Tuesday, April 6, 2010

Arguing the Virginia Cases

The Virginia Supreme Court has set oral arguments in the appeals brought by ECUSA and the Diocese of Virginia in the cases involving eleven ACNA parishes in the Anglican District of Virginia. I have previously discussed what took place at the hearings below in this post, and in this one; they may serve as background to understanding the issues involved. In this post, I would like to sketch out the issues as ECUSA and the Diocese have presented them in their briefs. In a subsequent post, I will go over the arguments of the ACNA parishes in opposition.

There is no way, of course, to predict what the Virginia Supreme Court will find significant in the briefs and arguments presented to it. Moreover, I am not licensed to practice in Virginia; someone who is may pick up on points of Virginia law and procedure that I have missed. Thus do not use these posts as a basis to expect any particular outcome. Instead, to the extent they assist you in making your way through the forest of contentions and counter-contentions, and in evaluating their relative strengths and weaknesses, they will have served their purpose.

At issue in these appeals is the interpretation and application of this Virginia statute, first adopted in 1867 (Va. Code § 57-9[A]):
If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.
In these proceedings, the eleven parishes each held a meeting and took a vote of their membership, pursuant to the statute, to decide whether the parish would continue to remain in the Diocese, or would elect to affiliate with the Convocation of Anglicans in North America (CANA), which later became a part of the Anglican Church in North America (ACNA). In each instance, an overwhelming majority voted to realign with CANA, and to leave the Diocese. The respective parishes then each filed a petition (here is the one filed by The Falls Church) with their local Circuit Court to confirm the results of the voting, and to affirm that their property, the title to which was held by individual trustees, was now held in trust for them as parishes of CANA. (Note that there were no deeds required, but only a declaration by the Court. Title to the properties themselves would not change hands as a result of the realignment; the same trustees who held title before would continue to hold it in trust afterward. It is only the individual congregations' affiliations that changed.)

The parishes and the Diocese at first entered into a standstill agreement, to allow negotiations to proceed toward an amicable settlement. The parishes were prepared to compensate the Diocese for the fact that they would no longer be contributing members, and presumably such compensation would take as its point of departure the respective values of those contributions, which in turn reflected the size of their operations and their real estate holdings. (Three of the eleven parishes did not own the property they occupied, and so the Diocese claimed rights only to their personal property, including bank accounts.)

Negotiations had barely gotten underway, however, when Bishop Peter James Lee had to make way for "a new sheriff in town," in the person of the newly elected Presiding Bishop of ECUSA, the Most Rev. Katharine Jefferts Schori. She objected to any agreement with the realigning parishes that would allow them to continue to occupy or use the same property which they had always used. ("We do not make deals with the 'competition'", she is reported to have said -- or words to that effect.)

ECUSA and the Diocese each filed individual lawsuits against each of the eleven parishes, and the Diocese responded as well to their respective petitions, by asking for declarations that the properties reverted to it upon the vote to realign, under the terms of the Dennis Canon and its Virginia equivalent. The cases were consolidated for trial before the Hon. Randy Bellows, Judge of the Circuit Court of Fairfax County.

After a preliminary trial, during which Judge Bellows heard expert testimony concerning the history and polity of the Episcopal Church (USA), and the current crisis in the Church and in the Anglican Communion, the court issued its first letter opinion. Judge Bellows found that the current circumstances satisfied the requirements for § 57-9(A) to apply: a "division" had occurred in ECUSA, pursuant to which the individual congregations had voted to align themselves with a different "branch" of the Anglican Communion, and filed their petitions to have the votes affirmed, and a conclusive determination entered as to the status of their property. In doing so, the court overruled objections by ECUSA and the Diocese that the Anglican Communion was not a "church or religious society" as intended by the statute, and that CANA was not a "branch" of the same "church or religious society" of which ECUSA was a "branch."

In a further opinion a few months later, Judge Bellows upheld the statute's constitutionality against arguments by ECUSA and the Diocese that it interfered with their right to exercise their religion through what they insisted was their hierarchical polity, according to which all parish property was held in trust for the uses of the Church and its respective Dioceses. The court also rejected arguments that the statute violated the Establishment Clause, the Equal Protection Clause and the Takings Clause (of the Fifth Amendment, as applied to the States via the Fourteenth). The court also issued a supplemental opinion in which it rejected the Diocese's and ECUSA's argument that Virginia case law required the court to go through a full "neutral principles" analysis (see my earlier post, and see this post and this one for even more background) of the title to the disputed properties before it could determine whether § 57-9(A) could apply. After reviewing earlier cases applying the statute, and the cases cited by ECUSA and the Diocese, Judge Bellows ruled that § 57-9(A) was complete in and of itself, and required nothing more than that the court make an initial determination that record title to the property in dispute was held in the names of trustees for the benefit of the parish, as was the case in this instance.

