tag:blogger.com,1999:blog-759178030677978044.post8175859889253074555..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: Once Burned, Twice Shy: the Cautious Jurisprudence of Judge Randy BellowsA. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-759178030677978044.post-76390391498280048092012-01-31T22:06:33.297-08:002012-01-31T22:06:33.297-08:00ordinary, thank you again for clarifying your view...ordinary, thank you again for clarifying your views, and for sharing some of your personal experiences. However, I never cast any aspersions on your conservative <i>fides</i>, or accused you of "spewing" the ECUSA line -- I said only that you <i>presented</i> it accurately.<br /><br />Then, of course, I went on to express my dissatisfactions with how the ECUSA line squares with traditional law -- and so you come back at me again for making what you call "technical" arguments. If traditional law, with us since 1657, is now to be regarded as just "technical" details that get in the way of "gut" decisions, then I plead guilty of being "technical", and indeed, of preferring the technical which my mind tells me has always been the law over what my gut may tell me about what a judge is or is not likely to do in a given case, depending on what he had for breakfast, or on how he feels about engaging in honest (to you, "technical") analysis that morning. <br /><br />(How many people in Virginia claimed that Judge Bellows was following his "gut" when he read Section 57-9 in CANA's favor the first time around -- or that the Virginia Supreme Court was following its collective "gut" when they reversed him? "Gut feelings" are hardly the jurisprudential equivalent of a <i>ratio decidendi</i>.)<br /><br />You ask for a tally of the cases on both sides, and I am preparing a post which will give you just that. The score is by no means as one-sided as you seem to assume, let me tell you. If we count just State supreme and appellate courts, then Virginia does not yet enter into the tally, because the earlier decision simply came down for "neutral principles", and not in favor of a church because it was regarded as "hierarchical."<br /><br />Against the decisions upholding the Dennis Canon in New York, California, Georgia, Connecticut, New Jersey, Pennsylvania, Colorado and North Carolina, I can cite decisions in not only South Carolina, but also Louisiana, Kentucky, New Hampshire, Missouri, and soon (I expect) in Indiana. So, what is that -- 8 to 6? Hardly the sweeping unanimity that you imply is the case -- just a lot, as I say, of sloppy, "follow-the-crowd and don't think for yourself" cases among the 8, and quite a number of independent and thoughtfully reasoned cases among the 6, who dare to <i>not</i> follow the crowd.<br /><br />Please watch for my post dealing with the most recent decision in Missouri, and then you will have the details of the current lineup.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-33958824068775715192012-01-31T20:03:43.177-08:002012-01-31T20:03:43.177-08:00Mr. Haley,
As I said I am personally a conservativ...Mr. Haley,<br />As I said I am personally a conservative. I was on the vestry of a very conservative parish. Many of my very good friends are still members of a conservative ACNA parish. I very much want them to win. So, no I am not spewing the TEC line because I have drunk the TEC koolaid. <br />You may be deluded by your own considerable intellect (I mean that I am not being sarcastic) to have a realistic assessment of these cases. <br /><br />As you practically admit, J bellows bought the TEC line. In fact what is the score now? How many courts have followed your argument? You cant separate the spiritual from the secular. Power is power. If bishops are to have power, they have to control the property. <br />J bellows and Judge james in Pittsburgh (a light weight judge I practiced before him) have both implicitly ruled that the TEC has declared who are the true Episcopalians. <br />My point is you could almost convince me of your technical arguments, but the reality is most judges will not buy them. Read judge james opinion in B Duncans case. He assumes the TEC diocese is the true TEC diocese because it follows the doctrine and discipline of the TEC. Yes, you have good arguments about the corporate technicalities, and If I were the judge I would rule in your favor. <br />The problem is we don't get to litigate in a court system that should follow the correct interpretation. we litigate in the real world where everyone thinks TEC is hiearchical and you wont get too far challenging the dennis cannon 31 years later after having lived with it that long. Try getting a preliminary injunction against a departing employee to prevent irreparable harm 6 months after the employee left