Court Blocks End Run Around St. James

Judge Thierry Patrick Colaw of the Orange County Superior Court has issued a ruling that blocks an attempt by the plaintiff Episcopal Diocese of Los Angeles and the plaintiff in intervention ECUSA to circumvent the right of the defendant St. James Parish of Newport Beach to have a trial. This ruling comes on remand of the case from the amended decision of the California Supreme Court, which I wrote about in this post. It also comes while the petition filed by St. James for review of the California Supreme Court's decision is pending in the United States Supreme Court.

In order to understand Judge Colaw's ruling, a .pdf copy of which may be downloaded from this page (the ruling begins on page 5 of the document), one has to know a little background about the special California procedures that were followed in the litigation which ended up in the California Supreme Court. Essentially, the previous steps were these:

1. After St. James voted to leave the Diocese of Los Angeles, the Diocese brought suit against the parish corporation, its rector and other clergy, and vestry members, in Orange County Superior Court, where the parish is located.

2. The parish did not immediately answer the Diocese's complaint. Instead it brought what is called a "SLAPP" motion under California law.

[Long-winded explanation for those interested: The acronym stands for "Strategic Lawsuit Against Public Participation". The paradigm for such a motion was when a large oil company brought a trade libel lawsuit against an individual who had been asking the State health department to investigate one of its home plumbing products. The court found that the only purpose of the lawsuit was to make it expensive for the individual to pursue his claim before a public agency, and that the underlying lawsuit had no real merit.

Out of this paradigm the California Legislature developed a statute allowing defendants in certain kinds of cases to challenge at the outset lawsuits brought by plaintiffs solely for the purpose of silencing their opponents' participation in public proceedings. Instead of answering to such a complaint, the defendant files a "SLAPP" motion, and since the move is directed against the "strategic lawsuit" itself, it is sometimes also called an "Anti-SLAPP" motion, so the terminology can get confusing for non-lawyers.

The trial court has a two-part inquiry before it in dealing with a SLAPP motion. First, it must ascertain whether the lawsuit being challenged is of the kind defined by the statute --- namely, whether it is directed against an individual or group in an effort to suppress their "participation in matters of public significance". If it answers that query in the affirmative, it then moves on to the second query: has the plaintiff established a probability that, notwithstanding the nature of his lawsuit, he will prevail on his claims against the defendant(s)?]

3. In the suit brought by the Diocese of Los Angeles against St. James, the trial court determined that the answer to the first inquiry was "yes", but that the answer to the second was "no" --- that the Diocese probably would not win its lawsuit. (Up to that point the leading authority in California church property cases involving the Episcopal Church was the Barker case. That case, also involving a complaint brought by the Episcopal Diocese of Los Angeles, held that three of four parishes leaving the Church could keep their property, because the Dennis Canon had not been enacted until well after they had originally joined the Diocese. [The fourth parish had the bad luck to have been incorporated after ECUSA adopted the Dennis Canon.] St. James also had been incorporated before the adoption of the Dennis Canon, and so on the authority of Barker, the trial court held that the Diocese's lawsuit showed no probability of success.)

4. The trial court accordingly dismissed the Diocese's lawsuit, and the Diocese appealed. In its opinion in The Episcopal Church Cases, the Court of Appeal surprised many observers by holding that Barker (and similar cases) had been wrongly decided, and (since it was not the same appellate court) declined to follow it. It therefore held that the Diocese's lawsuit did have a probability of success, because it decided that the parish had acceded not just to the canons existing at the time it was incorporated, but also to all subsequently enacted canons as well. On the first part of the inquiry, it also found that the Diocese's lawsuit did not come within the parameters of a SLAPP action, because it was a dispute over property, and not "public participation".

5. One might well wonder why, if the Appellate Court decided that the SLAPP statute did not apply, it even bothered to address the second part of the SLAPP inquiry --- the probability of success of the plaintiff's case on the merits. Here is the explanation it gave:

We cannot stop with prong one, however. The propriety of the sustaining of the demurrer to the national church’s complaint in intervention depends solely upon the merits of the case. We now turn to the relevant authorities that govern the issue of disputes over church property in California. We will examine them in chronological order.

6. So at this point, in order to understand what followed, I need to acquaint you with what happened to ECUSA's complaint. As I have explained elsewhere, California allows a defendant to file what is called a "demurrer" to a complaint. When a party "demurs" to a pleading, he in effect says to the court: "Even if everything X alleges were in fact true, the facts are insufficient to establish a claim on which this court could grant relief. So either make X amend his pleading, or if there is no plausible way he could amend to state a claim, then dismiss it." St. James had demurred to the complaint by ECUSA (on the principal strength of the Barker case --- that the Dennis Canon did not apply to it), and the trial court agreed that the complaint did not state a claim on which relief could be granted. It also saw no way in which the defect could be fixed by an amendment, since there was no dispute that the parish had incorporated before the enactment of the Dennis Canon. Thus it dismissed ECUSA's complaint without St. James having to file an answer to it.

7. On ECUSA's appeal from that judgment, therefore, the Court of Appeal had to consider whether the authority of Barker was as controlling as the trial court had thought. As just mentioned, it held that it would not follow Barker. Instead, it resurrected an earlier line of cases that had deferred to hierarchical churches. (Barker had been a decision following "neutral principles of law", about which you may read more here.) It held that, following that line of cases, courts had to defer to the hierarchical authority of the national church, and that the Dennis Canon trumped state property law, under which a trust could not be imposed upon a person's property without that person's consent in writing. So it ruled that ECUSA's complaint was sufficient to state a claim. In doing so, it held that the Diocese had stated a claim (under the Dennis Canon, as enabled by a state statute) on which it would probably prevail, too.

8. It was in this posture that the California Supreme Court accepted review of the case. Its decision came to the same conclusion as the Court of Appeal: that the suit was a property dispute, not a SLAPP action; and that the plaintiffs had a good probability of prevailing on the merits. However, it decided to arrive at the second conclusion not by following the cases relied upon by the Court of Appeal, but by saying it was deciding case under the (more chic) "neutral principles" approach. (In the final analysis, it did not matter --- as I explained in this post about the decision, the Supreme Court in effect deferred to hierarchical churches by holding that they could bypass State property law and impose a trust on their parishes' property just because they were "hierarchical".)

