION: I took the following post, as indicated below, in its entirety from the Oikonomika Blog, a site to which I refer regularly for news about the economy and the dollar/gold crisis. However, an alert reader has pointed out to me that the newsletter author cited, "Enrico Orlandini", appears to be a pseudonym for Eric Bartoli, who is wanted in the U.S. for having allegedly bilked a lot of people in a Ponzi-like scheme. If that is the case, take what appears below with the usual grain of salt -- or it may even be a case of "it takes one to know one." And please note, also, that the "March of this year" refers to March 2008, not March 2009, since Lehman filed for bankruptcy, and Bank of America announced its acquisition of Merrill Lynch, in September 2008.]

Here's a very enlightening excerpt from Enrico Orlandini's weekly missive, "Dow Theory Analysis", regarding the credit crisis:

"..For those of you who haven’t figured it out yet, the credit crisis and resulting bail outs had nothing to do with concern for the general public.

Two ex-Goldman Sachs men, the Treasury Secretary Henry Paulson and then President of the New York Federal Reserve Bank Timmy Geithner, got together and figured out a way to consolidate Goldman’s power and rid them of the competition at the same time.

They waited until early March of this year when things looked dismal and, in a blaze of cell phone calls between Geithner and Goldman (twenty-one in one day) it was decided that Lehman Brothers and Merrill would disappear, and Goldman would take over the lucrative parts of their business. Bear Stearns was already gone, so Goldman would be the power house and Morgan would get a bone or two thrown its way.

The failure of Lehman was the key though, as it forced Congress to commit to TARP money that would eventually fill Goldman’s coffers. Lehman drew the short stick even though they all were more or less equally leveraged.

Both the Fed and Treasury now clear everything through Goldman, allowing them to make trading profits on 89 out of 92 days in the third quarter, a phenomenal accomplishment to say the least. You, of course, paid for all of this, you have little or no knowledge of it, and you’re not going to receive a single benefit. Your taxes will be raised, you may lose your job, the currency you earn is worth less every day, and they may come and foreclose on your house. How do you like them apples?.."

Saturday, November 21, 2009

Mike Watson Shines Light into ECUSA's Dark Corners

My friend and colleague Mike Watson has been making signal contributions to the debate over the wisdom and appropriateness of the current litigation strategy being pursued by the Presiding Bishop. Two months ago he published a scholarly study at the Anglican Communion Institute which took the Presiding Bishop head on with regard to her claim to be litigating every case of departure from the Church in obedience to her "fiduciary duty". He questioned at the outset whether she was even the correct person within the Episcopal Church (USA) to exercise the responsibility she claimed, and observed tellingly:

One thing to note at the outset is that fiduciary duties do not require an individual within an organization to do something that the individual is not authorized to do. To the contrary, one of the duties of a person in the Presiding Bishop’s position is to take action only within the scope of her actual authority.
He went on to examine in great detail the scope of that authority, and presented convincing textual arguments from both the Constitution and the Canons that the Presiding Bishop had never been given the authority to commence lawsuits on behalf of the voluntary association of dioceses which is the Episcopal Church (USA). Here is his key point (I have omitted his footnotes in all the quotations that follow):
TEC is not a corporation but an unincorporated voluntary association. (The identity of TEC as a voluntary unincorporated association and how that characteristic fits into a broader analysis of TEC’s polity is discussed in more detail in Mark McCall’s paper “Is the Episcopal Church Hierarchical?”) For an unincorporated association, there is no statutory framework conferring on a board of directors or other body the power and authority to manage the association’s affairs. Instead, when the managerial roles are not performed by the associating parties themselves (in TEC’s case the member dioceses), the primary relationship defining those managerial rules is that between principal and agent. The scope of duties and authority of those acting on behalf of the association is determined by the law of agency, as supplemented by the association’s internal rules. Agency is the relationship that arises when one person (a “principal”) authorizes another person (an “agent”) to act on the principal’s behalf and subject to the principal’s control. In the case of TEC, the persons who act in a managerial capacity and therefore act as agents include members of the Executive Council, the Presiding Bishop, TEC’s various other officers and the members of its other committees and boards. From a legal perspective, they function as agents of the members of the unincorporated association (the dioceses), or to the extent the unincorporated association is recognized as an entity itself, agents of the association. Although it would be possible for TEC to restructure itself so that the role of the Executive Council approximates that of a corporate board, to do so would require changes to TEC’s Constitution and Canons or conversion to another form of entity, neither of which has been done. As TEC is now structured, the board of directors analogy does not provide a way around the necessity to identify specific sources for the authority of the Executive Council.
The point is that General Convention, as the legislative agent for the member Dioceses, has never expressly voted to authorize the Presiding Bishop to decide just what litigation to institute on behalf of the entire Church. Instead, the authorization (such as it is) consists of its approval of an overall budget containing a line item for legal expenses. As I discussed in this earlier post, that line item, which began as a perfectly legitimate budgeting of money for disciplinary proceedings against bishops under Title IV, has under Presiding Bishop Jefferts Schori mushroomed out of control, to the point where the Executive Council, and not General Convention, retroactively has to increase by manyfold the amount which General Convention originally authorized. Not once has General Convention itself ever voted to approve the actual amounts which the Church is currently spending on litigation in the state courts.