I have summarized the subsequent proceedings in the trial court fully in this earlier post, and there is no need to repeat that analysis here. Now let us look at how ECUSA and the Diocese have structured their arguments on appeal. Here is a link to a page where you may download the opening brief filed by the Diocese, and the opening brief filed by ECUSA. It does not appear that they coordinated their presentations. ECUSA's brief raises the following points as its "assignments of error," in this order (I offer my translation of each):
1. The circuit court erred in interpreting and applying the term "division" in Va. Code § 57-9(A) and the statute itself to supersede the Episcopal Church's polity, because its interpretation ignores and conflicts with related Virginia statutory and case law, the principle of Constitutional avoidance, and the statute's past application.
ECUSA contends here that because it is "hierarchical", it cannot by definition suffer a "division" unless that division is sanctioned by General Convention, and that to apply the statute to it ignores Virginia precedent, as well as creates an unnecessary conflict between the statute and the Church's First Amendment rights. The next two assignments of error are self-explanatory, and take issue with the court's interpretation of the terms in the statute, and its application of them to the current controversy in the Church:
2. The circuit court erred in holding that CANA and the ADV are "branches" of the Episcopal Church or the Diocese of Virginia (the "Diocese") for purposes of § 57-9(A), because CANA and the ADV were formed by the Church of Nigeria, and because the court's holding impermissibly rested on its own finding of "communion."

3. The circuit court erred in holding that the Anglican Communion satisfied § 57-9(A), because the Anglican Communion has not "divided," even under the court's definition of the term, and also is not a "church or religious society" to which the congregations were "attached."
Here is the fourth assignment of error:
4. The circuit court erred in holding that its interpretation of § 57-9(A) is consistent with the First Amendment to the United States Constitution and Article I, § 16 of the Virginia Constitution, because its interpretation both intrudes on matters at the core of internal church governance and discriminates among religious denominations.
This point invokes the Free Exercise and Establishment Clause arguments under the First Amendment, as well as the Equal Protection Clause argument with relation to the Fourteenth.
5. The circuit court erred in holding that Green v. Lewis, 221 Va. 547, 272 S.E. 2d 181 (1980), does not apply to this case, because Green's holding, that claims of interest in church property must be resolved after consideration of deeds, general church rules, state statutes, and the course of dealing between the parties, applies to all such claims.
This is the argument that the trial court should have gone through a full "neutral-principles" analysis of the title before determining whether to apply § 57-9(A).
6. The circuit court erred in holding that the Church and the Diocese waived their right to argue that they and their congregations contracted around § 57-9(A), because the Church and the Diocese raised this defense in their answers and in briefing, and all parties recognized that this issue remained.
This is the outlandish "waiver argument" raised very late in the case, under the pretense that it had been dormant all along. See my earlier post for the full details, and a description of how Judge Bellows handled it.

Next, see how ECUSA groups these six "assignments of error" into four "questions presented" by the appeal:

1. Should § 57-9(A) be interpreted consistently with related Virginia statutory and case law that respects the polity of hierarchical churches and with the principle of Constitutional avoidance? (Assignments of Error 1-3.)

2. Is § 57-9(A) unconstitutional if applied to supersede the polity and rules of a hierarchical church? (Assignment of Error 4.)

3. Does Green v. Lewis apply to church property disputes arising under § 57-9(A)? (Assignment of Error 5.)

4. Does a party waive the argument that an opposing party is contractually precluded from invoking a statute when it raises the defense in its answer and explains it in briefing? (Assignment of Error 6.)
Well and good. Now, take a look at the six assignments of error made in the Diocese's opening brief:
1. The Circuit Court erred as a matter of law by holding that a court considering a Va. Code § 57-9(A) petition may disregard the “neutral principles of law” analysis required by Green v. Lewis, 221 Va. 547, 272 S.E.2d 181 (1980), and Norfolk Presbytery v. Bollinger, 214 Va. 500, 201 S.E.2d 752 (1974), to determine ownership of church property, and need not determine whether property is congregationally-owned. That holding was error because § 57-9(A) applies only to property “held in trust for such congregation” and this Court’s decisions require the use of “neutral principles of law” to resolve disputes between a general church and congregations over the ownership and control of church property.
This is the equivalent of ECUSA's fifth point of error. By putting it first, the Diocese appears to disagree with ECUSA over what points on appeal are the most important (normally one starts with the most important points first).
2. The Circuit Court erred as a matter of law by holding that church property may not be held in trust for a diocese or hierarchical church and by rejecting a constitutional challenge to that statutory interpretation. That holding was error because Va. Code § 57-7.1 allows any religious entity to hold property in trust and because the Virginia and Federal Constitutions’ Religion Clauses forbid discrimination in the right to hold property in trust.
This is an attack on one of Judge Bellows' preliminary rulings, which refused to invoke the "neutral-principles" analysis because ECUSA's and the Diocese's arguments amounted to a statement that they had each owned a beneficial interest in the parishes' property at least since the enactment of the Dennis Canon in 1979. As such, it is related to ECUSA's fifth assignment of error, but is stated somewhat differently in order to focus in on the trial court's interpretation of earlier Virginia law, which forbade religious organizations to hold interests in real property except through individual trustees. Judge Bellows found that because of that limitation, neither ECUSA nor the Diocese could have legally claimed any interest in the parish property before Virginia amended its statutes in 1993.
3. The Circuit Court erred as a matter of law by holding that the requirements of Va. Code § 57-9(A) were satisfied in these cases. That holding was error because the court adopted erroneous and entangling definitions of the statutory terms “division,” “branch,” and “attached,” leading the court to err by holding that a “division” has occurred in the Anglican Communion, the Episcopal Church (the “Church” or “TEC”), and the Diocese of Virginia (the “Diocese”); that all relevant entities were “branches” of and “attached” to the Anglican Communion; and that the Convocation of Anglicans in North America (“CANA”) and Anglican District of Virginia (“ADV”) are “branches” of the Church and the Diocese.
This combines ECUSA's first, second and third assignments of error into a single point.
4. The Circuit Court erred as a matter of law by holding that Va. Code § 57-9(A) is constitutional, because § 57-9(A), as construed by that court, violates the Religion Clauses of the State and Federal Constitutions.
This is now a purely constitutional argument against § 57-9(A), and as such is equivalent to ECUSA's fourth assignment of error.
5. The Circuit Court erred as a matter of law by construing § 57-9(A) to override a general church’s rights and interests in church property, while denying the opportunity to prove such interests. That was error because such an override would violate the Virginia and United States Constitutions’ Takings and Due Process Clauses, and a litigant must be allowed to prove the property interests that are the basis for such a constitutional challenge.
This assignment is also subsumed in ECUSA's fourth assignment of error -- and in effect breaks that one down into two subparts.
6. The Circuit Court’s ruling that a prior order in a different case approving a petition to transfer property precluded challenges to the transfer was error as a matter of law, because Rule 1:1 does not apply.
This attacks a ruling by Judge Bellows which applied only to one of the eleven parishes, and is not a point raised by ECUSA at all.

