Tuesday, October 21, 2008

California Court Rules Against Departing Church

The Fourth District Court of Appeal in California has today filed a decision in the case of New v. Kroeger, No. D051120 (Oct. 21, 2008---the link will be good only for a few months, and then the case will have to be found on the regular reported cases site). The Court reversed a judgment by the trial court in San Diego County, and held that the changes to the bylaws and articles of the Parish of St. John's in Fallbrook, which its vestry made last summer in order to disaffiliate from The Episcopal Church and the Diocese of San Diego, were unauthorized and ultra vires, given that the Canons of the Diocese incorporated themselves (as well as TEC's own Constitution and Canons) into the Parish's bylaws, and given that the Parish's articles provided that it would continue "perpetually" as a unit of The Episcopal Church.

Given these particular facts, the outcome of the decision is not particularly surprising (it is actually close on its facts to the earlier case of one of the four churches involved in Protestant Episcopal Church v. Barker [1981] 115 Cal.App.3d 599, 171 Cal.Rptr. 541). The trial court had purported to apply a strictly "neutral priniciples" analysis, in which it looked solely at the powers of the parish corporation to amend its articles and bylaws under California law. The Court of Appeal held that it had erred by not taking into account the provisions of the Diocesan canons as well. Even under a neutral principles analysis, said the Court, the Parish corporation was not free to amend its articles and bylaws so as to make them inconsistent with the paramount canons of the Diocese and of The Episcopal Church.

The opinion is a strange mixture of law and analysis, however. On the one hand, it tries to hedge itself against the effect of any decision by the California Supreme Court in The Episcopal Church Cases, which were argued earlier this month and in which a decision may be expected before the end of the year, by stating that it reaches the same result regardless of whether it follows a "neutral principles" or a "hierarchical deference" approach. On the other hand, the opinion goes out of its way to issue pronouncements on various peripheral issues, in an attempt to be encyclopedic and all-encompassing.

For example, the Court repeatedly notes that the issue before it is a narrow one: which vestry is the lawful vestry of St. John's---the ones who approved the amendments in July 2007, or the ones whom Bishop Mathes and the remnant parishioners put in place afterwards? Notwithstanding its emphasis that this is the only question that is before it---and that issues of who owns the Parish's property are involved in a separate lawsuit that was not before it---the Court of Appeal purports to decide that the Dennis Canon requires that the Parish property remain in trust for the Diocese and The Episcopal Church. And in so doing, the Court expresses not only its disagreement with an earlier appellate decision (which held that the Dennis Canon created only a "revocable" trust, which a Parish was free to change at any time), but it adopts a view of the Canon which turns it upside down (p. 29, with bold added for emphasis):
The California-Nevada case also made a fundamental error of trust law in holding a local church that held property in trust for a national church could revoke that trust, based upon the California rule that trusts are revocable unless made irrevocable by the trust instrument. (Id. at p. 767.) However, it is the national church that is the trustor of the trust it created, and only it could revoke the trust. (See § 9142, subds. c & d.) As discussed, ante, the Episcopal Church impressed a trust on local church property by enacting Canon 1.7(4) in 1979. Thus, we decline to follow the California-Nevada decision as contrary to the law governing religious corporations, as well as California trust law.
This has it exactly backwards. The "trustor" of a trust is the person who owns the property that he or she puts into the trust. The Episcopal Church did not own any individual parish's property when it enacted the Dennis Canon in 1979, so it could not have been a "trustor" in doing so. It was instead a trust beneficiary, who set up a "trust" unilaterally, without the consent of any individual trustor---other than whatever consent could be implied from the mere fact of a parish's membership in The Episcopal Church. And the California-Nevada decision correctly held under California law, in my view, that section 9142 of the California corporations code did not change basic California law that only a trustor can create a trust. To the extent such a trust can be created, it requires the implied consent of the parish to the terms of the trust---and under the express provisions of the statute, such an implied trust may be amended or revoked at any time by amending the applicable instruments (such as the parish articles and bylaws, without which there can be no trust under the Dennis Canon).

