tag:blogger.com,1999:blog-759178030677978044.post7773543434799211352..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: Arguments in San Joaquin (II)A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-759178030677978044.post-76156443151060722822009-05-06T17:50:00.000-07:002009-05-06T17:50:00.000-07:00Martial Artist, in an ideal world where judges had...Martial Artist, in an ideal world where judges had all the time they need to address civil matters, yes, you would be correct. The problem specifically in California has been that the judges have been too quick to decide that the earlier cases involving ECUSA have settled the matter, and leave nothing new to be decided. For example, the recital of the facts that allegedly make ECUSA "hierarchical" in the opinion in <I>New v. Kroeger</I> was taken straight from the Diocese's complaint and affidavits in that case. Because the case involved relief under a highly specific statute (Corp. Code section 9418, dealing with the court's determination of whether a board of directors has been validly elected), the status of ECUSA as hierarchical or not was never really at issue, and was not litigated. The trial court decided the case on sworn affidavits, and the appellate court reversed based on the Diocese's affidavits. So there was no live testimony, no detailed findings---<I>nada</I>. But now ECUSA has one more opinion under its belt which it can trot out as "deciding" it is "hierarchical."<br /><br />And another funny thing---all the California courts that have simply parroted the idea that ECUSA is "hierarchical" have <B>never once</B>, to my knowledge, tackled the question of just what body, group or person is ECUSA's "highest judicatory".<br /><br />So there is a lot of appellate dead wood to clear out of the way here---I hope that Judge Corona does not rest his decision upon it, but gives us a chance to prove what ECUSA's structure really is.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-60806175268317834922009-05-06T17:29:00.000-07:002009-05-06T17:29:00.000-07:00Publius, thank you---I could not improve on your s...Publius, thank you---I could not improve on your statement of the matter. The only other point to note here is that ECUSA's own Constitution (Art. II, section 1) grants to the dioceses freedom to prescribe the method by which they elect their own bishops. Thus there is no national, "hierarchical" standard for electing bishops, and it is the Diocese of San Joaquin's rules that have to be followed to produce a qualified bishop of that Diocese. (The point is the same whether the Diocese is electing a new bishop from scratch, or approving a "provisional bishop" pursuant to Canon III.13.1---in both cases, a proper convening and quorum of the Convention is required in order to act.) Those rules involve even less of a "doctrinal or ecclesiastical dispute" than the one in the <I>Serbian Orthodox</I> case, because the Diocese on its own, quite simply, is not itself a church with its own internal religious polity and doctrine. As you point out, the provisions required to call a proper meeting of the diocesan Convention are no different from those of standard corporations concerning call, notice, and quorums for meetings that courts interpret every day.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-46657632553736183852009-05-06T17:21:00.000-07:002009-05-06T17:21:00.000-07:00Mr. Haley, thank you for the generosity with comme...Mr. Haley, thank you for the generosity with comment length and with your response -- I enjoy the dialogue. You asked:<br /><br /><I>1. If, under the holding in Serbian Eastern Orthodox, Bishop Mililojevich could not ask a court to rule that his deposition was invalid, then how can Bishop Lamb ask a court to find that Bishop Schofield's deposition was valid? (Assume, for purposes of the question---and as Bishop Lamb certainly alleges---that ECUSA is hierarchical.) </I> +Lamb has not sought, and did not get, a ruling that +Schofield's deposition was valid. +Lamb came before the court saying "I am the Bishop of San Joaquin who is recognized by TEC." +Schofield's response was that +Lamb was (i) not the true Bishop of San Joaquin, (ii) not a validly established Bishop of San Joaquin, and (iii) not the incumbent of the preexisting corporation. The court ruled that it had to accept / defer to TEC's position on items (i) & (ii) and that that was determinative of item (iii). It should probably be noted that no one really questions that +Lamb is the Bishop of San Joaquin according to TEC -- except to argue that TEC has not validly recognized +Lamb, which gets to your second question and is another thing the court said it could not decide. <br /><br /><I>2. Also, which "highest judicatory" of ECUSA has made a ruling that Bishop Lamb is the Bishop of San Joaquin?