Monday, April 28, 2008

A High-Stakes Game in San Joaquin

By now most Internet-savvy readers with an interest in the goings-on in San Joaquin have found this link to a copy of the complaint in the case brought by the [Episcopal?---see below] Diocese of San Joaquin, the Rt. Rev. Jerry A. Lamb, and The Episcopal Church, as plaintiffs, against [the Rt. Rev.] John-David Schofield, the Episcopal Foundation of San Joaquin, Inc., the Diocesan Investment Trust of the Diocese of San Joaquin, and various yet-unnamed individuals identified only as "DOES 1-300", as defendants. The complaint is rather remarkable, both for what it says as well as what it does not say.  In this post I want to focus on the parties plaintiff and defendant, and the issues that are raised by who is named.

The Parties Plaintiff: The first thing to notice is the eponymous first-named plaintiff in the case's caption, called simply the "Diocese of San Joaquin". Not the "Episcopal Diocese of San Joaquin", and certainly not "the former Episcopal Diocese of San Joaquin, presently known as 'the Anglican Diocese of San Joaquin'", but just the "Diocese of San Joaquin". The allegation about it states only that "Plaintiff Diocese of San Joaquin . . . is an unincorporated association headquartered in Stockton, California. It is one of [T]he [Episcopal] Church's 111 dioceses, and encompasses the territory of 14 California counties, including Fresno County." Now Fresno County is where the lawsuit has been filed, and it is where the unincorporated association which changed its affiliation from "Episcopal" to "Anglican" has its headquarters---but that unincorporated association is missing from the list of named defendants. This omission is rather significant, for reasons that will shortly be explained. Joining the Diocese as plaintiffs are the Rt. Rev. Jerry A. Lamb, "in his capacity as the Episcopal Bishop of San Joaquin," and The Episcopal Church (another unincorporated association).

The Nature of an "Unincorporated Association". California law defines an "unincorporated association" as "an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not." (Section 18035 [a], Corp. Code.) Thus any two or more people may come together to form an unincorporated association. Little formality is required; they may adopt governing instruments in writing (typically, a constitution or articles of association, and bylaws), or they may adopt unwritten "governing principles" by establishing specific practices that they agree to follow. The most important characteristic of an unincorporated association, for present purposes, is that the law recognizes it as a separate person, who is entitled to sue (and be sued) in the association's name.

The Diocese of San Joaquin as an Unincorporated Association. The entity historically known as the "Diocese of San Joaquin" has always been an unincorporated association under California law. Its first Constitution and Canons were adopted in 1961 as part of the process by which it became a diocese of the Episcopal Church (prior to that time, it had been a Missionary Diocese). The questions for the present lawsuit are: what happened to the "Diocese of San Joaquin" in December 2007? Where did it go, and where is it now? If it is the plaintiff in a suit with The Episcopal Church and Bishop Lamb, what happened to the group who left The Episcopal Church in 2007 with Bishop Schofield?

Although for ease of reference I will call it the "Anglican Diocese of San Joaquin", the entity which voted changes to its Constitution and Canons in December 2007 did not change its name---after the changes were voted, its legal name remained "the Diocese of San Joaquin". What changed was its affiliation: the changes were intended to make it a "constituent diocese of the Anglican Communion," and no longer a diocese of The Episcopal Church.

So what is this entity that is a named plaintiff in the lawsuit? It cannot be the unincorporated association which I am calling the Anglican Diocese of San Joaquin, because that entity honors and accepts the Rt. Rev. John-David Schofield as its diocesan bishop. Moreover, the latter is headquartered in Fresno, not Stockton. The complaint expressly alleges that the unincorporated association which is the plaintiff is "headquartered in Stockton, California." Moreover, it alleges that it is still "one of the [Episcopal] Church's 111 dioceses". The only things it has in common with the Anglican Diocese of San Joaquin are its name (both are officially called "the Diocese of San Joaquin") and its territory of 14 California counties.

Could they be two separate legal entities, but sharing the same name? It is entirely possible, but my analysis of the complaint leads me to believe otherwise. The plaintiffs, I believe, take the position that their unincorporated association (which, again solely for clarity's sake, I shall refer to as the "Episcopal Diocese of San Joaquin"), is the true continuation of that unincorporated association which existed before the December 2007 changes. They regard those changes as unauthorized and ultra vires---"beyond the powers" of the association to adopt. They have taken steps (in special convention) to rescind those changes, and to return to the status quo ante, the way things existed before. As that continued entity, they seek to deny legitimacy to Bishop Schofield as the authorized leader of the Diocese, since they claim to have lawfully deposed him and then to have lawfully approved the selection of Bishop Lamb as their diocesan at the Special Convention called on March 29.

This is playing for all the stakes. From the standpoint of the Anglican Diocese of San Joaquin, they followed their canons and California law in adopting their changes by the required majority at a duly noticed annual convention for two years running. Since the changes were approved by more than the required super-majority of 75% in each order (clergy and laity), they see their unincorporated association as the legitimate continuation of the entity that existed before the changes, and they continue to regard Bishop Schofield as their diocesan. If the plaintiffs prevail, they will thus not only take back all of the diocesan assets, they will take control of both the unincorporated association that is the Diocese and its associated corporation sole, operated by the incumbent Bishop. Then Bishop Schofield and his followers would have to file new corporate papers and reorganize as a diocese of some other province of the Anglican Communion in order to continue as a complete entity. But if the defendants prevail, the Remain Episcopal group and Bishop Lamb will have no alternative but to begin again from scratch, and to organize a new unincorporated association, form a Missionary Diocese, and hope in time to grow into a full-fledged diocese. Thus the stakes are high, indeed.

