tag:blogger.com,1999:blog-759178030677978044.post7190899285487914919..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: Alarums and Excursions in PittsburghA. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-759178030677978044.post-57749843707575021402009-05-18T10:49:00.000-07:002009-05-18T10:49:00.000-07:00Dear Mr. Haley,
It would appear that DavidH has b...Dear Mr. Haley,<br /><br />It would appear that DavidH has by far a much more abundant supply of lipstick available for the pig named <I>Hierarchical ECUSA</I> than one might ordinarily assume would be the case.<br /><br />Pax et bonum,<br />Keith TöpferMartial Artisthttps://www.blogger.com/profile/12059467870069787735noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-9445106192023227042009-05-18T04:23:00.000-07:002009-05-18T04:23:00.000-07:00Mr. Haley, I appreciate the continued discussion. ...Mr. Haley, I appreciate the continued discussion. Your blog stands out for the fact that you have detailed, clearly intelligent posts and are happy to engage with those who comment in the same way. This is my final comment on this post -- I'm not out to monopolize the discussion, just to offer a viewpoint and discuss. I'm sure this does not address everything, and I appreciate you not holding silence on a matter against me.<br /><br />The crux of our disagreement about the hierarchical-ness point you made has been clarified. You contend that the Dennis Canon doesn't apply to the property at issue in Pittsburgh, and that even if it did that would not be sufficient authorization for the PB to sue to enforce it -- thus my view of Canon I.4.2(a)(1) is not a problem. <br /><br />I concede that the letter of the Dennis Canon does not encompass property that is truly diocesan -- the diocesan headquarters, for example (perhaps a smarter lawyer can work that one out, but I'm not seeing it at the moment). But I suspect that most of the property at issue in Pittsburgh is, in fact, congregational property (property held for the benefit of parishes, missions, or congregations), so it would fall under the Dennis Canon.<br /><br />I think we'll have to agree to disagree (but with an improved understanding, hopefully) about the specificity of the authorization by GC that is necessary for the PB to carry out lawsuits regarding property. GC has asserted that TEC has an interest in property used by groups within the church. GC has passed budgets that include litigation expenses. (I recognize that the Executive Council has increased the litigation expenses line item; the 2009 GC should tell us whether GC views that as a problem.) That seems to me to be enough.<br /><br />I am not saying that TEC is an involuntary association. At least in Virginia (falling back on what is most familiar to me), voluntary associations' rules are generally enforced as contractual in nature. When it comes to rules regarding property, the case law gets a bit more muddled but I believe is consistent with TEC's argument that those who depart can't take the property with them against the organization's rules. (Of course, there are problems in applying any body of law to church property disputes. If you haven't read the Virginia Attorney General's appellate filing, I recommend it -- it has an interesting section about how trust law is problematic in the church property context.)<br /><br />I am curious about the voluntary association case law you mention. Is that case law regarding a situation where the association's member is another association? That is a potentially significant difference, I think.<br /><br />Regarding "offices in this Church," I was not suggesting that vestries' first loyalty is to the national church -- merely that it is possible for a reasonable person to read the phrase more expansively than you do and thus that it goes too far to label the original statement by +Buchanan a misrepresentation.<br /><br />I think Virginia is another area where we will have to agree to disagree. You rightly point out that there has been much discussion (in briefs and at trial) about hierarchical-ness, in regard to TEC, the Anglican Communion, and other churches historically. (Douglas was testifying mostly about the Anglican Communion and Mullin mostly about history.) But the point stands that Bellows didn't examine and reject the argument that TEC is hierarchical -- he simply ignored it. For him, it wasn't relevant because it wasn't part of his analysis under the statute. You're conflating matters somewhat when you refer to TEC's "division" contentions. Those arguments Bellows did reject, of course, but he didn't reject them because he disagreed that TEC was hierarchical; he rejected them because he disagreed that the polity and view of a hierarchy was relevant under the statute. So I too will stand by my comment that your original contention is misleading.DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-64410900317774232702009-05-17T17:32:00.000-07:002009-05-17T17:32:00.000-07:00I assure you that the problem is not “mutual” from...I assure you that the problem is not “mutual” from my standpoint, DavidH. I read you, loud and clear. It is just that, as your points come across, they do not seem to be aimed at what I specifically said.