Wednesday, July 7, 2010

ECUSA Defies Texas Courts

The arrogance and hubris that characterize ECUSA's legal strategy are nowhere on better view right now than in the courts of Texas, where there are two lawsuits pending in which it is involved -- one in Hood County, and one in Tarrant County. ECUSA has lost key battles in both of them, but is acting as though those losses never happened.

In the case in the District Court of Hood County, the dispute is over the proceeds from a trust established in 2002 by Cynthia Brants for the benefit of "St. Andrew's Episcopal Church, or its successor, of Fort Worth." In 2008, St. Andrew's was one of the parishes that voted with the majority of the Episcopal Diocese of Fort Worth to withdraw from its affiliation with ECUSA to align with the Anglican Province of the Southern Cone. After ECUSA's Presiding Bishop pronounced that she had accepted the "voluntary renunciation of his orders" by Bishop Jack L. Iker, she called an illegal "special convention" to install Bishop Gulick as his replacement. Thus installed -- in open defiance of all applicable canons and constitutional provisions of both ECUSA and the Diocese -- Bishop Gulick proceeded to inhibit all the clergy who, he asserted, had "abandoned the communion of this Church" to realign with the Southern Cone.

As an aside, the canon lawyer in me cannot refrain from pointing out two essential contradictions at the heart of these inhibitions. First, the canon involved (Canon IV.10) expressly provides that "abandonment" consists in "a formal admission into any religious body not in communion with this Church . . .", and as far as General Convention is concerned, it is still in communion with the Province of the Southern Cone (at least, it has never enacted a resolution saying that it is no longer in communion with that Province). Hence, point one: by realigning with the Southern Cone, the language of the Canon ought to have protected the priests from being charged with abandonment of communion.

Point two is this: Bishop Gulick claimed that all sixty-plus priests whom he first inhibited, and then deposed, were "canonically resident" in his diocese at the time he declared the inhibitions. But if they were all canonically resident, then why were they not counted for purposes of determining whether or not there was a quorum of clergy at the "special convention" which purported to elect him? Apparently they count for one purpose, but not for the other.

Bishop Gulick's reasons for the uncanonical inhibitions and depositions became clearer when he used the fact that he had "inhibited" the Rev. William Dickson, rector of St. Andrew's Episcopal Church in Fort Worth, to challenge his right to receive further distributions from the Brants Charitable Unitrust on behalf of that parish. Although conceding that there no longer was a parish of that name in what he considered as "his" diocese, Bishop Gulick demanded that the trustee pay the money to him, on the theory that under the Dennis Canon, property held "for the benefit" of St. Andrew's now reverted, after its departure from ECUSA, to the Church that he represented.

The trustee of the trust responded by filing a petition for declaratory relief in Hood County District Court. Essentially, the petition asked the court to decide whom the trustee should pay -- the Rev. Dickson and his vestry, or Bishop Gulick?

So far, so good. Now things start to get complicated -- thanks to ECUSA's absurd litigation strategy, which asks the courts to accept, just on its say-so that it is "hierarchical", that dioceses can never leave the Church. (Never mind that there are no canons or constitutional provisions to that effect -- this is ECUSA, remember?) In a repeat of the steps ECUSA and Bishop Lamb took in San Joaquin, Bishop Gulick first executed this strategy by filing papers with the Texas Secretary of State. In these papers, he claimed that he was the Chairman of the Board of Trustees of the Corporation of the Episcopal Diocese of Fort Worth, having been elected to that position by the (illegally called) "special convention." And he certified that in that capacity, he had nominated five additional trustees to replace those whose seats, he claimed, had become automatically vacant upon their voting to realign with the Southern Cone.

Now, armed with this bogus filing, Bishop Gulick had his attorneys file two lawsuits. In the first one, filed in Tarrant County District Court, he sued Bishop Iker and the five trustees of the diocesan Corporation for all the assets and property still in their hands. The "plaintiffs" in that lawsuit were "the Episcopal Diocese of Fort Worth" and the "Corporation" of that Diocese.

The second lawsuit was a response to the petition filed in Hood County by the trustee of the Brants Trust. Once again, Bishop Gulick claimed to be representing "the Episcopal Diocese of Fort Worth" and its "Corporation." In those names, Bishop Gulick counter-sued the trustee, and filed a cross-petition against Bishop Iker's diocese and the related Corporation of which he was still Chairman.

