Arguing the Fort Worth Case: Ships Passing in the Night

From the point of view of Judge John Chupp, who will hear arguments on the opposing parties' motions for partial summary judgment next Friday in the case originally brought by ECUSA and Bishop Gulick against Bishop Iker and his fellow trustees, it must seem as though the parties are leagues apart in their analyses of the case. ECUSA rests on Texas law as it was a hundred years ago. Bishop Iker's attorneys, assisted by former Texas Supreme Court Justice Scott Brister, show an entirely different landscape of "neutral principles" in current Texas law.

There is a very good reason for this: for ECUSA, the law reached its pinnacle in the 1871 United States Supreme Court case of Watson v. Jones, which recognized a category of so-called "hierarchical" churches, governed by "highest judicatories" to whose final decisions on any religious dispute the civil courts were required to defer. (Among other names this approach has received, it is called "the doctrine of deference.") In 1909, the Texas Supreme Court followed Watson in the case of Brown v. Clark, 102 Tex. 323, 116 S.W. 360, when it recognized that a local Presbyterian church in Jefferson, Texas had merged with its parent into a combined larger Presbyterian Church, and awarded its adherents possession of the church property as against local dissidents who were opposed to the merger on doctrinal grounds.

In 1979, however, the United States Supreme Court announced an alternative to the deference doctrine. That year it reversed the Supreme Court of Georgia in Jones v. Wolf, and held that States were free to decide religious property disputes on "neutral principles of law." (For more background to the legal history, please see first this post, and then this one.) Under this latter approach, courts look first to how churches hold title to their property by examining their deeds, their articles, by-laws and national governing documents. Only if the latter lay down a scheme of title to property to which all lower churches are contractually bound in some legally cognizable form do the courts look past the bare names on the record title.

As in many other states, the courts in Texas have in recent years announced that they will follow the "neutral principles" approach in deciding church property disputes. This includes the Court of Appeals for the Second District, which will hear any appeal from Judge Chupp's rulings in the current case. In a 1999 case (Dean v. Alford, 994 S.W.2d 392, 395) which admittedly did not involve any dispute over church property, that Court said nonetheless, by way of obiter dictum:

Notwithstanding the First Amendment's proscription, courts do have jurisdiction to review matters involving civil, contract, or property rights even though they stem from a church controversy. Neutral principles of law must be applied to decide such matters . . .

The same court reiterated its adherence to a "neutral principles" approach in another dictum delivered in a 2006 case. Other recent decisions by Texas courts have held the same thing: see footnote 2 on page 2 of Bishop Iker's response to ECUSA's motion for citations. Although the Texas Supreme Court has not had the occasion to decide any church property disputes since the 1979 opinion in Jones v. Wolf sanctioning such an approach, it did indicate in a 2007 decision (where it devoted a whole section of its opinion to what it called the "Neutral Principles Exception"), its assumption that such an approach would now be applicable to such disputes. In light of these developments in the law since 1909, and especially in light of those 1999 and 2006 cases from the Second District Court of Appeals, one can only wonder at a brief in support of ECUSA's motion for partial summary judgment which does not cite or discuss any of these recent Texas cases, and which steadfastly maintains that Texas courts still adhere to the law as it was declared in 1909.

There are even greater anomalies in the brief filed (at presumably considerable expense) by ECUSA. In its table of cases cited, it lists the landmark decision of the United States Supreme Court in Jones v. Wolf, which held that states could, in resolving church property disputes, adopt the neutral principles approach in lieu of the deference approach. As would be fully appropriate, the index to the cases (page v) uses the expression "passim" in lieu of giving the precise page references on which the case is cited in the 62-page brief. Lawyers use "passim" as a shorthand for: "there are too many references to this case to list individually; it is cited throughout the brief, on nearly every page."

The surprise comes, however, when one does a word search for "Wolf" (or even "Jones", which has an overlap with that most favorite of ECUSA's cases, Watson v. Jones) in order to find references to the case which ECUSA signaled that it had cited on nearly every page: Jones v. Wolf is cited once on page 4, in summarizing an argument to be made later; next on page 15, as authority for the enactment of the Dennis Canon; again on page 39, as authority for the (misleading) assertion (in light of Jones itself) that the "U. S. Supreme Court has recognized two kinds of church government: 'hierarchical' and 'congregational'"; and one more time for the same purpose on page 43. Those four mentions scarcely merit the designation "passim" in a 62-page brief. And please note that not one of the references to Jones v. Wolf in ECUSA's brief discusses the actual holding of Jones: that state courts are free, constitutionally speaking, to resolve church property disputes on the basis of neutral principles of law. In fact, as Bishop Iker's attorneys point out in their response to ECUSA's motion:

The most striking thing about TEC's motion is that it never mentions "neutral principles of law" - not once. . . .