9. The Court chose some very strange language, however, in which to express its opinion. At first it said:

Both lower courts also decided the merits of the dispute over ownership of the local church — the trial court in favor of the local church and the Court of Appeal in favor of the general church. We will also decide this question, which the parties as well as various amici curiae have fully briefed.

You should now be in a position to appreciate the inaccuracy of this assertion: the lower courts did not purport to decide "the merits"; they came to different conclusions about the plaintiffs' probability of success on the merits. So via the parish's petition for clarification, the California Supreme Court was forced to backtrack. In a subsequent modification of its opinion, it acknowledged that it and the lower courts had only "addressed" the merits ---"on this record". That meant that the case could go back to the trial court for the defendant parish to answer the complaints and go to trial on the factual issues. In fact, you should be aware of this specific paragraph in California's SLAPP statute (Code of Civil Procedure, section 425.16 [b] [3]):

If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

10. So on remand, St. James filed an answer and cross-complaint against the Diocese, in which it sought to bar the Diocese from claiming any trust interest in its property on the strength of a 1991 letter waiving such rights, written on behalf of the Diocese by its then-Canon-to-the-Ordinary D. Bruce McPherson (now Bishop of Western Louisiana). (To see a copy of the letter, download this brief and look on page 12.) It also filed an answer to ECUSA's complaint in intervention.

Now you are finally in a position to appreciate the significance of Judge Colaw's ruling, handed down Monday. You see, the plaintiff Diocese and the plaintiff in intervention ECUSA just could not accept the fact that the Supreme Court had not ruled on the merits in their favor, but had only decided that they probably would win on the merits under the law as now interpreted by the Supreme Court. Despite the express language of section 425.16 I just quoted above, the Diocese demurred to St. James's cross-complaint on the ground that it had already been declared to have won the case on the merits --- without ever having gone to trial! And for its part, ECUSA joined in the fray, by making a motion for a "judgment on the pleadings" --- essentially, a ruling that the answer filed by St. James to its complaint was inadequate, as a matter of law, to state any defense --- so that they, too, claimed the right to a judgment against St. James without a trial.

In his ruling filed Monday, Judge Colaw decisively and thoroughly rejected the plaintiffs' spurious arguments. He patiently explained that no court had actually purported to decide the merits, and that the Supreme Court had expressly corrected its earlier decision to make it clear that it was not claiming to have done so. Thus he overruled the Diocese's demurrer --- meaning that it will now have to answer the St. James cross-complaint based on then-Canon McPherson's 1991 letter. And he denied ECUSA's motion for a judgment on the pleadings --- meaning that there will be no judgment, and the case will now proceed to discovery and a trial.

This was a correct ruling on the law. It is typical of ECUSA's and the Diocese's scorched-earth tactics that they would try to exploit to their advantage any little crumb, however small, they could glean from the Supreme Court's table. Now there will be a lot of expensive discovery ensuing, with depositions galore, as the parties seek to jockey for admissions which they can use either to shortcut the need for a trial altogether, or to use at any trial to discredit the opponent's position. Either way, they are in for a long haul.

And meanwhile, the possibility of a grant of review by the United States Supreme Court hovers in the wings. We will not find out about that until the first Monday in October (if then).

The Episcopal Church Cases - a Summary

There are a lot of anxious (and praying) people this weekend. The California Supreme Court is due to post the opinions in the Episcopal Church Cases (No. S055194) at 10:00 a.m. PST this Monday, January 5. Here is a summary of what is at stake.

The case involves a dispute over the property of St. James Church in Newport Beach, California, which voted to disaffiliate from the Diocese of Los Angeles in July 2004. (There are simultaneously suits pending against two other parishes that withdrew from the Diocese shortly afterwards: All Saints' Church, in Long Beach; and St. David's Church, in North Hollywood. The result in the St. James case will govern the other two.)

After St. James voted to disaffiliate, the Diocese of Los Angeles, along with two of its bishops and a former lay member of its corporation, brought suit against it (a California religious corporation), its volunteer directors, and three of its priests (and later, against the other two churches, their priests and directors as well). The three suits were consolidated before one judge in Orange County. The Episcopal Church (USA) was allowed to intervene with its own complaint. The Diocese sought a judgment from the court that the parish property belonged to it, in trust for those at St. James who wanted to remain in ECUSA. For its part, ECUSA supported the claim of the Diocese, since it asserted that the parish's property could be used only for the benefit of the denomination. (Please note: for reasons best expressed here, and because of its perverse refusal to follow its own canons, I no longer "accede" to ECUSA's desire to be known as just "The Episcopal Church", or "TEC". It remains today what it was when it was ECUSA, and ECUSA it shall be for me until it shows itself as something different.)

The trial court found that the Diocese's action was subject to California's anti-SLAPP statute, and ordered its complaint stricken. (SLAPP stands for "Strategic Lawsuit Against Public Participation"---it protects people from being sued by overbearing plaintiffs who want to punish them for speaking out or otherwise taking a stand on an issue of public importance. Unless the plaintiff can show that his suit is not motivated by a desire to silence opposition, and has a good chance of prevailing on the merits, the court will order the lawsuit stricken.) At the same time, the court sustained the parish's challenge to the sufficiency of ECUSA's complaint, held that its defects could not be cured by amendment, and dismissed it.

Both the Diocese and ECUSA appealed to the Fourth District Court of Appeal. A three-judge panel of that court reversed the trial court in a lengthy, 77-page decision. Essentially, the panel held that the trial court had erred by adopting an analysis based on "neutral principles of law". By joining a line of cases to that effect which it said was "upsetting the stable legal universe that existed in California up until that time", the trial court had failed to apply the "correct" rule, which the panel euphemistically named the "'principle of government', or 'highest church judicatory' approach". (I shall explain these terms in a minute.)

The Fourth District panel held that under the latter approach, ECUSA and the Diocese were within their rights in enforcing a Dennis Canon trust against the parish property. Thus the trial court's conclusion that the latter's action was subject to being stricken under the SLAPP statute was wrong, as was its upholding of the parish's challenge to ECUSA's complaint. But it also reached the same conclusion under its analysis of California Corporations Code section 9142, which I quoted and discussed in this post. For ease of reference here, I quote the relevant parts of that section again:

Subdivisions (c) and (d) of section 9142 provide:

“(c) No assets of a religious corporation are or shall be deemed to be impressed with any trust, express or implied, statutory or at common law unless one of the following applies:

“(1) Unless, and only to the extent that, the assets were received by the corporation with an express commitment by resolution of its board of directors to so hold those assets in trust.

