Tuesday, August 24, 2010

ECUSA -- the Big Bad Wolf of Texas

When it comes to litigation strategy, that which the Presiding Bishop is following is simple, and consists of two principles:

1. If you win, well and good -- that frees up resources for the next lawsuit.

2. If you lose, apply more resources to the litigation until you win.

This is what is now taking place in the lawsuits in Fort Worth and in Hood County. First, let's let Bishop Iker's diocese explain matters from its perspective:

The Episcopal Church and its local supporters have re-filed their lawsuit in Tarrant County in an ongoing effort to seize all our property and assets in the Diocese of Fort Worth. This new pleading was needed in order to bring the plaintiffs into compliance with the June 25th order of the State Court of Appeals. The appellate court found that attorneys Kathleen Wells and Jonathan Nelson could not represent entities calling themselves “The Episcopal Diocese of Fort Worth” or the “Corporation of the Episcopal Diocese of Fort Worth” and required that all pleadings made in those names be struck from the suit. Instead, the local TEC plaintiffs must now present themselves as individuals who are in fact suing the true Diocese and Corporation. The claims and goals of the suit continue as before: To force all our property and assets – including our name and insignia – to be relinquished to them.

In addition, in a case in Hood County, concerning a bequest to St. Andrew's Episcopal Church in Fort Worth, they have appealed previous court rulings favorable to our position and engaged two new Dallas attorneys to represent Bishop Wallis Ohl and The Episcopal Church before the Court of Appeals. Their hope is that the court will award the bequest funds, which were left to the church by a longtime parishioner, to Bishop Ohl and his diocese instead.

There is a September 2 hearing scheduled in the Hood County litigation to consider an additional motion brought this summer by the TEC parties, which would bar our attorneys from representing the Diocese and Corporation.

Your continued prayers for our attorneys in responding to all of this are greatly appreciated.
There are links to download the new filings on the page with the statement just quoted. I shall not add to what I have already written about the claims ECUSA is making in Hood County. Suffice it to say that ECUSA is going way out on a limb claiming the authority to come into court and change the terms of a private trust written in 2002, on the basis of the infamous Dennis Canon. The latter ostensibly applies to property held by or for a parish, but held by someone who is subject to the Church or the Diocese, not a private trustee appointed by a third party. And now it has hired even more attorneys -- in fact, it has hired one of the largest law firms in Texas (Vinson & Elkins) to help it make these untenable claims. It is as though Katharine Jefferts Schori and David Booth Beers think that this is the Civil War again, and the side who can bring more troops into the fray will win through sheer force of numbers.

With the second amended petition filed in the Fort Worth proceedings, what is gone are the putative entity plaintiffs, by which I mean that the plaintiffs no longer include the entities which they call "the Episcopal Diocese of Fort Worth", or "the Corporation of the Episcopal Diocese of Fort Worth." Other than ECUSA itself, the plaintiffs (petitioners) are all individuals, starting with Bishop C. Wallace Ohl, who swears that he is the "Provisional Bishop of the Episcopal Diocese of Fort Worth." Next come the six members of the "Standing Committee"; then five persons whom Bishop Ohl appointed as "trustees" of the Corporation; and finally seven persons who claim to serve as "trustees" of the "Fund for the Endowment of the Episcopate". (ECUSA has also brought in Vinson & Elkins on this case as well; their name is on the pleadings.)

The plaintiffs name as defendants their counterparts -- the members of the Standing Committee, and the Corporation and Foundation trustees -- who, they each allege, are "holding themselves out as being" those persons. They also name Bishop Iker and an entity they call "The Anglican Province of the Southern Cone's 'Diocese of Fort Worth'", which they say "is an entity of unknown form which has no relation to the Church or Diocese and purports to be affiliated with the Anglican Province of the Southern Cone. The Southern Cone Diocese holds itself out and is doing business as 'The Episcopal Diocese of Fort Worth.'"

