Friday, December 26, 2008

A New Low in ECUSA's Tactics in San Joaquin

In an earlier post, I asked the rhetorical question: "How Low Can the Sun Sink on the Episcopal Church?" The answer is that after having already sunk, the sun can sink on it apparently lower still---especially if one is talking about the Church's legal tactics.

I have covered the Church's previous, questionable tactics in its San Joaquin lawsuit in a series of posts which you can find grouped under that heading on the Guide to This Site page. Although the case is technically "at issue", meaning that Bishop Schofield and the diocesan property entities which he heads have answered the second amended complaint filed by ECUSA and Bishop Lamb, and by their so-called "Diocese of San Joaquin", the plaintiffs apparently do not plan to let matters rest there. For they---the fifteen percent or so who stayed with ECUSA, that is---are not content with laying claim to all of the current Anglican Diocese's property and funds. (But of course, the law always agrees that 15% of a former group are entitled to 100% of the group's property---don't you realize that it is the Episcopal Church that we are talking about?) Now they want to go after funds which the original and true Diocese of San Joaquin (the one that existed before the vote on December 8, 2007 to leave ECUSA) paid out to its attorneys in anticipation of the lawsuit that ECUSA would bring.

Remember---ECUSA first managed to push Merrill Lynch, who is the brokerage house that manages many of the accounts maintained by Bishop Schofield and the departing diocese (as well as the funds of ECUSA itself), into placing a hold, or "freeze" on all those accounts so that no further money could be withdrawn from them without the Church's and Bishop Lamb's consent. They did this not by obtaining an attachment order and by putting up a bond, as a normal plaintiff would have to do. No, they accomplished the same result by the simple expedient of naming Merrill Lynch itself as a party defendant. Merrill Lynch panicked at being sued, and froze the accounts. It is now trying to pay them into the court to let it decide to whom they belong.

Before it can do so, however, the court has told both Merrill Lynch and ECUSA that since ECUSA requested, and Merrill Lynch cooperated in, the freezing of investment accounts held by churches like St. John's in Tulare, St. John's in Porterville, and St. James's Cathedral in Fresno---whom they did not name as defendants in the case---they would first have to come to some form of agreement with those entities about the use of their funds, or add them to the lawsuit. Thus far, some agreements have been reached, but some of the accounts still remain frozen.

It's pretty neat, don't you think, when you are a big enough bully that you can get a bank to freeze a person's account just by suing the bank as a defendant, while not bothering to sue the person who actually put the money into the account? ECUSA accomplishes this by citing its ubiquitous Dennis Canon. "Since all those parish moneys were actually held in trust for us as a result of the Dennis Canon," they say, "we get to have them frozen when they try to leave the Church." 

(Well, St. John's Tulare remained in ECUSA, and did not vote to join the diocese in leaving for the Southern Cone. But that did not help it with its Merrill Lynch account: ECUSA and Bishop Lamb asked to have it frozen, and have demanded that they be allowed to approve expenditures as a condition of unfreezing the account. In just such a way is the Episcopal Church [USA] attempting to establish a legal precedent for stepping in as both a "trustor" and "trust beneficiary" to assert its supposed rights under the Dennis Canon.)

But wait---now comes the latest bullying tactic from ECUSA and its legal team. They demanded, as part of the lawsuit, that Merrill Lynch turn over to them copies of all of the diocesan account statements over the previous year. When it obliged, ECUSA found that Bishop Schofield's diocese had written a retainer check to its law firm, in anticipation of the lawsuit that TEC was expected to file over the impending withdrawal, in the amount of $500,000. (ECUSA has only recently admitted that it spent nearly $2 million on legal fees in the year 2008 alone---$1.5 million over budget. Its budget for 2009, including an unbelievable $600,000 just for legal fees, is in the red by $2.5 million---a feat made possible only because of accumulated prior surpluses.) And guess what: ECUSA---and Bishop Lamb, of course---now want those funds turned over to them, as well!

In other words, ECUSA and Bishop Lamb are trying to see that the money which the diocese budgeted for legal expenses cannot actually be spent for that purpose. And in doing so, the plaintiffs propose to amend their current complaint a third time to name the law firm of the Co-Chancellor of the Anglican Diocese as a new defendant. I have no doubt that this is a prelude to bringing a later motion to disqualify the firm from acting as counsel for the defendants in the lawsuit.

These are vile tactics, that should make any Episcopalian ashamed of their Church. To begin with, the Dennis Canon, which is of dubious validity to begin with, does not apply here. Why is that? Because the Canon applies only to property held "by or for the benefit of any parish," and not to property held by a diocese itself. (The diocese to which the parish belongs is a co-beneficiary of a Dennis Canon trust, and even the Episcopal Church (USA) has to recognize that an unincorporated diocese cannot hold property in trust for itself. Thus it would be nonsensical to try to apply the Dennis Canon to property in the name of a diocese.) So the Church has no grounds on which to claim that the money must be held in trust because of the Dennis Canon. Instead, it is simply waving its wand and contending that its "Constitution and Canons" generally require that all diocesan property be held in trust for, and be used only to benefit, the Episcopal Church (USA). (Could we expect any less of an argument from the Supreme Metropolitan and her Chancellor? No doubt they'll make it much more explicit at GC 2009.)