and you will be laughed out of court for waiting so long and then crying immanent harm. <br /><br />The Va conservatives have excellent lawyers. I worked with stephen johnson in the bush administration. Despite excellent work, they could not convince the fair minded j bellows (he did rule in their favor on the statute so he must not be a biased hack) of your arguments. <br />At the end of the day the gut equities of the nature of the church and playing by the club rules, will prevail over your technical arguments. <br />If you and the conservatives continue to live in denial about what the courts will actually do, more money will be wasted on legal fees in a hopeless cause. <br />I say again Mr Haley what is the actual score in this battle. How many courts have bought your argument? Please tell me how many?ordinaryhttps://www.blogger.com/profile/15018389433566999282noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-48283364465488892862012-01-31T08:01:51.433-08:002012-01-31T08:01:51.433-08:00ordinary, thank you for taking the time to post yo...ordinary, thank you for taking the time to post your views of church law. You do an excellent job of presenting the Episcopal party line, which is too Machiavellian for my taste when it comes to matters of property. We agree that a bishop's relations to the clergy are hierarchical, but then clergy suing their bishops have <i>never</i> gotten anywhere in the courts, and I would never contend that the law should be otherwise. A vow of obedience in all things spiritual is a vow, and cannot be adjusted or interfered with by the secular courts.<br /><br />The same reasoning was applied by the U.S. Supreme Court, in <i>Watson v. Jones</i>, to a church property dispute. Courts which follow that line of authority draw the distinction between "hierarchical" and "congregational" churches to which you refer -- but stop and think for a moment. The <i>Watson</i> reasoning entails deference to the "highest adjudicatory body within a hierarchical church." And what, pray tell, is the highest adjudicatory body in ECUSA for resolving disputes over the ownership of property? <b>There is none -- not one.</b><br /><br />Under the later standard of neutral principles of law, there is no need for any distinction between types of churches, because they are all judged by the same neutral principles. Does the Diocese own an equitable interest in a parish's property, such that the parish cannot dedicate it to the use of a different denomination? Fine, then let that interest be legally <i>conveyed</i> by the parish to the Diocese in a recorded deed of trust, so that all the world has notice of it. But don't try to tell me that expressing the "trust" in a church canon constitutes putting the trust into a "legally cognizable form."<br /><br />You may be content with sloppy, follow-the-crowd judicial reasoning, but such reasoning inspires no loyalty in my mind. My arguments are not "technical"; they are black-letter trust law, grounded in the statute of frauds which has been with us since 1657. In your Machiavellian view, the unwritten "power" of a bishop trumps the statute of frauds. Well, not in mine.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-20895101970061582252012-01-31T05:59:22.698-08:002012-01-31T05:59:22.698-08:00Mr. Haley,
I believe that there is a fundamental e...Mr. Haley,<br />I believe that there is a fundamental error in your logic. I was a member of an evangelical church in TEC and have been rooting for the conservatives. However, I always knew for the 18 years of membership in TEC that it is a hierarchical church. It is after all called the Episcopal Church which means a church governed by Bishops. A congregational church is ruled by the congregation. A presbyterian church is ruled by the presbytery. This is basic church governance. <br /><br />The Va dispute is between a Diocese and a parish. You may have an argument about diocese versus national convention, but there can be no dispute that the diocese trumps the parish in episcopal churches. <br />You then cede that the Bishop has spiritual authority over the clergy, but state that he does not have control over the property. As is obvious to the Falls church conservatives now, control of the property is an essential element of power. A bishop who does not control parish property has much less power over a parish then one who does. The episcopal system is the rule of bishops. To rule the bishops need power. To have power they must control the property. Thus, in a church ruled by bishops, the bishops must control parish property. If you don't agree with that join a congregational church. <br />Even if your technical argument about the cannon law would lead to the conclusion that parishes control property, you