</I> Another interesting question. "Judicatory", of course, is tied to "judiciary" -- <A HREF="http://dictionary.reference.com/browse/judicatory" REL="nofollow">as any dictionary will tell you</A>. Based on that definition and view, there are those who would say that TEC has no judicatories, except for the limited purposes where the Constitution and Canons provide for ecclesiastical courts. It's hard to argue with that. Conceptually though, it's also hard to argue why the civil authorities ought to be able to insist that courts have "judiciaries". If it is desirable, as a matter of religious freedom, that civil courts defer to church judiciaries on ecclesiastical matters, shouldn't they also defer to church policy-making bodies more generally? Why should a civil court defer to an ecclesiastical court, but not General Convention, TEC's Executive Council, the PB (or, in parish-centered legal matters, a diocesan Ecclesiastical Authority)? The only coherent answers that come to my mind quickly are: (i) the thought that somehow a court is required as a matter of due process, or (ii) that whatever non-judicial authority we're talking about lacks the authority to be deferred to. On both counts, you run smack into <I>Serbian Eastern Orthodox</I> again. (Not to mention that the minute the "due process" camel gets his nose into the tent, churches will soon be required to have rules of evidence, confrontation clauses, etc.)<br /><br /> This is a situation where the courts have chosen, in my view, the lesser of two evils. Rather than let organs of the state (civil courts) wade into and rule on particular matters of ecclesiastical authority, law, and procedure, the courts rule on the broad brush matter of hierarchical vs. non-hierarchical, and then for the former, the courts accept what those churches do. To the extent there is a solution to the problem of super-congregational church authorities run amok (we are, after all, humans who are capable of abusing any degree or type of power), it is for the members of the church to implement.<br /><br /> And that is, in the end, why the ballgame in California is over, barring the extraordinarily unlikely prospect of the US Supreme Court intervening and rewriting the constitutional rules. California's Supreme Court has accepted -- probably as a matter of law -- that TEC is hierarchical, and it has concluded, based in part on (IMHO) a very reasonable reading of <I>Jones v. Wolf</I> that California courts will give effect to property provisions in hierarchical churches' governing documents. Readers should note that the California Supreme Court adopted this principle as a matter of state law. Thus, unless that principle is unconstitutional under the federal constitution (something that's very difficult to see, given that deference has been constitutional since <I>Watson v. Jones</I> in the mid-late 1800s), the remedy is in the legislature: get them to pass new church property rules. That too is how I think it should be -- I am a small "d" democrat. (What legislative solutions are appropriate is a separate debate.)<br /><br /> In closing, I should note that I am not endorsing the idea of church authorities run amok. In a better world, church authorities (on both sides) would embrace compromise and find a way to avoid court fights. I was tempted to write "find a way to live together," but then that's the entire point of breaking away, isn't it -- that you're unwilling to "live together" any more? (I'm not saying that's always the wrong conclusion; just trying to reach the honest answer that such an unwillingness is precisely the conclusion that breakaway folks have reached.) Not to mention that some people (on both sides) feel a religious duty to fight.<br /><br />My apologies if this is somewhat rambling.DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-7174457035933775542009-05-06T11:38:00.000-07:002009-05-06T11:38:00.000-07:00DavidH, Full disclosure first: I am a corporate la...DavidH, Full disclosure first: I am a corporate lawyer and not a litigator, and I am not licensed in California. <br /><br />The law frequently imposes standing requirements on plaintiffs seeking the Court's assistance. For example, shareholders of corporations have rights to examine certain books and records of corporations that they own. In some situations, the shareholders of a corporation can bring an action alleging that the directors of the corporation violated their fiduciary duties to the corporation.<br /><br />In those two situations outlined above, the plaintiff, as a condition precedent to proceeding with his case, must prove that he is a shareholder of the corporation about which the litigation is swirling. If he is not, he lacks standing to assert rights that the corporate statute provides to shareholders, and only to shareholders. <br /><br />As I understand the San Joaquin litigation, Bp. Lamb is demanding that the Court order that the Diocesan bank accounts, offices, and all other property etc. be turned over to him. Before the Court can possibly consider that relief, the Court must be satisfied that Bp. Lamb is actually the rightful Bishop of the Diocese.