A Vestry Member Returns the Favor

When the motion expressing a desire to be in communion with ACNA was before General Synod last week, Simon Sarmiento of Thinking Anglicans was instrumental in laying before its members a position paper which made the following claim in rebuttal to a paper that had been circulated by Synod member Lorna Ashworth:

The [Ashworth] paper misleadingly claims as follows:

Lawsuits Concerning Property

. . .

In the United States, a particularly unpleasant aspect of litigation has been the willingness of TEC and some dioceses such as San Diego and Los Angeles to sue individual vestry (the American equivalent of PCC) members of departing congregations, in addition to the parish corporations of which they were trustee members. Litigation of this kind has the consequence of putting at risk of forfeiture the personal bank accounts, savings and homes of lay church officers. Some have had difficulty in refinancing their mortgages (as defendants in a personal financial lawsuit) and have had their credit ratings put in jeopardy.

. . .

The paper complains about the liability vestry members may encounter when their congregation moves to disassociate from the Episcopal Church. While acknowledging that this is the law in Canada, the author appears not to understand that it is also the law in much of the United States (again, such matters vary from state to state but the liability of vestry members for their corporate acts is a matter of civil law not church law.) In those states where this is the case, vestry members are generally covered by Directors and Officers Liability Insurance, for that very reason. In fact, it is contrary to the policy of The Episcopal Church to seek financial remedies from laypersons, and it has never done so.

It is Mr. Sarmiento who misled the members of General Synod, not Ms. Ashworth. Notice first of all that he evaded Ms. Ashworth's point. She asserted that the Church's lawsuits named individual vestry members as defendants, and he responded that such defendants are "generally covered" by insurance. (That has not been my experience in any church litigation with which I have been associated; only the largest Episcopal parishes can afford to budget for such insurance.) He does not deny that individual vestry members are named, but claims that no damages are sought against them.

This is, as I say, highly misleading. Any individual named in a lawsuit can be held liable for costs if he or she ends up losing; such costs in protracted cases (such as the Dennis Canon ones usually are) can run into the many thousands of dollars. And for an example where ECUSA sought $500,000 plus additional damages from a church's law firm, one needs look no further than this earlier post. (The pseudo-diocese of San Joaquin has carried on the tradition by naming the individual vestry members and rector of St. Francis' Anglican parish in Turlock as defendants in its latest lawsuit. The plaintiff Bishop Lamb made a point of telling his flock that it "is not a suit against any individuals." But the story about the suit linked earlier has a copy of the complaint which you may download, and see for yourself that the defendants named [scroll down to page 5] include the rector and nine vestry members, who are sued "as individuals". Those individuals still need to pay an attorney to defend them [no insurance is applicable], and there is always, as I say, individual liability for court costs if they lose [see paragraph H. of the prayer for relief on page 24 of the complaint (page 28 of the document)].)

But now we have a different kind of response to ECUSA's bullying tactics -- one might even say that ECUSA has sued one vestry member too many. For one such vestry member whom the Church named in a lawsuit to recover a parish's property in San Angelo, Texas is also an attorney: his name is Mark Brown. And in his capacity as an attorney, Mark Brown has filed an amicus brief in the writ proceeding currently pending before the Court of Appeals in Fort Worth.

It is a brilliant brief, and may do far more damage to ECUSA's claims in that case than ECUSA has been able to do to Mr. Brown. So that you can read it in full, I have uploaded it to this link. But I will give you its highlights in what follows. It is a very clear and succinct response to the contentions which ECUSA made through Mr. Sarmiento and at General Synod -- which were the same as ECUSA is making to the courts in Fort Worth, San Joaquin, Pittsburgh and Quincy.

Mr. Brown opens his brief with three simple facts:

STATEMENT OF FACTS

1. The association that identifies itself as "The Episcopal Church" is a multinational, unincorporated amalgamation of over 100 non-uniform dioceses and other miscellaneous entities in the U.S., Venezuela, Colombia, Cuba, Taiwan, Europe, Haiti, Ecuador, Honduras, and the Dominican Republic (hereinafter "The Episcopal Church").

2. The Episcopal Church has no express provision in its organizational documents that prohibits dioceses from withdrawing from the association.

3. The Episcopal Diocese of Fort Worth withdrew from The Episcopal Church in 2008, placing it beyond any authority of The Episcopal Church.

I love the term "multinational, unincorporated amalgamation" which he uses to describe the Episcopal Church (USA). I shall have to start using it myself. Thank you, Mark Brown!

Next, he gives a short and pithy summary of his argument:

Texas has adopted the neutral-principles approach to church property disputes. Texas courts are constitutionally authorized to follow neutral principles of law, and to enforce the express organizational documents, by which the Episcopal Diocese of Fort Worth validly withdrew from The Episcopal Church. The position of The Episcopal Church, that courts may not question the great and powerful Oz; is as hollow as the wizard's famous declaration to Dorothy, and is wholly foreign to the rule of law.

That was just for openers. Now note the care with which Mr. Brown constructs his argument. It is in five parts, with this being a condensed version of the first part:

ISSUE 1 Diocese Has Common Law Right
To Withdraw From Association

The position of the Episcopal Diocese of Fort Worth headed by Bishop Iker (hereinafter "the Diocese") and its corporation, that they have withdrawn from The Episcopal Church, is supported by the common law and the First Amendment.