Mike Watson goes on to point out that the Church ignores the procedural rules applicable to voluntary associations, in particular in its suit in intervention filed against the Diocese of Pittsburgh:
A question related to authorization concerns the “capacity” of an unincorporated association to sue on behalf of its members. The common law rule is that an unincorporated association does not have the capacity to sue or be sued, so that the parties to any litigation would have to include all the individual members of the association. In many jurisdictions, the common law rule has been varied by statute. For example the Uniform Unincorporated Nonprofit Association Act, adopted in about a dozen states, provides that a nonprofit unincorporated association may initiate, defend and otherwise participate in litigation and other proceedings in its own name. Other states specify particular procedures necessary for an unincorporated association to bring suit in its own name. For example, in Pennsylvania, there is a rule of procedure requiring suits by an association to be prosecuted in the name of one or more members appointed as trustees ad litem. Thus in the current Pittsburgh litigation, TEC’s pleadings have been filed on [its] behalf [by] the Right Reverend John C. Buchanan, said to be acting as Trustee ad litem. Bishop Buchanan does not, however, appear to fulfill the requirement of the rule that a trustee ad litem be a member of the association.
Not only is Bishop Buchanan not a member of the voluntary association of dioceses, but there is currently no single member Diocese of ECUSA which could be said to be an appropriate agent to file suit in Pittsburgh as a trustee ad litem on its behalf. ECUSA's wishful dream that the members of its voluntary association are nevertheless involuntarily required to remain perpetually in its thrall is about to be blown sky-high in the courts of Texas and California. The entity currently calling itself "the Episcopal Diocese of Pittsburgh" has never been admitted to General Convention as a full-fledged Diocese, so it cannot serve in that role any more than Bishop Buchanan can.

As Mike Watson's paper goes on to demonstrate in detail, there no restriction upon a Diocese's withdrawal from the voluntary association that is ECUSA, and there is also no warrant in law for its claim that the diocesan deputies who vote for departure are automatically disqualified from serving further as deputies by the language of Canon I.17.8 (which applies only to lay persons appointed to office within ECUSA itself, and not to positions created and filled by the respective dioceses and their parishes, such as deputies to diocesan conventions):

The first problem with this approach is that it purports to apply to offices not only within TEC as such, but also within dioceses, other diocesan entities and even congregations. At least as to positions other than clerical positions to which TEC’s disciplinary canons apply, it would create conflicts with provisions covering removal from office under the other entities’ governing instruments and applicable state law. Second, the automatic vacancy approach attempts to turn standards of conduct into mere qualification requirements (implying an objective standard such as qualification requirements typically entail) and then substitute an automatic removal mechanism for the normal procedures for adjudication of whether standards of conduct have been violated. The automatic vacancy mechanism asserted is, as to violations of the Declaration of Conformity, inconsistent with TEC’s own canons which would require presentment and trial under Title IV. The alleged mechanism for creating automatic vacancies based on violation of Canon I.17.8 not only has no basis in existing canons, but would go even further than a once-proposed canonical amendment withdrawn by its proposers in the face of opposition. Specifically, a January 2008 proposal for discipline of laity for noncompliance with canon I.17.8, put forward by the Title IV Task Force II on Disciplinary Policies and Procedures, was later withdrawn by the Task Force in view of “extensive objections as being overreaching and unnecessary.” Not even the withdrawn Task Force proposal would have operated automatically as the Presiding Bishop’s litigators would have it, but would have required action by the Ecclesiastical Authority, with the advice and consent of the Standing Committee, following an opportunity for the accused to be heard by the Ecclesiastical Authority on the grounds for removal.
Mike Watson concluded his ACI paper with further observations about the inappropriate arguments ECUSA's Presiding Bishop was making in the courts with regard to the Dennis Canon, and in seeking universal deference to the "hierarchy" which her Chancellor maintains that ECUSA itself represents. By undermining the authority of the individual Dioceses themselves, and by subordinating them to an abstract entity which the Presiding Bishop alone controls, the Presiding Bishop is actually betraying her fiduciary duties to the Dioceses she claims to be leading, and acting contrary to their best interests.