This same question, incidentally, is squarely presented in the Episcopal Church Cases now awaiting decision. At issue is the following language of section 9142 of the California Corporations Code, added in 1981:
(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:
. . .
(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.
. . .
(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.
The Court of Appeal for the Fifth District had construed this language in the California-Nevada case, as I noted earlier, to mean that a trust could be imposed on an individual parish's assets in favor of a governing church body only with its implied cooperation and consent, as indicated in its articles and bylaws expressing an intent to be bound by the governing body's rules. Under a different principle of California trust law, an irrevocable trust has to be in writing. Consequently, the California-Nevada court read the statute to mean that while a national canon could impose a trust (with the parish's implied consent), any such trust was revocable by the parish's amending its articles or bylaws at any time so as to repudiate that trust. In the Episcopal Church Cases, the Second District Court of Appeal took issue with that holding, and in effect held as the Fourth District does today: the national church "created" the trust when it passed the Dennis Canon, and so as the "creator", it is also the "trustor", and only the "trustor" can revoke the trust (e.g., by repealing the Dennis Canon).

This is a fallacious interpretation of the statute, because even under the reading of the Fourth and the Second District Courts of Appeal, two parties are needed to create a trust. The Dennis Canon would be devoid of meaning if there were no parishes in existence holding property to which the Canon could apply. So the parishes are every bit as much "trustors" for purposes of the statute as are the dioceses, or the national church. And as trustors, subsection (d) of the same statute (quoted above) gives them the power to "amend or dissolve" the trust at any time ("from time to time", as the statute has it). If this were not true, as the court in the California-Nevada case observed:
Although the hierarchical theory has supposedly been rejected in California, it will nevertheless live on under the label of “neutral principles of law,” if a church's own rules are viewed as trumping state statutes.
Knowledgeable people who watched the oral argument in the Episcopal Church Cases on October 9 tell me that the Justices seemed somewhat naive, or even confused, in their grasp of the canonical underpinnings involved in this issue. Thus while we have no way of knowing how the Supreme Court will read section 9142, it is entirely correct to say that whatever it decides will render today's reading of the statute by the Fourth District either incorrect, or else superfluous. That is why I find it gratuitous of the Court to have offered its opinion on the statute after conceding that the issues before it did not involve anything about who actually owns the parish property.

The Fourth District's decision also has a number of inexplicable misstatements of fact about the Episcopal Church. For example, on page 4 it flatly asserts:
The second level of the Episcopal Church consists of 111 "dioceses," which are separate and distinct ecclesiastical entities that superintend the mission and ministry of the Church within their respective geographic areas. As a condition of its creation, each diocese must accede to the constitution and canons of the Episcopal Church and is required to recognize the authority of the church's general convention.
It repeats the same error two pages later:
Since its inception in 1789, the Episcopal Church has required that every diocese accede to the constitution and canons of the Episcopal Church as a condition of being admitted into union with the church.
There are two things wrong here. First, it is simply not true that every diocese in the Church has been required to accede to the national constitution and canons as a condition of either being created, or of ongoing membership: for example, neither the Diocese of Maryland, nor the Diocese of Washington (which was created out of the former in 1895) has any kind of accession clause in their respective constitutions. And second, as Mark McCall showed in his comprehensive paper on the subject, it is not true that there has been any such requirement in the national constitution since 1789.

The court also seems to have gained a fallacious view of how a diocese comes into being. It says, at pp. 4-5:
Upon being admitted into union with the church, a diocese then convenes its own annual convention, which adopts a diocesan constitution and canons consistent with the constitution and canons of the Episcopal Church. The San Diego Diocese is a diocese of the Episcopal Church and was created in this manner.
Once again, the Court has it exactly backwards. Under Article V of the TEC Constitution, a diocese first has to be created as a legal entity under State law, which means it must have met in convention and adopted appropriate governing instruments---a constitution and canons, which contain language acceding to the TEC Constitution and canons. While it may meet again, after being admitted into TEC, to ratify its constitution and canons, it needs to have adopted them in the first instance for the versions which it submits to General Convention to be authoritative.

