Thursday, May 10, 2012

More Hollow Gains, Apparently

This story just broke in the Los Angeles Times: "Episcopal Church is rightful owner of properties, court rules". At this point, I have no more information than what the story conveys -- that an Orange County judge has granted summary judgment in favor of the Diocese of Los Angeles and ECUSA against St. David's Anglican parish, in North Hollywood, and against All Saints Anglican parish in Long Beach.

My previous understanding had been that the trials in these cases were trailing the resolution of the principal case of Diocese of Los Angeles vs. St. James Parish [of Newport Beach], but apparently no longer. The latter case has still to be resolved, while now summary judgments have been entered in the two other Diocese of Los Angeles lawsuits over church properties.

There is a complicating issue involved in the St. James case -- one that doubtless prevented it, too, from falling to a judge's gavel on summary judgment. And that is the issue of waiver. For when St. James planned to add to its facilities, and had secured a substantial donation to enable purchase of the property and construction on it, the donor insisted that St. James first obtain from the Diocese a waiver of the Dennis Canon. That waiver, signed by then-Canon to the Ordinary (and "Attorney-in-Fact" for the Bishop) D. Bruce MacPherson, was duly delivered (see Exhibit A, at p. 11), and the donor made good on his promise.

I am troubled by these paragraphs in the article:
In filing its motion for summary judgment in the cases involving St. David's and All Saints, the Episcopal Church contended that a ruling should be issued based on the 2009 Supreme Court decision, said John Shiner, lead counsel for the diocese.  
"I was very pleased with the ruling today," Shiner said. "The court followed the precedent set by the California Supreme Court and other appellate decisions, which we have always felt are relevant to our current disputes."
The ruling by the California Supreme Court was a ruling on St. James' demurrer to ECUSA's complaint against that parish. The courts are required on a demurrer (a defendant's challenge to the legal adequacy of a complaint) to regard all allegations in the complaint as literally true -- but only for purposes of determining if the complaint states a claim which a court may redress. If the complaint is found adequate, the defendant then answers it by denying its key allegations, and the parties are left to their proofs, according to their respective evidence. The one who carries the burden of proof as to conflicting evidence is the one who wins -- in a civil case.

Thus the California Supreme Court's ruling in 2009 was not a ruling based on facts found after a contested trial. It was a ruling which took the allegations of ECUSA's complaint (including its Dennis Canon) as having been established, for purposes only of the demurrer. Thus its holding said, in effect, "If the plaintiff ECUSA can prove that all its allegations are true, then California law would say that it becomes the owner of the parish property when the latter leaves its jurisdiction."

For ECUSA and the Diocese of Los Angeles to have been granted summary judgment against St. David's and All Saints, it must have established to the court's satisfaction that there were no disputed facts which required a trial. The court instead could decide the case right now, based only on the undisputed facts.

And doubtless, those "undisputed facts" included the so-called "hierarchical" nature of ECUSA, as a matter of law, etc., etc.  Once ECUSA is deemed "hierarchical" as a matter of law (i.e., no factual proof to the contrary will be allowed), then its ability, as such a church, to impose trusts unilaterally on all of its parishes' individual properties follows. All it has to do is enact a canon declaring that such a trust exists forthwith (the Dennis Canon).

In other words, if summary judgment was granted based on such a determination as I have described, then we have presented, for purposes of an appeal from the decision, exactly the same grounds raised in the current petitions pending before the United States Supreme Court. That Court is expected to indicate by the end of June whether or not it will grant those petitions -- in order to decide whether state courts may extend to a national church such as ECUSA, without violating the First Amendment, the ability to bypass, and be exempt from, state-law requirements for the establishment of a trust when it does not itself own the property being "placed" in a trust.

I may have more to say after I secure a copy of the court's decision. But for now, the affected parishes should be praying that the Supreme Court will finally see good reason to halt this madness of allowing a single type of arbitrarily abusive church to confiscate -- just because the courts say it can, solely for purposes of punishment, and for no other purpose that it factually demonstrates -- a property which a local parish has acquired, paid for, developed and maintained all on its own.

