Tuesday, January 25, 2011

Bishop Iker Files for Stay of Orders

Attorneys for Bishop Jack L. Iker of Fort Worth have now filed a request with Tarrant County Judge John Chupp for a stay of the orders he issued last Friday, January 21. A hearing on the request is scheduled for next Tuesday, February 1st, at 10:00 a.m.

The stay request is based on a number of objections to the orders, described in the papers just filed, which may be downloaded from the link just given.

[UPDATE - 01/26/2011: Note one of the problems that comes from blindly signing one side's pro forma order - since they are not interested in being impartial, they are likely to overreach, without any thought given to what the law allows. ECUSA's order ended with the command that Bishop Iker and his diocese hand over all their assets within so many days, and left a blank for the judge to fill in whatever number he decided was right. The judge wrote the number "60" in the blank, instead of crossing out the paragraph itself, which would have been the appropriate thing to do under Texas law and precedent. The objections point out (last two paragraphs) that such an order before there is a final judgment disposing of the entire case transforms the court's ruling on the declaratory cause of action into a temporary injunction, which the plaintiffs did not formally request, and which was not issued in accordance with procedural requirements for such injunctions. This is one more strike against the judge's orders on appeal.]
The request points out the massive disruptions possible if the orders are not stayed pending appeal, and serves to indicate some of the extent of the interests which are at stake in the litigation:
Defendants will suffer irreparable injury if this Court's order for the Defendants to "surrender all Diocesan property" to the Plaintiffs is later reversed on appeal. By way of example:
• The Plaintiffs deposed 57 ministers of Defendant congregations in 2010 (see attachment A), and declared that they "shall be deprived of the right to exercise the gifts and spiritual authority of God's word and sacraments." If parishes are immediately transferred to the Plaintiffs, these pastors may not be allowed to minister at these churches pending appeal. Due to the number, it is unclear how TEC can replace them all.

• Parishioners loyal to Bishop Iker may do what parishioners loyal to TEC did in 2008: leave. The Defendant parishes have about 5,600 people in average Sunday attendance; those attending Plaintiff congregations number only a fraction of that amount. The effects of the Court's interim orders on church buildings, budgets, and bank notes could be catastrophic.

• Even if they don't leave, parishioners may stop giving because they do not want to place offerings in TEC's hands. This again could have catastrophic effects on scores of pastors, staff, and families who depend on these gifts for food, clothing, and shelter. How can such hardships be undone if the appellate courts decide the summary judgment orders here were a mistake?

• In many churches, there is no one loyal to TEC. For example, in their First Amended Original Plea in Intervention filed on November 2010, the Plaintiffs listed the names of loyal "representatives" for 12 churches, but listed 34 additional churches as to which nobody appears to have been willing to be a loyal representative for TEC. Who will occupy these churches? What will happen to their condition if they are abandoned? At least 13 families affiliated with the Defendants live in homes owned by the Corporation. As these ministers and staff are no longer recognized by TEC, the Court's orders appear to allow the Plaintiffs to evict them.

• Almost 200 employees, spouses, and children of ministers and staff are covered by a group insurance policy. If a significant number of these are no longer employed by a local church, their insurance and perhaps that of the entire group may lapse.

• The property here includes schools where classes are ongoing. Surrendering these schools immediately is likely to cause losses of both students and teachers, losses that may be unrecoverable if these orders are reversed after these people are enrolled or employed elsewhere.

• The bishops and staff of both sides must move out of their current administrative offices into new ones, a move that will have to be repeated if the summary judgment order~ are reversed.

• Defendants will have to relinquish personal property owned by the Diocese or Corporation, such as autos, cell phones, office equipment and supplies, computers, and the like without any promise by the Plaintiffs to pay future rentals or invoices related to them, and which can be replaced only by incurring substantial extra expenses.

• Vendors and creditors have relied on the Corporation's books and records regarding which directors are authorized to promise repayment. By unsettling who that might be, the Court's orders will make it difficult for either side to secure credit until all appeals are concluded and it is finally decided who the authorized directors are.
This is why deciding that a diocese cannot leave the Church is not the same as deciding that a parish may not leave a diocese. Dioceses are sizable entities in their own right, with literally hundreds and hundreds of clergy and laity dependent on their continuing function and existence. The relocation of a parish, while painful and inconvenient, is on an entirely different scale than the relocation of an entire diocese.

Moreover, the Dennis Canon does not apply to the property of Dioceses. The outcome of the parish cases cited by ECUSA's attorneys turned largely on the application of that Canon's language as "codifying" an existing trust relationship between a parish and its diocese. There is no counterpart "trust relationship" between an individual member diocese of an unincorporated association and all of the assembled members as a group. The entire reasoning of ECUSA, as adopted holus bolus by Judge Chupp without any discussion or input of his own, is defective in treating dioceses as the legal equivalent of individual parishes.

One of the reasons I find charges of "theft" and "stealing" so inappropriate for these unhappy situations is that they are not based on any rule or canon which existed before the dispute arose. Those in charge of ECUSA are simply making up their legal theories as they go along, and changing the rules at whim, to suit their personal, and very un-Christian, aims. Thirty-four churches must be turned over so they can become vacant and sold for other uses? And many more emptied of their current large congregations so just a few people can return to them? All because a judge is misled about the difference between a parish and a diocese?