Now do you see how confusing it all was? In both Tarrant County and in Hood County, there were pleadings filed by two entities calling themselves "the Episcopal Diocese of Fort Worth" and the "Corporation of the Episcopal Diocese of Fort Worth" against -- "the Episcopal Diocese of Fort Worth" and the "Corporation of the Episcopal Diocese of Fort Worth"! The two entities each appeared to be suing themselves. (In reality, of course the entities were not, and could not be, the same. The Diocese and Corporation headed by Bishop Iker had been operating since 1983. The "diocese" headed by Bishop Gulick was first organized in 2009, and there was no separate corporation associated with it, since Bishop Gulick claimed the authority to take over the 1983 one headed by Bishop Iker.)

Bishop Gulick and ECUSA followed their strategy by trying to push a quick motion for summary judgment past the Tarrant County District Court, in which they made all the usual hierarchical arguments as dutifully attested by ECUSA's hired expert, Dr. Mullin. But then their strategy began to succumb to a brilliant counter-strategy pursued by Bishop Iker's attorneys, which was very simply based on Rule 12 of the Texas Rules of Civil Procedure. That Rule allows any defendant in an action to challenge the authority of the opposing attorneys to bring the lawsuit they filed against that defendant. In response to a Rule 12 motion, the plaintiffs' attorneys must prove, to the satisfaction of the court, that they have been duly hired by the parties they say they represent, and that those same parties have actually authorized the filing of the lawsuit. If they are unable to carry that burden, the Rule directs the court to strike the pleadings involved.

In the Tarrant County lawsuit, District Judge John Chupp ruled that the attorneys for the plaintiffs had not shown that they were hired by either the Diocese or Corporation headed up by Bishop Iker. However, he refused to strike their pleadings, and postponed a determination of which group was in lawful control of those entities until the hearing on the motion for summary judgment, or (if that did not succeed) the trial on the merits. This left the confusing spectacle outlined above, with two entities each appearing to sue themselves in court.

Bishop Iker's attorneys asked the appellate court in Fort Worth to review Judge Chupp's order, and last December it agreed to do so. After briefing and oral argument, it issued its decision on June 27, 2010. In a victory for Bishop Iker, it held that there was no known authority which allowed a corporation to sue itself, and sent the case back to the District Court so that it could strike the pleadings on behalf of the "Diocese" and "Corporation."

Meanwhile, ECUSA has been up to the same games in the Hood County proceedings before Judge Ralph Walton. First, it requested Judge Walton to hold up (abate) the proceedings until the Court in Tarrant County should decide who had legal control of the Corporation and the Diocese. In March of this year, Judge Walton denied that motion, and said he would rule on who was the proper beneficiary of the Brants Trust. Bishop Iker's attorneys then filed a motion for summary judgment, asserting that there were no disputed facts which required a trial, and that the trustee should be directed to continue to make trust payments to St. Andrew's.

Even though Bishop Iker's summary judgment motion was directed only at the trustee, Bishop Gulick and ECUSA filed papers in opposition to that motion, once again in the same names of the entities which had filed the motion. They also filed a cross-petition against the Bishop Iker parties, and a counter-petition against the trustee, in which they named two other charitable beneficiaries of the Brants Trust. In those pleadings, they asked the Hood County Court to resolve the same issues that were already before the Tarrant County Court, and they filed their own motions for summary judgment on their pleadings. Bishop Iker's attorneys responded with their own motions: to strike ECUSA's papers in opposition to their motion for summary judgment, and to sever and abate (place on hold) ECUSA's and Gulick's cross-petitions against them pending the outcome of the proceedings in Tarrant County.

At a hearing on June 2, Judge Walton granted both of the motions filed by Bishop Iker's attorneys. He ordered ECUSA's and Bishop Gulick's opposition papers stricken, and he ordered their cross-petition severed from the proceedings and placed on hold. This left the summary judgment motion by Bishop Iker free to proceed to a hearing either this month or the next, on just the issue of whether St. Andrew's continued to be a proper beneficiary of the Brants Trust. (The motion was subsequently amended to incorporate the Fort Worth appellate ruling.)