Thus the diocese is already a separate existing entity under state law when it applies for membership in TEC. (And those who, like D. C. Toedt, argue that before it became a separate diocese it was a mission wholly dependent on the national church for its existence overlook the step by which the diocese becomes independent. In so doing, it ceases being a legally subordinate part of TEC, and becomes a new entity of its own, capable of entering into covenant with General Convention. Indeed, it does not do so until it can stand on its own, without any help from the national church.)

So while the decision in New v. Kroeger may perhaps be correct under the particular facts recited in the opinion, the great number of factual inaccuracies and erroneous legal arguments it contains, plus its rush to pronounce on questions not properly before it, furnish little basis for confidence that it will serve as a meaningful precedent. The Court should have stayed with the narrow question it insisted it was addressing, instead of trying to be encyclopedic (one derives the latter intent from the fact that the Court certified its opinion for publication). As it is, its decision will either be eclipsed by the forthcoming decision of the Supreme Court, or else will have to be reversed because of it.


  1. Mr. Haley,

    Would you say that the Second District (and now the Fourth District) have essentially recognized a religious exception to the generally applicable law of trusts?

  2. Jeff H, thank you for the question---it helps me to illuminate what I see is going on here. Rather than call it a "religious exception to the generally applicable law of trusts", I would prefer to see it as a profound misreading of the limits that are required under Jones v. Wolf and Watson v. Jones, two decisions that are more than 100 years apart. (Jeff H already knows these cases, but for those who are interested in a more detailed discussion of them, I would refer you to this post.)

    What the Courts of Appeal have done in the two instances to which you refer is to take the "hierarchical deference" analysis of Watson and use it to negate, rather than complement, the "neutral principles" analysis of Jones. In so doing, they have in practical terms created a "religious exception to the generally applicable law of trusts", as you say, but they have done so with absolutely no justification in the cases on which they purport to rely.

    There simply cannot be a trust without a trustor, who owns property that will be made subject to the trust, and a beneficiary, for whose benefit the trust property will be held. TEC wants to act as though it can simultaneously be the person for whose benefit the property is held and the person owning the property---even though it does not in fact own the property. That is what we call "bootstrapping"---it has nothing to do with the law, but everything to do with power, i.e., what you think you can get the courts to decide on your behalf.

    It must not, and cannot, work that way under the law---or else you and I are no longer lawyers, but simply witnesses to a transformation of the rule of law into a "Golden Rule" that "He who has the gold makes the rules."

    Additionally, I would contend that the enactment of a statute like Corp. Code section 9142, if it was meant to codify the Dennis Canon under California law, would itself violate the Establishment Clause of the First Amendment.

  3. A.S. Haley writes in the main posting: "... Under Article V of the TEC Constitution, a diocese first has to be created as a legal entity under State law, which means it must have met in convention and adopted appropriate governing instruments---a constitution and canons, which contain language acceding to the TEC Constitution and canons." [Emphasis added.]

    That's a curious reading of Article V. I do not see any requirement there, nor elsewhere, that a would-be diocese must first organize itself as a legal entity under state law (for example, as a non-profit corporation).

    Indeed, the very first sentence of Article V puts a big hole in your argument: "A new Diocese may be formed, with the consent of the General Convention ...." (Emphasis added.)

    That is to say, the mere adoption of a constitution and canons, by a convocation in a start-up area mission (or by the convention of a diocese being divided), is constitutionally insufficient to form a new diocese. Until General Convention gives its consent — which we can assume would be refused if the new constitution and canons did not contain the required accession clause — the new diocese has no existence at all, legal or otherwise.

    So a new diocese can hardly be said to be a stand-alone ecclesiastical body, as you seem to claim.

  4. OK, D.C. Toedt, let's break this down so everyone can follow where our points of disagreement (and agreement) are.

    An Episcopal Church diocese has a dual existence: a secular one under the law of the State in which it is organized (usually as an unincorporated association), and a canonical one in The Episcopal Church.

    You say that the diocese cannot canonically exist without the prior consent of General Convention, and I agree with you. It is actually the mutual consent—of the diocese in acceding, and of General Convention in agreeing to recognize the diocese, that gives rise to the canonical entity called an Episcopal Church diocese.