“(2) Unless, and only to the extent that, the articles or bylaws of the corporation, or the governing instruments of a superior religious body or general church of which the corporation is a member, so expressly provide.

“(3) Unless, and only to the extent that, the donor expressly imposed a trust, in writing, at the time of the gift or donation.

“(d) Trusts created by paragraph (2) of subdivision (c) may be amended or dissolved by amendment from time to time to the articles, bylaws, or governing instruments creating the trusts. However, nothing in this subdivision shall be construed to permit the amendment of the articles to delete or to amend provisions required by Section 214.01 of the Revenue and Taxation Code to a greater extent than otherwise allowable by law.”

The California Supreme Court, therefore, is called on to decide three questions:

1. Which line of analysis should California courts apply to religious property disputes---the "principle of government/highest church judicatory" approach, or the one that follows "neutral principles of law"?

2. If courts are to use the latter approach, what is the effect of Corporations Code section 9142 (c) (2) on that analysis?

3. Was the trial court correct in applying the SLAPP statute to the Diocese's complaint?

Notice that each of the later questions depends on the answer given to the one before it. As I shall explain below, if the Court decides to apply the "principle of government" approach, it then will defer to the Dennis Canon; section 9142 (c) (2) may be read in support of that approach, and then the suit is not a SLAPP action.

If, however, the Court decides to apply "neutral principles", then as I will also explain, it must decide how to apply section 9142 (c) (2) together with the property deeds and Church constitution and canons, and depending on how it resolves that question, it may either uphold the trial court's SLAPP finding, or reverse it.

Now, then, what is the difference between the two analytical approaches? Essentially, we are talking about specifying which of two decisions by the United States Supreme Court, one hundred years apart from each other, California courts must follow in church cases.

In the first, Watson v. Jones (1872) 80 U.S. [13 Wall.] 679, the Court held that if the highest church body to address the matter has decided a doctrinal or religious question in such a way as to resolve the issue of, say, who owns an individual church's property, then that decision cannot be questioned or reversed by a civil court. Courts were required to defer to the "highest church judicatory" in such cases---which meant that the method applied to churches where there was a hierarchical structure, or polity, with regional or national bodies having authority over local ones. Such a structure was in contrast to congregational churches, where the individual parish itself was the highest authority, and was not subject to any regional or national authority. 

In the second case, Jones v. Wolf (1979) 443 U.S. 595, the Court held that State courts alternatively could decide religious property disputes by applying "neutral principles of law"---i.e., the same legal principles that apply to any dispute over real property between two private parties. Under this approach, courts would not have to defer to the decision of the "highest church judicatory", but could---so long as they did not have to entangle themselves in questions of religious doctrine---look at the deeds and other church documents bearing on questions of title, and decide the case like any other. (Thus the approach was termed "neutral", because there was no a priori deference to the church's hierarchy.) The Court expressly held in Jones v. Wolf that the First Amendment did not mandate the different (earlier) approach of Watson:

We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.

(For more detailed discussion of the differences between the two cases and their approaches, please see this post.) In the cases now to be decided, the Court of Appeal was therefore saying that in California until very recently, the courts had all followed the Watson approach, and that the trial court was wrong to go with a few more recent cases that had adopted the Jones v. Wolf approach.

When the case is looked at in this way, I have to say that the Court of Appeal was being rather arbitrary in holding as it did. For the question of which (U.S.) Supreme Court precedent should be followed in California is ultimately not up to it to decide. The only authority a three-judge panel of one of the Courts of Appeal has is to say what the law is in the judicial district in which it sits---here the Fourth Appellate District, which includes Orange County. And in this instance, there was a prior decision by a different panel in the same Fourth Appellate District which had adopted the "neutral principles" approach. Ordinary principles of stare decisis, therefore, would have required the panel in the Episcopal Church cases to apply the same approach as the earlier panel's decision.

But after a lengthy analysis, the present panel decided that the earlier one had erred in its reading of Jones v. Wolf and earlier Supreme Court cases, so it declined to use the "neutral principles" approach. (It is zigs and zags like these that drive us appellate lawyers crazy.) Parting company with most of the recent California courts on the subject, it decided to resurrect the "principle of government" approach of Watson v. Jones. The decision to do so, in turn, created a conflict between appellate courts---indeed, between different panels on the same Court of Appeal---which the California Supreme Court pretty much had to resolve, since no other court could. And as a result of what that panel decided to do, we will finally have some certainty as to which approach applies in California, when we read the Supreme Court's resolution of that question next Monday morning.

For ECUSA and the Diocese, therefore, the problem was to fashion arguments that would work under either approach. They argued that under the hierarchical ("principle of government") analysis, the Diocese, as the highest applicable authority vis-à-vis the individual parish, had the power to require by canon that the parish property always be used for the benefit of the Diocese and its members, and that no court could hold otherwise, regardless of what the property deeds might say. 

Under the "neutral principles" approach, they argued that the Dennis Canon (and the parallel provision in the diocesan canons) trumped the property deeds after 1979. That is to say, even though the parish acquired its property outright in 1950, because it had agreed in its application to become a parish that it shall "forever . . . be bound by" the diocesan and the Church's Constitution and canons, the adoption of the Dennis Canon in 1979 changed its ownership from title in fee simple to title in trust for the Diocese and the denomination. In this position they claimed legislative support from section 9142 quoted above, because it explicitly allows religious property to be made subject to a trust "to the extent that . . . the governing instruments of a superior religious body or general church of which the corporation is a member, so expressly provide."  

Those arguments, as I explained above, prevailed in the Court of Appeal. The parish of St. James had prevailed in the trial court, however, by arguing (a) the court should apply "neutral principles" analysis, and (b) under that approach, California law provided that a trust could be created only by the owner of the property in question. Thus while the Dennis Canon might be a valid enactment of the national church in some states, it could have no effect in California, because it was not a declaration of trust by the parish which was the record owner of the property.

