Thursday, June 10, 2010

Virginia Supreme Court Sends Case Back to Trial Court; California Supreme Court Accepts St. James Case for Review

Lots of legal news to cover today: I shall begin with the news from Virginia.

In a unanimous opinion filed today, five justices of the Supreme Court of Virginia (the others having recused themselves) interpreted Virginia's "division statute", § 57-9 of the Virginia Code, about which I wrote in this earlier post, in such a way as to find that its requirements had not been fully satisfied by the nine dissenting parishes which had withdrawn from the Episcopal Diocese of Virginia. Because they found the statute inapplicable to the situation on the ground in Virginia, they did not reach the arguments made by ECUSA and the Diocese of Virginia that the statute violated the Establishment and Free Exercise Clauses of the First Amendment, as well as the Due Process Clause and the Takings Clause (both applied to the States via the Fourteenth Amendment).

The justices held that the trial court's interpretation of a key term in the statute had been erroneous, and so reversed its decision in favor of the nine parishes which had voted to withdraw from the Diocese and form the Anglican District of Virginia (ADV), a branch of CANA ("Convocation of Anglicans in North America") which is affiliated with the (Anglican) Church of Nigeria and with the Anglican Church in North America (ACNA). They voted to send the case back to Fairfax County Circuit Court for further proceedings in the actions for declaratory relief filed by ECUSA and the Diocese, along with the counterclaims in those actions filed by the CANA congregations.

Here is the statute in question, with its key terms highlighted:
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 their unanimous decision, the justices found that there indeed had occurred a "division" within ECUSA and the Diocese, to which the CANA congregations had been "attached" at the time. However, by voting to align with CANA, the justices held that the congregations had not joined a "branch of the church or [religious] society" from which they had split. After examining the expert testimony from both sides offered at trial, the Court concluded that CANA was a branch of the Church of Nigeria, not ECUSA. Moreover, the Court declined to hold that the statute applied to the Anglican Communion as a whole (as "a religious society"), of which both ECUSA and the Church of Nigeria were admittedly "branches", because (and this will surely come as a welcome surprise to the Archbishop of Canterbury) it found that the congregations had failed to prove that there had been any "division" within the Anglican Communion itself. (Apparently, they reached this result because there was no evidence of any provinces having yet withdrawn from the Communion. Query whether their opinion would be different if the voting on the proposed Anglican Covenant had already taken place, and the "two tiers" of signers vs. non-signers had been in evidence.)

One can quarrel with the Court's static reading of the word "branch" to mean two offshoots of the same religious tree. Under the court's interpretation, the CANA congregations would have had to declare that they remained affiliated in some way with ECUSA or the Diocese in order to avail themselves of the statute's provisions. Under the current leadership of both ECUSA and the Diocese, such a step would obviously have been impossible. The justices rejected ECUSA's narrow argument that a "division" could only occur with the consent of its General Convention (as when a new diocese is formed out of part of the territory of another diocese). They recognized that in such circumstances, there would scarcely be the occasion for such dissent as to cause a "division" with which the statute was intended to deal. However, at the same time they ignored the corollary of that view: where the dissent is such as to cause a "division", it is highly unlikely that the dissenters will choose to remain affiliated with the same polity from which they voted to split.

The practical effect of this decision -- at least, until the results of the vote on the Covenant are all in -- will be to make the provisions of the statute largely inapplicable to divisions occurring within churches with central national structures, unless the split results in two self-governing, autonomous groups. (The Court in effect penalized the departing congregations for joining a foreign-led denomination, instead of organizing on their own.)

And what will be its effect on the litigants in this case? Simply stated, to require them to spend more time and money in trying the issues of ownership. Significantly, the Virginia Supreme Court's opinion did not address the arguments which had been made about the validity, under Virginia law, of the trusts which the Dennis Canon's passage in 1979 attempted to create. At that time, Virginia law did not recognize unincorporated associations (above the level of a local congregation) as having legal standing to hold any beneficial interests in religious property. That law was not changed until 1992. Thus on remand, the Fairfax County Circuit Court will be asked to adhere to its earlier ruling that the enactment of the Dennis Canon was ineffective to create any trust in the parishes' property in favor of either the Diocese or ECUSA.

