On Monday of this week, South Carolina Circuit Judge Diane Goodstein denied the motion by the ECUSA parties to expand their counterclaims against Bishop Mark Lawrence and certain of his clergy -- a motion which I previously predicted would be denied in this earlier post. In ruling from the bench, Judge Goodstein noted that the counterclaimants had failed to show any good reason to single out specific members of the clergy for acting in accordance with the wishes of the Diocese they served -- actions that were ratified and approved by literally thousands of its members.
The Diocese's Canon to the Ordinary, the Rev. Jim Lewis, responded to the ruling with this statement: "“We are grateful that Judge Goodstein dismissed this most recent effort to harass our people with time-consuming, expensive litigation. Attorneys for both TEC and TECSC have tried to distract attention from the denomination’s efforts to seize our property by suing our clergy and pursuing our lay leadership. The judge’s decision ends the legal fishing expedition and forces all to focus on the only issue that matters: whether our religious freedom is protected.”
Judge Goodstein also denied TECSC's motion to reconsider her earlier grant of a preliminary injunction (to which TECSC's attorneys originally stipulated), which forbids that group from appropriating the name, trademarks and insignia of Bishop Lawrence's Diocese. As a result, the injunction will remain in force until the conclusion of the trial of the case, now scheduled for July.
Meanwhile, ECUSA's lawsuit against (now-deceased) Bishop Schofield of San Joaquin, and the corporate entities holding title to that Diocese's real property and bank accounts, goes to trial in Fresno starting next Monday, January 6.
After the Diocese of San Joaquin voted in December 2007 to amend its governing documents to take it out of ECUSA, Bishop Schofield also amended the articles of his religious corporation sole, which up to that time had held the title to all diocesan real property and bank accounts. But in April 2008, the newly elected Provisional Bishop for the seven remnant parishes, the Rt. Rev. Jerry Lamb, filed papers with the California Secretary of State which purported to designate him as the new incumbent of Bishop Schofield's corporation sole.
This clouded the title to the properties and the accounts (held with Merrill Lynch), so Bishop Schofield eventually signed deeds and other papers transferring the properties and accounts to a new corporate entity called "the Anglican Diocese Holding Corporation." Alas, shortly after those transfers ECUSA persuaded Merrill Lynch to freeze all the accounts, so that none of the Diocese's funds has been available now for over five years to assist it in defending the lawsuit brought by Bishop Lamb and his remnant group.
Now this dispute over ownership to property goes to the Superior Court of Fresno County next Monday at 9:00 a.m., the Hon. Donald S. Black presiding. Essentially, the ECUSA parties maintain that because "ECUSA is hierarchical", no diocese may withdraw from it unilaterally, and must keep all of its property in trust for ECUSA. (Note that this is a general claim of an implied trust that took effect when the Diocese first joined ECUSA. The so-called "Dennis Canon" has no application to the property of dioceses, but only to the property of parishes.) Accordingly, they seek orders transferring title to all of the real and personal property to the control of the remnant group. For a more detailed explanation of their position, you may read their trial brief here.
As for the Anglican Diocese, it was never made a party to the lawsuit (since ECUSA does not recognize that it ever left). Nor has its current Bishop, the Rt. Rev. Eric Menees, been named as a party, on the theory (I presume, but do not know for certain) that it was Bishop Schofield who made all of the transfers that the plaintiffs challenge. Consequently, the parties before the court will be the personal representative of Bishop Schofield's estate, and the corporate entities of the Anglican Diocese.
For them, their case is simple: the Anglican Diocese, as an unincorporated religious association under California law, had the statutory right to amend its governing documents at any time and in any manner, provided only that it follow the procedures for amendment specified in those governing documents. ECUSA exercised no power of review or control over the Diocese's ability under California law to amend its Constitution and Canons, and the Diocese had regularly done so at annual conventions ever since its admission into ECUSA as a diocese in 1962.
Nor is there any provision in ECUSA's Constitution and Canons which forbids dioceses from withdrawing, or requires them to submit constitutional amendments to General Convention for its approval.
Thus the Anglican defendants argue that under the "neutral principles of law" which the California Supreme Court requires be applied to church property disputes, their amendments should be given the legal effect they had under secular law: that of removing them from any further affiliation or connection with ECUSA.
They also argue that under the "freedom of association" guaranteed to all persons (including corporations and unincorporated associations) by the First Amendment, the Anglican Diocese had the unqualified right to withdraw from its association with ECUSA.
For a more detailed statement of their position, you may read their trial brief here.
Your Curmudgeon will be at the defendants' table as co-counsel assisting the very capable Chancellor of the Diocese, Russell G. vanRozeboom, Esq. Consequently, blogging will take a back seat for the next few weeks, but if I can manage an update or two, I will post them here.