And how did the trial court deal with section 9142? It followed the reasoning of another California Court of Appeal case, which held that section 9142 was never intended to change or alter existing trust law in California; that instead, the statute was intended to allow the enforcement of a trust that was already valid under some other statute, or under common law. (Notice the language in the introductory part of subsection [c] quoted above.)

The Episcopal Church [USA] and the Diocese argued that the appellate court in that case (California-Nevada Annual Conf. v. St. Luke's United Methodist Church [2004] 121 Cal.App.4th 754) had gone out on a limb, and was not supported in its reading of section 9142 by any other court. (To view the case from the link, you will need to agree to the site terms, then enter the citation on the next screen as "121" [choose: "Cal. App. 4th"] "754".) The Fourth District agreed---as did the Sixth District in a more recent decision discussed here. The California-Nevada case is significant because it was decided by the Fifth District Court of Appeal, and that is the court that will decide any appeal in the current San Joaquin litigation. Nevertheless it, like all the other Courts of Appeal, will after Monday be bound by however a majority of the Supreme Court decides to interpret section 9142.

These, then, were the arguments made to the California Supreme Court, convening at a special session in Riverside last October. The Court and counsel for both sides spent a fair amount of time discussing whether the neutral principles approach was better, and if so, which side prevailed under that analysis. There seemed to be little appetite on the Court for retaining the 1872 approach of Watson v. Jones; Justice Corrigan came out squarely in favor of the "neutral principles" approach. Counsel for ECUSA contended that the national church should prevail under either approach, but she maintained (perhaps feeling more secure with the hierarchical argument) that California should stick with the traditional "principle of government" analysis, as the Fourth District panel had strongly argued. Justice Corrigan asked her: "But if you win under either test, why should we go back to the days of the Civil War, if we can use neutral principles?"

With this post as a background to the oral argument, I will put up another one soon that discusses how each side fared in its arguments to the Court. Then I will conclude with an educated guess as to what we might expect on Monday.

California Supreme Court Asked to Clarify Its Ruling

The parish of St. James has filed a petition for rehearing with the California Supreme Court in The Episcopal Church Cases, a decision it handed down on January 5, 2009, and which I discussed here. The petition concerns a curious remark included by the Court at the top of page 9 of its slip opinion, as follows:

B. Resolving the Dispute Over the Church Property

Both lower courts also decided the merits of the dispute over ownership of the local church — the trial court in favor of the local church and the Court of Appeal in favor of the general church. We will also decide this question, which the parties as well as various amici curiae have fully briefed.

(Emphasis added.) It is customary in courts of law to allow a defendant an opportunity to respond to the complaint before deciding the case "on the merits." (Indeed, that is what is meant by the phrase "due process of law", guaranteed to all litigants by both the federal and State Constitutions.)

There really can be no "merits" until both sides have had a chance to offer their evidence, and that has not yet occurred in The Episcopal Church Cases. The trial court dismissed the complaints filed both by the Diocese of Los Angeles (as being subject to a SLAPP motion) and by the Episcopal Church (USA), for failure to plead a sufficient claim for relief. The appellate court reversed those dismissals, thus reinstating the complaints, and the Supreme Court affirmed that reversal, although for different reasons. So now the case should go back to the Orange County Superior Court to allow the parish to file its answers to the complaints.

Then the Diocese and ECUSA will probably file motions for summary judgment, using the law as decided by the Supreme Court. There still may be factual issues, however, to resolve in applying that law. So the case is far from over yet.

The first step, nevertheless, is to get the Supreme Court to acknowledge that it did not "decide the case on the merits." (All it really did was establish some of the law that will govern the trial and decision of the case, as far as "neutral principles" are concerned.) It should be an elementary concession for them to make, but we shall see.

[UPDATE 01/28/2002: I have added a link to a downloadable copy of the petition above.]

Episcopal Abuses Turn Inward [UPDATED]

In a development that few Episcopalians of four or five years ago could have imagined, the Episcopal bishops of the most powerful and financially secure dioceses have begun to turn on their own once-strong, but now severely weakened, parishes. Having driven out all the dissenters at enormous expense to their coffers, these dioceses are increasingly trying to make up their losses by sacrificing valuable real estate -- even if it means turning out previously loyal congregations from their hard-won property. And -- who could have foreseen it? -- the parishes most harmed by the continuous litigation were precisely those with the most valuable properties.

A prime example is the Diocese of Los Angeles, led by the litigious J. Jon Bruno -- he of the forkèd tongue. For nine years he waged war in the California courts against four dissident congregations to prevent them from keeping title to their own parish properties. Using the notorious Dennis Canon, he was singularly successful in having California courts impose an irrevocable trust on the local parishes' real estate, so that when they voted to withdraw from the diocese, they necessarily forfeited all rights to their property.

But his victories came at a tremendous cost: the Diocese had spent more than eight million dollars as of last year, and was still incurring more costs to subsidize two of the remnant congregations in their newly recaptured sanctuaries. Bishop Bruno negotiated sales of two of the properties: the parish of All Saints Long Beach was allowed to purchase their property on a long-term contract, and he sold the church of St. David's in North Hollywood to a private school.

Initially he announced that the other two parishes -- St. Luke's in the Mountains, and St. James the Great in Newport Beach -- would continue as usual to serve their remnant congregations, which had been seriously diminished during the years and years of costly litigation. But Bishop Bruno cannot help but speak with a forkèd tongue, remember? While St. Luke's was struggling along as a vicarage, Bishop Bruno's plans for St. James evidently changed just eight months after he re-dedicated it for service. On May 20, 2014 he obtained approval of the diocesan corporation to transfer into his corporation sole the title of St. James's multi-million dollar, ocean-front property in one of the most exclusive neighborhoods of wealthy Orange County. Effectively this gave him alone the sole power to deal with and dispose of the property. (Note: he did not inform the St. James congregation of this transfer.)

Sometime in early 2015, Bishop Bruno completed private negotiations to sell the entire St. James property (consisting of four separate parcels) to a developer who planned to replace the church buildings with luxury condos. He waited until May 2015 to announce the sale to the congregation, who predictably reacted with shock and hostility, mingled with their honest attempt to try to view the matter from his perspective. However, given Bishop Bruno's proclivity for prevarication, and his unwillingness to meet the congregation even halfway, things went downhill in a hurry.