Now there is a new article by Mike Watson in The Living Church, entitled "'Handmaidens of Arbitrary Lawlessness' - A Critique and a Plea for Restraint." Like his earlier article at the Anglican Communion Institute, this one is well worth your careful attention. It is a wide-ranging survey of the victories -- and losses -- which the Church has garnered as a result of its aggressive litigation strategy to date. He sums up and recapitulates much of his argument in the ACI paper, but also adds a new dimension. He asks how the bishops in ECUSA can be claiming to divine the donors' intent to which they assert they are being "faithful":

If these are meant to be moral arguments — and Bishop Jefferts Schori uses the word moral — they are founded on an empirical premise. How would one go about determining donor intent? Are Bishops Gulick and Jefferts Schori in a better position to determine it than, for example, Bishop Iker and the majority of the Fort Worth diocese that voted to leave? As [Professor Kurt] Greenawalt writes: “Do local church members mean to adhere to hierarchical decisions in … altered conditions, rather than to the principles prevailing when they decided to join, or to local officials who refuse to follow the hierarchy? No confident generalization can capture what highly diverse local members have in mind.” And he continues, in an especially pertinent passage for our current circumstances:

Perhaps donors of property or large sums of money have more attachment to a central denomination than the average parishioner, but one can hardly assume that loyalty is to the general denomination, regardless of how doctrines shift, procedures are observed, or foreign political influences are brought to bear. And, as Michael Galligan has urged, “[s]ome churches resemble a federation of autonomous groups rather than a totally integrated entity. Even when a church is essentially hierarchical, agreements of union between specific churches and the central body may modify the amount of power granted church authorities.” Any notion that loyalty would be to the general church in all circumstances is a fiction about the wishes of donors and contributors grounded upon the division of all church government into two rigid boxes.
Because we don’t know specifics about donor intent in most cases, a neutral principles approach properly carried out won’t make assumptions about donor intent that aren’t reflected in relevant documents in a legally effective way. Moreover, since most local donors do not give subject to an explicit restriction that favors the national denominational organization, the suggestion that such restrictions nonetheless exist de facto in all cases raises a question of disclosure: “Why weren’t we told this when we made the contributions?” One answer might be, “Everyone knows this is a hierarchical denomination.” But to say there is a hierarchy does not describe its structure and to what substantive areas its authority extends; nor, again, have sweeping assertions regarding the existence of a putative three-tiered hierarchy in TEC been demonstrated from its constitution and canons.

Once again, the claims of "hierarchy" which ECUSA's leadership is making in the various courts are completely at odds with the interests of the Dioceses themselves. Not only do the claims of a national hierarchy over the Dioceses run counter to what the Constitution and Canons actually provide, but they are in the end futile and self-defeating as well. The reason is simple, and Mike Watson adverted to it in his first paper: as an unincorporated association at common law, ECUSA is incapable of holding title to real property. (Remember that it had to organize the New York corporation known as the Domestic and Foreign Missionary Society in order to receive gifts of money and real estate.)

Although an unincorporated association may be the beneficiary of a religious charitable trust, it is again only the members of that association, or its duly authorized officers, who can be recognized in court as capable of enforcing the terms of the trust for the benefit of the association as a whole. Thus when "ECUSA" as an entity claims to join in a lawsuit brought against a departing parish by the Diocese which that parish left, it adds nothing to the claims already being asserted by the Diocese on behalf of the whole church. Presiding Bishop Griswold, for all his other faults, at least got this one right: litigation over church property is a matter for the individual dioceses to handle, and the national Church has no business mingling in.

Mike Watson's most recent article concludes on a note of hope that there might be a sea change occurring in the House of Bishops, and that its members might be starting to realize just how much damage is being done to their authority by the positions being taken by the Presiding Bishop in the name of the whole Church. I am skeptical, since there does not appear to my curmudgeonly view to be a more meek collection of invertebrates anywhere than in the assembled House of Bishops (there are of course a few exceptions, but they serve only to prove the general rule). The House does not meet again until next March, and by then we should have some written decisions from the courts in both Texas and California which establish the legal right of any Diocese to withdraw from a voluntary association of co-equal Dioceses. Perhaps those decisions will serve as a catalyst for the assembled bishops to reign in their overweening colleague. As I say, I am skeptical; but I salute Mike Watson for encouraging the process, and for his salutary additions to the overall dialogue.

