Tuesday, June 29, 2010

The Spin Double-Spun

Commenters on this and similar blogs noted how long it took for news of the decision by the Court of Appeals in Fort Worth to reach the Episcoleft's blogosphere. The decision was handed down late last Friday, and there were quickly stories about it here, on StandFirm, on TitusOneNine, VirtueOnline, and on the Episcopal Diocese's Website -- all within 24 hours. It seems, however, that no one on the left could trust these sources, and so their notice of the news had to await the publication of an official press release at Bishop Ohl's website, nearly 72 hours later. Only then did the Episcoleft start to blog about it, taking the press release word-for-word as their interpretation of what the decision actually said.

Bishop Ohl's press release offered quite a spin on the story. It began by asserting what the opinion did not say:
The Second Court of Appeals in Fort Worth issued an opinion late Friday, June 25, granting the Southern Cone parties' petition for writ of mandamus regarding the order of the 141st District Court ruling on the Southern Cone parties' Rule 12 motion.

The Court's decision said there is one Episcopal Diocese of Fort Worth and one Corporation of the Diocese of Fort Worth. The procedural ruling was based on Texas Rule of Civil Procedure 12 and expressly was not a substantive decision on which faction—those bishops and officials who are members of The Episcopal Church or those bishops and officials who are now of the Anglican Province of the Southern Cone—represents the continuing Episcopal Diocese of Fort Worth or the Corporation of the Episcopal Diocese of Fort Worth.

It also was not a decision on which faction is entitled to the church property in dispute, a substantive matter which Judge John Chupp of the 141st District Court will decide. The Court also ruled that the stay imposed on the trial court proceedings was lifted to permit further action in the 141st District Court.
Even in that limited scope, however, the press release failed to get it right. In the first place, the Court of Appeals did not grant Bishop Iker's petition for a writ of mandamus outright; what it did was to issue a conditional grant. "Mandamus" -- Latin for "we command" -- is a form of order issued by a higher court to a lower one, or to a government official or agency, telling the court, official or agency what they must do in order to comply with the higher court's view of the case. In this particular proceeding, Bishop Iker and his co-petitioners had requested the appellate court to order the trial court to strike the pleadings which Bishop Ohl's predecessor had filed in the name of the "Episcopal Diocese of Fort Worth" and its associated Corporation.

The Court of Appeals, as I say, issued no order to that effect. It simply indicated that it would issue such an order unless the trial court promptly struck the pretenders' pleadings. In that way, it gave the trial court room to act on its own first without being formally ordered. And one can bet safe money on the fact that the trial court will do as required, so that there will never be a need to grant the petition for mandamus outright.

Next, while it is true that the Court of Appeals did not decide "which faction" represents the Episcopal Diocese and its Corporation, such a circumlocution is equivalent to how a one-time Soviet newspaper treated the results of an auto race between an American car and a Russian car, in which the former won handily. The Soviet paper reported the story with this headline: "Russian car finishes second in international race; American car comes in next to last."

What the Court of Appeals did decide was that there was only one Diocese and one related Corporation, both founded in 1983. And it struck the pleadings of Bishop Ohl's group, who were claiming to represent them. In doing so, it let stand in place the pleadings which Bishop Iker's group had filed in the name of the 1983 entities. So while, no, the court did not decide who was in control of those entities, it left Bishop Iker and his colleagues in full control of them, and able to plead and appear in court on their behalf. If that is not deciding "which faction . . . represents the continuing Episcopal Diocese of Fort Worth or [its Corporation", then I guess the person who wrote the press release must be playing games, and must mean the 2009 entities when referring to the "Episcopal Diocese of Fort Worth and its Corporation", because the Court in fact did not say anything about those entities, either.

Actually, if the truth be told, I believe there is no such entity currently in existence as a "Corporation of the Episcopal Diocese of Fort Worth" that was incorporated in 2009. As I explained in this earlier post, Bishop Ohl's predecessor did not bother to form a new corporation, but simply filed false papers with the Secretary of State claiming to have changed the officers in the 1983 Corporation controlled by Bishop Iker. Now that the Court of Appeals has barred his attorneys from acting on behalf of that Corporation, it will be instructive to see whether Bishop Ohl will incorporate a new one. My best guess is that he will not, because that would operate as an admission that he had no rights over the 1983 Corporation and its assets. Instead, he will probably argue in Court that only he has the right to control the Corporation, because only he is a currently ordained bishop in the Episcopal Church (USA).

Anyway, back to the spinning of the press release. In two subsequent paragraphs, it manages to turn the case 180 degrees around, by making it appear as though it was Bishop Iker and his troops that had failed to achieve "their objective" in the case:
The Court emphasized that "[t]he trial court did not determine on the merits which Bishop and which Trustees are the authorized persons within the corporation and the Fort Worth Diocese, nor do we. The question of ‘identity' remains to be determined in the course of the litigation." Thus the Southern Cone parties failed to achieve their goal of getting the Court of Appeals to declare that Bishop Iker represented the continuing Episcopal Diocese of Fort Worth and its Diocesan Corporation.