The congregation first published an open plea to the Diocese, which went nowhere. Next, in a twist worthy to be dubbed "poetic justice", the original donor of the St. James property informed Bishop Bruno that the property had been given to the Diocese on the condition that it be used always and only for "church purposes." Bishop Bruno claimed in turn that the donor had released the property restriction in 1984, and filed an aggressive lawsuit against the donor for "slander of title" -- whose intricacies I explained in this previous post.

Shortly after Bishop Bruno filed his lawsuit against the Griffith Company (the donor of the St. James property), the parishioners struck back by lodging Title IV disciplinary charges against Bishop Bruno. As difficult as it might be to imagine, the gist of the charges amounted to the fact that Bishop Bruno had repeatedly lied to them. After seeing to it that St. James congregation was locked out of its buildings -- which had no other use for anybody, pending all the various legal proceedings -- Bishop Bruno left the country on a four-week vacation to Italy.

The Reference Panel of the Disciplinary Board for Bishops, headed by the Presiding Bishop of the Church, initially referred the matter to official conciliation, and appointed a conciliator. After a valiant effort, the latter had to admit defeat in that Bishop Bruno was not interested in any solution that did not allow the Diocese to recover the nine million it had spent on its legal follies, and also did not believe he had done the slightest thing wrong. The case returned to the Reference Panel, who assigned it to a Conference Panel to conduct an informal hearing on the charges and supplemental charges that had been lodged.

(Sarcasm on/) Meanwhile, members of the congregation who appealed to Church headquarters to try to mediate their interim use of the St. James property were met with open arms and welcoming queries as to how they might be most helpful, along with suggestions of how the parishioners might best manage their Sunday School until the disciplinary process took its slow and painful course. (/Sarcasm off.)

With no help appearing from any other quarter, the St. James congregation and its vicar, the redoubtable Canon Cindy Voorhees, filed suit against Bishop Bruno's corporation sole and the prospective developer to stop the sale. Bishop Bruno's latest demurrer to that action has not yet been heard, pending the case's assignment to a new judge (see next paragraph). You can read the congregation's response to the Bishop's demurrer here.

The litigation between Bishop Bruno and the original donor intensified, before likewise hitting a snag. The Griffith Company met the Bishop's complaint with an anti-SLAPP motion (whose legal niceties I explained in this post about an earlier phase of the litigation), which the Bishop vigorously opposed, and to which opposition the donor replied in kind.  But the judge to whom the motion was assigned (the Hon. Walter Schwarm) recused himself, on the remarkable ground that he was an Episcopalian. (When has any Episcopalian ever done that before in these matters?) A new judge was assigned, to whom the developer-purchaser promptly objected. But Orange County has an endless supply of civil judges, so the Hon. David Chaffee now has the responsibility for both Bishop Bruno's and the parish's lawsuits.

Some interesting further facts emerged from the pleadings filed between Bishop Bruno and the Griffith Company. As I discussed in this earlier post, that Company's 1984 reconveyance of the St. James parcels to the Diocese without the exclusive-use restriction applied on its face only to three of the four parcels occupied by the Church. Bishop Bruno contends that the omission of the fourth parcel was a typographical/secretarial error, since he says (but supplies no proof of the fact) that a prominent member of St. James in 1984 paid the Griffith Company $800,000 for the reconveyance.

The Griffith Company denies that it received any money for the transaction -- and once again has the documentary evidence on its side, since the deed of reconveyance shows a transfer tax paid of zero (meaning that no money officially changed hands for the transaction), and declares itself to be a "Gift Deed." And if it was just clerical error to omit the fourth parcel, then why didn't anyone from the Church move back in 1984 or 1985 to have the deed corrected? Indeed, to this date neither Bishop Bruno nor the diocese has filed any suit for reformation to correct the description in the deed. (Instead, he has filed for the indirect remedy of quieting title to the fourth parcel, even though the only deed referring to that parcel is the original one in 1945 -- which imposes the use restriction.)

It would thus appear that the Episcopal Diocese of Los Angeles has been given the gift of eternal litigation. (It might want to consider the application of Jesus' words in Mt 26:52 to its situation.) The parish has put up a Website which contains a useful timeline, with links to all of the documents referenced above, and more, which you may use to stay abreast of developments.

In another part of ECUSA's domains, the Episcopal Diocese of Chicago appears bent on following in the footsteps of the Diocese of Los Angeles -- though not yet (thank God) to the point of civil or disciplinary litigation leading to the sale of property. Nevertheless, the tendency to follow Neuhaus' Law -- by which the traditional and orthodox is first made optional, before eventually being proscribed altogether -- seems alive and well.

One of the Diocese of Chicago's older parishes is the Church of the Ascension, just north of the Magnificent Mile, which began as a mission in 1857 and by 1869 had become one of the Church's leading Anglo-Catholic parishes. It maintained that tradition faithfully, becoming renowned for the extent and beauty of its liturgy and music, until the advent of the Rev. David Cobb in 2014. No friend of the Church as it had established itself, the Rev. Cobb promptly sacked Ascension's leading musicians, slashed the budget for the choir, and began reducing the number of paid services.

The moves threw the congregation into turmoil. Bishop Jeffrey Lee was forced to intervene. The Rev. Cobb eventually departed, after having been voted a generous six-figure "severance package", and an interim priest was assigned, but the damage to the Church's musical and liturgical infrastructure was by then a fait accompli. The Church found a replacement organist and choir director, but one whose permanent residence is in London. (There is no explanation of how the vestry viewed that as a move that saved money over the previous arrangements.)

The vestry split in the past over support for the Rev. Cobb, and it has been rumored that Bishop Lee will bring in retired Bishop James Jelinek of Minnesota, 73, to transition the Church from Anglo-Catholicism into "affirming Catholicism". (Bishop Jelinek, by all reports, managed this same feat during his recent tenure at St. Paul's Church on K Street, in Washington, D.C. "Affirming Catholicism" is to Anglo-Catholicism as anti-matter is to matter: in contrast to the traditions from which Anglo-Catholicism springs, it endorses the liberal agenda of ordinations to the priesthood of all and sundry, regardless of gender, identity or sexual orientation -- and sees itself as a counter-movement to "biblical fundamentalism".)

There was supposedly a parish meeting with Bishop Lee on December 5, but no reports have emerged on the Web of what happened there. I invite those interested parishioners who have access to this blog to add any further news or information in the comments.