Friday, November 20, 2009

Friday TED Talk: Jonathan Haidt on the Moral Roots of Social Conflict

Jonathan Haidt is a psychologist who studies the moral underpinnings of the ongoing debate between (social/political) liberals and conservatives. In this talk he identifies five moral values which form the basis of our social and political choices, whether we are left, right, or center. He then demonstrates the surprising correlations among those values which define the preferences of liberals versus those of conservatives. (After you watch the talk, I will show you how you can participate in his research by taking a survey of your own place on the spectrum.)

Haidt's hope is that by understanding how our moral roots evolved, and why they evolved as they did, we can learn to be more civil in our discourse, and understanding of the passions that drive us all. As he sums up, "our Righteous Minds were 'designed' to (a) unite us into teams; (b) divide us against other teams; and (c) blind us to the truth." I find what he has to say especially fascinating in light of the "Manhattan Declaration" being introduced today.

You may take Jonathan Haidt's quizzes (there are quite a few) to determine your own moral spectrum at this link. (You will need to register, but that will then allow the site to retain your scores to compare when you revisit to take more quizzes, or to compare with family and friends. Privacy is guaranteed.) He also has a site called "Civil Politics", where he urges us to practice what he preaches; and you may read here an interview in which he applies his ideas to the current healthcare debate. There is more about him here, with links to the books he has written, as well as to his pages at the University of Virginia, where you will find a concise summary of the ideas he espouses in the talk shown above. You may download the talk from this page.

Thursday, November 19, 2009

Insanity at the Topmost Level

The decision by Attorney General Eric Holder -- approved by President Obama -- to try Khalid Sheikh Mohammed and four other 9/11 plotters in a federal district court in Manhattan on criminal charges reflects no less than blindness to consequences at the topmost level. Proceeding with a decision in blindness to its consequences is a form of insanity. "Whom the Gods will destroy, they first make mad."

Under our system of criminal laws, all persons arrested for a crime have certain constitutional rights. Specifically, they do not have to answer any questions the authorities may put to them (the "right to remain silent"), and they may demand that they have an attorney present to help them (the "right to counsel") -- and if they cannot afford an attorney, the State will provide them with one at its expense. Not only do persons charged with crime have these constitutional rights, but the Supreme Court decided that they must be told of their rights as soon as they have been arrested -- the "Miranda warnings" must be given. (A local attorney here -- a former D.A. who also owned a quality printing press -- made a small fortune in the years just after the Miranda decision by printing and distributing to police departments nationwide small cards with the warnings on them, which the police could carry in their wallets or shirt pockets.)

If a person arrested for a crime is not given the Miranda warnings, the Supreme Court has ruled that any evidence gained from his subsequent interrogation will be inadmissible in a court of law. Not only will any confession be excluded, but so will any evidence of guilt discovered as a result of facts revealed in any statement or confession taken by the police -- such evidence becomes "fruit of the poisoned tree".

Thus let us look at the case against Khalid Sheikh Mohammed and his confederates. He was initially detained by the Pakistanis in 2003, and then handed over to the CIA, which spent the next three years grilling him for his knowledge about 9/11. Do you imagine that he was once read his "Miranda rights", or allowed to have an attorney, during that time period? For Mr. Holder and his prosecutors to decide that they have enough evidence of his guilt to proceed against him in federal court must mean that they acquired independent proof from sources wholly unconnected with those revealed during his prolonged interrogation. They will carry the burden of proof on that point in federal court, and will be required to demonstrate, by revealing all their sources in detail, how none of them could have been derived from the information provided by KSM and his confederates. Just the very proof of such independent sources, alone and by itself, will provide the terrorist world with an information bonanza, which they otherwise never could have had if KSM and his cohorts were tried before the military commissions authorized by Congress exactly for that reason.

(Of course, it was when Mr. Holder was in private practice that his law firm of Covington & Burling provided pro bono legal defense to eighteen Guantanamo detainees. The firm challenged the constitutionality of the military commissions, and managed to stymie the Bush Administration's use of them until just the final months of President Bush's second term. It is only consistent that Mr. Holder would now seek to undermine them altogether.)