<br /><br />Let me illustrate what I mean by recapping our first point of discussion. I put up a post in which I suggested that the recent filing by ECUSA in Pittsburgh of a complaint in which it claimed to be “hierarchical on three levels” was proof of just the opposite of what ECUSA claimed. The proof, I said, was in the fact of who signed and verified the complaint in the name of the Church. Was it the Presiding Bishop? No. It was a retired diocesan, who had recently been designated to assist with matters in Quincy. I asked the question: who authorized him to speak on behalf of the whole Church? And I showed proof that he had not been authorized by anybody---or at least, that the most he had claimed under oath was that he had been “requested” to serve as “an advisor and testimonial agent’ in cases involving departing dioceses and parishes---by the Presiding Bishop.<br /><br />Your first comment suggested that maybe I was moving the goalposts and changing the definition of what it meant to be “hierarchical.” You also saw no problem with the Presiding Bishop suing on behalf of the Church, because it would be in furtherance of a hypothetical “policy” proclaimed by General Convention, i.e., the Dennis Canon.<br /><br />Never mind that I pointed out in reply that the Dennis Canon cannot be involved in Pittsburgh, because the suit is about property held by a Diocese, and the Canon on its face does not apply to such property. In your latest response, you still find it “dubious” that the authority of the lawsuit in question cannot be based on such a policy, because to you, the PB’s authority under Canon I.4.2(a)(1) (“speaking for the Church as to the policies, strategies and programs authorized by the General Convention”) settles the matter. To which I can reply only: “Huh? You have not met my contentions. Not only has General Convention never enacted any such ‘policy’ (of authorizing the PB to sue in its name to enforce the Dennis Canon in court), but any such authorization would not cover the instant lawsuit.” If I have misunderstood you, then I apologize, but there is nothing I find which needs any further response. No Canon, no policy, and therefore no lawsuit. And not only that---no lawsuit, no authority to file it, and therefore, no hierarchy. Q.E.D.<br /><br />You take on a different subject entirely when you suggest that it is a “theory” that the Dennis Canon has to be adopted in each of the dioceses to be effective. It’s not a theory; it’s again the English language. If a diocese “accedes” to ECUSA’s Constitution, but expressly does not accede to ECUSA’s canons, then by what language in ECUSA’s Constitution do all of its canons automatically become operative in the Diocese without that Diocese’s consent? The ECUSA Constitution has no supremacy clause, and no provision making the Canons binding in all cases upon the dioceses. In fact the few places where the Constitution does make particular Canons binding (e.g., Art. II, Secs. 4 and 5 [suffragan bishops], Art. IV [standing committees], and Art. VIII [ordination of priests and deacons]) show that they are not regarded as binding on the dioceses generally unless specifically stated. I could cite you literally hundreds of instances in which diocesan canons are contrary to the national canons (including specifically the Dennis Canon), and for good reason: the national canons are not applicable throughout the Church of their own force.<br /><br />Your insistence that Episcopal dioceses are “formed” by General Convention misses the thrust of my argument. You concede that they first have to exist under the secular law as a separate entity before they can join the Church, but to you, that event does not count as “formation”, because they are not a diocese of ECUSA until General Convention acts. Fair enough; my point, however, was that for a secular court, it is wrong to imply that the Dioceses are the “creations” of General Convention. It is wrong for the very reason that, historically, General Convention itself was the creation of the original dioceses, and not the other way around.<br /><br />You say: “Again, if you believe that the group of people or association who became a diocese in/of TEC are always only an association, then of course you think that they can leave unchanged. If, on the other hand, you think that a diocese or a parish is more than a group of people or association -- that it's a part of a larger ecclesiastical structure -- then it makes perfect sense to say that even if a majority of the people in a diocese or parish leave, the diocese or parish in/of TEC remains.” This misses my point. It is not the people in ECUSA who are its members, it is the dioceses. And as members in a voluntary association, dioceses are in law free to leave the association at any time. Your invocation of “a larger ecclesiastical structure” again tries to appeal to canon law over secular law, and that does not fly in the United States (or at common law). Every church, no matter of what form or structure, has to have a legal existence under the secular law before it can hold title to property and sue and be sued in court. The law allows for churches to be unincorporated or incorporated---associations or corporations---or, possibly also, trusts. There are no other forms of “ecclesiastical structure” recognized in secular law. An association is voluntary by definition; there is no such creature in the law as an “involuntary association”. I can cite you case law holding that the placing of arbitrary restrictions on the right of a member to withdraw from a voluntary association is unreasonable and against public policy; you can cite no authority that there is an exception for religious associations---especially at common law, which is what we are dealing with in the case of ECUSA, since it was never organized under the laws of any one State.