    But you also imply that a diocese can have no secular existence before it exists canonically, and there you are wrong. Indeed, the whole point of my argument in refutation of yours was that a diocese must of necessity have a secular existence under State law before it can even apply to be a canonical diocese: there has to be a separate legal entity with which General Convention can join in communion.

    And a diocese gains its secular existence as an unincorporated association by having its members assemble in convocation and adopt its governing instruments—-a constitution and canons. For those to be valid, and to contain the appropriate language of accession, they must be adopted by the unincorporated association before it applies for admission to General Convention, because Article V requires the diocese to submit proofs of their adoption to General Convention as part of the process of receiving GC's consent.

    Your whole argument is based on just the canonical side of things, and might have some validity if there were an ecclesiastical constitutional court to adjudicate such matters. But the ability of a diocese to withdraw from TEC is being adjudicated in the secular courts, and they will look to whether the secular rules of unincorporated associations have been followed in addition to looking at the canonical rules (of which there are none that attempt to prohibit withdrawal).

    From a secular point of view, TEC itself is just another unincorporated association, organized under New York law. Its members are the various dioceses that assemble in General Convention. And there is no doctrine of New York law that says that members of an unincorporated association cannot withdraw from the association whenever they choose. The fact that the association had to consent to their joining it in the first place is irrelevant to the right to withdraw. The right to withdraw is of the essence of a voluntary, unincorporated association.

  5. A.S. Haley writes: "... a diocese gains its secular existence as an unincorporated association by having its members assemble in convocation and adopt its governing instruments—-a constitution and canons."

    I agree that an unincorporated association is involved. But that association is TEC, not the new diocese.

    Consider the membership of what you call a new unincorporated association. Every one of those members is a member in good standing of the previously-existing TEC unincorporated association.

    Consider also that the constitution and canons adopted by the convocation expressly accede to those of TEC, and usually contain a supremacy clause giving primacy to the latter .

    Finally, consider that under TEC canons, pretty much every position of significant responsibility in any diocese, existing or new, must be held by a person (i) who has vowed to conform to the doctrine, discipline, and worship of the Episcopal Church — not of the diocese — or (ii) who serves under the supervision and direction of a person who has taken that vow. (See this post of mine for supporting citations.)

    I therefore doubt that a secular court (applying, say, the Uniform Unincorporated Nonprofit Association Act) would hold that the organizers of a new diocese had intended to join together in a separate unincorporated nonprofit association. My guess is that the court would hold that the organizers were members of an existing association — TEC — engaging in an internal reorganization in accordance with the existing association's governing documents.

  6. Further to my previous post: I do agree that, after General Convention gives its consent, the new diocese could fairly be said to constitute a new unincorporated association. But before then, I don't think a court would recognize the new diocese as having any kind of legal existence separate from TEC.

  7. D.C. Toedt, I simply cannot follow your reasoning. The act of giving consent by General Convention may confer canonical status on the nascent diocese, but don't you see that it has to be already separate before that point for it to be legally capable of applying for union with GC with its duly adopted constitution and canons in the correct form?

    Stated another way: if GC rejected its application for whatever reason, and refused to recognize it canonically as a diocese, are you contending that the State in which it was formed would not acknowledge it as a valid unincorporated association? (With the legal ability, say, to sue TEC in the State courts?) Sure, the State would not recognize it as a diocese of the Episcopal Church, but it would recognize it (for whatever it would be worth) as a legal unincorporated association.

  8. Looks like I had a post disappear into the bit bucket. My previous post said, in essence, that under the definition in the uniform law governing unincorporated nonprofit associations, the only relevant such association is likely to be TEC itself. That's because:

    • All members of the new diocese are required to be members of TEC.

    • Under TEC's canons, anyone in any diocese who is entrusted with any significant governing- or religious responsibility must either (i) vow conformity to the doctrine, discipline, and worship of TEC, or (ii) serve under the supervision and direction of someone who has taken the vow;

    For purposes of the new diocese's dealings with third parties, I think a court might well treat the diocese as a separate unincorporated association.