[UPDATE 12/13/2015: Though there is as yet no announcement on the official parish Website, word has come to me that the Church of the Ascension's interim pastor, Fr. Shane Patrick Gormley, circulated the following email to the members of his parish earlier this afternoon:

The Church of the Ascension 

Today, at a meeting of the Vestry, I tendered my resignation as Priest in Charge of Church of the Ascension, effective immediately. In the following comments, I have attempted to balance speaking the truth in love and telling it "like it is," along with respecting multiple sides of a disagreement and my own sympathies.

It was revealed to me this week that our Special Parish Meeting was orchestrated by members of the "Save Ascension" group, a faction that has existed within the parish since earlier this year. Their goals have changed over the course of this year, but have generally centered around the rehiring of former staff members, defaming previous and prospective clerics, and the restoration of what they call "catholic" liturgical practices. Although the Special Parish meeting did bear some fruit, and gave many a chance to be heard, the facts are that the meeting was approached by a majority present with an agenda to usurp my role as Priest in Charge of the parish, and therefore chair of the meeting. 

Members of "Save Ascension" include many who have already dissociated themselves from this parish, vestry members, and still some whom I believe to be genuinely concerned about the state of the parish. For any good intentions that may have led some to join "Save Ascension," they have been muffled and silenced by the procedure which "Save Ascension" has followed--a procedure marked by rumor, speculation, gossip, name-calling, and bullying. I am very quick to acknowledge that these same hallmarks of un-Christian behavior have not been limited to "Save Ascension," but may be found in many members of the parish. Not all members of "Save Ascension" are guilty of this, nor are all those who oppose the actions and mindset of "Save Ascension," but nevertheless, the parish has become a battleground, which is far from how a Christian Church should or can function. Again, not everyone is guilty of poor conduct, but there are some voices that have drowned out those who would speak softly.

Emails presented to me have revealed the desire of some, including vestry members, to usurp the authority entrusted to me as a priest to lead the parish in understanding the will of God for this community. This parish has become a toxic environment, in which the bullies are allowed to speak freely and without consequence, and the apathetic have hoped for resolution without action. I have discerned that there is no way for me to exercise my calling as a priest in such a situation.

I value my time at this parish. I have learned much. Many curacies last no longer than two years, and I by no means regret the nearly two and a half years I have spent here, first as an assistant, then as Curate, and finally as Priest in Charge. That said, I am strongly convicted that the parish is unable to move forward in its current state. Some have explicitly stated that "growth" does not matter to them. Many have lauded the attempts to bring younger families into the parish, yet have done nothing to contribute to creating a liturgical or social space wherein this is possible. While many have been concerned about what will (re)make this a "catholic" parish, the answers to what makes one a "catholic" have differed from person to person. More importantly, many have forgotten that before we may be "catholic," we must be Christian.

Catholic Christianity is not measured by the length of a solemn procession. It is not encapsulated by a biretta atop a priest's head. It does not major in minor propers being sung a certain way. It cannot be proclaimed by a lone voice in a pulpit, no matter his or her quality as a speaker. C. S. Lewis puts it this way, on what true catholic faith consists of:

You must keep on praying for light: and, of course, even in the hall, you must begin trying to obey the rules which are common to the whole house. And above all you must be asking which door is the true one; not which pleases you best by its paint and panelling. In plain language, the question should never be: 'Do I like that kind of service?' but 'Are these doctrines true: Is holiness here? Does my conscience move me towards this?'

I pray that Church of the Ascension will flourish--I truly do. But my conviction (which guides my prayers, my preaching, and my passion) is that it will not flourish as long as individuals within the congregation demand their own way, and insist on the superiority of a time past. From my first sermon on October 13, 2013 to my last sermon on December 6, 2015, I have never stopped asking us to consider, "What is God doing?" I hope you will pray this as I take my leave of this cure, whether for the first time or the hundredth. I hope, and pray, that this parish will seek how it may witness to Christ as his disciples in the world, a world that so desperately needs the love offered on Christ's cross, and the life offered in His resurrection.

In Christ,

Shane Patrick Gormley +

The oblique references in this email to how "the parish has become a battleground, ... a toxic environment, in which the bullies are allowed to speak freely and without consequence" are indeed disturbing. At the same time, the allusions to the necessity of change appear to imply an insistence upon acquiescence in the changes begun by the Rev. Cobb, which are viewed as irreversible. Such a viewpoint cannot be reassuring to those who disagreed with what he set in motion -- those in the Church who, apparently, "demand their own way, and insist on the superiority of a time past" [emphasis added].

The Anglo-Catholic tradition in ECUSA is under heavy assault, as indeed it is in the Church of England. Those who are leading the assault have no heed for its consequences for their Churches' relationship with the Roman Catholic or Orthodox denominations. Those two denominations will never, in the foreseeable future, introduce the departures from orthodox ordination standards which ECUSA and its companions in liberalism have embraced in an effort to "stay relevant" with the changing mores and times. Accordingly, those who part ways with them are parting ways with the church universal -- the church catholic.

Father Gormley quotes, appropriately, C.S. Lewis' Preface to his Mere Christianity. But it behooves both sides of the main point at issue in the Church of the Ascension imbroglio to examine carefully the answers they give to Lewis' questions: "Are these doctrines true: Is holiness here? Does my conscience move me towards this?" Such questions cannot be answered in a vacuum; nor may Anglo-Catholics answer them without reference to the faith once delivered to the saints.

This is indeed a turning point in the history of the Church of the Ascension. Episcopalians have been facing similar turning points for years, now -- and many, like myself, have been forced to pull out of the denomination in order to avoid compromising "the faith once delivered", as we learned it at our forebears' knees, and grew up with it, so that we could pass it on in turn. I pray that God's Holy Spirit will provide the guidance and generosity of Christ's true faith to all who truly turn to Him in these days of doubt, strife and temptation.]

O California!

is the title of a book (now out of print) published in 1991, which, as one reviewer on Amazon puts it:

bestows a glimpse of what prehistory California was like before its wild nature so quickly vanished. The reader of this weighty, coffee table-sized book enjoys a journey back in time through excerpts of the diaries of Spanish padres, essays and memoir of American settlers and literature by early California authors. . . .

. . . "O California!" is set-apart from the others by its lack of interpretation of events, instead allowing the personal truth, the eyewitness accounts describe what California was like. . . .