<br /><br />As I understand Mr. Haley's post, Bp. Lamb and TEC have provided no proof that Bp. Lamb is, in fact, the rightful bishop who has standing to claim the Diocesan property, other than an affidavit from a person whi is not the proper official of the actual Diocese, and which affidavit itslef contains hearsay. A mere affidavit would not entitle a plaintiff in the sort of corporate dispute outlined above to maintain his action. The Court would require better proof that the plaintiff actually owns the shares of stock he claims to own.<br /><br />I understand that Defendants vigorously disputed Bp. Lamb's claim that he is the rightful Bishop of San Joaquin. Other than the affidavit, neither Bp. Lamb nor TEC provided any proof that Bp. Lamb is the rightful bishop of San Joaquin, because they can't. As Mr. Haley has blogged, none of the Diocese's own procedures regarding the election of a bishop have been followed, and the rump group that claims to be the "Diocese of San Joaquin" has not been admitted as a Diocese by General Convention. <br /><br />I don't know how a trial court could possibly decide this dispute without a trial at which evidence is produced; therefore the motions by TEC and Bp. Lamb for summary judgment should be denied. <br /><br />I do not agree that the types of subject in dispute would involve the Court in doctrinal or theological disputes. The Court would be examining By-Laws (Canons) and the like for the Diocese and for TEC, which have in themselves no religious content and which are, substantively, little different from corporation by-laws or contract clauses that courts examine every day.<br /><br />Mr. Haley, if I have mis-stated your points I apologize.Publiushttps://www.blogger.com/profile/00397698158382967962noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-80388647197291995402009-05-06T09:42:00.000-07:002009-05-06T09:42:00.000-07:00Dear Mr. Haley,
I have a question pertaining to t...Dear Mr. Haley,<br /><br />I have a question pertaining to the dependency of the applicability of the <I>Serbian Eastern Orthodox</I> case on the determination of what entity is the highest judicatory of a religious organization of hierarchical polity.<br /><br />Based on your comment in reply to <I>DavidH</I>, and on the wording quoted by him, it appears to me that the limitation on the court ruling is <I>unconditionally dependent</I> on: <br /><br />(a) the "religious organization" being <I>hierarchical</I>, and <br /><br />(b) the ruling being challenged having come specifically from that "highest judicatory of (the) religious organization" under consideration.<br /><br />If this understanding is correct, then would it not be the case that TEC must prove that either the PB or GenCon is, in fact, <I>the highest judicatory of the Episcopal Church</I>? If so, then it would seem to me, given a rational and thorough judge, a favorable outcome for Bishop Schofield and the historically continuous Diocese of San Joaquin is not particularly improbable.<br /><br />Pax et bonum,<br />Keith TöpferMartial Artisthttps://www.blogger.com/profile/12059467870069787735noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-68447020271674831922009-05-06T07:23:00.000-07:002009-05-06T07:23:00.000-07:00What is to stop me from moving to California, and ...What is to stop me from moving to California, and suing Southern California Edison, claiming that I am its proper CEO? <br /><br />Presumably I could, if I have an Affidavit that says that I am the proper CEO.Nasty, Brutish & Shorthttps://www.blogger.com/profile/14996015155672276552noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-68532389024821579422009-05-06T07:13:00.000-07:002009-05-06T07:13:00.000-07:00DavidH, thank you for that comment (don't worry ab...DavidH, thank you for that comment (don't worry about length---if this gets too long, I will move it into a separate post, and we can continue from there). The argument made in favor of Bishop Schofield was this: ECUSA is by no means "hierarchical", and so the doctrine in the <I>Serbian Eastern Orthodox</I> case (which, as you quote shows, applies when there has been a decision "of the highest judicatories of a religious organization of hierarchical polity . . .") does not come into play. At the very least, the question of whether or not ECUSA is "hierarchical" is a disputed question of fact, which cannot be resolved as a matter of law. As one of the cases cited by the court in its tentative ruling (<I>Concord Christian Center v. Open Bible Standard Churches </I> (2005) 132 Cal.App.4th 1396, 1409) observed: “The first issue addressed by the trial court in this case was whether Open Bible is a hierarchical or a congregational church. As the court noted, the issue was 'vigorously dispute[d]' below, and both sides 'presented substantial testimony and argument' thereon."