<br /><br />If you think it is “reasonable” to regard vestries as being “offices in this Church”, then what, pray tell, is a parish or diocesan chancellor? Is their first loyalty, too, to the national church? Can the diocese remove a parish chancellor if he advises the parish on how to leave the diocese? Can the national church remove a diocesan chancellor who represents the diocese in a lawsuit brought by the national church? Again, you simply make up positions that have no objective standards, and without any standards, then anything goes, and vestries are “offices in this Church”.<br /><br />On Virginia: I have not changed what I was saying, but I admit to responding to you in different language than I used in the original post. Here is what I said originally: “And having obtained some decisions to cite, they march into court again and again to ask that it simply be taken as a matter of law---not open to dispute from their opponents---that ECUSA is "hierarchical". Where the premise has been fully examined, as it was in Virginia, it does not stand up in court.”<br /><br />I stand by this statement. ECUSA and the Diocese called two expert witnesses to prove the hierarchical structure of the Church: Dr. Ian Douglas and Dr. Robert Bruce Mullen. Together, they were on the stand for days (roughly, pages 831 to 1155 of the transcript). ECUSA’s argument was that, as a hierarchical church, Virginia’s Division statute could not apply to it because for there to be a “division” within the meaning of the statute, the Church’s highest authority would have to approve the division, and that had not occurred in this case. Judge Bellows specifically rejected that argument, and did so on the ground that he found the CANA experts’ testimony “to be more persuasive and convincing.” (April 3, 2008 letter opinion, at p. 63.) ECUSA is still maintaining on appeal that it is hierarchical, and that no “division” can have taken place under its polity. Judge Bellows found that ECUSA was “hierarchical” only to the extent that it was clearly not congregational, so that section (A) of the statute, rather than section (B), applied to its congregations. Had he bought ECUSA’s argument, Judge Bellows would have said that the statute does not apply, because congregations are not permitted to leave the hierarchical structure of the Church with all their property. But he rejected that argument---i.e., it did not “stand up in court”, exactly as I stated in the first instance. <br /><br />There is no “new thing” about the diocesan property litigation arguments. ECUSA maintains it is the same three-tiered hierarchical structure whether it is a parish or a diocese that is the defendant. This premise was, to my knowledge, never given any kind of detailed scrutiny by any court (with expert testimony both pro and con), to my knowledge, before the Virginia cases (I am still researching this point, and my conclusion may have to be revised). All I contend is that those courts who bought the argument without examining it in any detail are not really of any precedential value to deciding it now---whether it’s a parish or a diocese that is involved. I certainly do not concede the point that parishes must lose in every instance. I am currently advising at least one parish that changed its articles to remove any accession to national canons before the adoption of the Dennis Canon, and the Diocese never objected to the amendment. So each case has to turn on its own particular facts.<br /><br />You are welcome to respond further as you deem fit, but I will not regard your silence as a concession of anything. All I have done here is expound on my original points a little further, and I thank you for giving me the opportunity to do that.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-88279186936359129262009-05-17T06:26:00.000-07:002009-05-17T06:26:00.000-07:00And from your response, Mr. Haley, it becomes clea...And from your response, Mr. Haley, it becomes clear that the problem is mutual.<br /><br />You repeat that hierarchical-ness turns on whether there is someone authorized to speak for the Church in court. This clarifies that your complaint is one about authority, based on your theory is that the PB is not authorized to speak for TEC in court. That in turn necessarily rests on your theory that the Dennis Canon / asserting an interest in property doesn't reflect a policy, strategy, or program of General Convention. See Canon I.2(4)(a)(1). I find that dubious.<br /><br />You then offer the theory that the Dennis Canon has to be adopted in each of the dioceses. I guess that's a variation of the "hierarchy stops at the diocese level" theory?<br /><br />Yes, dioceses in/of TEC are formed by action of General Convention. Prior to GC acting, there is a group of people (or association, I suppose, if you prefer) who have gotten organized and petitioned. Your focus is on that group of people or association, and I suppose you can apply the term "diocese" to them. You can't, however, call them a diocese in/of TEC.<br /><br />Withdrawal from an unincorporated association is a matter of polity when you're talking about the rights that groups of people have upon withdrawal. That question depends on the meaning of an unqualified accession and on TEC's hierarchical-ness. Again, if you believe that the group of people or association who became a diocese in/of TEC are always only an association, then of course you think that they can leave unchanged. If, on the other hand, you think that a diocese or a parish is more than a group of people or association -- that it's a part of a larger ecclesiastical structure -- then it makes perfect sense to say that even if a majority of the people in a diocese or parish leave, the diocese or parish in/of TEC remains.