At issue in the proceedings on remand will be the language in the church deeds, their articles of association, and the provisions in the diocesan and national canons -- some of which evidence the court has already examined in connection with certain issues in the case. ECUSA and the Diocese will be trying once again to prove that the properties were held in trusts whose existence could be implied from the circumstances under which they were acquired and subsequently held. The CANA congregations, on the other hand, will offer evidence to prove that no such implied trusts ever arose.

Thus the Court's decision today holds little precedential value for the wider issues at stake in litigation in other states between ECUSA, its dioceses, and their parishes. The proceedings in Virginia will drag on for another two years or so, after which there will inevitably be a further request to the Supreme Court to review any decision by the trial court. (In Virginia, review of a trial court's civil decision is discretionary with the Supreme Court, and not a matter of right.)

[UPDATE 06/10/2010: On the left, the reaction that this represents an unqualified victory for the Diocese is both uniform and predictable -- after all, they need to keep those pledges and contributions coming in. But as explained above, it is no such thing: it merely allows the Diocese and ECUSA to have the privilege of spending more millions on their attorneys in order to stay in the running.

Some people on this blog and elsewhere have speculated that the CANA congregations might try filing new petitions after taking a new vote to join ACNA, since ACNA would more easily fit the Court's understanding of what a "branch" of ECUSA would be. In that case, however, ECUSA and the Diocese would have the easy rejoinder that the congregations had voted to leave CANA, not ECUSA, to join ACNA. They cannot unmake the historical fact of their first votes. And so the statute would likely once more be found inapplicable.

That point notwithstanding, it should be observed that what the Court's decision unquestionably does is open the door wide for any Virginia parishes who now wish to leave ECUSA to hold votes to join ACNA. And that would be quite a development -- if ECUSA and the Diocese wanted to sue, they would have to spend the same money all over again to make the same constitutional arguments to the Virginia courts about the statute as they did in this case.]

And now, to events in California.

Late yesterday, it was announced that the California Supreme Court agreed to accept review of the 2-1 decision by the Court of Appeals, about which I wrote in this earlier post (and see also this one). That decision interpreted the Supreme Court's earlier decision on a preliminary phase of the case as also deciding the case itself on the merits, without the need of any trial (and indeed, before the St. James parish had even answered the complaints filed by ECUSA and the Diocese of Los Angeles).

The California Supreme Court has only itself to blame for the procedural mess in which the litigation finds itself at this point, by using inappropriate and foolish language to describe what it was doing, and by then being extraordinarily stingy in issuing a "clarification" of what it meant. Of course, sharing equally in the blame are the two plaintiffs, and the two justices of the Court of Appeal whose original opinion initiated the confusion, and who then voted that "the Supreme Court can do anything it wants to do with a case before it". Both the Diocese and ECUSA have shamefully, in violation of every norm of due process, attempted to exploit the Supreme Court's unwise articulations, and to claim that it really did decide that they won the case simply by filing their complaints, without the defendants ever having so much as a day in court. That claim was particularly galling in light of the argument those same two plaintiffs made to the United States Supreme Court when St. James parish asked it to review the earlier decision by the California Supreme Court: they argued that the U. S. Supreme Court should not accept review of the case, because the decision by the California Supreme Court was not yet final!

Now they will have to justify this embarrassing contradiction in their briefs filed with the Supreme Court. They will have to argue with a straight face that a decision which they contended could not yet be reviewed, because it had not decided the whole case, was nonetheless a final and complete resolution of the entire case. And they will also have to show the Court how it does not violate traditional notions of due process and fair play to deprive a defendant of its property without ever so much as giving him an opportunity to prove his case in court.

I will not even wish them luck -- they are going to need a lot more than that, because they want to change how cases are heard and decided, presumably just because they are The Episcopal Church. All that one can conclude from these two court actions is that ECUSA will have to spend even more millions of dollars trying to prove its outlandish claims under its sneakily adopted Dennis Canon. There could not be a better fate for that organization, given its un-Christian attitude toward litigating over property which it never owned, supported or maintained (in the vast majority of cases). As ECUSA construes and seeks to apply it, the Dennis Canon is purely an instrument of oppression, to force conformity to its divisive and heretical innovations injected into the life of the church catholic. May it never prosper until it ceases oppressing those who genuinely and in good faith disagree with it!