<br /><br />The other California decisions relied upon by ECUSA were not conclusive or binding on the court in this case, it was argued: in the first place, nothing in those cases is <I>res judicata</I> as to the defendants in this case; the <I>Episcopal Church Cases</I> opinion was a ruling on a <I>demurrer</I>, in which the Court had to take as given the "hierarchical" allegations in ECUSA's complaint; and the case of <I>New v. Kroeger</I> involved the hierarchical relation between a parish and its diocese, and not between a diocese and the national Church. So the question of the polity formed between the Church and its dioceses is very much open in this case, and cannot be adjudicated summarily without the benefit of testimony from both sides.<br /><br />Nevertheless, there is a question I would like to ask you: If, under the holding in <I>Serbian Eastern Orthodox,</I> Bishop Mililojevich could not ask a court to rule that his deposition was invalid, then how can Bishop Lamb ask a court to find that Bishop Schofield's deposition was valid? (Assume, for purposes of the question---and as Bishop Lamb certainly alleges---that ECUSA <I>is</I> hierarchical.) Also, which "highest judicatory" of ECUSA has made a ruling that Bishop Lamb is the Bishop of San Joaquin?<br /><br />These are just some of the knotty problems with which the courts will have to wrestle as this case makes its way through the various levels.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-48380914151650147202009-05-06T04:51:00.000-07:002009-05-06T04:51:00.000-07:00Mr. Haley, the judge having concluded in his tempo...Mr. Haley, the judge having concluded in his temporary ruling that he has no authority to rule on the validity of Bishop Lamb's election, what did the Anglican Diocese have to say that would convince him to revisit that ruling? I may be missing it, but what I see in your post is them presenting argument that +Lamb's election (or the Episcopal Diocese's formation) was invalid, not that the Court has authority to rule on it.<br /><br />Also, I think you are understating the <I>Serbian Eastern Orthodox</I> case (online at <A HREF="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=426&invol=696" REL="nofollow">FindLaw</A>). The Court said at 713-14 (pardon the lengthy quote):<br /><br /><I>We have concluded that whether or not there is room for "marginal civil court review" under the narrow rubrics of "fraud" or "collusion" when church tribunals act in bad faith for secular purposes, n7 no "arbitrariness" exception - in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations - is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense "arbitrary" must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them. Watson itself requires our conclusion in its rejection of the analogous argument that ecclesiastical decisions of the highest church judicatories need only be accepted if the subject matter of the dispute is within their "jurisdiction."<br /><br />"But it is a very different thing where a subject matter of dispute, strictly and purely ecclesiastical in its character - a matter over which the civil courts exercise no jurisdiction - a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them - becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred on the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding adopted; and, in a sense often used in the courts, all of those may be said to be questions of jurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court. This principle would deprive these bodies of the right of construing their own church laws, would open the way to all the evils which we have depicted as attendant upon the doctrine of Lord Eldon, and would, in effect, transfer to the civil courts where property rights were concerned the decision of all ecclesiastical questions." <br /></I>It seems to me that it is no distinction at all to say that a court may rule because the matter is before it and necessary to resolve a standing issue. May courts start ruling internal, governance actions of churches are invalid or not? That's the question.<br /><br />I'm not saying that there are no problems in this rule. In the end, the courts may be trapped between the Scylla of super-congregational church authorities run amok and the Charbydis of courts wading into and seizing control of church canon law by ruling on such disputes. But that's what our Constitution leaves us with. <br /><br />Weighing against courts wading into church canon law matters is also the fact that those who are unhappy are not trapped -- they're free to go. And if they get their property matters straight at the beginning (either by getting an explicit deal in place with the denomination, or by joining a denomination that makes no claim on congregational property), they have nothing to lose when it comes time to leave.DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.com