Saturday, March 24, 2012

Fort Worth Diocese Completes Briefing in Texas Supreme Court

There have been a number of important appellate briefs filed with various courts this week. In my previous post, I wrote about the two petitions for certiorari (review) filed with the United States Supreme Court, to raise the Dennis Canon issue in conjunction with an earlier petition filed by Timberridge Presbytery of Atlanta on a similar question.

Now comes word that Bishop Jack Iker's Episcopal Diocese of Fort Worth has filed its reply brief in the case it has pending before the Supreme Court of Texas. The filing of that document completes the briefing in the case, and in due course the Court will set a date for oral argument. (In doing so, it may combine the argument with a rescheduled one in the San Angelo case, whose hearing was postponed at the last minute for personal reasons. Then again, since the San Angelo involves the Dennis Canon while the Fort Worth case does not, The Court may keep them separate.)

The Episcopal Church (USA) and its ersatz Diocese had each filed 50-page briefs in the Texas Supreme Court in response to Bishop Iker's opening brief. (Fifty pages is the maximum length the Court allows for opening or responding briefs, without special permission. Reply briefs are limited to 25 pages.) In addition, they filed voluminous appendices reproducing many of the exhibits they had submitted to the trial court. Neither the briefs nor the appendices is linked yet on the parties' website, but you may, as commenter DDR below points out, download them from the Court's official website.

Rather than file two 25-page reply briefs, Bishop Iker's attorneys asked for and received permission to file a consolidated reply brief of thirty-two pages. No doubt on Monday you will be able to download it from a link on the Episcopal Diocese's main page (as well as from the Court's website).

ECUSA and Bishop Ohl's congregations argued strenuously in their briefs for Texas to adhere to the traditional "deference-to-hierarchy" standard, as exemplified in the U.S. Supreme Court's decision in Watson v. Jones, 80 U.S. [13 Wall.] 679 (1872). That argument faces, however, an uphill battle, as the Texas Supreme Court has never officially adopted the Watson doctrine. (In its only church property case before the current ones -- a case decided in 1909 -- the Texas Supreme Court managed to sidestep the issue. Indeed, as the Court of Appeal in the San Angelo case pointed out, the resulting approach which the Court took in 1909 was indistinguishable from the later "neutral principles" approach of Jones v. Wolf, 443 U.S. 595 (1979).

In reply, Bishop Iker's attorneys argue that it does not matter which approach the Texas Supreme Court decides to adopt, because under either one, Bishop Iker's diocese prevails over the ECUSA claims. Its deeds, its charter from the State, and its governing documents are unambiguous about the fact that it controls its own property. Moreover, because ECUSA's governing documents do not attempt to place any restrictions on property owned or controlled by member dioceses, but only on the properties of parishes and missions, its claims to the diocesan properties are bogus, and require no "deference" whatsoever.

Texas is thus appearing as though it could be the first jurisdiction in the United States to issue a definitive ruling on the ability of Episcopal Church (USA) member dioceses to leave that organization with their property and bank accounts intact. Of course, the fact that the Episcopal Church did nothing to stop the Confederate dioceses from withdrawing en masse after the outbreak of the Civil War, and waited patiently for them to return afterward without ever going to court over the matter, speaks volumes.

The Episcopal Church (USA)'s priorities have changed markedly in 150 years -- and not for the better. That it would consume its ever-dwindling resources over such a dispute is nothing to be emulated, or admired. (Thankfully, PCUSA thus far has had to deal only with the withdrawal of individual parishes, and not regional presbyteries or synods.) Instead of chasing after dioceses no longer willing to participate in its apostasy and decline, ECUSA should concentrate on getting its own house in order.


  1. A.S.,
    ECUSA & the rump dioceses' briefs can be found on the TX Supreme Court website. TEC filed a 61 page brief and the rump diocese filed a 800+ page brief, both dated 3/8. They also claim that they win no matter which direction the SCOTX rules.

    In your expert legal opinion, do you feel that the Diocese of FTW (Iker) have a better chance of prevailing that did Pittsburgh and others? If so, why? I know each state has different rules, but is there something here in TX specifically which might give us the "upper hand", if you will, in this defense? I certainly hope the SCOTX will keep the two cases separate and not get overwhelmed with information and then confuse or apply the situation in San Angelo with FTW. However, TEC and the rump diocese continue to reference the so-called Denis Canon in their briefs. I think they are hoping the justices and their clerks tie the canon to FTW case and use. We shall see.


  2. DDR, I think the odds are actually quite good that the Texas Supreme Court will eventually find in favor of Bishop Iker and his Diocese.

    In the first place, they accepted both this case and the Good Shepherd / San Angelo cases for review. From that fact I conclude that they wanted to be able to announce that Texas subscribes to the "neutral principles" doctrine.

    In the second place, ECUSA and its arguments against Bishop Iker do not fare very well under "neutral principles." All of the property is held in the name of the Diocesan corporation, and the corporation's officers and directors are still elected by Bishop Iker's Diocese.

    Good Shepherd also has an excellent chance of prevailing under "neutral principles," because the Texas Statute of Frauds has to be given its weight under that doctrine. ECUSA's Dennis Canon simply does not fulfill the requirements to create a legally binding trust under the Texas Statute of Frauds.

    All that being said, of course, we will have to wait until the oral arguments in order to see if we can draw a bead on where the Court will go with these cases.

  3. i don't understand how the rump diocese was allowed to file a 800+ page brief - weren't they also limited to the 50 or 25 page rule?

  4. Carolyn, the extra pages were all appendices, not argument -- their actual brief was (just) within the 50-page limit. Apparently, the Court does not place limits on the size of appendices, and Bishop Ohl /ECUSA threw in everything they had.

  5. If ECUSA loses in the case against the Diocese of Fort Worth--which everybody seems to think is likely if the SCOT (Supreme Court of Texas) rules as most people think it will--and then loses in the San Angelo case as well, is ECUSA finished in the state of Texas? I used to live in Texas, and many more Texas Episcopalians all over the state (unlike many churchgoers in Mississippi where I live now) seem to be aware of what is happening. Once all the legal obstacles are cleared, it seems to me that most Texan Episcopalians will break away with the exception of a few congregations where revisionists make up the majority (i.e. All Saints in Fort Worth, etc.). The Diocese of Dallas is pretty traditional as well, etc.

  6. TRR, as mentioned, if Bishop Iker wins the Fort Worth case, it could serve as a precedent in favor of the two other dioceses whose cases have yet to be decided (San Joaquin and Quincy), but will most likely not have anything to say about the Dennis Canon.

    It is the San Angelo case where the Dennis Canon's validity is squarely at issue. And if the Texas Supreme Court holds there that a Dennis Canon trust does not meet the basic requirements of the Texas Statute of Frauds, then yes -- ECUSA and its program of intimidation-by-canon are finished in the State of Texas.