Thursday, January 6, 2011

New Filings in Fort Worth

Judge Chupp of the Tarrant County District Court in Fort Worth now has his hopper full of motions in the case brought by the rump diocese and its bishop (Bishop Ohl) against Bishop Iker, the trustees of the diocesan Corporation, and the members of the diocesan standing committee. (Please see this earlier post for a rundown of what has occurred previously.)

[UPDATE 01/06/2011: Late this afternoon, word was received that Judge Terry R. Means of the United States District Court for the Northern District of Texas -- whose previous stay order I discussed in the post just linked -- has now extended his stay to all further proceedings in the federal lawsuit filed against Bishop Iker, pending resolution of the proceedings in State court. The effect of this ruling will be to halt the need to waste further money on legal proceedings in two fora at the same time -- and it also blocks ECUSA's attempt to conduct an end-run around the Texas Court of Appeal's ruling, which it did not accept for the reasons I discuss below. One can only be thankful for courts who are quick to grasp the bigger picture.]

In the Tarrant County lawsuit, as readers may recall, the Court of Appeal ordered Judge Chupp to strike all the pleadings filed by Bishop Ohl's attorneys (Jonathan Nelson and Kathleen Wells) filed in the name of "the Episcopal Diocese of Fort Worth" and its associated Corporation. In doing so, the Court held:
. . . [N]either 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.
Now take a look at how Bishop Ohl and his group have tried to defeat the effect of this clear holding in all their subsequent filings in the District Court. Here is a link to a page where you may download copies of all their recent pleadings, including a sixth amended petition for declaratory and injunctive relief, and a motion for partial summary judgment. You will see that at the request of the beleaguered court clerk's office, they have now mercifully shortened the caption just to "The Episcopal Church, et al., v. Franklin Salazar, et al." Nevertheless, the allegations concerning the parties read in part as follows:
3. Plaintiff the Rt. Rev. C. Wallis Ohl became the Provisional Bishop of the Episcopal Diocese of Fort Worth ("Diocese of Fort Worth" or "Diocese") -- a non-profit unincorporated association with its principal office in Fort Worth, Texas and a subordinate unit of the Church comprised of the Church's worshipping congregations located in all or part of 24 Texas counties, including Tarrant County -- in November 2009, and appears individually and in his capacity as Provisional Bishop, and also as the Chairman of the Board of Trustees of the Corporation of the Episcopal Diocese of Fort Worth ("Diocesan Corporation"), and, to the extent possible, and necessary, on behalf of the Diocese andlor Diocesan Corporation. In his capacity as Provisional Bishop, Bishop Ohl also appears and asserts claims on behalf of [there follow the names of 38 individual congregations] . . .
. . .

6. Defendant the Rt. Rev. Jack Leo Iker was formerly an ordained member of the clergy of the Church and formerly Bishop of the Diocese. Plaintiffs are informed and believe that Defendant Bishop Ileer wrongfully holds himself out as the Bishop of the Diocese and as a Trustee and Chair of the Diocesan Corporation. Plaintiffs assert claims against Defendant Bishop Iker in his individual capacity and in his purported official capacity as bishop of the Diocese and Chairman of the Board of the Diocesan Corporation.
. . .

9. Plaintiffs are informed and believe that the party that has attempted to intervene as "The Corporation of the Episcopal Diocese of Fort Worth" -- but that has no affiliation with The Episcopal Church -- is either a faction not recognized by the Church or an entity of unknown form that is purportedly led by former members and clergy of the Church and the Diocese and whose leaders purport to be affiliated with the Anglican Province of the Southern Cone (hereinafter the "Southern Cone Corporation"). These purported leaders wrongfully hold themselves out to be the leaders of "The Corporation of The Episcopal Diocese of Fort Worth" and are wrongfully doing business as the Diocesan Corporation. . . . The Southern Cone Corporation does not have legal capacity to sue as such, is not entitled to recover in the capacity in which it has sued, and lacks standing to pursue its claims. The only legitimate and recognized corporation by this name is governed by trustees the Rt. Rev. C. Wallis Ohl, Robert M. Bass, Cherie Shipp, Dr. Trace Worrell, the Rev. James Hazel, and the Rev. John Stanley, a Texas non-profit corporation with its principal office in Fort Worth, Texas, formed in 1983 . . .

10. Plaintiffs are informed and believe that the party defendant that has appeared as "The Episcopal Diocese of Fort Worth" -- but which has no affiliation with The Episcopal Church -- is either a faction not recognized by the Church or an entity of unknown form . . . (hereinafter the "Southern Cone Diocese"). . . . The Southern Cone Diocese does not have legal capacity to sue as such, is not entitled to recover in the capacity in which it has sued, and lacks standing to pursue its claims. The only legitimate and recognized entity by this name is led by the Rt. Rev. C. Wallis Oh!. . . .
And so on and so on -- do you get the drift? The plaintiffs just cannot, and will not, abandon their theory that an individual entity in the eyes of the law -- in this case, an unincorporated association formed into a diocese of a particular denomination -- is simply not free to pull out of that denomination and join another one. They maintain this position despite the lack of any language in ECUSA's Constitution to that effect (and any such language would violate the freedom of association guaranteed by the First Amendment, in any event), despite the lack of any legal precedent in their favor, and despite the historical precedent against them (the departure of nine dioceses at the start of the Civil War). And they are going to maintain their position at all costs, until some higher court finally puts a stake through its unlawful heart.

Notice, for example, how for this "theory" to hold, a diocese must be described as a "subordinate unit of the Church" in paragraph 3 quoted above. I wonder what all of ECUSA's other, legitimate dioceses think of their being portrayed in court as "subordinate" without their having consented to the filing of a such a pleading on their behalf. Of course, by their not taking steps to curtail any such abuse of their authority, they lend their unwitting support to 815's outlandish claim, and make it that much more difficult to climb out from under the tyranny they have thus allowed to take over. Such is the price of burying one's head in the sand while all manner of abuses, carried out ostensibly in one's name or on one's behalf, proceed unchecked.