In the next place, the (Anglican) Diocese of San Joaquin has the right to defend itself when sued, and to use its own funds for that defense. The money belonged to the diocese when it was paid; the national church had no more right to the money then than it does now. Again, it would be a pretty easy route to victory if you could get the court to freeze your opponent's assets at the start of a lawsuit.

So what plausible claim can the plaintiffs make to have the funds frozen? Well, they claim that, as the group representing the one-sixth or so who chose to "Remain [Purely] Episcopal", they are the only lawful "successor" to the original Diocese of San Joaquin, and as such are entitled, as I reported, to one hundred percent of the former diocese's assets! How is that for an equitable (and Christian) division of property? Doesn't such evident charity, and true imitation of Christ's teachings in the Gospels ("But I say unto you . . . if a man takes your coat, let him have your shirt also") just make one proud to call oneself an Episcopalian? Why, the dear folk who choose to remain "Episcopal" are so proud of what they are doing that they have even agreed to give every penny of what they are contributing each Sunday just so those nice, kind (but rather expensive, at $500+ per hour) lawyers they have hired will be able to present their Christ-like position in the court, and so the dear, charitable national Church's money can be spent on "mission"! 

(Note that the latter term is defined as "spending money to benefit anyone except for those who used to go to church with you." Those dastardly folk, you sue!) 

O.K., end of sarcastic rant. (My apologies to all you well-meaning "Remain Episcopal" folk in San Joaquin, but sometimes, no matter how well-meaning you may be in your own hearts, you arouse this curmudgeon's ire.) Turning serious now, I submit that with their utterly outlandish claim to their opponents' legal funds, the San Joaquin plaintiffs have exposed the soft underbelly of their lawsuit to attack. For the facts on the ground are that:

1. "Remain Episcopal" has never organized properly as a full-fledged "diocese" pursuant to ECUSA's Constitution and Canons. It can only be recognized as such if its claims succeed in court, and under the California law of unincorporated associations, that is anything but a given.

2. The "Convention" at which it was organized was not given the notice required by the very Constitution which the "diocese" insists governs it, nor was the notice given by its Ecclesiastical Authority, as that Constitution again mandates. ("There wasn't any 'Ecclesiastical Authority' around to give it," they say. And just who, do you think, claimed the unprecedented and uncanonical authority to remove (sorry---depose and "derecognize") the Ecclesiastical Authority? Isn't that akin to shooting your mother and father, and then begging for the court's understanding on the ground that you are now an orphan?) 

3. The "Convention" did not have a legal quorum of canonically resident clergy present to do business, and probably was lacking a Constitutional quorum of parishes as well.

4. As "approved" by the pseudo-Convention acting without authority and without proper notice or a quorum, Bishop Lamb is "no bishop of no see", and so is not a proper party to come into court; and

5. The earliest date at which it would be possible for the Episcopal Church (USA) to have a duly reconstituted "Diocese of San Joaquin" is July 2009, the date of the next General Convention, which, under ECUSA's claim to be "hierarchical", has to approve the creation of all new dioceses.

Consequently, the party which alleges it has the right to the funds is not a proper party at all to the lawsuit. It's as if, say, you and I used to belong to the Duffers' Golf Club, but after a lot of playing we thought we were better than the others, and wanted to admit some pro golfers who we felt were more like ourselves. The majority said "Nothing doing---we're duffers, and this is our Club," and  so we quit (or the Club expelled us---same difference). So in revenge, we meet together and file papers making ourselves look like we are the "Duffers' Golf Club," and then we file suit in court to make the real Duffers' Golf Club turn over all its assets to us! Pretty good trick, if you can make it work. The trouble is that once the court started looking into just how we formed our "Duffers' Golf Club," it would see at once that we have no right to make such a claim. And until ECUSA goes through the procedures spelled out by its Constitution and Canons to create a legitimate new diocese in the region of San Joaquin, a court should not entertain a lawsuit brought by a party who is not what it claims to be.

I can safely predict from my armchair that ECUSA will never get its ducks in a row and cause a proper diocese of San Joaquin to come into being at GC 2009. To do so would be to admit the total error of its approach in San Joaquin thus far. No, GC2009 will come and go, and ECUSA will squander another opportunity to follow its own canons. The result will be that it will be at least 2012 before ECUSA is forced to put its house in order.

Things are about to get mighty interesting in San Joaquin---and not just for those involved in the lawsuit there. Pittsburgh, Ft. Worth and Quincy will all be watching. Will the California judge, as Judge Bellows as able to do in Virginia, see through ECUSA's "hierarchical" smokescreen? With their latest hardball tactic, the San Joaquin plaintiffs have certainly found a way to get his attention.


