Sunday, November 6, 2011

Litigation - the Diocese of Connecticut

[N.B.: The post below will become my index page for current and future posts dealing with litigation involving parishes in the Diocese of Connecticut, as part of my "Litigation and the Episcopal Church (USA)" page. In attempt to provide comprehensive coverage of all such litigation, I plan future pages for ongoing litigation in the Dioceses of Ohio and Nebraska, in addition to all the ones which are already featured at the link. Because the recent developments in Connecticut might be of interest, I am publishing this as a current blog post. Be sure to watch the latest edition of Anglican Unscripted for more reporting on the latest Connecticut developments, as well.]

As it did in so many other instances, trouble in the Diocese of Connecticut began with the support given by its diocesan, the Rt. Rev. Andrew D. Smith, for the election and consecration of V. Gene Robinson as the Bishop of New Hampshire in 2003. The forces of dissent coalesced around a group of six Connecticut clergy: the Rev. Mark Hansen of St. John's, Bristol; the Rev. Ronald Gauss, of Bishop Seabury Church, Groton; the Rev. Allyn Benedict of Christ Church, Watertown; the Rev. Donald Helmandollar of Trinity Church, Bristol; the Rev. Gilbert Wilkes, of Christ & the Epiphany Church, East Haven; and the Rev. Christopher Leighton, of St. Paul's Church, in Darien. These came to be known in Episcopal and Anglican news stories as "the Connecticut Six."

They first stopped forwarding their parish assessments to the Diocese, and asked to be released from their ordination vows of obedience to Bishop Smith. He refused, and proposed to place them under the alternative oversight of a conservative bishop for two years. But they demanded more permanent arrangements, including the right to have their parishes and the alternative bishop choose their successors. Again Bishop Smith refused. After an unsuccessful attempt to mediate the standstill, and with the consent of his Standing Committee, Bishop Smith in August 2005 inhibited the Rev. Mark Hansen on the pretext he had taken an unauthorized sabbatical. He sent in a diocesan task force to seize the premises of St. John's, change the locks, and oust the dissidents. Eventually he installed a new vestry, as the former congregation became "St. John's in Exile."

In September 2005, the six parishes, their vestries, and five of the six priests filed a lawsuit against Bishop Smith in the federal District Court of Connecticut. They named the Diocese and ECUSA's Presiding Bishop, Frank Griswold, as co-defendants, along with Connecticut's Attorney General, and claimed that the defendants had conspired to deprive them of their civil rights. The lawsuit also claimed that the State of Connecticut, through its statutes, gave unconstitutional preferences to the Episcopal Church (USA). The filing of the lawsuit caused the Archbishop of Canterbury to withdraw his earlier reference of the dispute to the Panel of Reference which he had created following Bishop Robinson's consecration to mediate ensuing disputes between bishops and their clergy.

The federal District Judge dismissed the civil rights lawsuit in August 2006, after ruling that the federal courts lacked jurisdiction over the plaintiffs' claims. The dismissal was without prejudice, which left the plaintiffs free to pursue their remedies in State court. Meanwhile, nineteen lay leaders and priests from the Diocese had brought charges against Bishop Smith for his misuse of the Abandonment Canon, originally intended to provide an expedited process to remove (depose) clergy who had left the Episcopal Church for another denomination, in order to deal with disobedient clergy in his own Diocese. They were later supported by thirteen bishops from the Anglican Communion Network. The Church's Title IV Review Committee released a written decision in April 2007 finding that Bishop Smith had not violated any canons except possibly one, but that that violation was not "intentional."

After the decision in April 2007 clearing him of charges, Bishop Smith moved to depose four of the five remaining clergy who had opposed him -- all except the Rev. Leighton of St. Paul's in Darien, one of the largest parishes in the Diocese. Fr. Ronald Gauss and his vestry of Bishop Seabury parish in Groton refused to vacate their premises.  In 2008, the Diocese and its bishop filed suit against the Rev. Gauss and his vestry  in a local court, alleging a breach of the purported Dennis Canon trust imposed unilaterally on the property. On March 15, 2010, that court issued an opinion granting the plaintiffs' motion for summary judgment, and awarding them possession of the church and its bank accounts. Fr. Gauss and his vestry appealed, and the case was transferred to the Connecticut Supreme Court. The latter Court issued its final decisions in the case in September 2011, in opinions which are linked and discussed in the first post below. It affirmed the ruling of the trial court, but on different grounds, which explicitly upheld the Diocese's claim to the real and personal property based on the 1979 Dennis Canon.

Most recently came word that St. Paul's was the site of an ACNA ordination ceremony on October 30, 2011, where one priest and two deacons were ordained by the Rt. Rev. William Murdoch, bishop of the Anglican Diocese of New England. The ceremony took place at the invitation of the Rev. Leighton, who gave notice of it to Connecticut's current Episcopal Bishop, the Rt. Rev. Ian Douglas. Amazingly, the latter granted his permission, and said it was given as a gesture of "episcopal hospitality."

Nevertheless, a recent news item from Darien recounts that St. Paul's is the plaintiff in a new lawsuit against the Diocese of Connecticut and ECUSA, seeking a declaratory judgment that it owns its property free and clear of any trust interest in favor of the Episcopal Church (USA) or the Diocese. Bishop Douglas had sent the parish a letter asserting the primacy of the Church's Dennis Canon, and this lawsuit will test the validity of that claim. The wrinkle is that, unlike all of the previous Connecticut cases, including the latest one discussed in the link below, St. Paul's has not voted to leave the Diocese or the Episcopal Church (USA). The Dennis Canon, by its own terms, has no application "so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons."

There is thus presented for the Connecticut courts an interesting paradox which should penetrate to the heart of the flaws in the Dennis Canon. If the Canon says the trust "shall in no way limit the power and authority of the Parish . . . otherwise existing over [its] property" while it remains in ECUSA, then how does that constitute a "legally cognizable" trust at law (to use the words of Justice Blackmun's obiter dictum in Jones v. Wolf)? Trusts that spring into existence for the first time on a future contingency have long been disfavored in the law -- they are called "shifting uses." They were invalid at common law until the Statute of Uses, which enabled them only if the land was presently conveyed to a trustee, such as "to X, in trust for A and his heirs, but if B returns from Rome, then in trust to B and his heirs." A conveyance directly "to A and his heirs, but if B returns from Rome, then to X, in trust for B and his heirs" was invalid, and gave A a fee simple outright.

The Dennis Canon, however, involves no conveyance to a present trustee. Its declaration of a "shifting use" on the happening of a contingent event would be invalid if tried by anyone at common law. The novel question thus presented by St. Paul's lawsuit is: how can the Connecticut Supreme Court grant to the Diocese and to the Episcopal Church (USA) a special privilege to do what no one else has ever been allowed to do at law -- to create a shifting use that comes into being without there being any conveyance to an existing trustee?

Future posts linked at this page will address how the Connecticut courts proceed with this question.


  1. So they haven't voted to leave yet are asking the courts to settle the property question. Do the courts have to listen to a case involving the Dennis Canon where no loss has occured?

  2. As I understand it, the suit asks for declaratory relief, not for damages. The Diocese of Connecticut claims that the Dennis Canon imposes a trust on St. Paul's property; St. Paul's claims it holds its property free and clear of any trust. Courts can give "declaratory relief" in these cases by "quieting the title" -- by declaring, in a judgment, just who owns what kind of interest in a parcel of real property. To succeed, the Diocese will have to show how the Dennis Canon effects a real, live and functioning trust with respect to the property -- and that will not be easy without the parish's having departed.