  1. If I read the Court right, the branch problem is that it is not an offshoot of ECUSA. I would seem to me a new vote to go with ACNA headed by one who was a bishop in ECUSA meets the Court's objection.


  2. It seems to me to vote to join ACNA meets the Court's objection to the idea of branch. ACNA has several Bishop's who were with ECUSA.


  3. Right you are, Scott+. The Virginia Supreme Court has ordered the Circuit Court to dismiss the parishes' current petitions, but there is nothing to stop them from filing new petitions based on brand-new facts, such as the formation of ACNA. I doubt very much that the Virginia courts could go very far into inquiring how ACNA came about without becoming "impermissibly entangled" in questions of polity and doctrine, so the simple fact that there are four former dioceses of ECUSA in ACNA should be enough to demonstrate that ACNA is a "branch" within the meaning of that word as the Supreme Court construed it.

    Of course, they would have to hold new votes first, before filing any such petitions. And the interesting question is: in any such vote, would the former members who stayed with the DoV be entitled to participate? It probably wouldn't hurt to invite them.

  4. sorry for the two posting on same idea. My fault, I still am having problems using Wordpress as my ID confirmation with


  5. Mr. Haley,

    You mention the risk of the courts becoming "'impermissibly entangled' in questions of polity and doctrine…" This leaves me somewhat perplexed.

    I was under the impression that the question of polity, unless it is directly affected by doctrine, was simply a matter of the organization and rules under which the body is organized to conduct its temporal affairs, i.e., in the case of TEC or its Dioceses, their respective Constitution and Canons. Is my understanding of this faulty? If it is faulty then why would the ACI, and more particularly Mr. McCall, have taken the time and effort to so thoroughly document the hierarchy, and the history thereof? It seems to me that, (again, unless polity is directly subordinate to doctrine) the questions that bedevil this case (title to property, hierarchy, whether or not there is a highest adjudicatory body within TEC, the Dennis Canon and the validity of implied trusts, etc.) all bear directly on issues of what is, and is not, under the rules contained within TEC's C&C, permissible under civil law that are at issue in this case.

    I would be most grateful for any clarification that you might be able to offer, particularly if my understanding is in error.

    Pax et bonum,
    Keith Töpfer

  6. Martial Artist, the word "polity" itself, meaning "the manner in which a church or religious society governs itself", is not decisive of the question that you pose. Under the so-called "deferential" or "hierarchical" approach, civil courts may inquire into church polity, in real property disputes, to the degree necessary to ascertain whether there is a highest adjudicatory body, and whether it has made any pronouncement on the issues involved. But they cannot get so involved that they become entangled in adjudicating questions of governance, such as whether a particular bishop or clergyperson has been properly defrocked in accordance with the organization's rules (barring proof of fraud, collusion, etc.). This quote from the Court's opinion in the Serbian Orthodox case states the boundaries of permissible inquiry:

    "Consistently with the First and Fourteenth Amendments "civil courts do not inquire whether the relevant [hierarchical] church governing body has power under religious law [to decide such disputes]. . . . Such a determination . . . frequently necessitates the interpretation of ambiguous religious law and usage. [426 U.S. 696, 709] To permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] church so as to decide . . . religious law [governing church polity] . . . would violate the First Amendment in much the same manner as civil determination of religious doctrine." Md. & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 369 (1970) (BRENNAN, J., concurring). For where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. Ibid."

    Under the "neutral principles" approach, church polity is less of a consideration, because a court will concentrate on objective factors such as deeds, articles, etc., as well as canons and the church's constitution. But if the Dennis Canon, for example, made the triggering event the "departure of the parish from Episcopal doctrine, discipline and worship" rather than the ceasing of the parish to be a member of the Church, civil courts could not inquire into the degree of "departure" necessary to trigger the canon -- even under "neutral principles."

    It's a very fine line, and much in need of further elaboration by the Supreme Court. My point in the comment above was that while the circuit court could certainly look at how ACNA came about, to determine whether it was a "branch" of ECUSA, it would not be allowed to do so by comparing ECUSA's doctrine with ACNA's.

  7. Is not CANA a constituient member of ACNA? So does that not satisfy the courts requirement of branch. On the other hand, they might have to be affliated with a Diocese that was formerly part of TEC to meet the courts definition.

    One thing I did note, this decision completely avoids the question of the Constitutionality of the Virginia statute.