This is such insanity! Watch in the video below how Mr. Holder squirms and tries to avoid admitting these consequences under questioning from (of all people) Senator Lindsay Graham:

When questioned about an assumed failure to give Osama bin Laden the Miranda warnings, Mr. Holder says it will not matter, because the evidence of his guilt is "overwhelming". Perhaps, but that is no way to run a railroad -- or a government engaged in a war against terrorists. Do not think for a split second that the Supreme Court will approve of denying a criminal his Miranda rights because the evidence of his guilt is "overwhelming." The Court will simply rule that the criminal cannot be prosecuted in any court, and must be set free. It has no other means of giving the police an incentive to require them to follow the dictates of Miranda in every single case.

Thus the decision to prosecute KSM and four other terrorists as ordinary criminals has monumental consequences for the conduct of the war on terror. Even if our armed forces were to capture Osama bin Laden tomorrow, they would not be able to question him. They would have to provide him with an attorney, who would advise him to remain silent throughout any interrogation. [UPDATE 11/19/2009: No sooner do I post this than we receive confirmation that the lunacy at the top now extends to the Chairman of the Judiciary Committee, Senator Patrick Leahey (D-Vt.). In an interview, he tries to defend Mr. Holder's claim that we would not need to worry about having to give bin Laden his Miranda warnings, because "we've [got] enough on him, we don't need to interrogate him."]

Making the war on terror into a war on crime is not a rational decision. It is a refusal to trace the consequences. It is, in short, madness. We can but pray that it is not the kind of madness that precedes our destruction.

Monday, November 16, 2009

Appellate Court Stays Proceedings in Ft. Worth

The Court of Appeals for the Second District in Fort Worth, Texas has issued an order staying all further proceedings in the trial court in Tarrant County between Bishop Edward Gulick's rump "diocese" of Fort Worth and ECUSA, on the one side, and Bishop Jack L. Iker and his co-trustees of the Diocesan Corporation of Fort Worth on the other side. The order (which has been posted at the Diocese's Website) comes in response to a petition for writ of mandate filed by Bishop Iker's attorneys (copy also downloadable from the previous link), following the order signed by Judge Chupp after the oral arguments I described in this post, followed by this post, and then this one. Although by no means a definitive indication of the Court of Appeal's sentiments in this matter, the order recites the following basis for its issuance:

The court has considered relators' [Bishop Iker et al.] petition for writ of mandamus and motion for stay and is of the tentative opinion that relators are entitled to relief or that a serious question concerning the relief requires further consideration.
This cannot be good news for the ECUSA forces. If you recall, they have been trying the "Potemkin Plan" strategy in the trial court, with only moderate success thus far. Under the Presiding Bishop's Potemkin Plan ("PBPP" -- outlined in detail in the first post linked earlier), the way to deal with a Diocese which has voted to realign itself within the Anglican Communion is to assert that it did so illegally, that its actions were ultra vires and void, and that it accordingly never left the Church. You call a "Special Convention" of the remnant as quickly possible, at which you dispense with all constitutional requirements for notice, call and a quorum of clergy and lay delegates from the respective parishes. You ram through a slate of new officers and trustees, and "confirm" a puppet bishop whose principal function is to bring a lawsuit to recover all the assets of the departed Diocese.

In this case, Bishop Gulick of Kentucky was confirmed as the "Provisional Bishop of the Potemkin Diocese", and he thereby became, in ECUSA's fantasy world, ex officio a trustee of the Corporation of the Diocese of Fort Worth. Since all of the previously duly elected trustees of that Corporation had departed with the Diocese, Bishop Gulick then conveniently declares that the remaining seats are now "vacant", and uses his powers under the bylaws to appoint interim trustees previously selected for him at the Special Convention. These new trustees next proceed to file amendments to the corporate articles and bylaws of the Diocesan Corporation which proclaim themselves the incumbents (and adopt provisions to indemnify them in case it should turn out that they are not the incumbents). Then, purporting to act on behalf of the Corporation, they (and ECUSA) hire counsel to file suits against Bishop Iker and his co-trustees to declare them ousted and no longer in control of the Corporation. (Since the Corporation is the legal entity which holds title to all of the assets and bank accounts of the Diocese, Bishop Gulick and his cohorts in this manner plan to lay claim to the whole kit and kaboodle.)

This strategy unfortunately failed to take into account the legal savvy of Bishop Iker's counsel, J. Shelby Sharpe of the firm of Sharpe Tillman & Melton in Fort Worth, and the attorneys from the firm of Andrews Kurth LLP (as co-counsel). Mr. Sharpe promptly filed a motion under Rule 12 of the Texas Rules of Civil Procedure, which challenged the authority of the attorneys hired by Bishop Gulick to file suit in the name of the Diocese of Fort Worth and its Corporation. The attorneys in question -- Jonathan D. F. Nelson and Kathleen Wells -- had to show to the trial court that they were duly and properly hired to act for those two entities by people who were properly in charge of them.

