Monday, August 4, 2008

The Trigger-Happy Church

[UPDATE 03/01/2009: Building on the following post, the American Anglican Council has compiled a comprehensive list of some 60 current lawsuits in which ECUSA is involved over church property disputes. See pages 22-26 of its full report on the current situation.]

[UPDATE 04/03/2012: The total number of lawsuit filings by ECUSA and/or its dioceses is now over 75. I have recently assisted the American Anglican Council in updating the report linked above, and will post a link to it here when they publish the update.]

At Lambeth, TEC's bishops were (whether deliberately, or negligently---it makes no difference) giving out wrong information about the lawsuits they are involved in with their own parishes. The Bishop of Lichfield, the Rt. Rev. Jonathan Gledhill, in the Province of Canterbury, reports on his Weblog about the meeting of his indaba group on August 2 (Day 18 of the Lambeth Conference):
In the discussion afterwards we are told that the US House of Bishops has regretted for the hurt it has caused and its lack of consultation and has issued a public apology - though no one has the exact wording. We are also told that the Canadians have voted against same-sex blessings - though two dioceses are pressing their bishops to change that. We are told that in the lawsuits in America between parishes and their dioceses it is the dioceses who are the defendants and the conservative parishes who are the accusers.
Since it is well known to many individual Episcopalians who have been involved in the many lawsuits instigated and still pending at all levels here that the statement I have put into boldface type above is simply not the case, it did not take long for a blog reader familiar with the details in Virginia to inform the good Bishop of the facts on the ground there. The Rev. Canon Kendall Harmon put the information up on his site at TitusOneNine, and it elicited this comment from a reader:
In the interest of being scrupulously fair: this just refers to the Virginia situation, is it possible there are other parishes/dioceses where the reasserters are suing?
Well, let us be scrupulously fair, and see just what the facts are. The Episcopal Church and/or one of its Dioceses played the role of plaintiff---the party who initiates a case in court, by filing a complaint---in bringing the pending or former lawsuits I have listed below over Church property and assets in the courts of the United States. This list makes no claim to be complete; it comprises just the ones I have read about (I have listed them alphabetically by State, and not chronologically):

1. Against Christ Anglican Church in Mobile, AL (plaintiff was the Diocese of the Central Gulf Coast---the suit settled before trial);

2. Against St. John's Episcopal Church in Fallbrook, CA; St. Anne's, in Oceanside CA; and Holy Trinity, in Ocean Beach, CA (plaintiff in all three cases is the Diocese of San Diego--- apparently after not being allowed to amend an older suit, the Diocese simply filed a new one);

3. Against St. James Anglican Church and two others in Newport Beach, CA (Diocese of Los Angeles is plaintiff---the case is now being reviewed by the California Supreme Court);

4. Against St. John's Anglican Church in Petaluma, CA (Diocese of Northern California is plaintiff);

5. Against Bishop Schofield and the diocesan investment fund in the Diocese of San Joaquin, CA (for an update on that suit, see this post, as well as my earlier ones you can find in the Guide);

6. Against Trinity Anglican Church in Bristol, CT (recently settled);

8. Against Redeemer Anglican Church in Jacksonville, FL (plaintiff was the Diocese of Florida)

9. Against Christ Church in Savannah, GA (plaintiff is the Diocese of Georgia);

10. Against All Saints Church in Attleboro, MA (plaintiff was the Diocese of Massachusetts; the case settled in 2007);

11. Against St. Andrew's Anglican Church in Morehead City, NC (plaintiff was the Diocese of East Carolina and those members of the parish who had not voted to join AMiA; following a jury mistrial, plaintiffs obtained summary judgment which was affirmed on appeal);

12. Against the Church of the Good Shepherd in Binghamton, NY (if the link has been removed, try this one---the plaintiff is the Diocese of Central New York, and the defendant church is the parish of StandFirm's Matt Kennedy and his wife, Anne;

13. Against St. Joseph's Anglican Church (formerly Trinity Church of East New York) in Brooklyn, NY, which originally separated from TEC in 1977, before the adoption of the Dennis Canon (plaintiff was the Diocese of Long Island, in a second brought in 2005 after it lost its first suit, filed in the early 1980's---the case settled early this year);

14. Against St. James Anglican Church in Elmhurst (Queens), NY (plaintiff was the Diocese of Long Island, and the court ruled in its favor in March of this year)

15. Against All Saints Protestant Episcopal Church in Rochester, NY (plaintiff was the Diocese of Rochester);

16. Against St. Andrew's in Syracuse, NY (plaintiff originally was the Diocese of Central New York, and TEC's Domestic and Foreign Missionary Society later intervened---the lawsuit recently settled);

17. Against St. Luke's Church in Akron, OH and four other northeast Ohio parishes (plaintiff is the Diocese of Ohio).

18. And last, but certainly not least, we have the aforementioned suits against the churches in the Anglican District of Virginia, in which both TEC and the Diocese of VA filed separate declaratory actions as plaintiffs after the churches had filed with the court reports of the votes to leave TEC held pursuant to the terms of Virginia's unique Division Statute.