One giving an eyewitness account of the State today would be hard put to connect it coherently to the accounts one can read in the 1991 book. In fact, it would be difficult to conceive of a tale fuller of loss, betrayal, selfish aggrandizement and squandered opportunity than the chronicle of events in California from 1849 to the present. From the very first overrunning of Johann August Sutter's land by those who had been driven mad by the Gold Rush, to the latest plundering of the State's fisc by politicians and public employee unions, California has served as a stage for man to display his fallenness. The immense natural riches of the State have served over the years not to inspire feelings of stewardship, but instead to tempt toward greed and selfishness.

California is now spinning out of control -- there is no one at the head, and the center does not hold. Both the executive and legislative branches are scrambling to find means to cover a twenty-billion-dollar gap between income and total spending, most of which is dictated by prior cherished initiatives which tell them how they must run the State. And now the judiciary has joined the fray -- a Sacramento judge has approved the legislature's and the governor's shifting of $1.7 billion last year from redevelopment funds to the public schools, in a desperate move to save teachers' jobs. The judge (a former legislator himself) ruled in a 26-page opinion that the payments to schools "benefit redevelopment" and were thus a proper use of redevelopment funds. Thus funds intended to enable the replacement of crumbling infrastructure go instead to maintaining a failing educational infrastructure. Even with that stopgap measure, however, newly minted teachers are graduating with no prospects of employment anytime soon in California, because the ones previously laid off in droves have seniority on being rehired.

Nowhere, perhaps, is the utter confusion and confoundment that is California today more apparent than in the completely unconstitutional actions of the California courts (and by implication, the actions of the California legislature -- since it has done nothing to change the courts' interpretation of its statutes) in the matter of The Episcopal Church Cases (2009) 45 Cal.4th 467, and in related cases from Los Angeles and San Diego counties. I have chronicled the history of this litigation on this blog, and you can find links to all of the various posts here and here.

Here is the condensed version (for an explanation of any legal terms which may be unfamiliar, please see the previous posts linked above): After St. James parish in Newport Beach, St. David's parish in North Hollywood and All Saints parish in Long Beach voted to withdraw from the Diocese of Los Angeles in 2004, the Diocese sued each of them in local courts. The three cases were consolidated for hearing and trial under a single judge in Orange County. ECUSA sought and was granted leave to intervene in the suits as a plaintiff, and filed its own complaints against the parishes.

St. James brought a motion to strike the Diocese's lawsuit, on the grounds that it attempted to retaliate against the parish's exercise of their rights under the First Amendment. It also demurred to ECUSA's complaint -- challenging the sufficiency of its claims to hold a beneficial interest in all of the parish's property because of the Dennis Canon, because there was no written instrument signed by the parish vestry which established any such trust in favor of the national church.

The trial court granted the motion to strike, and sustained the demurrer without leave to amend. Essentially, this ended both actions -- the first, because it was punitive in nature, and the second because there was no way under California law to establish a trust in real property without a writing signed by the property owner (the doctrine of the "Statute of Frauds"). The plaintiffs each took an appeal -- which, because the decision was from Orange County, went to the Fourth Appellate District Court of Appeals, instead of to the Second District (Los Angeles County).

That Court in June 2007 reversed the trial court in a 77-page slip opinion (link at this post). It held that the Diocese's lawsuit did not attempt to infringe on any First Amendment rights, and found that a California statute allowed national churches to create trusts without having to satisfy the requirements of the Statute of Frauds. It remanded the cases back to Orange County "for further proceedings." St. James and the other parishes petitioned the California Supreme Court for review. That Court granted review, and oral arguments were held in October 2008.

The Supreme Court handed down its decision on January 5, 2009. Although disagreeing with the law on which the Court of Appeals relied to decide the cases, it agreed with that Court's result, and affirmed its decision (which, it will be remembered, had sent the cases back "for further proceedings"). However, it used strange language to the effect that it, like the "lower courts" before it, "decided the merits of the dispute over ownership of the local church." (Emphasis added.) As I explained in this post, such language was a complete anomaly at this stage of the case -- you cannot have a decision "on the merits" when the defendant has not yet even answered the complaint!

In due course, the Supreme Court grudgingly modified some of the language in question -- it would not "decide" the merits, but only "address" them as they were presented "on this record." This appeared to most observers to recognize that the Court had before it ("on this record") only the unproved allegations of the plaintiffs -- which it had to assume were true for the purpose of deciding whether or not they stated a claim.

But the clarification did not disturb the views of ECUSA or the Diocese in the slightest. After the case was back in Orange County Superior Court and the defendants had answered the complaints, the plaintiffs filed a motion to enter judgment "on the pleadings", based on the decision "on the merits" by the California Supreme Court.

Part of the pleadings on which judgment was requested consisted of an answer and cross-complaint which St. James had filed after the remand to the trial court. These set out, as a defense to the plaintiffs' claim to have a beneficial trust interest in the parish's property, the fact that the Diocese had expressly waived its claims of such a beneficial interest -- by sending it a letter to that effect in writing, in order to allow St. James to accept donations from parishioners wanting to help it acquire further land and construct additional church buildings.

The letter was signed by the Rev. Canon (and now Bishop) D. Bruce MacPherson, in his capacity as canon to the ordinary (i.e., on behalf of the then Bishop of Los Angeles). St. James's attorneys had also taken Bishop MacPherson's deposition, in which he "testified that the purpose of the conversations between the Diocese and St. James was for St. James to hold title to its property in its own name free of any trust . . . [as] part of an agreement in order for St. James to secure substantial donations for its building program." (Quotation taken from St. James's petition for review to the California Supreme Court, p. 10, a link to which should be posted shortly at this site.) Needless to say, this testimony did not form part of the "record" that was before the California Supreme Court when it issued its decision "on the merits."

The trial court made short shrift of the plaintiffs' motion:

The Supreme Court affirmed the judgment of the Court of Appeal which had previously ordered that the dismissals by the trial court were reversed and that "further proceedings shall be consistent with this opinion. it This is not trial on the merits, and, in modifying its opinion, the Supreme Court underlined this by adding the words "on this record" [emphasis added] at several points in the opinion. It was the anti-SLAPP motion alone that provided the mechanism by which the case was appealed. The waiver issue was not before the Supreme Court or the Court of Appeal. The waiver issue was neither" expressly nor impliedly decided by either court.