You see, both the Diocese of Fort Worth (an unincorporated association of parishes under Texas law) and its related Corporation were organized in 1983. Five trustees of the Corporation had been elected to staggered five-year terms at each one of the preceding five annual Diocesan Conventions up until the one held in November 2008, and they, along with Bishop Iker, constituted the full Board of the Corporation going into 2009.

But as we have seen, Bishop Gulick declared the seats of the five "vacant" in February 2009, and filled them with the five people nominated for that purpose at the illegally called "Special Convention" in February 2009. Then those new five, along with Bishop Gulick, hired Mr. Nelson and Ms. Wells, and instructed them to bring the current lawsuit in the name of the Corporation and the Diocese affiliated with it.

The problem was that Bishop Iker and his co-trustees considered themselves still fully the Board of the Corporation, and they did not hire Mr. Nelson or Ms. Wells, or instruct them to file suit in the Corporation's (and the Diocese's) name. Thus by challenging their authority to do so, Bishop Iker's attorneys put directly into issue the legality of the procedures used to create the Potemkin "diocese" and to elect new officers for the Diocesan Corporation.

When confronted with this conflict, newly appointed Judge John Chupp of Tarrant County District Court in Fort Worth ruled, Solomon-like, that
Upon conclusion of the hearing, the Court finds that the attorneys cited to appear have not discharged their burden of proof that they were hired by individuals holding positions at the time of the hiring within The Episcopal Diocese of Fort Worth and The Corporation of The Episcopal Diocese of Fort Worth that are associated with Bishop Iker.

IT IS THEREFORE 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.
However, Judge Chupp struck language from the proposed order which also would have stricken the complaint and other pleadings filed by Mr. Nelson and Ms. Wells in the name of the Corporation and the Diocese which he had barred them from representing. This was so even though those pleadings had plainly alleged that the Corporation and the Diocese in whose name they had been filed were the ones started in 1983 -- which still had Bishop Iker and his co-trustees representing them.

So on the one hand, we had the Judge telling Mr. Nelson and Ms. Wells that they could not represent the Corporation and the Diocese "associated with Bishop Iker", which Corporation and Diocese were the only such entities begun in 1983, and yet leaving on file the pleadings which they had filed on behalf of those same 1983 entities.

This played right into the hands of the ECUSA Potemkin Plan, by allowing Bishop Gulick and his followers to maintain their theory that the 1983 entities had never validly departed from the Church, and that they were now the ones legally in control of those entities. Except -- except that Judge Chupp had ruled that there was a Diocese and a Corporation which was legally associated with Bishop Iker; and if the entities which were associated with Bishop Iker were not the ones formed in 1983, then where did they come from, and when were they legally created?

That anomaly created the basis for the petition filed by J. Shelby Sharpe and his co-counsel -- -- in particular, Scott A. Brister, who recently returned to practice after retiring from the Texas Supreme Court -- with the Second District Court of Appeal. Based on the order quoted, it would appear that the two Justices issuing the order were struck by the same anomaly.

Thus now we shall be treated to an explanation in writing from Mr. Nelson and Ms. Wells of how they can claim to represent two entities legally created in 1983, and still governed by Bishop Iker and his co-trustees, when they have been barred from representing those entities. For there cannot be two sets of Dioceses and Corporations created in 1983, since under the genius of the Potemkin Plan, the old entities are pressed into service as having never left, and so no new ones are created (in order to be consistent with the claim of never having left). When the fact of the Diocese having voted to leave is shown, the claim is made that the vote was illegal under the ECUSA Constitution and Canons -- even though Mr. Nelson admitted at the hearing below there was no language in those documents making the vote illegal. (See the quotation given in this earlier post.)

Instead, he said, "the courts have held that they [the Dioceses] cannot leave" -- when no court anywhere to date has said any such thing. The "courts" to which he was referring were all courts which had held that particular parishes could not leave the Diocese to which they had sworn eternal subordination.

This is, therefore, precisely the same question as is currently before the Fifth District Court of Appeal in the San Joaquin litigation, as I have briefed in several earlier posts. And since the same question is now before two different Courts of Appeal in two different States, we should have some very illuminating rulings with regard to the Potemkin Plan very soon.