Had the Remain Episcopal group already organized a new unincorporated association to fulfill the role of an Episcopal Diocese of San Joaquin, I would have expected to see allegations about its date of formation, and the adoption of its constitution and canons, in the complaint. But there are no such allegations. Instead, the allegations are all about meeting and rescinding the changes adopted in December 2007. This is what makes me believe that the plaintiffs are of the view that their association is the only "true" Diocese of San Joaquin under Church and California law.

In addition to gambling all on the outcome, another reason why this is such high-stakes play is that the strategy puts directly into issue the validity of the "special convention" that was called on March 29. To begin with, Article V, Section 4 of the diocesan Constitution provides that special conventions may be called by "the Ecclesiastical Authority", which section 2 of Article III defines as the Bishop (or if he is not available, the Coadjutor, or if there is no Coadjutor, the Standing Committee of the Diocese). The convention held on March 29 was called by neither the Bishop nor by the diocesan Standing Committee, so a question will arise as to the authority for its convocation.

The next question that will arise about the actions of the Special Convention is whether it had a legal quorum to transact business. Diocesan Canon III, Section 3.01 provides:
A quorum shall consist of one-third of all the Clergy entitled to seats and votes together with at least one (1) Lay Delegate from each of one-third of all the Parishes and Missions entitled to representation. If a quorum be not present at any Convention, no business shall be transacted except that of adjournment from time to time until a quorum shall be present.
There were 47 parishes and missions in the Diocese of San Joaquin at the time of its previous annual convention in December 2007; a quorum of the laity would thus consist of delegates from at least seventeen parishes. The "Clergy entitled to seats and votes" are required by Article V, Section 6 of the Constitution to have canonically resided in the Diocese for the three months preceding the convention, that is, since the end of December 2007 (when 82 clergy participated in the vote to change the Constitution). From the viewpoint of the plaintiffs, all those clergy would still be "canonically resident" in the Diocese unless and until they had been deposed, so that a one-third quorum of those clergy would have required at least 28 of their members. As for those clergy brought into the Diocese by Presiding Bishop Jefferts Schori, Canon II, Section 2.01 provides that they would be entitled to a seat at the Convention (but would not be permitted to vote) so long as they had been licensed "by the Ecclesiastical Authority to officiate in the Diocese". Thus they would not even count towards a quorum. As reported by Episcopal News Service, there were forty-three lay delegates from eighteen parishes present, and just twenty-one clergy present (including, presumably, those clergy brought in from outside the Diocese by Presiding Bishop Jefferts Schori). It is unclear how the qualifications of the lay delegates to represent their parishes were established, since some of them came from parishes which had already voted to leave with Bishop Schofield, and they were thus representing a remnant minority (perhaps just themselves). Be that as it may, it appears on the face of things that there were not sufficient qualified clergy present to constitute a legal quorum so as to allow binding decisions to be made by the convention as a whole.

(One of the resolutions enacted apparently purported to "waive" any irregularities in the noticing of the convention.  Needless to say, such a "waiver" would be valid only if it passed unanimously by a full quorum present, since any objection to the notice by anyone needed to constitute a quorum would require that the convention be renoticed properly.  Not only was there apparently not a full quorum of both orders present, but objections to the convention proceeding were made---and overruled.)

Thus if the special convention lacked a quorum of clergy or was not lawfully noticed, its actions were unconstitutional by the provisions of Section 3.01 of Canon III quoted above. The only way for plaintiffs to avoid these requirements would be to argue that they had started a new Diocese, with new rules and terms of qualification, and were not continuing the old one. That contention, however, would undermine their argument that they are the true continuation of the group that before December 2007 was the incorporated Diocese of San Joaquin. It would also give tacit recognition to the fact that there was another Diocese of San Joaquin which had chosen to leave The Episcopal Church---something which the plaintiffs have tried hard to avoid in their complaint.

The parties defendant are the Rt. Rev. John-David Schofield, whom the complaint alleges was deposed by the House of Bishops, and hence does not even accord him that title, even though the House did not have the number of votes required by Canon IV.9 to do so, and two entities which hold diocesan trust funds. As noted earlier, the unincorporated association whose changes to its Constitution and Canons started the whole business is not named as a defendant---presumably because the plaintiffs wish to avoid the suggestion that there is even still such an entity existing separate and apart from their own, which is a named plaintiff. (It is also a legal impossibility for such an entity to sue itself.) But the allegation that Bishop Schofield was deposed by the House of Bishops "pursuant to Canon IV.9.2 of the Episcopal Church" will call that action into question, since plaintiffs will be unable to show that there was "a majority of the whole number of Bishops entitled to vote" even present at the meeting where the vote to depose took place. (Unlike the other Episcopal Bishops, the California court will most likely insist on proof that the canons were actually followed, since both the standing and the capacity of Bishop Lamb to sue as a plaintiff turns upon whether his predecessor was lawfully deposed, and on whether he was duly invested with authority as Bishop Schofield's successor.)

The plaintiffs' lawsuit as drafted, therefore, will raise a number of questions for the California court as to whether The Episcopal Church and the Diocese of San Joaquin followed proper procedures to bring them into court as they are today. Whether the court has to accept TEC's assertions at face value, or whether it will look behind the assertions to determine whether the rules were actually followed, is a fascinating topic on which quite a few courts have expressed themselves already, and which I will save for another post. Suffice it to note here that as drafted and filed, it is the plaintiffs' own complaint that raises the issues.

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