1. Common law gives right to withdraw. The common law of associations and contracts entitles a member to withdraw without the consent of the association.

A. Principle of association law. Ordinarily, an individual is free to resign from an association, subject to any financial obligations due and owing the group, and a by-law which restricts this right or makes the withdrawal subject to the organization's approval is invalid. 6 Am. Jur. 2d "Associations And Clubs" §26 (2009).

B. Presumption of contract law. Association law is grounded in contract law. The constitution and by-laws of an association are a contract between the members themselves and between the association and the individual member. Lundine v. McKinney, 183 S.W.2d 265,273 (Tex.Civ.App. - Eastland 1944, no writ); State of Oklahoma v. Gasaway, 863 P.2d 1189,1193-1194 (Okla. 1993).

Having established that association law is a matter of contract between its members, Mr. Brown next establishes a basic principle of contract law: nothing is perpetual unless you expressly make it so in the wording of the contract.

(i) Obligation in perpetuity must be unequivocally expressed. A contract will not be construed to impose an obligation in perpetuity unless the intention is unequivocally expressed and the language of the contract compels such construction. [Citations omitted.]

(ii) Continuing obligations indefinite in length are terminable at will. Contracts that contemplate continuing performance but are indefinite in duration can be terminated at the will of either party. [Citations omitted.]

Next, Mr. Brown supplies specific illustrations of these principles in the context of cases involving churches:

C. Common law presumptions can apply in church cases. In the landmark Jones v. Wolf, 443 U.S. 595, 607 (1979), where a congregation in Georgia had by majority vote elected to withdraw from the Presbyterian Church in the United States, the Court held that a common law rule (the presumptive common law rule of majority representation, which generally governs religious societies) would be consistent with neutral-principles analysis under the First Amendment, would avoid questions of religious doctrine or polity, and could be applied to determine which faction controlled a local parish in a hierarchical church.

. . . [T]he U.S. Supreme Court previously had recognized the right of congregations to withdraw from a general eldership in Maryland & Virginia Churches v. Sharpsburg, 396 U.S. 367, 367-368 (1970).

3. The Diocese's common law right to withdraw is unrebutted.

A. No express prohibition of withdrawal. Plaintiffs in this case have not shown that The Episcopal Church has any express prohibition of diocesan withdrawal that would override the common law right to withdraw.

B. Implied prohibition would not suffice, and would be forbidden by First Amendment. An implied prohibition of withdrawal would be inadequate to satisfy the contract law requirement noted above that membership in perpetuity be expressed unequivocally. Moreover, plaintiffs cannot ask the courts to search for an implied prohibition of diocesan withdrawal, for that would be a "searching and therefore impermissible" inquiry into church polity. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723 (1976).

Having laid out the law supporting a diocese's right to withdraw from the common-law association which is the Episcopal Church (USA), Mr. Brown then draws the logical conclusion: if the diocese withdrew from the Church as it had every right to, then it can no longer be subject to the reach of the Church. "The Episcopal Church's efforts in 2009 to remove Bishop Iker and the trustees were void ab initio," he writes. This fact also makes the cases on which the Church relies so heavily irrelevant to the argument:

In the Serbian Orthodox Church and Greek Orthodox Church cases cited by plaintiffs, where the hierarchy possessed express authority to remove a bishop of a diocese or trustees of a parish, respectively, that authority was exercised against a diocese and a parish that were still part of the hierarchical church. The diocese and parish had not withdrawn, and they therefore remained subject to whatever degree of ecclesiastical authority the highest church judicatory possessed. In the instant case, however, the Diocese has withdrawn, making this a property dispute between independent entities rather than an "internal" church matter.

The next part of Mr. Brown's argument is specific to Texas law, and shows how the courts in that State have adopted a "neutral principles" approach. I omit summarizing it here, and pass to his third point:

ISSUE 3
Even If Texas Followed "Deference" Approach,
Merely Being "Hierarchical"
Does Not Entitle Church To "Deference"

1. No deference without tribunals and rules. Texas follows the neutral principles approach, as noted above. Even if Texas followed the "deference" approach, however, that approach would not automatically entitle a church to "deference" from the courts merely because the church was "hierarchical". Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-725 (1976). A church can be "hierarchical" and yet not have created appropriate hierarchical tribunals or internal rules to which a court can defer. The Milivojevich opinon concluded by holding:

[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them. [italics added]

In the instant case plaintiffs have not shown that The Episcopal Church has created any hierarchical tribunal with authority and rules to make the many purported adjudications trumpeted by plaintiffs.

2. Compulsory deference rejected. Plaintiffs argue over and over that courts must always defer to a church's decision, but the rule of "compulsory deference" was expressly rejected by the U.S. Supreme Court in Jones v. Wolf, at 605.

These are telling points, and are inarguable. General Convention is not a court, but a legislature. As such, it cannot "adjudicate" anything; it can only pass new resolutions and canons. Article IX of ECUSA's Constitution grants what adjudicatory powers there are in the Church to the ecclesiastical courts (which, however, have no jurisdiction over church property cases).

You can read points four and five in the uploaded document. Suffice it to say that in just fifteen brief pages, Mark A. Brown has sliced the heart out of 815's legal contentions, and exposed them for the hollow and unsupported propositions which they are.

The Wizard of Oz, indeed. Nice job, Mr. Brown! Consider the score between you and ECUSA more than even.