It ordered the case to proceed, and invited plaintiffs to bring a motion for summary judgment if they felt the waiver defense and other issues could be decided as a matter of law, without the necessity for holding a trial. ECUSA and the Diocese, however, were convinced they had friends at the Court of Appeal. That is the only charitable explanation one can give of their next move, which was to seek an emergency writ from that Court, asking it to intervene and put an immediate halt to the further proceedings ordered by the trial court -- pursuant to the earlier decision of that same Court of Appeals! (An attorney could never make these things up.)

Lo and behold, the Fourth District Court of Appeals -- although denying 98%+ of all such emergency writ petitions -- now found that there was such an emergency, and issued the writ. In an utterly incredible decision filed last month (see this post), two of the three justices on the hearing panel agreed that the case was now over -- because of the "decision on the merits" by the California Supreme Court! Here is how they viewed the power of that Court:

We must remember that the Supreme Court can decide any issue it pleases that is "fairly included" in the briefing. [Citation omitted; emphasis added.]

And it held that since a copy of Canon MacPherson's letter had been in the "record" before the California Supreme Court, that Court could proceed to decide any factual issues raised by that letter.

This stands the functions of the California courts on their respective heads. The California Supreme Court is not a fact-finding court; that function is the job of the trial courts. The way cases are supposed to proceed is that the trial court finds the facts and makes the initial application of the law to those facts; then the appellate courts review that application, and make any changes to the application of the law which they deem necessary or appropriate, and reverse or affirm the decision below accordingly. But they do not alter the findings of fact. (In certain narrow instances, where there is no substantial evidence in the record to support the findings, an appellate court will set them aside -- but it still will not make new findings on its own. It sends the case back to the trial court to do so.) And in this particular instance, of course, there were no findings of fact that had even been made! All the court had before it were unsupported, and unproved, allegations in a complaint -- that the church was "hierarchical", that there was a provision called "the Dennis Canon", etc., etc.

The fact that they had first ordered "further proceedings" below, however, and now were changing their mind, did not trouble the two justices on the Court of Appeals. They blithely palmed the responsibility off on the Supreme Court, and said:

We have no doubt, of course, that if we are incorrect in relying on the plain language of the Supreme Court's opinion in granting the general church's petition for writ of mandate, the high court will correct our error.

In other words: "We don't know how the Supreme Court can manage to decide a case on the merits before a party gets to answer a complaint, but it said it was doing so, and we cannot ignore what it said. The parties will just have to spend the money required to have it tell everyone whether we are right, or you are." (Never mind that the alternative was simply to deny the writ in the first instance, and let the parties take their case to trial. Even after trial, ECUSA and the Diocese could still have argued on the appeal that the case had really been ended earlier, regardless of the outcome of the trial.)

A more exasperating abdication of judicial responsibility is scarcely to be found. What is particularly striking about this case is that no court -- not the California Supreme Court, or the Court of Appeals on either occasion on which it issued its opinion in the case, or indeed any other court in California, or in the entire United States -- has ever before decided that judgment may be entered against a defendant who has appeared in a case, but has not yet filed an answer and still has time in which to do so. Such a procedure violates fundamental constitutional rights of due process, and to a trial by jury. The Court of Appeal, and ECUSA and the Diocese in their briefs, were completely unable to cite any authority for proceeding to judgment in this manner -- except the language of the California Supreme Court in its decision "on the merits." Which is to say, of course: "Our mind is made up. Don't try to confuse us with the facts (or the Constitution)."

What is truly scary is that this is now considered to be the only treatment that is appropriate in California courts for the august Episcopal Church (USA). Unlike other petty litigants, it does not have to do anything to prevail under its Dennis Canon than to file a complaint, and that is the end of the matter. "Dennis Canon, you say? Oh well, that's that, then. Judgment for the plaintiff on the complaint as filed -- no, Mr. Defendant, you have no right to be heard, let alone to present evidence. Next case." And if you don't want to take my word for it, just listen to this ECUSA blogger, writing after the Supreme Court announced its decision:

The parish of St. James' has released a wonderful piece of comedy . . .

. . . Nor is the saga over for St. James Anglican Church. “While we are surprised that the Court seemed to give some credence to the Episcopal Church’s purported rule confiscating local church property, the battle is far from over,” lead attorney Eric C. Sohlgren said. “The matter will now return to the Orange County Superior Court for further proceedings, and we look forward to presenting evidence and additional legal arguments that St. James Church should prevail under neutral principles of law.” . . .

One must wonder what decision Mr. Sohlgren read; clearly it was not the document released today. In effect, the court took a 2x4 and smacked the "confiscating" fundamentalists upside the head and said, "Thou shalt not steal."

How Sohlgren can read into the decision that other churches may leave their denomination and take the property with them is beyond understanding. Clearly he needs a remedial course in the English language. The court said, "people may leave but they cannot take the property with them." The only way to misunderstand that statement is to deliberately do so.
. . .

I will be surprised if any judge is willing to hear arguments about this case. Judges take a dim view of their opinions being overturned. With the Supreme Court's ruling, the entire California legal establishment knows how the Court will rule regarding confiscation of TEC's property.

Additionally, there is one little phrase in the Court's decision that will cause the confiscators a lot of grief. The Court ruled "on the merits of the case." That means there is nothing else to be decided in this matter. The justices considered every aspect of the issue and ruled on the matter in totality.

It's over; the fat lady sang and she cracked on that final "high C." But like those on the Titanic, the confiscators are grasping for anything that floats in an attempt to regain some credibility.

Going from the proverbial fat lady in one sentence to the Titanic in the next may be an inartful profusion/confusion of metaphors. But such are the poor means left to those who try to comment on the incredible goings-on in California.

St. James has filed, as all three justices of the Court of Appeal told it to do, a petition for review with the California Supreme Court, which is now the only court that can restore due process to these cases. Its stingy and mean-spirited "modification" of its decision more than a year ago, which refused to make the limitations on what it was deciding crystal clear to the parties and the courts below, has now cost the parties further hundreds of thousands of dollars. Of course ECUSA, as we know from many previous posts, views that as chump change, so long as it can win by any means, fair or foul. (It should change its motto to: "The Episcopal Church -- no due process for you.")

And so I say:

O California!