The Court also noted that "[w]e are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction." As applied to both factions in the litigation, the bishops and trustees from each faction are already named as parties in the case pending in the 141st District Court.
As I just explained, what the appellate court did was reserve for the main trial on the merits the issue of whether, in voting to withdraw from ECUSA, Bishop Iker's Diocese was entitled to maintain all of its bank accounts and assets intact. The appellate court recognized that Bishop Ohl's group disputes their claim to those assets, on the ground that "dioceses can never leave the Church; only people can." So, no -- the appellate court did not purport to decide that issue. But as already noted, what it did was leave Bishop Iker in full control of the entities which own those assets. And since Bishop Ohl's attorneys were unable to point the trial court to a single canon or constitutional provision which prohibits a diocese from leaving the Church, I fail to see how they are going to convince Judge Chubb on remand why a diocese cannot withdraw.

If you wanted to learn about what the court actually decided, therefore, and to understand its import, you would have had to do quite a bit of homework after reading just Bishop Ohl's press release. But now I want to show you a stellar example of what I have called the left's "echo chamber" -- how things posted by a recognized source on the left get picked up and repeated by other liberal sites without any independent editing, or thought, whatsoever. Take a look at how the blogger over at Three-Legged Stool handled the story based on the press release. Here is his full story, in its entirety, word-for-word, typos and all:
The Second Court of Appeals issued it's ruling that
Thus the Southern Cone parties failed to achieve their goal of getting the Court of Appeals to declare that Bishop Iker represented the continuing Episcopal Diocese of Fort Worth and its Diocesan Corporation.
The decision continues:
We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction.
The Southern Cone has not responded, yet, and I'm sure they will file an appeal. Remember, the schismatics are not interested in the property, folks, but don't hold your breath.

Read the decision here.
The author should have followed his own advice, and read the opinion before posting this. As you can see from my quoting of the press release above, the author has taken a passage from the release and quoted it as though it were taken word-for-word from the Court's opinion! Not only that, the passage sounds so unfavorable to Bishop Iker, that the author concludes that it is certain that he will "file an appeal" -- from a decision which he won!

Thus is the spin on the left double-spun. And thus does their echo-chamber function to get the true word out to the faithful.


  1. Allan -

    What Litigation? The pleadings have been struck that were filed by Nelson and Wells.

    In addition there is this quote from Nelsons testimony (Sep 16 22/1):

    "If the Court rules about this authority that it has just talked about, no lawyer, no lawyer could ever represent my clients, because the court has essentially ruled that those two clients have no authority to bring a lawsuit, and thats a substantive question.

    Whats Nelson gonna say now? He's admitted that the suit cant be brought.

  2. Joe, don't forget that although the pleadings filed by Nelson and Wells have been ordered stricken, ECUSA will still be able to refile a petition on its behalf, making the claim that the "diocese" which it "recognizes" is entitled to the property and bank accounts. As for Bishop Ohl, however, what diocese can he be a bishop of? The Court found that there was only one Episcopal Diocese of Fort Worth organized in 1983, and it allowed Bishop Iker to continue to represent that diocese, while forbidding Ohl's attorneys from doing so. There could not have been a "new" diocese before 2009 -- and yet General Convention did not approve the creation or admission of any new dioceses in 2009.

    That is why it is going to be so much fun to watch how ECUSA and Bishop Ohl try to plead matters going forward from here. (I don't think they've thought it through yet.)

  3. Would not Bishop Ohl's predecessor (or someone else) get in trouble for filing false papers with the Secretary of State?


  4. A rather hilarious example of determination to spin things positive at all costs.

    Frankly though I have noticed a tendency in the non-legal blogs on both orthodox and revisionist sides to give every decision the best possible spin often with comical results. There must be something wrong with me as I just do not understand the motivation for this. Do layers upon layers of positive spin over years make the losers feel better after the hammer finally comes down? If things are looking bad I would prefer to know; I prefer to face reality.

  5. After reading the court’s ruling, I find it interesting that the 2d Appeals Court seems to “get it” with regards to how the Anglican Communion is set-up. They seem to understand DioFTW was in the TEC Province and majority voted to leave and go to another Province. After reading more than once the transcripts from the trial court, Judge Chupp never really seemed to clearly understand, at least that’s the way I read it. I think the line of the times is when he asked the TEC lawyers to point out where it says a diocese can’t leave and they couldn’t actually point it out but were only able to say “they just can’t” [leave].

    As for this recent ruling – now that TEC can’t sue Iker+ in the name of the 1983 Diocese and Corporation, I would assume they would have to create a Diocese and Corporation, dated either 2009 or 2010. But, how then can they, or any organization, formed 26 years after another one sue that one (the original one) for property? DioFTW (TEC 2009) sues DioFTW (Anglican 1983) for property 26 years after having been formed??? I can’t even put my mind around that one!!! Wouldn’t that be like someone starting a new Southwestern Bell company and then suing AT&T for the property which used to belong to the original Southwestern Bell which was absorbed by AT&T?

  6. Barring a CVA* affecting the trial judge at the moment of his ruling on the case, it is beginning to appear that TEC may just receive the justice which their numerous varied, and oft-repeated prevarications, many of them included in sworn documents, so richly deserve!

    It is very difficult, considering such an outcome, not to harbor a certain degree of anticipatory interior smug satisfaction. I would humbly request your prayer for me, that such an occasion of sin does not become an actual sin.

    Pax et bonum,
    Keith Töpfer

    *—cerebrovascular accident.