    But for internal church matters, I doubt very much that a court would treat the new diocese as a separate association, any more than it would treat a parish vestry or a GC delegation as such.

  9. A.S. Haley writes: "... if GC rejected [a proposed new diocese's] application for whatever reason, and refused to recognize it canonically as a diocese, are you contending that the State in which it was formed would not acknowledge it as a valid unincorporated association? (With the legal ability, say, to sue TEC in the State courts?)"

    My guess is that, as between a spurned would-be diocese and TEC, a court indeed would NOT recognize the spurnees as an unincorporated association separate from TEC — at least not until the spurnees declared themselves to be such; before then, they were operating as a subdivision of a preexisting association to which they all belonged, viz., TEC itself.

  10. Two points, The easiest way to test whether a diocese in formation has a separate existence from General convention is to ask "what happens if General Convention does NOT recognize the diocese?" In fact, we know the answer, the area in question remains a part of the missionary district or existing diocese from which it was to be created. This actually has happened in the case of the Diocese of Arkansas. Arkansas was part of a missionary district at the start of the Civil War. The confederate church approved formation of a diocese and recognized its missionary bishop as the diocesan. However, in 1865 the diocese was not recognized by the TEC and it reverted to its missionary status. The bishop was recognized as a missionary bishop. Second point, the constitutions of Maryland and Washington do not have an accession clause because these dioceses are required by legislative statute to be in conformity to the Constitution and canons of General Convention. In fact, the Diocese of Washington includes the Maryland Vestry Act as part of its constitution and canons.

  11. Two points:
    1. The easiest way to illustrate that at the moment of formation a new diocese is not outside and seaprate from TEC is to ask, "What happens should General Convention fail to recognize the diocese?" The answer is that the diocese in the making reverts to being part of the missionary district or diocese from which it was being formed. There is even an case of this happening. Arkansas was part of a missionary district at the start of the Civil War. During the war, the confederate church created the diocese of Arkansas and recognized the missionary bishop as diocesan. In 1865, however, TEC did nor recognize the diocese. The bishop was admitted to the house of bishops as a missionary bishop and Arkansas reverted to being part of the larger missionary district.
    2. The reason that neither Washington nor Maryland have an accession clause in their constitution is that they are required by legislative statute to be in conformity with the Constitution and Canons of General convention. If you go to the END of the Diocese eof Washington Constitution and Canons, you will find the pertinent Maryland Vestry Act of 1970 and the corresponding private act of the U.S. Congress for the District of Columbia.

  12. OK, I am going to respond to you one at a time here. D.C. Toedt (6:44 PM), your claims about "the new uniform law governing unincorporated nonprofit associations" still make no sense to me. In the first place, to my knowledge no such law has yet been adopted in California, but even if it had been, so what? You say that it would make "the only relevant . . . association . . . TEC itself." How so? Why would a California law purport to make irrelevant a validly organized California unincorporated non-profit association in favor of an out-of-State New York unincorporated association? And what does "make irrelevant" mean in that context, anyway? Does it mean that California courts would refuse to allow the California unincorporated association to sue, or to hold property, or to open a bank account? IF GC has rejected the California unincorporated association as a diocese, then TEC is no longer relevant to the function or purposes of that association. It could start its own church and be a diocese of that church, and TEC would have absolutely nothing to say about it.

    You say: "for internal church matters, I doubt very much that a court would treat the new diocese as a separate association . . .". Of course it wouldn't! After the hypothetical rejection of the unincorporated association as a canonical diocese of TEC, that entity has no further role to play in "internal [TEC] matters." But it could play a significant role in the establishment of a new Church, or in joining some other Church, and so that is my point: the unincorporated association has, from the moment of its formation under secular law, a secular existence that is wholly apart from whether or not the Episcopal Church recognizes it or not.

