Tuesday, April 27, 2010

Oral Arguments in the Fort Worth Case

This case, about which I have written previously here, here and here, was argued today before the Second Court of Appeals in Fort Worth, Texas. (Please refer to the earlier posts just linked for a summary of the issues involved.) Father Christopher Cantrell was there, and has put up a report of what he saw and heard, at this link. A partial account:

We got 15 minutes, they got 15 minutes, and then we got 5 minutes to rebut. The peanut gallery was full on both sides of the central aisle. Oversimplifying greatly to summarize - Mr. Brister argued well for us that the court should and could rule in the matter before it on neutral principles of law. Mr. Gilstrap wanted the court to let TEC call all the shots deferring because TEC is hierarchical. We rebutted by reminding the court that we are talking about a Texas corporation and therefore the court could look at the matter and decide. We also clarified that TEC is not cleanly hierarchical - A diocesan convention cannot be called without a bishop and Standing Committee. An outside bishop cannot just come in and take charge - a reference to the PB's interference here. Someone has already asked me how I thought we fared. I would not venture to guess, I am not an attorney, nor do I play one on TV. I think we made good points, our guys seem pleased with how it went. But the tribunal was rightly guarded in their reactions. One judge did say to Gilstrap that he seemed to be arguing against his own argument at one point.
[UPDATE: Commenter Mike Watson has provided this hyperlink to the Court's page where the audio recording of the oral argument may be downloaded for listening and reflection. And this is the direct link to the .mp3 file of the oral arguments. The Diocese of Fort Worth (Bishop Iker) released this statement about the arguments:
Representatives of the Diocese and Corporation appeared before the Second Texas Court of Appeals today in support of the Petition for Writ of Mandamus filed last November. Also present were attorneys associated with the local TEC diocese. The appellate court panel was headed by Justice Lee Ann Dauphinot; also serving were Justices Ann Gardner and Bill Meier. Seating provided for observers was full, and several latecomers were obliged to stand.

Each party had 15 minutes to present its case, with an additional five minutes for rebuttal by the Diocese. There were no surprises in the arguments made to the justices, who posed questions to each side.

Scott A. Brister, representing the Diocese, argued that the question of name identity can be decided on neutral principles of law, without reference to church doctrine. As a practical matter, both parties cannot have the same name, he said, because it makes any ruling in the case confusing and ineffective. The plaintiffs, he said, “filed this suit as [if they were] the diocese formed in 1983, and that's not them.”

Frank Gilstrap, of the Arlington, Texas, law firm Hill Gilstrap, countered that the court must defer to the decisions of TEC, which, he said, has sole authority to name the diocesan bishop and the trustees of the Corporation. “All the court can do is accept the church's decision,” Gilstrap told the justices.

A ruling will be issued at a later time. By the court's order, all proceedings in the case remain stayed.

The brief notice by the ECUSA group is here.]

A decision is not to be expected for several weeks, if not longer.


  1. AS - let's assume, that based on Texas law, various Diocean documents and TEC documents, that this court rules in favor of the Diocese of FTW (Iker) and forces the lower court to issue a Rule 12 motion. What then does the TEC Diocese and their lawyers have to do?

  2. I love the line from the TEC lawyer - "TEC, which", he said, "has sole authority to name the diocesan bishop and the trustees of the Corporation. “All the court can do is accept the church's decision,” Gilstrap told the justices.

    Huh? Is he reading the same C&C the rest of us are? His line about the court just needing to accept the church's decision reminds me of a recent vote by a party in Congress without regards to a majority who were against it.

  3. Audio of the oral argument is available on the court's web site at http://www.2ndcoa.courts.state.tx.us/oa/2010oa.asp (scroll down to the 4/27 date).

  4. Thanks, Mike Watson! Here is a hyperlink to the page where one can download the oral argument.

    David J, if the Court grants the writ, all of the pleadings filed by Bishop Gulick and his group will be stricken, and will have to be refiled with proper descriptions of just which "Diocese" and "Corporation" they are. It would be quite a setback for their theory of the case.

  5. 'Frank Gilstrap, of the Arlington, Texas, law firm Hill Gilstrap, countered that the court must defer to the decisions of TEC, which, he said, has sole authority to name the diocesan bishop and the trustees of the Corporation. “All the court can do is accept the church's decision,” Gilstrap told the justices.'

    Last I checked, Dioceses elected their bishops and appointed their own trustees without any input from TEC. But, perhaps Herself has decreed otherwise.