  1. If their money is with Merrill Lynch, the question I have is how low can Merrill Lynch sink? From $59.60 a share to $7.80 in the past 12 months (see chart here)
    I hope those frozen funds were in riskfree CDs.

  2. TECUSA is between a rock and a hard place.

    Either DSJ left and the bishop, clergy, people, parishes, and assets left with it and there was a vacum that needed to be filled by TEC and the "organizing" convention was OK because nothing like this had ever happened.

    Or DSJ did not leave, only about 8% of the people did and, so, the remaining members of the Standing Committee were the Ecclesiastical Authority of the Diocese and the "special" (i.e."short bus") convention was illegal and +Lamb has no authority and the present Standing Committee is not the true Standing Committee.

    One or the other can be true. They both cannot be true.

    Phil Snyder

  3. Fortunately, Pewster, the funds were independent of ML, and so did not vanish with ML's net worth. Nevertheless, ML's current stock price reflects the market's valuation of its prospects, and they aren't good---I wonder why, since their attitude towards their long-standing clients in San Joaquin, as demonstrated in the current lawsuit, shows the degree of emphasis they place on loyalty. Could it be that ML's brand of customer loyalty is just not what the market wants anymore?

  4. Deacon Phil, Thank you for your comment. I have to offer a variation on what you say, if only a slight one:

    The DSJ's departure from ECUSA (I can no longer refer to it as TEC) did indeed leave a vacuum. However, rather than fill it by organizing a new diocese and having it apply to GC2009 for admission, ECUSA in its hubris decided to claim that only the group that gathered in Lodi last March 29 was the "legitimate" diocese. But if that was the case, how could it ignore the notice and quorum requirements of the diocesan Constitution?

    Had it just wanted to meet and reorganize, issues of notice and quorum would have been irrelevant---whoever showed up was entitled to organize a new association. But by claiming that they were still the old association (albeit somewhat reduced in numbers), they then had to abide by the laws and procedures of that organization, which meant giving the required 30 days' notice, and having quorums of clergy and laity both present. This they failed to do, so their claim to legitimacy is defective on its face.

    With your second alternative, you are viewing the matter from the standpoint of the Anglican Diocese: it did not leave the area; it's still there, and has its own bishop and its own Standing Committee. The one claiming to run the (Episcopal) "diocese" is indeed not the true Standing Committee, since there is no true Episcopal diocese yet of which it could be the Standing Committee.

    If I were to rephrase your dichotomy, I would say it this way:

    1. Either the votes by the December 2006 and 2007 diocesan conventions were unconstitutional and void, and hence were ineffective to cause the Diocese of San Joaquin to leave ECUSA, in which case the Remain Episcopal crowd could be recognized as in charge of that Diocese, once they hold a properly noticed convention with a quorum present; or

    2. The votes were valid under California law, regardless of what ECUSA may think of them, and the former Episcopal Diocese is now affiliated with the Province of the Southern Cone, in which case the Remain Episcopal crowd still needs to hold a proper organizational meeting, and ECUSA has to change a few of its canons in order to allow the Remain Episcopal group to apply for admission as a proper Episcopal diocese to GC2009.

    You are right---they can't have it both ways. The court will decide which of the above scenarios is true; they cannot both be true.

  5. The Canons of the Episcopal Church, which the Diocese of San Joaquin accepted when it became a diocese, have since 1868 held that all parish or diocesan prperty is held in trust for the Episcopal Church. When any member of the Episcopal Church decides to leave the Episcopal Church, they have no rightful claim on the property of the church they are leaving.

  6. Father Weir, thank you very much for that comment. From your reference to 1868, I assume that you are speaking about the predecessor of the current Canon 6 of Title II, which was first enacted as Canon 21 of Title I in 1868.

    The exposition of how that Canon subsequently evolved is too complicated for a comment, and requires a separate post, which I shall prepare in due course.

    For now, however, please note that Canon II.6 speaks only of any "dedicated and consecrated Church and Chapel"---it does not speak of other kinds of real property, nor does it address any kind of personal property whatsoever. Also, it is the diocesan Bishop (or other Ecclesiastical Authority) who decides whether the property is sufficiently secured, or whether it can be conveyed away.

    Thus Canon II.6 has no application to the situation in San Joaquin. No "consecrated church or chapel" owned by any parish or mission is at stake (although such a claim may have been asserted against some individual parishes in the complaint, they have not been joined as parties to the lawsuit), and I am unaware of any church property being conveyed away without the Bishop's consent. The principal claim being asserted in the lawsuit is to personal property (funds, investments and bank accounts) owned by the Diocese, and not even the language of the Dennis Canon applies to those.

    But as I say, your mention of Canon II.6 and its predecessors deserves a fuller response in a separate post, and I will do that in a week or so. Thanks very much for commenting here!