Monday, August 25, 2008

A Murder of Crows

As readers of this site are aware, there is an entity out there which claims to be "the [Episcopal] Diocese of San Joaquin, a California unincorporated association"---it is even one of the plaintiffs in the lawsuit currently pending in Fresno County Superior Court. It alleges that it "is one of the [Episcopal] Church’s 111 dioceses, and encompasses the territory of 14 California counties, including Fresno County."

How did this come to be? When was this entity formed, and when did it become a Diocese of The Episcopal Church?

For there is also out there another entity, which used to be the [Episcopal] Diocese of San Joaquin, but which in December 2007 amended its Constitution and Canons to become a constituent member of the Anglican Communion, instead of The Episcopal Church. Let us compare and contrast these two entities.

The [Anglican] Diocese of San Joaquin:
  1. Is headquartered in Fresno, California.
  2. Has as its Bishop the Rt. Rev. John-David Schofield.
  3. Has forty parishes and missions in its territory.
  4. Recognizes the Most Rev. Gregory Venables as its primate.
  5. Spreads over 14 California counties, in the same area it occupied when it was part of TEC.
  6. Is self-funding through parish contributions.
  7. Began as a Missionary Diocese of the Protestant Episcopal Church of the United States of America ("PECUSA") in 1911.
  8. Was recognized as a full diocese of PECUSA in 1961, when it became fiscally independent of General Convention.
  9. Will hold its Annual Convention at Fresno on October 24-25, 2008, per its Constitution (download the August issue of the Star and see official notice on page 10).
The [Episcopal] Diocese of San Joaquin:
  1. Is headquartered in Stockton, California.
  2. Has a Provisional Bishop, the Rt. Rev. Jerry A. Lamb.
  3. Has eighteen parishes and missions listed in its territory, of which only eight were registered and actually in existence prior to December 8, 2007. At least six are the splinter minorities of congregations which voted to leave with Bishop Schofield, and another three are new start-ups; they all meet in rented facilities or private homes.
  4. Recognizes the Most Rev. Katharine Jefferts Schori as its primate.
  5. Spreads over 14 California counties, in the same area occupied by the other entity.
  6. Is financially dependent on The Episcopal Church.
  7. Began its existence on March 29, 2008 in a "Special Convention".
  8. Has not been officially recognized by General Convention (which does not meet until June 2009), but only by the Presiding Bishop and the Executive Council of TEC.
  9. Will hold its Annual Convention at Hanford, California from October 24-26, 2008.
These obviously cannot be one and the same entities. Given that indisputable fact, we have to ask: forgetting for a moment the viewpoint of Church canon law, what is the status of each of these entities under California secular law?
  1. They are both unincorporated associations, meaning that they are both "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.)
  2. One organization began its existence under California law in 1911; the other began its existence on March 29, 2008.
  3. Yet both organizations claim to be holding their "49th Annual Convention" on October 24-25, 2008. How can this be?
The answer is that, under California law, it cannot. The (Episcopal) "Diocese of San Joaquin" did not exist as an entity headquartered in Stockton, with its eighteen parishes and missions, before March 29, 2008. Even if it claims to be the canonical successor to the Diocese that had existed since 1911, the fact remains that it is a successor, and not a continuation, of that entity. The distinction is inescapable, and it is vital.

Here is where the distinction becomes crucial. A corporation sole is a special creature under California law which is recognized for the purpose of administering and holding title to church property, among other things. As a corporation, it can sue and be sued, and its liability is limited to the extent of its assets. It has only one officer, one director, and one shareholder, and they are all the same individual. (It's something like a secular model of what the Trinity is to the Church.) That person, called "the incumbent," is exclusively named and selected by the unincorporated religious association which authorizes the creation of the corporation sole associated with it. The articles of the corporation sole must spell out how a successor incumbent is to be selected and named by the religious association.

Thus, when it became a missionary diocese of PECUSA in 1911, the Diocese of San Joaquin authorized the formation of "The Protestant Episcopal Bishop of San Joaquin, a corporation sole" under California law. After San Joaquin became a self-sufficient diocese, the Rt. Rev. Victor Rivera, formerly rector of St. Paul's in Visalia, became the incumbent of that corporation sole in 1968. When he stepped down as diocesan, his successor, the Rt. Rev. John-David Schofield, who had previously been the rector at St. Columba's, in Inverness, became the incumbent. When he and the diocese left The Episcopal Church following the December 2007 vote, changes were recorded to the name of the corporation sole (from "Protestant Episcopal" to "Anglican"), as well as to the article which spelled out how +John-David's successor would be chosen.