From the foregoing you can see that ECUSA's strategy has barely changed. Deprived of the right to sue in the names of the diocesan entities themselves, the plaintiffs now take the tack that the Episcopal Diocese of Fort Worth has been hijacked, and is being occupied and operated by impostors. However, as we will see below, they have not thought through the implications of this strategy.

In this new guise as "concerned individuals and leaders of the diocese", for example, the vulnerable point in their position is now crystal clear. They recognize the weakness when they try to fend it off by putting this allegation in their petition (para. 29):
The Diocese of Fort Worth is not a Missionary Diocese. The Constitution and canons of the Church do not provide for or permit the release, withdrawal, or transfer of any diocese that is not a Missionary Diocese.
Notice that the language is generic: "the Constitution and canons of the Church . . .". There is no citation to, or quotation from, any specific provisions in the Constitution or canons (except to its provisions about "missionary dioceses", which are irrelevant). The generic reference calls to mind this earlier exchange between the Judge Chupp and the attorneys for ECUSA and the rump diocese:
THE COURT: Well . . . I don't see in the constitution where it says once you're a diocese in the Episcopal Church Province, we own you, and you can never leave. . . .

MR. NELSON: . . . Your Honor, that's been litigated.

THE COURT: Well, if --

MR. NELSON: And you're absolutely right, there isn't anything in there that says that specifically, nevertheless, the Courts have held that they cannot leave.
(Transcript of hearing 09/09/2009, at p. 51; emphasis added. See this earlier post for links and a full analysis.)

So even though there is no language preventing or forbidding member dioceses from withdrawing (i.e., amending their own constitutions so as to remove the clause "acceding to the Constitution and canons of [ECUSA]", which not all dioceses have to begin with), dioceses still cannot leave because "the Courts have held that they cannot leave."

That is the kind of misrepresentation of the law that can cause an attorney to lose credibility with the judge. For the fact is that no court of record anywhere has ever held that a diocese may not leave the Episcopal Church (USA); all of ECUSA's successes to date have occurred by piggy-backing on cases brought by individual dioceses to prevent individual parishes from leaving. Since a good number of those parishes adopted bylaws which could be amended only with the permission of the bishop or standing committee, and those bylaws had further language making the parish "permanently" or "irrevocably" (one case even had the word "perpetually") subject to the constitution and canons of ECUSA and the diocese, those cases cannot serve as precedent when there is no such language in the governing documents.

And note that the attorney's argument to the court, even though mistaken, is inconsistent with the allegations in the second amended petition: the latter does not allege that there are court decisions which prevent dioceses from leaving, but that the "Constitution and canons" themselves are what prevents dioceses from leaving, because they make no "provision" for it.
(The Constitution and canons also make no provision for ECUSA's joining an organization that advocates for a woman's "right" to kill her child in the womb, either, but that has not stopped ECUSA from doing so. Arguments from silence are the weakest of all arguments.)

The second amended petition contains further untruths and outright falsehoods, in an attempt to sweep the Presiding Bishop's failure to follow the Church's canons under the rug. In paragraph 52 we read this tall tale:
On December 5, 2008, following a public statement by defendant and counterdefendant Iker on November 24, 2008 that he no longer had any connection with the Church, the Presiding Bishop of the Church declared that defendant and counter-defendant Iker had voluntarily renounced his ordained ministry in the Church and that he was "therefore, removed from the Ordained Ministry of [the] Church and released from the obligations of Ministerial offices" in the Church. Defendant and counter-defendant Iker thereby ceased to be a bishop of the Church or the Diocese.
This language is cleverly constructed to make it look as though "the Church" is the same church throughout -- that is, ECUSA. However, the canons make clear that a "voluntary renunciation of one's orders" is not just a resignation from ECUSA, but is accompanied by an expression of "desire to be removed therefrom" (Canon III.12.7; emphasis added). One can consult this earlier post for the details, but it is a gross distortion of what occurred to allege that Bishop Iker expressed any desire that the Presiding Bishop accept his "renunciation" and remove him from his orders.