. . .
Under neutral principles it doesn't matter whether a church is hierarchical (a word used 56 times in TEC's 62-page motion). Hierarchy doesn't matter in the neutral-principles approach; only neutral principles do. Neutral principles and deference are two different approaches, as the U.S. Supreme Court said in 1979:

The question for decision is whether civil courts, consistent with the First and Fourteenth Amendments to the Constitution, may resolve the dispute on the basis of "neutral principles of law," or whether they must defer to the resolution of an authoritative tribunal of the hierarchical church. ... We therefore hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.

Now, how do ECUSA's attorneys reply to this criticism? You guessed it -- by reiterating every single one of the church cases in which ECUSA was found to be "hierarchical", although not one of the cases cited held that the national Church was superior and paramount to a member diocese. (Instead, each and every one of the cases finding that ECUSA was "hierarchical" did so in a dispute involving parishes versus their dioceses -- the language in those decisions about the relationship of General Convention to the rest of the Church was entirely gratuitous, and not central to the actual holdings of the cases.)

ECUSA does deign to discuss "neutral principles" in its reply, but only to argue that in Texas the courts prefer to follow an "identity" approach, which is nothing more than a new name for the old "doctrine of deference," since it purportedly "requires the court to identify the faction that is loyal to the hierarchical church [by not questioning the decision of the church on that issue]." So once again, ECUSA takes a bye on confronting the actual case law it will have to argue to the Court of Appeals, and argues the cases it feels are most supportive of its position. Such evasion, and "flight to the familiar", is always a dangerous litigation strategy. Courts do not appreciate litigants who repeatedly dodge the very question that is before them.

In their reply, the "Local Episcopal Parties" rely very heavily on the recent decision of a trial court in El Paso, which makes a point of following the "identity" approach. Judge Chupp in Fort Worth, however, is not concerned with what other judges in El Paso think the law may be. He knows that any decision he renders will go to the Fort Worth Court of Appeals, which has twice since 1999 referred to "neutral principles" as the basis for resolving church property disputes. He must, accordingly, have a healthy distrust of those who would try to seduce him down other paths.

ECUSA makes two other arguments in support of partial summary judgment. It contends that the Dennis Canon overrides Texas law -- again, because Texas courts must "defer" to a hierarchical church, which is given free reign to impose a trust in its favor on property it does not own. Unlike California and New York, however, where this argument succeeded because there were statutes which could be read as legitimating the trust declared by the Dennis Canon, ECUSA can point to no Texas statute which allows a beneficiary to declare unilaterally that someone else's property is held in trust for him, the beneficiary. To the contrary: Texas law, like South Carolina's, is based on the Statute of Frauds, which since the seventeenth century has stated that only the absolute owner of real property may place it into a trust, and only by signing a written deed to that effect. And in making its argument, ECUSA skates right past the most crucial point of all, which is that there is no language in the Dennis Canon imposing any trust on the property of a Diocese.

ECUSA's third argument is that all of the amendments to its constitution and canons which the Diocese voted to adopt in 2008 were ultra vires ("beyond its powers"), and hence void. Since ECUSA cannot point to any written restrictions on the ability of the Diocese of Fort Worth (or any diocese in the Church) to amend its governing documents without first consulting General Convention, or receiving its approval before or after making the changes, its argument on this point has to proceed by implication and indirection. This results in an ultimate circularity which is self-defeating. ("A diocese cannot amend its constitution so as to withdraw from ECUSA because a diocese is subordinate to ECUSA and so cannot do anything in derogation of ECUSA's authority over it. A diocese is subordinate to ECUSA because ECUSA has a three-tier structure in which ECUSA is superior to the dioceses.")

This is high-priced gobbledygook, to be sure, but it is still gobbledygook, and circular reasoning, to boot. ECUSA fails to engage Bishop Iker on the merits. It acts like a ship passing in the night, with no obligation to acknowledge the vessel that opposes it. It has its formula for winning cases in other state courts, and it is sticking to it -- regardless of what the law of Texas says. This Friday, or shortly thereafter, we will see whether that formula makes any headway with Judge Chupp.