I am aware of just three [actually, four---see the Update below] instances in which a Diocese or The Episcopal Church were defendants, rather than plaintiffs. But in two of the cases, as noted below, it was the Diocese which triggered the filing of a lawsuit by moving to take control of the individual church's assets, and the legal actions that followed were essentially a defensive response against those moves.

A. The earliest (and, I would say, the only genuine) instance of a parish starting a lawsuit was in 2000, after a dispute arose between All Saints Parish, Pawley's Island, SC, the Diocese of South Carolina, and TEC in connection with the formation of the Anglican Mission in America. The Rev. Canon Charles Murphy, who had been rector of All Saints for over twenty years, was consecrated as an AMiA bishop in Singapore along with the Rev. John Rodgers. Bishop Edward Salmon, the diocesan of South Carolina, issued a pastoral letter expressing the canonical difficulties which the consecration created. Although Canon Murphy had announced before his consecration his intentions to remain at All Saints, alarm bells went off in the diocesan chancellor's office when it was subsequently learned that All Saints had ordered a title report on its property. This raised concerns because of what had happened earlier in Morehead City, North Carolina (see Item No. 11 above). There St. Andrew's parish had conveyed its property to an AMiA entity without securing permission beforehand from either the Bishop or the Standing Committee as required by the applicable canons, and the deed had been recorded without any difficulty. As he explains in this letter to the members of All Saints, Bishop Salmon received advice from his chancellor that he should record with the local Register of Deeds a notice of what the Episcopal Church's canons provided with respect to conveyances of parish property. The parish considered this action as putting a cloud on their title (which they contended was in an 18th-century trust; see below), but as Bishop Salmon explains, since they were a parish in the Episcopal Church, it was the other way around: "If the permission of the Bishop and the Standing Committee are not given [to the conveyance], the title is clouded." In any event, All Saints (even though it had not yet voted to leave the Episcopal Church) brought an action to remove what it saw as a cloud on its property, and named as defendants the Diocese of South Carolina and The Episcopal Church. The latter filed counterclaims seeking to establish that the church property was held in trust for the Diocese and for TEC.

In 2003, a majority of the parish voted to leave the Diocese and affiliate with AMiA. Bishop Salmon appointed a new vestry for the parish that remained, and following a successful appeal from an initially adverse decision that vestry, joined by Bishop Salmon, the Diocese and TEC itself, filed in 2005 a second lawsuit against the vestry it replaced, seeking their ejectment from and the possession of the 60-acre church property. The two lawsuits (one from 2000 and the other from 2005) were consolidated, and tried to a jury. In April 2007, the trial court took the case away from the jury, saying that the legal issues involved were too complex, and needed to be resolved by the court, on the evidence presented to the jury. The judge handed down a lengthy and complex ruling granting judgment in part to both sides, but leaving ultimate ownership to be decided by the probate court.

That court will have some very knotty issues to untangle, as the title to the property was originally held by a charitable trust established under a 1745 will, in favor of "the Church of England". The original parish argues that since it has occupied the property continuously since the trust was established, it is now the beneficiary of that trust, which it contends is still valid. (It uses that argument to get around the Dennis Canon, contending that the earlier trust, established before there even was an Episcopal Church, controls.) The only problem is that the trustees stopped functioning as such centuries ago: the court named "John Doe" trustees to represent the unknown common-law heirs of the two original trustees named in 1745. Those "John Doe" trustees have aligned themselves with the original parish---not surprisingly, since both groups want the trust to continue to function and hold the property. The Diocese and the surviving TEC parish, on the other hand, maintain that the trust has long since merged into the identity of the parish, and that as the only hierarchically approved entity belonging to the successor to the Church of England in the United States, it now owns the property. As I mentioned, the trial court's ruling is now on appeal, and these ownership questions will probably not be sorted out until after the appellate court has weighed in on the other issues. Talk about a complex case! [A hat-tip to the ever-reliable Rev. Canon Kendall Harmon, with his personal knowledge of the scene, for helping me to sort out the strands.]

B. An action was brought in 2005 in federal district court by six parishes and their rectors (the "Connecticut Six") against the Diocese of Connecticut, whose bishop had suspended the priests in question and taken over some of the church properties. The court dismissed the lawsuit the next year, and the Diocese has since brought the actions listed as Nos. 6 and 7 above.

