Fort Worth Judge Modifies Orders; Appeal Delayed

Bishop Iker's Episcopal Diocese of Fort Worth has put up the following statement about the outcome of today's hearing in front of Judge John Chupp of the Tarrant County District Court regarding the orders he signed granting Bishop Ohl's and ECUSA's motions for summary judgment:

Revised order a first step toward appeal

In a hearing today before the Hon. John Chupp, attorneys for the Diocese and Corporation persuaded him to grant all our objections to the Partial Summary Judgment orders he issued Jan. 21. As a result, The Episcopal Church authorities will not succeed in their efforts to force some 6,000 regular Sunday worshipers to vacate their churches any time in the near future – and perhaps never, depending on the results of an appeal of the case. As the appellate process proceeds, the Bishop, clergy, and elected lay leaders will continue to carry out their duties and ministries as in the past.

Responding to one of the most serious concerns raised in the objections, Judge Chupp said that he does not “want to see empty buildings.” He added that in his original orders, all he intended to say was that “the Diocese should be holding property in trust for the national church.”

Attorneys for both sides cooperated with the court in drafting a revised order which will be in effect until final a judgment is signed in March, after the judge returns from a medical leave of absence. Once the judgment is signed, the Diocese and Corporation will pursue their appeal. The judge agreed with attorneys for both sides that the case is ultimately bound for a ruling from the State Supreme Court of Texas.

The parties expect to return to the 141st District Court in about 30 days.

By removing the provisions of the previous orders which would have required Bishop Iker's diocesan Corporation to turn over all its assets within 60 days, Judge Chupp recognized that such a provision turned an order granting summary judgment on a cause of action for declaratory relief only into a temporary injunction, which the plaintiffs had not asked for. (One still has to ask why, if they had not asked for it, they included it in the orders they submitted for the judge to sign.)

Now the case will proceed normally, with about a month's delay for health reasons having to do with the judge. The parties will settle on a form of judgment granting the requested declaratory relief. After Judge Chupp signs the judgment on his return to the bench, Bishop Iker and his attorneys will file an appeal with the Second District in Fort Worth, which heard the previous writ proceedings involving an earlier order made by Judge Chupp.

Once the appeal is filed, and briefing is completed, the Court will probably not schedule oral arguments for a number of more months, due to its backlog. Expect a hearing sometime late next fall or winter, with a decision issued sometime in the first part of 2012.

[UPDATE 02/23/2011: A link to download the revised order signed by Judge Chupp is here. It contains a few more puzzlements, however. By ruling that the changes made to the diocesan constitution and canons were null and void, the order opens up a can of worms: if the Court can pass on the validity of the acts of a diocesan convention, then it can rule also that the acts of the "Special Convention" held in Fort Worth in February 2009, and convened not by the ecclesiastical authority of the Diocese as required by its Constitution, but by the Presiding Bishop, were "null and void" as well. The effect of that ruling would not be to reinstate Bishop Iker as the Bishop of the Diocese, because ECUSA will argue that he was lawfully deposed (although again, there is nothing now to stop Judge Chupp from reviewing the validity of his illegal deposition, as well). However, it would mean that a majority of the parishes which support Bishop Iker would again be in control of the Diocese, and they could meet to fire the attorneys and have the lawsuit dismissed!

The ruling ends with a nonsensical statement "when this order becomes final and appealable" -- the last word has to read non-appealable if it is to make any sense. In other words, the command in the order to the defendants not to hold themselves out as the leadership of the Diocese would go into effect only if the order is upheld on appeal. That, for reasons discussed in other posts, is not very likely.]