All clear so far? In Tarrant County, Bishop Gulick's successor, the Rt. Rev. C. Wallis Ohl, has been ordered to start over from scratch. The pleadings which had been filed by Jonathan Nelson and Kathleen Wells in the names of the "Diocese" and "Corporation" were ordered stricken, and any new ones cannot be filed on behalf of those entities -- if they try to claim that they are the ones which were organized in 1983. The Second Court of Appeal had said in its decision (footnotes are omitted):
. . . neither side has challenged the trial court's finding that Mr. Nelson and Ms. Wells did not discharge their burden of proof that they were hired by individuals holding positions at the time of their hiring within the Fort Worth Diocese and the Corporation that were associated with Bishop Iker. Absent such proof, while Mr. Nelson and Ms. Wells may be authorized to represent the individuals who hired them, these attorneys have not established their authority to represent or appear on behalf of the Fort Worth Diocese and the Corporation as required by rule 12.

It is undisputed that there is only one Corporation and only one Fort Worth Diocese, regardless of how those entities are named or characterized in the underlying suit - whether as entities, as individuals "holding themselves out" as those entities, or as individuals "associated with" one or the other Bishop. There is a single Fort Worth Diocese and Corporation, which both a majority and a minority faction claim to control. The attorneys whose authority is challenged are either authorized to represent those two entities or they are not. But the trial court has barred them from representing only the Corporation and the Fort Worth Diocese associated with the Iker Group. 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.
Thus if Mr. Nelson and Ms. Wells took to heart what the appellate court ruled, one would expect that there would be no more pleadings filed in a Texas court on behalf of the "Episcopal Diocese of Fort Worth" and the "Corporation of the Episcopal Diocese of Fort Worth", correct? The minority faction has no right to sue the majority in the name of the entities which the majority controls.

But this is ECUSA, remember? If your expectations were formed in light of the appellate court's June 27 ruling, they would be wrong. (After all, it is not "final" yet -- Bishop Ohl and his attorneys have until July 12 to file a petition for rehearing, and after that they can ask the Texas Supreme Court to issue a writ.)

True to form, word came yesterday that Bishop Ohl and his two attorneys, Mr. Nelson and Ms. Wells, had filed new objections to the amended summary judgment motion brought by Bishop Iker (after their previous objections had been ordered stricken, on the grounds that the motion was directed only to the trustee, and not against them). After all, just whom do they now represent, since they are prohibited from trying to represent the old ones, and there is no new "Corporation", and no new "Diocese" admitted into union at GC2009? Nothing ventured, nothing gained: not only did they refile objections which the court had ordered stricken, but they filed them -- you guessed it -- in the "names" of the 1983 "Diocese" and its "Corporation."

But we are not done with the matter yet. They also filed a new plea (complaint) in intervention in the case in Hood County -- in the name of Bishop C. Wallis Ohl. And in that plea, Bishop Ohl "adopts" all the previous pleadings filed by the "Diocese" and the Corporation." He thereby attempts to inject into the Hood County proceedings, once again, all the matters currently in litigation in Tarrant County, and which had been ordered severed and abated by Judge Walton.