In the very next paragraph (#53), the petition trots out the canard that Canon I.17.8 (providing that every officeholder in this Church shall perform faithfully the duties of such office) automatically makes officers in a diocese, and elected only by that diocese, ineligible to continue serving in the offices to which their diocese elected them once the diocesan convention votes to amend the diocesan constitution to realign with another province in the Anglican Communion. If that is the case, let us all now ask, how is Bishop Bennison entitled to be restored to his "office in this Church" in the Diocese of Pennsylvania? He was found guilty of "conduct unbecoming a member of the clergy"; certainly he did not well or faithfully perform the duties of his office in so acting -- so if Canon I.17.8 automatically ejects the Fort Worth trustees, why does it not automatically eject Bishop Bennison from his position as well? (Technically, Canon I.17.8 applies only to lay officeholders, but as paragraph 53 of the petition argues, the corresponding provision for clergy is the oath of conformity all clergy take upon being ordained. Bishop Bennison signed that oath not just once, but three times -- for each level of his orders. So the logic still applies, even if the canons do not: the Presiding Bishop claims the power to "derecognize" the clergy members of standing committees for violating their oath, but she cannot go so far as to "derecognize" +Bennison? Truly, the left would not know how to be consistent if their very lives depended on it.)

The second amended petition continues by sweeping more inconvenient facts under the rug. It alleges there was a "special convention" in February 2009, but it does not allege who called the convention, or with what authority. It alleges that the "diocese" elected a "provisional bishop" at that special convention, but it does not allege that there was a proper quorum present to carry out any such action.

Then the petition reaches a new height in absurdity, with this sentence in paragraph 56: "The Church recognizes the Diocese as the continuing Episcopal Diocese of Fort Worth under the leadership of plaintiffs and counterclaimants." "The Church" -- just who is that? Which part of "the Church" has done the "recognizing"? Certainly not General Convention -- it adopted no resolution admitting the 2009-formed "diocese" into union with it. (The "deputies" sent by the "special convention" may have been seated at General Convention, but that was the pre-Convention decision of the president of the House of Deputies, Bonnie Anderson. There was no formal action taken by General Convention itself.)

And so, this amorphous "Church" -- whatever people and parts the pleader had in mind -- recognizes "the Diocese." But which Diocese? Has the pleader forgotten about this language in the recent opinion from the Court of Appeals in Fort Worth?
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. . . . 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.
(Emphasis added; footnotes omitted.) If there is only one Diocese of Fort Worth, and "the Church" recognizes it, then why are we in this lawsuit? And if the minority faction is suing the majority, how can it claim to be "the Diocese which 'the Church' recognizes" in doing so?

These are problems which the drafters of the second amended petition obviously never thought through before rushing to file their latest pleading. Shorn of their ability to claim in the pleadings that they are "the Diocese of Fort Worth" -- and there is only one such diocese -- they have fallen into the trap of maintaining the fiction that they are, and have consequently fallen into incoherence and absurdity, since they obviously cannot be what they claim to be, until they start following the prescribed procedures to become a real diocese, and do it right.

It is as though the Big Bad Wolf in Little Red Riding Hood, after having eaten Grandma and dressed up in her clothes, came into court claiming to be Grandma, and asked the court to award him the deed to her cottage. "But Little Red Riding Hood recognized me as her Grandma," the Wolf exclaims. "That makes me Grandma, and I'm entitled to all Grandma's property."

We shall see if this second amended petition fares any better than did the first. The Big Bad Wolf eventually may have to cough up Grandma, and start eating some crow instead.


  1. Gangbusters, as always...
    A complicated situation made understandable for the layman.

  2. I hope that the titled owners of church real estate finally get a fair shake in some courtroom. May TEC also have to pay FW's legal fees. It is about time that they suffered some ramifacations from their legal terrorism. Deep pockets have overwhelmed enough parishes thus far.
    NW Bob