C. The only other instance of which I am aware in which a diocese is the defendant in a suit initiated by a church is the declaratory action brought by Grace Church & St. Stevens against the Bishop and the Diocese of Colorado. However, in that suit, the plaintiff church sought a simple declaration that the Diocese had no right, title or interest in its property, in response to an attempt by the Diocese to freeze the church's bank accounts. The response of the Diocese was to file a counterclaim against the church, its rector and seventeen of its vestry and leading parishioners seeking millions of dollars in damages. Those so named answered in kind, and the claims have been set for trial in February 2009.

[Update 08/06/2008: As GC Forrest wisely reminds us in his comment below, another instance of a parish instituting suit first against a Diocese, and not vice versa, would of course be the suit brought by Calvary Church in Pittsburgh in 2003 against the Diocese of Pittsburgh in order to hinder its leaving The Episcopal Church. That suit was recently the subject of a supplemental petition in advance of the forthcoming Diocesan Convention, about which I have commented in an earlier post. Since the object of this suit is the same as that in the eighteen cases listed above---to keep a Diocese or any of its parishes from leaving The Episcopal Church---it really cannot count as an exception to the pattern.]

This barely scratches the surface. (I am aware, for example, of the earlier departures and litigation occasioned by the decision to allow the ordination of women, as I have detailed in this post. And for still further information, see the article referenced at the beginning of this post, which gives the number of Episcopal Church property "disputes" pending as fifty-five! So that number, given as of December 2007, could refer as well to ongoing negotiations that have not yet turned into lawsuits. Finally, here is a fairly complete list of churches that have departed from TEC---not all of them, thankfully, incurring litigation---with many links [scroll down to the "departures" section].) If anyone who reads this catalog is aware of other cases I have omitted to mention, with TEC or a diocese either as plaintiff or as defendant, please feel free to describe it (or link to a news story about it) in a comment, and I will update the foregoing information from time to time.

For the present, at any rate, the data gathered above are more than sufficient to demonstrate that the official TEC "line at Lambeth", as heard and reported by Bishop Gledhill, is manifestly contrary to the facts.


  1. I also know that Bp. Alexander of Atlanta sued several individual vestry members who left one of the TEC churches, taking nothing of TEC's with them. Not sure how those cases resolved.

  2. I'm the one who wanted to be scrupulously fair. This is good work and a powerful rebuttal. You should type up a note and send this off to +Litchfield and any other bishop who made such a statement. Hopefully this will get publicized and can be a resource others can use when they confront that false claim.

  3. I am being picky here, but the abbreviation for Connecticut is CT not CN.

  4. Not at all, Fr Sean---I welcome any and all corrections to this list, to make it more accurate. Even when we know some things perfectly well, they still manage to slip by us. So thank you for the correction---it has been made.

  5. On being a defendant - don't forget the conservative Diocese of Pittsburgh being sued by representatives of several parishes following a proposed change in the accession clause and a declaration that parish resources belong to the parish. The bishops and several Standing committee members were sued as individuals - I don't have the details, but that shoe was on the other foot.

  6. Well of course you have to be the plaintiff when someone is stealing something from you.

  7. Church of the Redeemer is in the Dio. of Florida, not Central Florida. (I spent ten years there under the beloved Bishop Jecko!)

  8. Thank you, Zana---correction made (and transposed link fixed as well).

  9. We are also told that the Canadians have voted against same-sex blessings - though two dioceses are pressing their bishops to change that.
    Actually, one is actively engaged in SSBs (New West) and 4 others have voted to start - but haven't yet - officially.
    I am in St. Hilda's ex-diocese of Niagara (now ANiC). The day after we voted to join ANiC, diocesan reps were at the door (9 of them, all dressed in black - the Nazgul sprang effortlessly to mind) to demand the keys to the building. Since we refused to give them up, the diocese took us to court: we won the 1st round, they won the next 2.

    We are currently worshipping in a local school with > 100 people. The diocese holds its service in St. Hilda's building - with the priest, his wife and the alter set-up lady - every week for the last 3 months.

    The pattern for the other 3 Niagara ANiC churches is similar.

    The diocese took us to court – we are defending.

    David Jenkins

  10. Lots of good cases for reference in the post and comments. Thanks.

    The link a.s. Haley noted in the comments points to Luke 6:29, I think Luke 6:30 says it better,

    "Give to everyone who begs from you; and if anyone takes away your goods, do not ask for them again."

  11. That's an excellent amendment, Pewster---thank you. I like the choice of words even better in the NET version: "Give to everyone who asks you, and do not ask for your possessions back from the person who takes them away."

  12. "But in two of the cases, as noted below, it was the Diocese which triggered the filing of a lawsuit by moving to take control of the individual church's assets, and the legal actions that followed were essentially a defensive response against those moves."