  8. deck, CANA is now a constituent member of ACNA; it was not when the original petitions were filed, or when the hearings were held in front of Judge Bellows, because ACNA had not yet been organized.

    And that is why it might be possible for the parishes to have a second bite at the apple, given how the Court read the statute: new evidence might justify a new petition. But there would have to be a new vote, specifically to join ACNA -- and I suppose ECUSA would then argue that the churches had not split off from it to join ACNA, but had left CANA to do so. If the court bought that argument, the statute again would not apply.

    Thus on further thought, it appears to me that the "new petition" route would not have much chance of success.

  9. Curmudgeon: I was confused by the Supreme Court's conclusory acceptance of the TEC/diocesan assertion that ADV was derivative of CANA, without reference to any findings that Judge Bellows may have made to the contrary below. If there were findings, they are due some deference unless clearly erroneous; if no findings, then remand for fact-finding would have been appropriate. This opinion smacks of a result chasing a rationale.

  10. Curmudgeon;

    As I read it the higher court ordered the lower court to dismiss the CANA Congregations’ Code § 57-9(A) petitions.

    In as much as CANA was to be a lifeboat, it can be put forward that the intent of the vote was to become part of an American province. (Albeit that province did not yet exist.) The Court can not make this finding, but it should be enough to let them consider a new vote.

    If I read it right the 57-9 votes have been also voided so to vote again within the finding of the higher court are in order.

  11. Anxious Anglican, I have reviewed the sections of Judge Bellows' letter decision of April 3, 2006 regarding CANA, and I agree with you. Judge Bellows made specific findings that (a) CANA started out as the "Convocation of Anglican Nigerians in America" (emphasis added), intended to protect all those members of the Church of Nigeria who found themselves temporarily in ECUSA and now out of communion as a result of ECUSA's ordination of Bishop Robinson; and (b) that CANA subsequently expanded its scope to include other clergy and parishes within ECUSA -- not just Nigerian ones, so that it changed its name to the present "Convocation of Anglicans in North America." He specifically made these findings of fact (pp. 34-35):

    "In 2006, CANA's purpose broadened to encompass all Anglicans within North America who had broken away from the Episcopal Church. Thus, CANA changed its name to "Convocation of Anglicans in North America." (Trial Tr. 312:4-8.) At the time of trial, about 100 clergy had affiliated with CANA, 80% of whom were formerly affiliated with ECUSA. CANA allowed ECUSA bishops to transfer in, while non-ECUSA bishops were first required to be consecrated. (Trial Tr. 320:3-18.) In addition to CANA's Bishop, Martyn Minns, who was a witness for the CANA Congregations at trial, other CANA bishops include David Bena, formerly of the ECUSA Diocese of Albany. At the time of trial, CANA had plans to consecrate four other bishops, all of whom were formerly with ECUSA. (Trial Tr. 320: 19-322:4.) Sixty congregations have affiliated with CANA, resulting in a membership of 12,000, with over 10,000 of those members coming directly from ECUSA. CANA has congregations in eighteen states, and the congregations of CANA that were formerly affiliated with ECUSA come from eight different dioceses, ranging from California to Connecticut. (Trial Tr. 324: 1-325: 17.) At the time of the trial, the latest church to join CANA was the Bishop Seabury Church in Connecticut, a church formerly affiliated with ECUSA. (Trial Tr. 325:18-326:5.)"

    Thus CANA, every bit as much as ACNA, is made up overwhelmingly of former parishes of ECUSA (just not any dioceses). It had ECUSA bishops and clergy. The fact that it was overseen by the Church of Nigeria should not have caused the Virginia Supreme Court to ignore the fact that it was formed out of former units of ECUSA.

    As for ADV, Judge Bellows found that it, too, was made up entirely of former ECUSA clergy, and mostly former ECUSA parishes (there were some new plants, as well). The problem there, however, is that ADV did not split off from ECUSA as ADV itself; instead, first the core congregations split off to form CANA, and then organized under CANA's umbrella as ADV.

    So while I could grant the Court's refusal to treat ADV as a "branch" of ECUSA, I do not see how it had the grounds to override Judge Bellows' findings as to CANA.