The Hood County proceedings are all about St. Andrew's, a parish founded in 1875 which continues to meet in its same church each Sunday, under the ministry of its rector, the Rev. Dickson. Bishop Ohl, however, claims to act on behalf of a different "St. Andrew's." He alleges in his new plea in intervention:
ST . ANDREW'S EPISCOPAL CHURCH ("Episcopal St. Andrew's") is an unincorporated association formed in or about 1875 as a parish of The Episcopal Church in Fort Worth, Texas. After the clergy and some lay leaders left The Episcopal Church and the parish in November 2008, the congregation was under the leadership of the new Bishop of the Episcopal Diocese as its chief pastor. In November 2009 the Convention of the Episcopal Diocese changed the status of the parish to a mission of the Episcopal Diocese in which the Bishop of the Episcopal Diocese, under Church Canons and Diocesan Canon 21, has direct authority over St. Andrew's Episcopal Church, including authority to assign a vicar or priest in charge (as opposed to a rector) and oversee a bishop's committee (as opposed to a vestry) who serve at the Bishop's pleasure. Episcopal St. Andrew's claims an interest in the Brants Trust as the continuing entity which is the named beneficiary "St. Andrew's Episcopal Church of Fort Worth" under new leadership. Intervenor brings these third party claims related to the Brants Trust on behalf of the Episcopal St. Andrew's and the Episcopal Diocese.
Absent from these allegations is any description of just how many members still belong to the "congregation" which has now become "a mission of the Episcopal Diocese", or the name of any person who has been appointed their "vicar in charge." Without any such allegations, it is difficult to see how any distributions from the Brants Trust could be claimed by the Bishop to be used for the purposes of the Trust (as opposed to using them to help finance the ongoing litigation against Bishop Iker). Contrast to these allegations what Bishop Iker and his Diocese say in their motion for summary judgment:
Movants Diocese and Diocesan Corporation have filed an answer that neither the Diocese nor the Diocesan Corporation is named a beneficiary in the Brants Trust nor are there any facts alleged, which, if proved, would establish that either has succeeded to the Brants Trust benefits of movant St. Andrew's . . . .
Bishop Iker, in other words, is content that the distributions from the trust continue to be used as they have since 2002: for the benefit and support of St. Andrew's Episcopal Church in Fort Worth, which also continues in existence under its same bishop and rector, preaching the same doctrines and practicing the same worship as they always have, when the trust was established. So just who is it that wants to put the trust moneys to a "different use" here?

I, for one, do not envy either Mr. Nelson or Ms. Wells when they have to appear to explain to Judge Walton why they have filed these latest pleadings in defiance of his orders and of the decision by the Second Court of Appeal.


  1. A.S.

    They are liberals. The law and court orders only count when they go in their favor. Anything else is pure poppycock in a liberal's view.

    I hope that they have irritated the court in Hood County to the point that some sanctions are in order.

    BillB (a.k.a deck)

    P.S. -- I am glad that I am a member of Bishop Iker's diocese (in the general Fort Worth area). These folks, even though residents of Texas may soon find out what "Don't Mess with Texas" means.

  2. I recently had a post saying The Episcopal Church is very silly. But I had no idea . . .


  3. What a bloody mess and many thanks for making this mess a bit more understandable.

    SC Blu Cat Lady

  4. Allan -

    Time for a complaint to the State Bar of Texas for violating the Rules of Disciplinary Conduct.

    The Fort Worth Court of Appeals district includes Hood County, so the writ issued by that court is just as good there as in the main case.

    The Court of Appeals went out of its way to explain that the lawyers represented the "entity" under the Rules. So appearing on behalf of an entity they have been barred from representing, then they are treading on very shaky ground.

    Could be grounds for disbarment.

  5. Joe may be on to something, the whole thing seems to move beyond the "frivolous" and into the "Théâtre de l'Absurde."

  6. I think it is dangerous to assume TEC is just being silly, or that this is simply liberal arrogance, although may be aspects of both. TEC to date has never done anything just for the sake of doing it, and there is no doubt some strategy behind this. If the attorneys are sanctioned, would this provide an avenue of appeal to try to get the hierarchical church arguments before a federal court several years sooner than the appeals process for the case itself? By continuing its claims in the face of the decisions of the Texas courts, it seems to be provoking some sanction intentionally, which would be quite foolish if one were actually still trying to win the case before the court. But that case may not be the focus of their strategy.

  7. Just a small point, counselor. John Chupp, not "Chubb," presides in the Tarrant County court. Very much enjoy reading your incisive commentary.

  8. Thank you for that correction, Restless Heart. The post has been fixed.

  9. The DioFTW (the real one) posted a great article from the Church of England news. In it, they state that the rump diocese would probably appeal to the Texas State Supreme Court. I looked at the judges on the court and see that the majority, if not all, were appointed by former Gov. Bush and/or current Gov. Perry. They are probably conservative judges. Not that this issue has any politics behind it, right. I would think that these judges, being conservative, would rule in favor of the rule of law, what rules and documents are in black and white and not rule based on feelings. I could be wrong, but I pray not. I wonder what chance TEC has in the Texas Supreme Court especially regarding property. There is something to the saying "Don't Mess with Texas"!