Thursday, April 11, 2013

The Litigation Lottery in California: Same Facts, Different Outcomes

The Litigation Lottery for the parishes of the Anglican Diocese of San Joaquin continues in the courts of California. I mentioned in an earlier post that as a result of a poorly reasoned decision by a trial court judge in Bakersfield, which granted summary judgment to Bishop Talton's rump diocese, two parishes in Kern County had decided to move out of their church buildings rather than carry the fight on to the appellate level -- even though the decision was so obviously wrong.

Now comes another trial court decision -- based on exactly the same underlying facts -- which denies summary judgment to Bishop Talton and his diocese. The Superior Court of Tulare County ruled on Tuesday of this week that there were disputed issues of fact remaining with regard to the ability of St. John's in Porterville to disaffiliate from ECUSA.

The reason that the three cases all involved the same facts is that all three parishes -- St. John's, Porterville; St. Paul's, Bakersfield; and St. Michael's, Ridgecrest -- belonged to Bishop Schofield's Diocese of San Joaquin, and left ECUSA after that Diocese amended its Constitution in December 2007 to become the first diocese to disaffiliate in modern times. All three operated under the same Constitution and Canons, and all three took exactly the same steps after the Diocese's vote: during the period of discernment extended to them by Bishop Schofield, they held vestry and parish meetings, discussed the matter, and took votes which ratified the Diocese's decision. Then they amended their articles to reflect their continued affiliation with the (now) Anglican Diocese of San Joaquin.

For a good number of years before 2007, the (Episcopal) Diocese of San Joaquin had a canon which allowed any of its parishes to disaffiliate with "the written consent of the Ecclesiastical Authority of the Diocese." (Canon 20.01[g] -- it was even set forth verbatim in the rump diocese's complaints against each of the parishes, and it is still a part of the rump diocese's Canons today!)

In the months leading up to the diocesan convention held in December 2007, at which the second successive vote would be taken on the proposal to amend the diocesan Constitution to remove the clause by which it acceded to ECUSA's Constitution, Bishop Schofield sent to each parish, for reading aloud at Sunday services, a series of pastoral letters outlining the choices for the Diocese, and for its member parishes.

He informed the parishes that they would not have to do anything on the spur of the moment, and that each and every parish could have a period of discernment in which they could decide either to stay with Bishop Schofield and his Diocese, or remain with ECUSA.  No matter how a parish decided, it would also be allowed to retain its property, so long as it was not indebted to the Diocese, or the Diocese was not a co-signer on any parish loan.

At the convention itself, and just to be certain that the requirements of Canon 20.01 (g) had been carried out to the letter, Bishop Schofield signed and dated a handwritten statement declaring that he gave his consent to any parish that wanted to disaffiliate. This statement became a part of the records of convention.

The attorneys for the rump diocese made exactly the same argument to the two different California judges on their motions for summary judgment: they argued that notwithstanding the language of the diocesan canon, Bishop Schofield's consent had been ineffective as a matter of law, because (a) the pastoral letters sent to each parish constituted only an "implied" consent to withdraw, and did not state that consent expressly; and (b) the express written consent signed by Bishop Schofield at the convention was never delivered to any of the individual parishes, but remained with the records of convention.

In other words, they asked the courts to rewrite Canon 20.01 (g) to insert into it requirements that a written consent (a) be in express language; and (b) physically delivered to the congregation in question.

The results of this argument? The judge in Bakersfield rewrote the Canon, as requested. He ruled that, as a matter of law, there could be no dispute that Bishop Schofield's consent had not been given as the canon required. The judge in Tulare County, however, held that these same facts created a triable issue for a jury to resolve on whether or not the requisite consent had been given.

Same facts, same arguments, same Canon, and same California law applicable: but two diametrically opposite results. And two parishes will lose their properties as a result (though to be accurate, I believe that they have shaken the dust off their feet, and are prepared to move on to a new future in new facilities).

This is why litigation is a last resort (and probably also why St. Paul told the Corinthians that they should not take their disputes to the secular authorities for resolution, but work it out among themselves as Christians). Nevertheless, your Curmudgeon will continue to chronicle the vicissitudes of the ongoing parish and diocesan litigation, if only to record how haphazard and frustrating it all is. There is much more to report about events in South Carolina, and I will also have a report on the trial in Quincy soon. The Anglican Diocese of San Joaquin also still awaits news that Judge Hamilton of Fresno County has made his tentative ruling of March 13 a final one.


  1. The position of having to live with two different interpretations of something seems fitting somehow.

  2. Now if we can just manage to get a third, TEC can claim a new Trinity. Very apt don't you think?