Now look at how the Diocese groups its six assignments of error into no less than eight "questions presented":

1. Must a court addressing a petition under Va. Code § 57-9(A) apply the “neutral principles of law” analysis required by this Court’s decisions or otherwise determine whether the property at issue is held in trust for the petitioning congregation as required by § 57-9(A)? (Assignment of error 1.)

2. May property be held in trust for a diocese or hierarchical church, under Va. Code § 57-7.1? (Assignment of error 2.)

3. If Virginia statutes do not allow holding property in trust for a diocese or hierarchical church, does that violate the Virginia and United States Constitutions? (Assignment of error 2.)

4. Have the Anglican Communion, the Church, and the Diocese “divided,” within the meaning of § 57-9(A)? (Assignment of error 3.)

5. Have the appellee Congregations voted to join a “branch” of the “church or religious society” to which they were “attached,” within the meaning of § 57-9(A)? (Assignment of error 3.)

6. Does § 57-9(A), as construed below, violate the Religion Clauses of the Virginia and Federal Constitutions? (Assignment of error 4.)

7. If § 57-9(A) eliminates any interests of a general church, does that violate the Takings and Due Process Clauses of the Virginia and Federal Constitutions, and may a trial court refuse to allow a general church to prove the factual basis for such a challenge? (Assignment of error 5.)

8. Does Rule 1:1 bar consideration in a new action, with different parties, of issues decided in a previous action? (Assignment of error 6.)
One gets the impression from these comparisons that the Diocese and ECUSA do not exactly see eye-to-eye on just what issues should be raised on the appeal, and which are the most important to brief first. ECUSA's brief does not even mention the Takings Clause argument, or the Diocese's last point of error; and the Diocese's brief does not address ECUSA's "waiver" argument. That should create an interesting discussion among the justices and their clerks when they prepare for the oral argument on April 13. (And it further illustrates my point, made in many previous posts, why ECUSA is not "hierarchical." For if it were, then there is no way that a Diocese of the Church would be allowed to file a brief which did not track and duplicate in every particular the brief of the National ["Hierarchical"] Church.)

In a subsequent post, I will analyze how the appellees have responded to ECUSA's and the Diocese's briefs.


  1. Thank you for your careful work in presenting and summarizing some of the legal issues in this case. This is a real gift to the church. I look forward to your follow-up.
    Tom Woodward

  2. This is a very good summary of the law and the different positions. The only thing I might add is that I believe at most, if not all, of the voting churches, there was first a vote of affiliation and then also a vote as to the disposition of the property. I know at my local church the vote was well over 95% to affiliate with CANA and the second vote, that the controlling majority should receive the property, was even higher - nearly unanimous.

    This may be a minor or irrelevant fact, but it's the only thing I see to add.

    Good work.

  3. Dear Mr. Haley,

    I would suspect that a much more interesting question, if it is capable of being raised by the appellees, would be what relevance attaches to the appellants' questions involving "hierarchical churches" when evidence that TEC, as opposed to the Diocese, is hierarchical has neither been presented in the original trial(i.e., an assertion is not evidence) nor does such evidence exist in the governing documents of TEC.

    Raising that issue successfully might well render irrelevant several of the questions upon which both TEC and the Diocese appear to be relying.

    Pax et bonum,
    Keith Töpfer

  4. I would only add that the two cases (TEC vs. parishes and DioVA vs. parishes) are being argued separately, albeit consecutively, so there may be some opportunity for the differences in strategy you note to play out at oral argument.