  13. D.C. Toedt (6:48 PM), you again fail to acknowledge that the sovereign State of California has any role to play in the creation of unincorporated associations. You say: "a court indeed would NOT recognize the spurnees as an unincorporated association separate from TEC — at least not until the spurnees declared themselves to be such; before then, they were operating as a subdivision of a preexisting association to which they all belonged, viz., TEC itself." Well, what if TEC itself dissolved as an unincorporated association in New York the day after the California unincorporated association organized itself and adopted its Constitution and canons? Are you saying that the California unincorporated association's acts would thereby be retroactively made null and void, and that it, too, would have no choice except to dissolve? Why would it be precluded, following the dissolution of TEC itself in New York, from carrying on as TEC in California?

    I have to say that in my view, California courts would fully recognize the association as a legal entity from day one, whether or not it eventually was able to affiliate with TEC. That the purpose for which it organized was frustrated may be a factor in whether or not it decides to continue in existence as a voluntary association, but California would say that is for it to decide, and not some out-of-state group. Its legal existence under California law does not depend on whether TEC exists, or acknowledges it, or not. California will not surrender to some stranger out-of-state association the ability to determine whether or not the lawful actions of its citizens in the State have legal consequences; that would be a complete abdication of its sovereignty.

  14. Joan R. Gundersen, thank you again for commenting here---I want to stress that your views will always be treated here with respect, because of your distinguished career as a Church historian.

    What I would suggest, with regard to your example of Arkansas, is that the "Diocese of Arkansas" that was recognized by the confederate church was a valid unincorporated organization under Arkansas law. It had its own separate Bishop and Standing Committee, and its own constitution and canons. When, after the Civil War, PECUSA refused to recognize it as a valid diocese (unlike the other pre-existing dioceses that had seceded), what that tells me is that there was no assignment, or transfer, of its status as a diocese in the confederate Church to the post-war national Church---PECUSA simply did not agree to allow it to come into union with it at that time.

    I am open to being corrected by being shown the actual historical documents, but my reading of the facts would be that when the unincorporated association that was formerly "the Diocese of Arkansas" in the confederate church was not recognized after the war by PECUSA, it either continued to be an unincorporated association under Arkansas law, with its own constitution and canons, until it was so recognized by PECUSA, or else it dissolved as an unincorporated association under Arkansas law, and was no longer governed by its own constitution and canons---in which case it became, as you describe it, a missionary area of PECUSA with no constitution and canons of its own.

    In either case, the example would not undercut my point: that an unincorporated association has a separate legal existence under secular law as soon as it is formed, regardless of whether or not TEC canonically recognizes it as one of its dioceses.

  15. Dr. Gundersen (9:45 PM), with regard to your explanation of why there is no accession clause in either the Constitution of the Diocese of Maryland or the Diocese of Washington, I must respectfully disagree.

    The Maryland Vestry Act places no legal restrictions on the Diocese of Maryland, but only on its parishes and vestries. For example, section 312A of the Act contains this language:

    "Subject to the provisions of applicable public law, parish by-laws shall be in conformity with the Constitution and Canons of the Protestant Episcopal Church and the Diocese of said Church wherein the parish is located."

    That language does not amount to a clause that the "Diocese shall accede to the Constitution and Canons of PECUSA." The same is true of the language in section 312J of the Act.

    Nor does the private act of Congress with respect to the Diocese of Washington have any such language. What it says is this: "Here after the government and operations of the Protestant Episcopal Church in the District of Columbia shall be in accordance with the constitution and canons of said church."

    The "government and operations of the Protestant Episcopal Church in the District of Columbia" are not in law the same as the "government and operations of the Diocese of Washington," which also includes the Maryland counties of Montgomery, Prince George's, Charles and St. Mary's. Congress has no statutory jurisdiction over those Maryland counties, and it consequently cannot exercise full jurisdiction over the Diocese of Washington. The passage I have quoted from the private act, therefore, amounts to saying that insofar as PECUSA (TEC) operates within the District of Columbia (e.g., with the National Cathedral), its operations shall conform to its constitution and canons. There is nothing in that private act which operates as an accession clause for the Diocese of Washington itself.

  16. A.S. Haley writes @ 10:23 pm: "Why would a California law purport to make irrelevant a validly organized California unincorporated non-profit association in favor of an out-of-State New York unincorporated association?"