[UPDATE 05/12/2012: Apparently the court's understanding of these cases was even worse than the bare newspaper account reflects. The arguments before Judge Kim Dunning, assigned to the cases from the Complex Civil Panel in Orange County, carried over from Wednesday afternoon to Thursday morning. Judge Dunning apparently announced at the start of the arguments that she regarded the nature of the Episcopal Church (USA) not open to question in her court, because it had already been decided (but on demurrer!) by the California Supreme Court, and any further inquiry would involve the court in questions of ecclesiastical governance and polity to a degree that was impermissible under the First Amendment. And with that announcement, all the rest of her conclusions were foregone conclusions, and the cases were over. She held that the passage of the Dennis Canon could not be questioned, or raise any disputed issue of fact; and she regarded the Episcopal Church (USA) -- even though she refused to allow  evidence as to its nature -- as "a superior religious body or general church" for purposes of applying Corp. Code section 9142 (c), which allows such churches, but no others, to impose trusts on parish properties by including such a provision in their governing documents.

Thus her ruling granting the motions for summary judgment by the Diocese of Los Angeles was verbal, at the end of the arguments; it will be reduced to writing by counsel, and if all agree on its form, then it will be submitted to the judge for her signature. At that point, the losing parishes may file their notices of appeal.

It will be almost mandatory to appeal such a one-sided ruling that so ignores the law of "neutral principles" to decide disputes over church property. It is anything but neutral to foreclose all inquiry into just how a church might be regarded as "hierarchical" or not. And it is error, plain and simple, to read a higher court's ruling on a demurrer as foreclosing all factual inquiries into matters which were simply alleged in a complaint, and which the higher court was required to deem as proved.

Chalk up Judge Dunning as yet one more judge who is unqualified to preside over a church property case, because she does not, or deliberately will not, understand how the law applies to such a case. But as I have observed elsewhere, such judicial obtuseness over religious questions is becoming more and more par for the course. The unfortunate result is to make the road easy for religious bullies like the Diocese of Los Angeles and the Episcopal Church (USA).]


  1. And these people call themselves Christians. Do they read nothing else but the Nicene Creed? (And maybe skip the small part about 'sin'?)

  2. Are there, in fact, any judges in this country who know anything about the law? Or is knowledge of the law optional for a judge?

    David Katzakian

  3. McPherson was Canon to the Ordinary at that time.

  4. David, As far as I know ONLY the South Carolina Supreme Court has ruled that the Denis Canon has no effect for the very reason that Mr. Haley has made quite clear on his blog. So there are a few judges who understand. Would love to know if there are any more judges that understand these issues.

  5. Thank you for the correction, Bishop Lyons. I have added a link to the original letter, attached as an Exhibit to one of St. James' briefs in the California litigation.

    Galletta, you are correct that only the South Carolina Supreme Court has so ruled in a case applying the Dennis Canon. Courts in Alaska, Arkansas, Louisiana, Missouri, and New Hampshire have ruled similarly in cases involving other denominational trusts, such as PCUSA's.

    The Supreme Court of Pennsylvania, in its opinion in the case affirming the lower court's decision in the case of St. James the Less, did say that not even the Dennis Canon could create a trust without evidence of the property owner's (settlor's) consent. However, it found evidence of such previous consent in the articles and actions of the parish corporation.

  6. Interesting Mr. Haley. Wasn't there a case in Indiana as well? I find all these legal victories hard to stomach even if I do live in the only state legally free from the Denis Canon. What tragedy that TEC has to pursue this legal actions against fellow Christians. Well actually lets just say Christians as I am not sure those who lead TEC are Christian.

  7. The case in Indiana, Galletta, was argued to its Supreme Court last September. Although the justices at oral argument appeared hostile to the Church's unilaterally trying to create a trust, we still do not have a published decision from them. And that case is another one involving PCUSA, not ECUSA.

  8. Mr. Haley,I've been pondering some legal questions relating to recent church property cases and would appreciate your comments.