have to realize that most courts will not see it your way, just as j bellows did not. I have done litigation work and I know that judges do not make decisions by considering technical and counter gut justice arguments like yours. Sadly, conservatives in these property battles must face the fact that most judges are going to view TEC as a hierarchical church and find persuasive that conservatives held themselves out as part of this club for many years. Having called themselves Episcopalian (rule by bishops not congreagationalists) and remained members of the club that passed the Dennis Cannon, they can't at this late hour change the rules of the game to benefit themselves. Any good lawyer would tell them that going into litigation. You may have some good technical arguments, but you would be misleading your client if you told them they have a good chance of prevailing in these in episcopal church property disputes. The scorecard so far proves my point. I wish it were not so. I wish my friends could keep their property. I worshipped at the Falls Church and they are good people. It is the height of results oriented jurisprudence to argue that they should get the property because they will do the most good with it. <br />I have heard Bishop Duncan give false encouragement to conservatives about their chances of prevailing in property disputes and you have done the same. Its time to come out of denial and face the fact that the conservatives face a very uphill battle to win these property case. My former parish will probably join the litigation here shortly. I hope and pray they have lawyers who tell them that even though the deed is in the name of the parish and Mr. Haley might supply some great technical arguments, they should plan as if they have a good chance of losing.ordinaryhttps://www.blogger.com/profile/15018389433566999282noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-59841769358798449462012-01-23T19:22:46.760-08:002012-01-23T19:22:46.760-08:00I can't understand how the Judge can say that ...I can't understand how the Judge can say that a Presbyterian church is hierarchical?<br /><br />He obviously did not take a good look at the various Presbyterian denomination's Books of Order.Reformed Catholichttps://www.blogger.com/profile/15582319442292078422noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-67161583111487609212012-01-23T09:13:22.900-08:002012-01-23T09:13:22.900-08:00What do you think the chances are that this matter...What do you think the chances are that this matter could be settled in mediation with the Anglican congregations "buying back" their property from the Diocese? Perhaps with the threat of further appeals and costly litigation, a fair price could be had.lambertdwhttps://www.blogger.com/profile/00643149254589749647noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-8409265668288748952012-01-15T17:47:43.191-08:002012-01-15T17:47:43.191-08:00Actually the SC Supreme Court made sure of that bu...Actually the SC Supreme Court made sure of that but what our Diocesan Chancellor did (i.e. the quit claim deeds) was just the "in case" suspenders to the belt already provided by the Supreme Court ruling.Alexihttps://www.blogger.com/profile/09222877183938209659noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-78948898475824644532012-01-15T06:02:01.473-08:002012-01-15T06:02:01.473-08:00Great report, A.S. Haley! You do good work. Thanks...Great report, A.S. Haley! You do good work. Thanks. I've linked to this at Ethics Forum.<br /><br />The downward spiral of TEC may be reaching bottom. GS 2012 will be more of the same, nothing new. The media will have to stretch to find something new there. TEC's leadership has hurt so many people. The karma is very heavy and while I don't believe in karma, I do believe what goes around comes around, eventually. The prophets of the Old Testament would probably express it this way: TEC's offering stinks of death before the throne of God.Alice C. Linsleyhttps://www.blogger.com/profile/13069827354696169270noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-37193537538107482852012-01-14T21:42:59.093-08:002012-01-14T21:42:59.093-08:00Except for South Carolina -- they own their proper...Except for South Carolina -- they own their property and their bishop made sure of that!Drumoakhttps://www.blogger.com/profile/00776184286845241045noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-78901563824252146762012-01-14T18:06:59.995-08:002012-01-14T18:06:59.995-08:00Episcopalians would be best advised by their bisho...Episcopalians would be best advised by their bishops to hold on to their wallets, which is exactly what is going to happen after GC 2012.Undergroundpewsterhttps://www.blogger.com/profile/10182191422663119484noreply@blogger.com