To my knowledge, there is still only one corporation sole that is associated with either of the entities which call themselves "the Diocese of San Joaquin." That is because, as I have explained in a previous post, Presiding Bishop Katharine Jefferts Schori and her Chancellor, David Booth Beers, are playing a high-stakes game in San Joaquin. They are taking the position in court that the changes which the (Anglican) Diocese of San Joaquin made to its Constitution and Canons in December 2007 were unauthorized and hence ultra vires---"beyond the powers" of that entity, as a diocese of the Episcopal Church, to make. They have staked their all on the success of that argument. And pursuant to that position, they filed with the Secretary of State in April of this year a paper claiming to have amended the articles of the corporation sole to change its name back to "Protestant Episcopal", and to restore the succession provisions to what they had been before. The Secretary of State accepted the documents for recording since they were in the proper form, but their validity will be one of the major issues in the lawsuit now pending in Fresno County Superior Court.

If that argument is successful in the courts, then the entity which is now the (Anglican) Diocese of San Joaquin will have to organize itself as a new unincorporated association under California law, and authorize the filing of papers for a new corporation sole, with the Rt. Rev. John-David Schofield as its incumbent. That might be a temporary inconvenience, but it certainly would not prevent either Bishop Schofield or his diocese from continuing to function.

But if the argument is unsuccessful, look at what a catastrophe it would be for The Episcopal Church, Bishop Lamb, and his "diocese." Now it would be they who would have to organize as a new unincorporated association, and authorize the formation of a new corporation sole. Then, since it was a new entity, it would have to apply to TEC for temporary status as a missionary diocese, until General Convention could act (if it so chose) to make it a full diocese again. And here is where TEC's Constitution and Canons come into play.

Article VI, Section 1 of TEC's Constitution provides (with my emphasis added):
The House of Bishops may establish a Mission in any area not included within the boundaries of any Diocese of this Church or of any Church in communion with this Church . . .
So this is where TEC will have to face facts. It claims still to "be in communion with" the Anglican Province of the Southern Cone---at least, GC 2006 never adopted any resolution to the contrary, and that was the status quo ante. So in order to form a new missionary diocese within the same area as the (Anglican) Diocese of San Joaquin, TEC's General Convention will first have to adopt a resolution declaring TEC to be no longer in communion with the Province of the Southern Cone.

But even if it passed such a resolution, GC 2009 would also have to amend TEC's Canon I.11.3, which provides (again, with my emphasis added):
An Area not previously organized as a Diocese, and not under the permanent jurisdiction of a Bishop in communion with this Church, may, upon application for admission, in accordance with the procedures of Article V, Section 1, be admitted as a Diocese, and may be accepted as a Missionary Diocese within the meaning of Sec. 1 of this Canon.
Since the area of the "new" diocese is the same as that of the former diocese, this Canon prohibits outright its acceptance as either a Diocese or a Missionary Diocese of the Church. There is no getting around it (unless you are the current TEC leadership, and then you simply ignore what the canons say if you need to do something different).

That is why I say that Bishop Lamb and Presiding Bishop Jefferts Schori are playing a very high-stakes game in San Joaquin. The membership of TEC might well start asking, "By what rights are they staking so much on all this?" We cannot tell how much of a fiscal impact their decision is having on Bishop Lamb's mission in San Joaquin, but it has to be substantial. Certainly the decision to stake everything on litigation is having an impact on the mission of the (Anglican) Diocese of San Joaquin, which has published its proposed budget to be considered at the upcoming annual convention in October. (You can find it by downloading the August issue of the Star here, and scrolling down to page 11.) The items for Mission Support and Development, for example, have been reduced from a total of $125,900 in 2008 to $88,000 in 2009; Youth Ministry has been cut back from $97,100 to $57,000, and so forth. Similar impacts can be seen in all other budget categories. If this is the measure of the impact that TEC's litigation strategy has had on Bishop Schofield's diocese, what is the impact it has had on Bishop Lamb's? And what will be the further impact of Bishop Lamb's declared intent to depose so many of the clergy who have transferred to the Southern Cone along with Bishop Schofield?