<br /><br />The mayor analogy isn't entirely on point. The federal government doesn't define, even in "legal platitudes," that there shall be mayors or what mayors do. TEC's canons do for vestries, albeit delegating filling just about all the details to dioceses. (This illustrates the differences between TEC's polity and the US's.) There are two different and reasonable readings of "offices in this Church."<br /><br />Regarding Virginia, you've changed what you're saying, but that doesn't make what you said originally any less wrong. Of course TEC and the Diocese think the Virginia litigation turns on their hierarchical-ness. But they didn't lose at the trial court because the trial court disagreed with the assertion that TEC is hierarchical. The trial court made no findings at all in that regard, one way or the other. (Read the opinions -- this isn't a matter of different viewpoints about what the opinions mean. Hierarchical-ness simply isn't something the trial court ruled on.) Therefore for you to say that "the premise has been fully examined ... in Virginia" and that "it d[id] not stand up in court" is wrong (or at the very least, badly misleading). <br /><br />Finally, you misunderstand my earlier comment about the difference between diocesan property litigation and congregational property litigation. My point was to say that you and McCall admit that there's a hierarchical relationship between parishes and dioceses and that, until the new thing of diocesan property litigation, that's the only situation in which courts had ruled. There's nothing wrong with arguing that all those prior opinions are inaccurate, as applied to the new situation. But it's hardly fair to imply that any of the many courts that have said so were simply "swallow[ing] ECUSA's arguments hook, line and sinker."DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-91584689501269033002009-05-16T21:25:00.000-07:002009-05-16T21:25:00.000-07:00From your comments, DavidH, one would think you mi...From your comments, DavidH, one would think you misunderstood me! :>)<br /><br />In a hierarchy, there is a well-defined structure of authority that defines who is authorized to speak for the Church in court. There may be Catholic bishops who do not feel strongly anti-abortion, but you will never see one in Court saying that the Church has no position on the subject. But in the Episcopal Church, you have the Presiding Bishop on her own---and without any authority in the Canons---refusing to recognize a valid Standing Committee, and then claiming to “recognize” a newly formed “diocese” without any action on the part of General Convention. So the fact that she can also appoint a bishop to speak for the Church in court means one of only two things: (a) the Church is hierarchical and she is its metropolitan; or (b) the Church is not hierarchical, and the position of spokesperson is up for grabs, depending on who is speaking. <br /><br />The Dennis Canon was never adopted in San Joaquin, Washington, and a number of other Episcopal Dioceses which were part of the Church before its enactment, so there can hardly be derived any type of General Convention national “policy” with regard to it. Moreover, the Dennis Canon does not apply to the property of Dioceses, so none of the lawsuits brought by TEC against former dioceses is in furtherance of any such “policy”, even if General Convention were to enact one.<br /><br />General Convention does not form Dioceses, period. Dioceses have to exist separately under a State’s laws before they are legally capable of becoming a member of ECUSA’s unincorporated association. It is not a matter of “focus”, it is talking about the way in which any entity has to be legally formed before it can exist. Paragraph 16 is not an accurate statement either of the law or of the functions of General Convention; it gives the false impression that Dioceses are its creations. They are not---just ask the Diocese of Virginia, or the Diocese of New York, or the Diocese of Pennsylvania!<br /><br />Withdrawing from an unincorporated association is again not a matter of “polity”. ECUSA is not a governmental body or nation, like the United States. It is, once again, nothing more and nothing less than an unincorporated association of member Dioceses. To say in the same complaint that “the Episcopal Church in the United States of America is an unincorporated association” and that “Under the Church’s Constitution, canons and polity, no diocese . . . may unilaterally . . . separate, or otherwise disaffiliate from the Church” is to engage in a contradiction of legal terms. The essence of an unincorporated association is the voluntary nature of its association. If it is a group that one can join but never leave, then it is not an unincorporated association---and certainly not one organized at common law, and not pursuant to the legislation of any State. It has nothing to do with one’s “views” of polity; it has to with the very essence of an unincorporated association at English common law. <br /><br />Is the office of mayor of New York City an “office of the United States” because New York City is in New York, which is a State in the United States? If each position on a parish vestry is an “office in this Church”, then why does General Convention, or Executive Council, or any of the employees or staff of ECUSA not have any say about who gets to fill them, and why cannot any of the same entities or persons remove them? I am not “assuming” anything other than common sense: an “office” is a position in an organization that is filled by that organization. Under that plain-sense understanding, vestries are not “offices in this Church.”