    1. Was the U.S. Supreme Court decision that introduced the "neutral principles of law application" in cases involving the property of a disaffiliated congregation/parish, etc. in reality--in law as well in logic--ineffective as authority for a lower court to CHOOSE between applying an "hierarchial" test in lieu standard in deciding such cases, or legally and logically, IF it is CLEAR from the facts of a case that it may be decided upon neutral principles of law, isn't a lower court then REQUIRED to apply such principles in deciding the case? (I.e., wouldn't a lower court be acting ultra vires if it applies a "hierarchial" test in a case that CLEARLY may be decided upon neutral principles of law (e.g., a case involving a recently-disaffiliated former parish of TEC, organized after TEC/PECUSA came into existence and thus involving issues relating to the applicability of the "Dennis Canon" to the property of the parish in the light of trust law of the state in which the formerly-affiliated parish is located?)) The Humpty-Dumpty-like and ultra-distorting quote of "individuals being able to leave TEC but not parishes" seems to serve some courts far too well in avoiding making the legal analysis that appears to be REQUIRED under the governing U.S. Supreme Court decision.

    2.If "1." (above) is answered affirmatively, is it then logically and legally accurate to posit that if the U.S. Supreme Court does finally rule on cases of this type and a decision favorable to parishes/congregations results (because that Court determines that neutral principles should have been the basis for a lower court review but an "hierarchial" test instead was the erroneous basis for the court's decision), won't some parishes/congregations/etc., then be able, following such decision, to negotiate with TEC for compensation and similar relief even though they didn't appeal a decision of a lower court that erroneously based its decision on an "hierarchial" test? (I can understand that some congregations/parishes might be barred if they had previously reached a financial settlement with TEC following their disaffiliation with TEC and/or a lower court decision, however, others would undoubtedly clearly suffered harm as a result of misapplication of the relevant law and should now be entitled to some relief as a result of an erroneous lower-court decision).

  9. williamp, let me do my best to answer your questions, as I understand them.

    1. The U.S. Supreme Court in Jones v. Wolf, a 1979 decision, made it clear by a 5-4 majority that State courts could apply either of two methods to resolve church property disputes: (1) "neutral principles of law" (which the majority applied in that case to the Supreme Court of Georgia's decision), or (2) the old standard of "deference to a hierarchical church," as set out in its 1871 decision of Watson v. Jones.

    There was no mandate by the Court which directed how States were to choose between the two; it held only that they were free to choose either, without violating the First Amendment, so long as they stayed clear of interpreting religious doctrine in making their decision.

    More and more States have opted for "neutral principles", but some of those still defer to so-called "hierarchical" churches even while claiming to apply "neutral principles," and that is the source of a good deal of the confusion in this area.

    2. In general, the law favors finality or correctness. lf an incorrect decision is not appealed, then its results cannot be reversed just because a later decision says the earlier one was decided incorrectly. A decision typically becomes "final" in that sense after all time to take an appeal to the next higher level has run out.

  10. Thank you, Mr. Haley, for your very helpful clarification concerning the two questions in post #8. It's not disappointing that a final decision would bar relief to a party who has not appealed an erroneous decision. However, learning that States are free under the decision in Jones v. Wolf to decide a church property case using either a hierarchical method or a neutral principles of law method is disappointing because that seems, in effect, to permit an arbitrary application of the elevation of form over substance in property disputes involving religious bodies. This seems especially difficult to reconcile with the reason for the application of neutral principles of law
    in cases where, as you have noted, a State claims to be applying neutral principles to law in property disputes involving religious bodies while remaining free to defer to the structural arrangement applicable to the religious body involved in the case (and apparently actually doing so in important instances). Such a result seems to permit some cases involving property disputes to be decided less on matters of substance than matters whose nature is more collateral to the issues in the case. A result of the sort you mention thus seems to beg the truly important question involved, viz.: What was the usefulness of advancing the application of neutral principles of law in Jones v. Wolf in the first place as a method applicable in cases involving these types of property disputes?