  6. A.S.,

    As a matter of clarification and not, per se, a legal opinion, is it generally considered neutral principles for a court to use an organization's own rules and regulations (TEC Constitution and Canon) to decide an internal dispute which has effects outside of the organization?

    To my non-legal eyes, the ownership of property falls into this category. I know that the legal protections of the First Amendment cut both ways. But, I can't see this as establishing a religion by saying that the faux, rump dioceses have no legal standing as they were not properly formed by the organization's own rules.

    I believe that is one of the major points in the fight between the departing dioceses and TEC. I see Gilstrap arguing that an organization's own rules are whatever the leadership decides they are at the moment to suit their agenda and not what has been agreed to.

  7. That's very perceptive, deck -- I think that is exactly what Gilstrap was asking the court to do. Ultimately, I think his argument was circular, and made no sense: "Don't decide the Rule 12 question now," he said, "because if you do, you will also decide the merits, and if you decide the merits, you have to defer to us and who we say we are, because otherwise you would be deciding an ecclesiastical question." It makes no sense to argue that who is authorized to bring a lawsuit is an "ecclesiastical question", but that is what their case came down to, at bottom. I thought Justice Bill Meier put a big hole in it when he pointed out that Mr. Gilstrap's clients had initiated the lawsuit, and were asking the courts to decide those very questions as a matter of declaratory relief.

    The neutral principles which Scott Brister asked the court to apply were not the Constitution and canons of ECUSA, but the provisions of Texas corporate law which determine the effect to be given to bylaws, and how trustees are elected -- and how they decide to hire attorneys and file a lawsuit. Those are definitely not ecclesiastical questions, and I hope the Second Appeals Court agrees.

  8. I'm assuming the Justices have read each document provided by each group as well as friend of the court briefs, C&C of TEC and C&C of DioFTW and will ask themselves several questions, like - where does it say once you are in, you are in for life (as in a Diocese); they will see the true rules on how a Bishop is elected, etc. They will hopefully also see in plain black and white the property in FTW belongs to the Diocese. One might think that "Ikers" lawyers would simply present standard documents and say - "it's all here in black and white".

  9. A.S. - can you clarify - suppose the court grants the Rule 12 request by Ikers' team. From what I've read, and I've read every one of the docs (I'm beginning to understand this whole mess) if Rule 12 is granted, the TEC lawyers must show who hired them and if that organization had the authority. Or, does Rule 12 in itself say "you are not authorized to bring suit"? If so, what does the TEC diocese do now? Do they present themselves as a new Diocese as of 2009 (same with Corporation Dio FTW)? Or, do they simply let 815/TEC sue Iker? What is the ultimate purpose of Iker's team requesting a Rule 12 ruling? I can't imagine the TEC Diocese reforming as a 2009 entity and suing a 1983 entity, but, we all know how TEC/Shori operate.

  10. DavidJ, your question really requires more than the space of a comment to answer. Let me see if I can reduce it to essentials:

    If the appellate court grants the writ sought by Bishop Iker and his corporate trustees, the effect will be to tell the Ft. Worth trial court to grant the Rule 12 motion in its entirety. (It previously granted it only in part, by ruling that the ECUSA/Bishop Gulick plaintiffs could not hold themselves out as being the same entity as the Corporation and Diocese with Bishop Iker at their head, but said they could continue as plaintiffs until the court addressed the merits of the case on the pending motion for summary judgment.) Granting the motion in its entirety will say to the plaintiffs: "You have not shown that you were authorized to bring this lawsuit in the name of the Diocese and the Corporation formed in 1983. Your pleadings are hereby stricken, and this action is dismissed."

    So if that is the ruling, the plaintiffs will have to start over and file a new complaint. This time they will have to say who they really are: a new Texas corporation and a new Texas unincorporated association organized for the first time in 2009. But then their ability to maintain their lawsuit will depend on their ability to show that they are a legitimate diocese (and related corporation) which is a member of ECUSA. And that is where they will be unable to prove that fact.

    For if the new diocese was organized only in 2009, when did General Convention admit it as a diocese? There was no such resolution passed at GC 2009, and they would now have to wait until GC 2012 to be able to claim they were a legitimate diocese of ECUSA (and that is only if GC does everything right, as I explained in this earlier post). So if the Court of Appeals grants Bishop Iker's writ, the "diocese" of Fort Worth, and Bishops Gulick and Ohl, are out on their ear until at least 2012.