There is no Christian or moral ground here -- let alone a legal one -- on which Bishop Ohl may rightfully stand. But watch him direct his attorneys to oppose Bishop Iker's request for a stay.


  1. WOW! What a mess- an unholy mess. This really shows up TEC's tactics for what they are.

  2. Are you sure the TEC diocese will fight the application? Sure, it's the protocol to fight every victory in anything including interlocutory orders on these cases, but surely TEC can see that the havoc that would result if they were to assume control of properties and then have to surrender them after a loss at appeal would make a stay in their interest as well, or at least so nearly so on balance as not to be worth fighting over.

  3. Opposing counsel has already informed EDFW's counsel that they object to the motion to stay.

  4. Since I posted I have gone back and read some of the TEC diocese's prior filings in the case.

    Having read them...how could I have been so stupid as to suggest that they might not fight the stay? If I were Charlie Brown I'd still be trusting Lucy to hold the football this next time.

  5. Based on Carolyn's report, all I can say is so much for expecting rational behavior from TEC and its minions. TEC's reactions remind me of nothing quite so much as the blind, furious and wholly irrational lashing out at anything and everything typical of a mortally wounded predator.

    TEC, in following a path of lies and distortions, has become insanity embodied. It will happily and speedily cut off its own nose to spite its face.

    Pax et bonum,
    Keith Töpfer

  6. Just to show how delusional TEC is:


    I write to correct misleading information in recent news stories, and to assure Episcopalians across the diocese that they have nothing to fear.

    However, as a recent court decision affirmed, people who leave The Episcopal Church cannot continue to use the property of The Episcopal Church or that of its Episcopal Diocese of Fort Worth or hold themselves out as leaders of the diocese.

    We have a responsibility to protect the property, name and other assets built up over 170 years by North Texas Episcopalians for use by future generations.

    Presiding Bishop Katharine Jefferts Schori joins me in stating that no Episcopalian will be put out of his or her church home. The Episcopalians of St. Andrews will continue to worship in their building (using the 1928 Book of Common Prayer) just as Episcopalians across the diocese will continue worshiping in their buildings.

    As we reunite, let us remember the work Jesus himself gave us -- feeding the hungry, visiting the lonely, clothing the naked. In these difficult times, this work is more urgent than ever. Let us go forward together in love as we do it.
    -- The Rt. Rev. C. Wallis Ohl, bishop, Episcopal Diocese of Fort Worth

    They ACTUALLY believe that the "flock" is now going to come back because they won the court case!

  7. Another little interesting tidbit:

    TRCP 684:

    In the order granting any temporary injunction, the court shall fix the amount of bond to be given by the APPLICANT...

    So, TEC now has to put its money where its mouth is in order to continue this litigation. If they refuse to pay the bond, then the case will be dismissed.

    Given that 34+ buildings are worth MILLIONS, it will be interesting to see the amount of bond that the judge will require of TEC.

  8. It appears to me that the expectation of "reconciliation" that the TEC head and the local loyalists are seeking is that the parishioners in the majority of the parishes where active ministry is taking place, outside the auspices of the TEC, are only interested in preserving their place within a physical building, and so will align with anyone who comes in and promises "business as usual". I think she is in for a rude awakening.

  9. It is patently absurd for Bishop Ohl to think that those parishoners who have left TEC because the National Episcopal Church is no longer upholding traditional Anglican worship and practices will meekly return to TEC run parishes. We have been treated shabbily by TEC and most of us will never willingly set foot in a church in this Diocese which is tied to TEC.

    Indeed, our choirmaster (who came to us from outside the Episcopal church about a year ago) mentioned a musical presentation that is to occur in one of the TEC churches, urging us to attend. We had to point out to him that that church is one of those that has been most militantly against the withdrawal of the diocese and the majority of Fort Worth parishes. Also, most of our choir, many of whom have held offices in the parish or the diocese (vestry, guild leadership, etc) which makes them known to members of the "loyalist" church, would not be made welcome there.

    Personally, when travelling, I have attended Sunday services at Episcopal churches where I happened to be visiting. I will not be doing that any longer.

  10. Judge Chupp seems to be singularly unqualified to be ruling on this matter. More's the pity!

    Veriword: demsetr
    Those remaining loyal Episcopalians.

    Bishop Ohl has said that "demsetrs will have to vacate the property."

  11. It appears that the TEC attorneys have filed an amended order removing the 60 day "hand over". This was done this weekend. Tomorrow, Tuesday, is the stay hearing, pending weather of course here in DFW. One can only wonder what TEC is up to in amending their own order which was blindly signed by Judge Chupp.

  12. If they did that, DDR, it was avoid having the order classed as a temporary injunction, as pointed out in my update on January 26 to the post above. So they have acknowledged that Bishop Iker's attorneys were correct to make that objection.

    The problem remains that the parties were supposed to meet and confer on a more detailed order which would become the document from which any appeal or writ would be taken. But that cannot happen until the judge clarifies what he meant by his ruling. So my guess is that the hearing tomorrow will go forward as scheduled.

  13. The hearing was continued because the courthouse was closed for bad weather. When the new date is set, it should be posted on the diocesan website at http://www.fwepiscopal.org. Even if the "Episcopal parties" have deleted the 60-day order, there's still the matter of the court's ordering Bishop Iker et al to cease and desist from holding themselves out as the leadership of the diocese and the diocesan corporation.