    I apologize for not making myself clear. The question is NOT: Could an embryonic diocese organize itself as a California unincorporated (nonprofit) association, then seek admission to TEC. The question IS this: Under Cal. Corp. Code 18035, DID any embryonic diocese in fact organize as an unincorporated nonprofit association separate from TEC? Not, could the organizers have done so, but did they?

    I conjecture that the response of most if not all courts would be no — the diocesan organizers did not form a separate new unincorporated association, but were acting in their capacity as members of the larger unincorporated association, namely TEC.

    Section 18035 of the California Corporations Code defines an unincorporated association thusly: '"Unincorporated association" means an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not. ..."'

    It doesn't appear that any filings or other formalities are required to become an unincorporated association. A court therefore would have to examine the actions of a convocation in an area mission that adopted a constitution and canons to 'erect' (the TEC constitutional term) a new diocese. In particular, the court would have to ask whether the members of the new diocese — all already members of TEC — were "join[ing] by mutual consent for a common lawful purpose."

    In a narrow literal sense, yes, the diocesan convocation would qualify as a separate unincorporated association. But I doubt very much that a court would adopt such a literal view. If it did, then every time a parish organized an altar guild or other group that had its own bylaws, then that group would constitute a new unincorporated association. For example, in my parish the associate vestry (the usher guild) has its own canons; I doubt any court would label the AV as an unincorporated association separate from the parish itself.

    That's why I think that courts would treat the formation of a new diocese, not as the organization of a separate unincorporated association that can withdraw from TEC at will, but as merely an internal reorganization carried out by the 'parent' unincorporated association, namely TEC itself.

  17. I forgot to mention another important factor: Not only is every member of the embryonic diocese also a member of the larger unincorporated association (TEC), but every member of the clergy has vowed to conform to the doctrine, discipline, and worship of the larger association. I suspect that would push a court even more toward the view that a new diocese is not a new unincorporated association, but simply a new internal component of TEC.

  18. DC Toedt, I am on the road again and so cannot give your latest comments the attention they deserve. (It looks as though your "lost" comment resurfaced, however.)

    For the present I will note only that your analysis whereby all of the 111 separate dioceses represent just so many "reorganizations" of TEC robs their each having adopted separate constitutions of any independent legal significance. Under your analysis, they are all just so many subordinate branches of what is a single legal entity, namely, the unincorporated association that is TEC.

    But if that were the case, then every diocese could be made jointly liable for TEC's own torts, and I don't think the dioceses would see things that way.

    Anyway, thank you for clarifying your argument here. Time will tell whether the California courts accept it.

  19. (Do you go by A.S., the way I go by D.C.? I do so because there's a Roman number III after my name, so I've been D.C. since birth.)

    You raise an important question about joint and several liability. Under the Uniform Unincorporated Nonprofit Association Act, as enacted in Texas and other states, members of an unincorporated nonprofit association are not subject to joint and several liability. (And a 'member' can be any legal person, including an unincorporated organization.) The same is true under Cal. Corp. Code 18020 and 18605-18640. That's why I was suggesting that vis à vis third parties, the courts likely would hold that a new diocese was indeed a new unincorporated association, in effect a subsidiary of TEC.

    With that in mind, let me propose a way a court might rule, which I think is consistent with TEC constitution article V:

    1. When TEC sets up an area mission, the new mission is an unincorporated association that is a 'member' of TEC (and thus other TEC 'members,' including dioceses, are not jointly and severally liable for its debts).

    2. The new association's governing rules (dictated by TEC) are assented to by the new association's members, either explicitly or implicitly. Those governing rules generally incorporate by reference the constitution and canons of TEC.

    3. All of the individual members of the new area-mission association are also members of the TEC association. Moreover, the clergy of the area-mission association have taken TEC's discipline vow.

    4. All parishes and other non-individual members of the area-mission association presumably include similar rules in their own governing documents.

    5. As a result, any action purportedly taken by the area mission (or for that matter by any parish) that is inconsistent with TEC's constitution and canons would be ultra vires and of no effect, which is pretty much what the California appeals court ruled.

    This has been a useful exercise in brainstorming the possibilities.