Father Dan Martins has some interesting speculation on why these depositions are being rushed forward in advance of the Annual Convention called by Bishop Lamb. However, as another one of the clergy in San Joaquin has helpfully pointed out to me, any such depositions will not solve the problem of having a quorum of canonically resident clergy at the Convention. The reason is that under the canons, depositions do not follow at once, but take effect only after a period of six months. And during that six-month period, any priests inhibited will remain "canonically resident" in the diocese. Article V, section 6 of the Diocesan Constitution provides:

The Bishop, the Bishop Coadjutor, the Suffragan Bishop, the Assisting Bishop and other qualified Bishops, Presbyters, and Deacons shall each have a seat and vote in Convention, provided they have been canonically resident within the Diocese for three calendar months next before the meeting of Convention and provided they have been domiciled therein . . .
So the only qualification for having a seat and a vote at the diocesan conventions is that the clergy have been canonically and physically resident in the Diocese for at least three months; there is no additional requirement that they be in "good standing", i.e., not inhibited. Thus even if Bishop Lamb inhibits his clergy before October, it will not have any effect on the determination of a proper quorum of the clergy at the convention in Hanford in October.

Nor will anything Bishop Lamb can do solve the problem of having a quorum of lay deputies from the required number of congregations. (You can depose clergy for "abandonment," if that is how you decide to treat departure for another church in the Anglican Communion, but you cannot depose parishes.) And what such scrambling does is serve only to point out how there was no such quorum---either of clergy or of the laity---at the "Special Convention" that confirmed Bishop Lamb in the first place.

Irregularities in procedure are not just academic. There are thousands and thousands of dollars---nay, hundreds of thousands of dollars---being spent in reliance that what has been done was done right. And the irregularities are not subtle, or contrived; they fairly leap out at one. There is no consistent story to tell with the new Episcopal Diocese of San Joaquin. On the one hand, they are treating the clergy who had departed as though they were still canonically resident as of this month---five months after they would have had to be counted in determining the quorum for a valid special convention. Everyone present at the March convention signed a supposed waiver of irregularities, but the Constitutional requirement of a quorum cannot be waived.

Now money is being spent on calling an "annual convention"---the 49th, no less---which will be held on the same days as the convention taking place in Fresno. But if the Special Convention in March was not valid, then neither can the "annual" one called as a consequence of it be valid. We have a "diocese" that is not a diocese (at least, not until GC 2009 meets, passes a resolution declaring TEC no longer in communion with the Southern Cone, and amends Canon I.11.3), meeting to elect a Standing Committee that cannot stand for anything (because there is no valid diocese), and deputies to General Convention who will be sworn in by no one having authority, and who have no one they can legitimately represent. Meanwhile, the "Standing Committee" that was purportedly elected at the invalid special convention in March will pretend to act canonically in proceeding to depose those who disagree with them, and a Bishop who is not a diocesan bishop will purport to pronounce them deposed, and "certify" that fact to the Presiding Bishop and all other TEC bishops.

This is piling too much irregularity on irregularity---it is a murder of crows, a scold of jays, and a sneak of weasels, all at the same time. Just like a house of cards, the entire rickety structure will come tumbling down before long. (And this is supposed to be what a church being "guided by the Holy Spirit" looks like? Take another look.) Meanwhile, it will be the average Episcopalian pewsitters, largely clueless as to what is being done in their names, who will be asked to pony up to cover the costs of the multiple mistakes. At some point, those people are going to wake up, and vote---first with their wallets, and then with their feet.


  1. only eight were registered and actually in existence prior to December 8, 2008.

    This date is in the future. Is this a typo?

  2. Thank you, Simon Sarmiento. "2008" was a typo for "2007", and it has been corrected. The date (December 8, 2007) is the date after the day on which the Diocesan Annual Convention approved the changes which took the Diocese out of TEC and under the temporary governance of the Province of the Southern Cone. So it refers to the congregations who would have been entitled to representation and participation in the Convention as of the day it was held.