    "However, in that suit, the plaintiff church sought a simple declaration that the Diocese had no right, title or interest in its property"

    Then, by your own rules, Mr. Haley, the actions filed by TEC and the Diocese of Virginia don't count.

  13. Not quite so fast, DavidH. The petitions brought by the Virginia parishes were filed expressly pursuant to a previous (12/2006) agreement reached with the Diocese, and were necessary to report the outcomes of the individual votes under the Virginia Division Statute. (See, specifically, paragraph 2 (b) of the Agreement, which provides for the filing of the petitions by the parishes.) The same Agreement obviated the need for any response to them to be filed by the Diocese of Virginia or TEC, because it stated that the parishes "will not take any further steps to bring the Va. Code 57-9 filings to judgment."

    The parishes honored the terms of that Agreement until the Diocese's actions in early 2007 forced them to take action to prosecute their petitions to judgment. Specifically, the Diocese filed motions to intervene in each of the petition actions. These motions were also contemplated by paragraph 2 (b) of the Agreement, and so were not opposed by the parishes (except for the one linked, which later withdrew its opposition to the intervention).

    However, one week after moving to intervene in the petition actions, the Diocese filed eleven separate complaints against the individual parishes (only eight of whom had filed petitions), and named also their rectors and individual vestry members personally. These were brand-new lawsuits, each of which sought to oust the respective defendants from possession, and to take title to all their real and personal property.

    Notwithstanding that breach of the Standstill Agreement (see paragraph 1 [a])by the Diocese, ECUSA then breached the agreement itself two weeks later by filing its own eleven lawsuits against the same defendants.

    Thus I cannot agree that "under my rules" these lawsuits have to be charged to the parishes, rather than to ECUSA and the Diocese.

  14. Mr. Haley, you're wrong on two counts and misinterpreting on a third.

    First, there was no breach of the Standstill Agreement by anyone. It was allowed to expire before the Diocese and TEC filed suit. See this press release:

    Second, you imply that the Standstill Agreement making an exception to allow filing of the 57-9 actions was more than that. It didn't require anyone to do anything. It provides only that filing the 57-9 actions was not a breach of the agreement. To the extent that provision is relevant to this discussion, it supports the position that the 57-9 actions are in fact civil litigation (otherwise no exception would be needed).

    Whatever the 57-9 actions were, they were a "mov[e] to take control of the individual church's assets". That is, after all, the entire point of the statute. So you really haven't escaped your own rule.

    Finally, I'm not sure I follow your attempt to distinguish a declaratory judgment action when the filing party is in possession from one when the filing party is not in possession. I see no difference, unless you think possession = right to possession. Either way, you're seeking a declaration of rights.

  15. All right, DavidH, so the Diocese announced it was not going to renew the standstill agreement. As lawyers, you and I both know that meant that it planned to take affirmative action (since the standstill agreement did not permit such action while it remained in effect).

    That still means it was the Diocese that made the first aggressive move---and when it did, as I said, it went well beyond a simple opposition to the petition. So instead of a "breach of the Standstill Agreement," what I can legitimately charge the Diocese with is escalating the litigation. I see no difference, since even by not renewing the Standstill Agreement, the Diocese still could have chosen to do nothing other than contest the petitions. But it did not---and ECUSA followed suit, if you pardon my pun.

    So we come down to this sequence:

    12/18/2006 - Standstill Agreement signed allowing congregations to file petitions; petitions filed later that day. By agreement, no response is due.

    01/09/2007 - After one thirty-day period, Diocese notifies parishes it will not extend Agreement. (Does ECUSA likewise notify anybody, or does it just piggyback on the Diocese's non-renewal?)

    01/16/2007 - Standstill agreement expires.

    01/24/07 - Diocese responds to petitions by moving to intervene. Interventions are not opposed by parishes.

    01/31/07 - Diocese files brand-new complaints against each parish, and also names individual rectors and vestry members as defendants.

    02/09/2007 - ECUSA files complaint against all individual parishes, their rectors and vestries, seeking more of the same.

    Every single action in that chronology after December 18 was taken by the Diocese or ECUSA, and none was taken by the individual parishes. Yet all the Diocese had to do in order to defend its interests was to respond to the petitions; and ECUSA didn't even have to do that, since its interest was the same as (or at least no greater than) the Diocese's via the Dennis Canon.

    Given that undisputed chronology, I think any reasonable person would conclude that the Diocese and ECUSA were the aggressors. Had the Diocese been content to negotiate a buyout from the parishes, the petitions never would have gone anywhere, and would have been dismissed upon the reaching of a negotiated settlement. It was the Diocese's decision to choose to obtain from the courts what it did not want to obtain by negotiated settlement: a complete and total victory in its favor, with the parishes obtaining exactly nothing.