<br /><br />These are not disagreements over facts and reading texts, DavidH. If you say that vestries are “offices in this Church,” or that an unincorporated association is an organization which members may voluntarily choose to join, but from which they may never withdraw, then you have to be defining the words in ways that the law does not.<br /><br />It’s funny that you think the hierarchical structure of ECUSA was not an issue in the Virginia case. The reason it’s funny is that here is the very first "Question Presented" by the Petition for Appeal filed by ECUSA with the Virginia Supreme Court (link at <A HREF="http://www.thediocese.net/News_services/property_appellate.shtml" REL="nofollow">this page</A>), according to ECUSA's attorneys (bold added):<br /><br />"Should § 57 -9(A) be interpreted consistently with related Virginia statutory and case law that respects <B>the polity of hierarchical churches</B> and with the principle of Constitutional avoidance? (Assignments of Error 1-3.)"<br /><br />And here is how the body of the Petition opens, exactly as does Bishop Buchanan’s complaint in Pittsburgh:<br /><br />"The Episcopal Church is a hierarchical religious denomination with three tiers of governance. The 'General Convention' is the highest governing body in the Church. It has adopted and amends the Church's Constitution and Canons. These documents contain the law of the Church and are binding on all entities of the Church. . . .<br />It is undisputed that under the Church's law, only the General Convention has the authority to "divide" the Episcopal Church and to establish, divide, or release a diocese. . . ."<br /><br />And as that quote demonstrates, ECUSA never tires of repeating its “hierarchical” mantra, even in a case involving parishes leaving dioceses. It is not the relationship between the parishes and ECUSA that is hierarchical, but the relationship between the parish and the diocese in which it is located. That is the <I>only</I> aspect of ECUSA that may properly be said to be hierarchical, and wishing or opining it otherwise cannot change the history or the common-sense meaning of the words that define the other relationships.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-31949040420154544712009-05-16T19:09:00.000-07:002009-05-16T19:09:00.000-07:00Whether you've appointed a single spokesperson / r...Whether you've appointed a single spokesperson / registered agent / pleading verifier is a test for hierarchical-ness? We've left all common meanings of the word behind, I see.<br /><br />Most of the post is based on contentions you've made in the past that (i) the PB is not authorized to pursue the lawsuits, (ii) in various instances related to the diocesan lawsuits, the Constitution and Canons have been violated, and (iii) TEC is not hierarchical.<br /><br />I think (i) is questionable at best. If the Dennis Canon reflects the policy of General Convention, the PB may well be authorized to take action in court to enforce it.<br /><br />I agree with (ii) in some circumstances, but the instances you choose to discuss are not examples of violations and misrepresentations. <br /><br /> - Paragraph 16 could be read without any distortion or difficulty to reflect 815's view that an Episcopal diocese is only an Episcopal diocese so long as it remains in TEC. In that case, its second sentence is entirely accurate. You're taking issue with it because you have a different focus with respect to the identity of a diocese.<br /><br /> - Likewise, you have a different view of TEC's polity than 815. It is unsurprising therefore that you disagree with paragraph 22.<br /><br /> - Re paragraph 21, why is the vestry not an office in TEC? You assume it; you don't explain it.<br /><br />The point is that all of these instances are disagreements about how to read the relevant facts and texts. That doesn't make them misrepresentations by either side.<br /><br />I have no disagreement with you about the Pittsburgh stipulation. It has always seemed dubious to me that the Pittsburgh litigation would be resolved on the basis of that stipulation.<br /><br />You are entirely incorrect in your remark about Virginia. The whole point of the Virginia litigation so far is that it was resolved entirely based on Va. Code 57-9. The trial court made no findings one way or the other about TEC's hierarchical-ness. In fact, because subsection (A) of 57-9 applies to hierarchical churches, arguably the Virginia litigation thus far continues to support the principle that TEC is hierarchical.<br /><br />Finally, it must be said that your weariness paragraph conflates two important and distinct questions: Is TEC hierarchical for the purposes of parishes vs. dioceses and TEC, and is TEC hierarchical for the purposes of a diocese vs. TEC? You obviously know the difference, but you overlook the implication for your weariness paragraph. Diocesan property litigation (meaning TEC vs. dioceses) is a new phenomenon. The recent scholarship about TEC's hierarchical-ness is geared toward that new phenomenon. It does not undermine the hierarchical-ness conclusions reached uniformly by numerous courts in the traditional instance of parish property litigation.DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.com