  12. I am not certain I agree with you on a 57-9 re-vote being a non-option. The court has ruled there is a division within TEC and the Diocese; accordingly there must be two "branches" resulting from that division. TEC is one branch, but the identity of the other branch not yet been legally determined although it is reasonable to venture that ACNA would meet the test for that other branch. The division statute says that parishes may determine by vote with "which branch" resulting from the division they will belong. As it turs out, this has not been done yet. There is no time limit on when a vote may occur; theoretically, 50 years could go by between a division and a vote. I also don't think TEC could oppose such vote by saying it is a vote to leave CANA because that concedes that the parishes don't belong to TEC.

  13. I don't go so far as to say it is a "non-option", Steven; I point out only that if the congregations plan to go down that route, they furnish ECUSA and the Diocese with an easy rejoinder, which would take a lot of explanation to rebut. You have a point that ECUSA's making that argument would concede the issue of the parishes' right to leave ECUSA, but 815 and its lawyers have been guilty of much worse hypocrisy; it does not seem to faze them. Probably, however, any further strategizing about ADV's options should be conducted in private, instead of out in the open, on a blog.

  14. To our friends and fellow Anglicans in Virginia:

    "Faith is knowing that when one comes to the edge of the light as one knows it and steps out into the darkness, one of two things will happen......there will be something to stand on or you will be taught how to fly."

    Take courage. Tomorrow iS another day...

  15. The more I have read since my post above, It certainly seems that the scripturally based Virginia churches have been provided with more than a firm footing to stand on.

    As has been pointed out, essentially, the Virginia Supreme Court has provided them with a handy roadmap to "do it correctly".

    Better now to tweak a few things and make their case as bulletproof as possible rather than "slip through" and have TEC and cabal take it to the United States Supreme Court and win.

  16. I think the Virginia parishes also need to be careful of what I can only call the "Adjudication Trick".

    From my litigation twenty years back, the St. Clement's attorney picked up on the dicta in Watson v. Jones that goes:

    "whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them in their application to the case before them."

    The problem is that "judicatory" is an undefined term. (Is it the General Convention? Is it a local bishop? If a canon decides a rule, do you have to have some 'litigation' within the denomination first?)

    In some cases (like parish membership disputes) there is no 'ecclesiastical court system' at all.

    (Never mind the fact that a fair reading of the Deference Rule suggests that a court can decide a matter however it likes BEFORE a hierarchy has "ruled" one way or the other. Most church litigation involves judges who don't want to make decisions, and so they use any excuse to deny protection of the law to aggrieved parties.)

    What the Virginia PECUSA is next going to try and do is de-legitimize any of the CANA voters. They will create some kind of "ruling" or false process they will claim is required, and then argue that the Deference Rule prohibits the lower court from adjudicating the dispute.

    (There is a "fraud, arbitrariness and collusion" exception to the Deference Rule, but that's also largely ignored.)

    Lastly, I think it's important for the CANA voters to make it clear that they are Episcopalians who affiliated with CANA, and that they didn't necessarily "leave" the Episcopal Church to do this.

  17. I took my first comment down because of a horrible misspelling, but I still believe the Virginia Supreme Court enters the thicket of religion with its opinion. Moreover, I think it crossed over into the role of the lower court being the trier of fact. Why does the Virginia SCt think that while there is a division, there can only be alignment or realignment with some branch of ECUSA and not the Anglican Communion. Why not remand the case back to the lower court to determine whether the branch the confessing churches aligned with constituted a branch consistent with the statute.

    I am very proud of the judges of Virginia - I still think they are among the best in the nation, but this opinion is lacking and not up to their usual standard.

  18. Václav Patrik Šulik said...

    I took my first comment down because of a horrible misspelling, but I still believe the Virginia Supreme Court enters the thicket of religion with its opinion.

    How so? The Virginia Statute is a neutral principle of law, and it looks very clearly like the Virginia high court applied a neutral principles analysis.

    The difficulty was that the high court needed to define "division" and "branch". They did it, and the definitions would seem to fit any case (secular or no) where a hierarchical association were to split.

    What it looks to me is that the Section 57-9 votes were ruled to be nullities because the division vote included a "non-branch". So, simply, if the members were to choose an actual 'branch", the division vote should be good. At least there is now one case that suggests this.

    The more I think about it, this is just a matter of mistake. The Truro Church group identified the wrong "branch" in the division of PECUSA.