The appellate justices who will decide whether the U.S. Episcopal Church or the breakaway Anglican Diocese of San Joaquin owns the diocese's church properties on Wednesday appeared uncertain about the court's authority to rule on the issue.It is confusing to be faced with a case in which one side claims to be the same legal entity as the other side. Instead of organizing and forming a new diocese of their own, the dissenting minority in 2008 claimed to be still the original diocese, and they have tried to maintain that position in the courts ever since. The courts are thus presented with the question of how a legal entity such as an unincorporated association can divide, yet stay the same because a church asserts: "Once a diocese, always a diocese." Like anyone else, churches must conform their legal entities to the requirements of civil law, and it would seem impossible for an association organized in 2008 with headquarters and staff originally located in Stockton (now in Modesto) could be the same in the eyes of the law as an association organized in 1961 and still with property, headquarters and staff in Fresno.
"We are involved in a very confusing question of power of the church versus power of the court," said 5th District Court of Appeal Justice Dennis Cornell, who repeatedly compared the schism between the two church groups to the Civil War.
Justice James Ardaiz also acknowledged the case was "confusing."
The first question Justice Ardaiz asked was: "How can this court decide who is the proper Bishop of San Joaquin?"
This question arises only because of Bishop Lamb's claim that his "diocese" is the same diocese formed in 1961. He and his attorneys will not admit that a new organization came into being in 2008. But if that is the case, how could the old organization have validly elected a new bishop in 2008 without following the canons and constitution of the very diocese they claimed to be -- particularly after Bishop Lamb himself supplied the proof that there was not a quorum of resident clergy present at the "convention" which elected him? This is why the question asked by Justice Ardaiz was fraught with technical issues of canon law, with which the courts normally do not concern themselves.
The justices asked aggressive questions of both sides. They appeared to be seeking explanations from all the attorneys as to why this case was before them in its current posture. More than once, their questions indicated a doubt that civil courts could (or should) decide the issue of who was the Bishop of San Joaquin, without getting entangled in ecclesiastical matters which the courts are barred by the First Amendment from considering.
Justice Cornell got right to the heart of things when he asked ECUSA's attorney: "If you think Bishop Lamb is the Bishop of San Joaquin, with the right to have all the Diocese's property, then why did you move for summary judgment on this complex question of who is the rightful bishop of San Joaquin? Why didn't you simply bring a lawsuit to regain possession of the property"? (The justice used the legal term for such a lawsuit, called an "action in ejectment.") The attorney admitted, "We do have such a cause of action in our complaint, your honor." "Well, why didn't you choose to try that cause of action first?" Justice Cornell persisted. The attorney for ECUSA was candid in his response, and admitted they had requested first a declaration from the court that Bishop Lamb was the Bishop of San Joaquin because they believed "such a judgment would help sort out all of the property matters." It was not clear that the answer was what the justices were looking for. They seemed to prefer an approach where the court would be asked to decide just straightforward issues of property ownership, without having to delve into the arcana of church constitutions and canons.
There were present at the argument only two justices of the three-justice panel scheduled to hear the case. The third, Justice Gomes, could not reschedule his vacation to be present yesterday, after the court itself reset the hearing date over by one month. The parties stipulated that he could decide the case after listening to the tapes of the oral arguments.
As a result, the justices will not decide the case for at least a number of weeks yet, after their colleague is up to speed and they have a chance to confer with him.
A decision that the first cause of action as presented by ECUSA was non-decidable by the courts ("nonjusticiable", in legal terms) would not provide a definitive answer to the question of whether a Diocese may leave the Church consistent with its own and the Church's Constitutions. If that is what the Court of Appeal decides (and that is only a speculation, since it is almost impossible to discern which way a court will go from the questions it asks at oral argument), it will provide yet one more instance of the unpredictability of litigation in general, and of Church litigation in particular.
On a side note, I understand from talking to the court's bailiff after the arguments that "one of the bishops" missed most of the argument, and had to be let in late. The commenters below have confirmed for me that it was Bishop Schofield. Apparently, as he was coming to the court building, he witnessed an accident in which a pedestrian was struck and run down by a motorcyclist. He went to the victim's assistance, and stayed with her until professional help could arrive. He is to be commended for setting an example of a Christian's proper priorities.