Arguing the Texas Cases (II)

[Note: For the first part of this post, see this link.]

In the second case argued to the Texas Supreme Court last Tuesday (Masterson, et al. v. Diocese of Northwest Texas, No. 11-0332), the attorneys and justices grappled with the same central issue that dominates the earlier Fort Worth case: do national and diocesan church canons have the ability, under any proper construction of the First Amendment's Free Exercise Clause, to override contrary Texas state laws?

The justices by their questions showed that they had each done extensive reading in preparation for the argument; they were familiar with both the cases relied upon by the parties, as well as with the record on appeal. The attorneys on each side did a masterful job of presenting well-reasoned and effective arguments -- but the ultimate clash, as just summarized, still remained clear by the time it was all over, as did (in my opinion) the position the majority of justices will take in resolving that clash.

The Diocese of Northwest Texas (unusually for the current Presiding Bishop, ECUSA has not intervened in the Masterson case; it contented itself with filing an amicus brief) argued that when the parish of the Good Shepherd in San Angelo affiliated with it, it agreed not only to "accede to," but also to forever abide by, the national Church's Constitution and canons. Thus it was bound by the "trust" imposed unilaterally upon all parish property by the Dennis Canon, even though it acquired title to its property by a quitclaim deed from the diocese in 1982 -- three years after the Dennis Canon was enacted. And then the Diocese itself passed a local "Dennis Canon" declaration of trust in 1984.

Ordinarily, a quitclaim deed conveys all the grantor's rights, interest and title, of whatever nature, to the real property conveyed -- without reservation. Thus, if the property came to San Angelo in 1982 with a Dennis Canon trust already imposed upon it, a title company could not have learned that fact by inspecting just the chain of title alone. (The Diocese's attorney attorney, Jim Hund, conceded in answer to a question on this point that the title company could learn about the existence of the trust only by inspecting the parish corporation's articles and bylaws, which referenced the national constitution and canons. He did not appear to appreciate the kind of burden that answer would place upon title companies -- one would have to know just where online to find them, and then know enough to go to the index entry at the very end for "Trust, all property held in". And even then, the title company would still be faced with the exact same question the Supreme Court was being asked to decide: can a national church canon override State trust laws?)

Mr. Hund went on to argue for the same interpretation of Jones v. Wolf that the Supreme Court of Connecticut gave to that case in its recent Gauss decision: that Jones itself commands that state courts and state laws must yield to trusts expressed in a national church's governing documents. But the justices were visibly perturbed by that reading of Jones, and wondered how the Supreme Court could make federal common law to that effect in an area that has always belonged to the States.

The attorney for the parish corporation, Reagan W. Simpson, stuck to his guns throughout. Texas, like every other State in the Union, has a statute declaring that a trust in real property must be created in a writing to that effect, signed by the settlor -- the person(s) owning legal title to the property being placed into trust. Other Texas statutes require a sufficient legal description of the property affected, and that the trust document be recorded where the property is located in order to put third parties on notice of the trust. The Dennis Canon satisfies none of these State law requirements.

Mr. Simpson especially emphasized that Texas is just one of five States with a law expressly providing that all trusts are revocable by the settlor, unless stated in the trust document (or an amendment thereto) expressly to be irrevocable. Thus, he argued, even if the Dennis Canon somehow attached to the San Angelo property, whether via ex post facto operation of the parish's original accession to the national canons, or via the local diocesan equivalent enacted in 1984, the parish could and did revoke the trust when it later changed its governing documents to remove the accession clause and its affiliation with the Diocese.

Mr. Hund argued in response that the "rules" of the Church and the Diocese did not "permit" such amendments, even though he had to concede that there were no express provisions at any level which forbade them. Instead, accession once made was permanent, etc., and precluded any kind of subsequent  withdrawal or revocation, etc., etc.

And so, round and round the arguments went. Once again, the only justice whom I felt was receptive to the Diocese's arguments was Justice Green, who posited questions that were sympathetic to the interest of the minority that wanted to "remain Episcopal." The others appeared clearly to resonate with Mr. Simpson's calm presentation of the issues (see especially the first five to six minutes of his argument). When, at the very end, the Chief Justice (who had remained silent through the proceedings) tossed him a softball question about the Roman Catholic Church being an example of a "hierarchical church," I got the distinct impression that the jig was up for ECUSA and its Diocese of Northwest Texas.

Nevertheless, even if the Supreme Court agrees with the parish and reverses the judgment against it, the attorneys both agreed that it will have to send the case ("remand" it) to the trial court for further proceedings to apply the doctrine of "neutral principles." The reason is that the parish did not itself ask for summary judgment below; only the Diocese did. And so if the Court finds that the Diocese was not entitled to summary judgment under Texas law, its reversal of that grant will still leave the case to go to trial (unless the parish makes its own motion for summary judgment after remand).

The opinion in Masterson is likely to come down before the Court publishes any opinion in the Fort Worth case, for reasons I explained in the first part. If it does, it should tell us, at a minimum, two things: (a) Texas courts must apply neutral principles of law to church property disputes; and (b) applying such principles, trusts in Texas must have the written consent of the property's actual owner to be effective. As Justice Johnson so aptly put it: "A church can say who its members are, but it cannot say what's a trust. If a church wants a trust, they have to come to us."