To return to the Fort Worth lawsuit: shaping up thus is a battle royal to see who has the legal right to be in charge of the one and only diocese organized in 1983. Whoever controls that diocese will also in law control its associated corporation. And since all agree at this time that there is only one diocese and one corporation, then whoever loses the battle will have to go out and form a new diocese and a new corporation.

In order to assess the chances of the motion for partial summary judgment filed by Bishop Ohl and his group, the careful reader needs to go to this page as well, from which he or she may download a copy of the motion for partial summary judgment that has been filed by Bishop Iker and his attorneys. I make no claim of impartiality, since I am helping to make many of the same arguments in the pending lawsuit over the Diocese of San Joaquin in the California Superior Court, in Fresno County. Nevertheless, I think it will be clear to such an impartial reader who has the better arguments -- we shall see.

Both motions for partial summary judgment are scheduled for hearing in front of Judge Chupp a week from this Friday, on January 14. At the same time, Judge Chupp will be hearing a motion about a discovery dispute over the production of documents, brought by Bishop Ohl against Bishop Iker, as well as another motion which Bishop Ohl filed just before the end of the year.

This last motion is an attempt to employ the strictures of Rule 12 -- the rule that brought down the attempts by Jonathan Nelson and Kathleen Wells to file pleadings purporting to be in the name of the "Episcopal Diocese of Fort Worth" and its associated Corporation -- against the attorneys for Bishop Iker. The motion makes the claim that they cannot have been properly authorized to file suit on behalf of those entities, either -- because who actually controls them is still up for grabs in the main lawsuit, don't you see?

Now, please scroll up and re-read that excerpt from the opinion of the Court of Appeal quoted earlier. It states that there is only one Diocese of Fort Worth, and only one associated Corporation. And it states that there are two factions, each of which claims control. But of those two factions, one is the majority, and the other is the minority. (Guess which is which.)

So I ask: Can you discern in the Court's language any hint of a suggestion that the majority of an unincorporated association is without any authority to engage legal counsel on its behalf? Or that the head of a corporation, who has been duly elected by that same majority, may not do the same for the corporation which he heads?

This latest motion is just another silly attempt to bootstrap the rump diocese's argument that ECUSA really gets to call all the shots in this game, and to say just who is and who cannot be the real Diocese and Bishop of Fort Worth -- that is, the head of the organization that was founded in 1983 and has existed continuously under Texas law ever since. No State that I know of cedes its authority to recognize corporations and associations to third parties -- including religious denominations. This point was made long ago by the Supreme Court of Alabama, in a 1979 case:
The courts in this state have long recognized the concept that, whenever there is an incorporated church, there exist two entities . . . [T]here is a spiritual church and a secular legal corporation, each separate though closely connected. Each entity has a separate purpose. Questions involving the spiritual church are ecclesiastical in nature, and civil courts cannot decide any questions concerning this entity. In contrast, the secular corporate entity is formed by the state and performs civil functions, e.g., holding title to church property, and is in no sense ecclesiastical in its function; therefore, civil courts can decide questions concerning the corporation.
Trinity Presbyterian Church v. Tankersley (Ala. 1979) 374 So.2d 861, 866.

So keep your heads up for news of the arguments on January 14. As always, there will be commentary here as soon as a decision is released.


  1. It does seem that the more motions we see, the sillier they get. It is though they are firing shotgun shells at a difficult target in hopes of scoring at least one hit.

  2. This is good news, for now of course. Friday 14th is a hearing of much importance before Judge Chupp. Our diocese has posted a large number of recent (Dec 10) documents for the upcoming hearing. If one takes time to read all of them, it is clear, crystal clear, that unless a judge or jury doesn't "get it", there is no way TEC can win. All documents from the TEC C&C to the Dio of FTW C&C to the actual minutes of the first Diocean convention, all show that TEC doesn't have a legal leg to stand on. Let's pray that Judge Chupp, and of course, future judges (as any decision is going to be appealed) will see the black and white writing of common sense and rightful property ownership, that being TEC owns nothing in the Diocese of Fort Worth.

  3. Mr. Haley,

    I will await the outcome with eager anticipation. Both you and the The Underground Pewster describe the latest attempt by Ohl as "silly." Having spent 241 months, day for day (but who was counting), in the U.S. Navy, my characterization would be substantially earthier. Transliterated into another alphabet in order to avoid offending anyone of tender sensibilities, I would think it better characterized as δυμβ–ασσεδ!

    Starting from the premise that the actual Diocese's attorneys have accounted for all relevant statutes and have made no errors of fact nor incorrect statements, my read of their most recent pleading suggests to me a phrase of just two words for the outcome, slam dunk.

    We will see whether or not Plaintiffs are fortunate to be appearing before Judge Chupp rather than someone of my temperament. Were I seated at Judge Chupp's banc, Plaintiffs, and especially Plaintiff's attorneys would come away exceedingly chagrined, to put it mildly. I can distinctly recall Judge Joseph Wapner on People's Court on two separate occasions upbraiding attorney plaintiffs who, although already admitted to the bar in their respective states, seem to have failed to grasp the concept that if one hopes to prevail at law, one must first "have a case" to make, rather than simply a sense of having been injured in some intangible manner. Judge Wapner's rejoinders to them were mild compared to that which they might expect from me. Unfortunately for me (but fortunately for Ohl's attorneys), I am not, and never will be, a judge (in Texas or elsewhere).

    Pax et bonum,
    Keith Töpfer