One Magic Word Does It All

What is it about New York courts? They do not seem to like to hold trials---you know, those hearings in front of a judge and jury where two sides actually put on evidence with witnesses and documents, and out of the opposing versions some sort of truth emerges? But in New York, at least in cases involving its home-grown, common-law behemoth, the "Protestant Episcopal Church in the United States of America", the courts decide the matter without the bother of a trial, and even without burdening the record with any evidence. All they seem to need are allegations---and based on those (as long as they are made under oath), they make up their minds and issue judgments.

For the latest example of such a judicial shortcut, see this decision by Judge Ferris Lebous in the lawsuit brought by the Diocese of Central New York against the Church of the Good Shepherd in Binghamton. Earlier, Judge Lebous granted summary adjudication to the Diocese on its claim to own by forfeit the parish's real and personal property after the parish voted to leave the Diocese. (Never mind that there were not enough parishioners remaining to allow the building to stay open; it's the principle of the thing, don't you understand? "People may leave, but buildings stay put, even if they are empty. We can always sell them---but not to those who left, you understand---and put the cash to good use in suing other parishes for their property.")

By granting summary adjudication, Judge Lebous necessarily found that there were no facts in dispute that needed a trial to sort them out. No, all was clear from the respective affidavits submitted on either side. The Dennis Canon, after all, was not only part of the diocesan canons (Canon XXIII "reaffirms" its principles, even if the Diocese itself never bothered to accede to the ECUSA canons), but had even been enacted as a statute by that most considerate group of Christians, the New York Legislature, who of course wanted only to help their local parishioners in their desire to give everything they had to the national church, instead of to (God forbid!) their own parish. Given this state of affairs, it was not difficult for Judge Lebous to conclude as a matter of law that the parish did not really own its own property, but held it in trust for the Diocese and the national church.

But what about the bequest left by a long-term parishioner and vestryman, Robert A. Branan, who died in 1986 leaving a testamentary trust? The pertinent parts of his will provided as follows:

FIFTH: I give and bequeath to the RECTOR, WARDENS AND VESTRYMEN OF THE CHURCH OF THE GOOD SHEPHERD, of 74 Conklin Avenue, Binghamton, New York 13903, the sum of One Thousand Five Hundred Dollars ($1,500.00), together with all my diamond, ruby and opal rings for the purpose of creating a chalice and paten with the heretofore mentioned jewels to be set into and become part of said Chalice . . .

SIXTH: All the rest, residue and remainder of my property wheresoever situate, to which I may be entitled or over which I may have any disposing power I give, devise and bequeath to my Trustee, hereinafter named, in trust, to invest and reinvest the same, to collect the income therefrom and to pay the annual income therefrom, in quarterly installments, as follows:

A. To THE ALL SAINTS MEMORIAL FUND OF THE CHURCH OF THE GOOD SHEPHERD, 74 Conklin Avenue, Binghamton, New York 13903, Twenty-Five Percent (25%) thereof . . .
. . .
Upon the death of the survivor of [names omitted], said trust shall terminate and I give, devise and bequeath the entire principal then remaining in said trust, and any accumulated and unpaid income, to the RECTOR, WARDENS AND VESTRYMEN OF THE CHURCH OF THE GOOD SHEPHERD to be held by them as a memorial fund in memory of the persons whose names are to be inscribed on the chalice and paten, to be known as the Branan Memorial Fund. Said Rector, Wardens and Vestrymen shall hold said fund in trust nevertheless to invest and reinvest the same, to collect the income therefrom and use the income for general church purposes.

SEVENTH: In the event The Church ofthe Good Shepherd shall cease to exist or shall merge with another church, the bequests set forth in paragraphs FIFTH and SIXTH shall be to the successor by merger church or in the event said church ceases to exist such bequests shall be to the RECTOR, WARDENS AND VESTRYMEN OF CHRIST EPISCOPAL CHURCH OF BINGHAMTON, by whatever name known.

This seems to be rather straightforward, does it not? The testator leaves his estate in trust for the "Rector, Wardens and Vestrymen of the Church of the Good Shepherd" in Binghamton. He also makes proviso for what happens if that church merges with another church, or if it ceases to exist. Well, all is not as straightforward as it seems. Listen now to Judge Lebous as he approaches the question of what the testator meant:

The parties' positions are relatively straightforward. The parties disagree as to the meaning of the phrase "shall cease to exist" as used in relation to Good Shepherd in the SEVENTH paragraph of Mr. Branan's Will. Good Shepherd argues it is still in existence and thus is entitled to remain as the beneficiary of the Branan Trust. The Diocese argues Good Shepherd no longer exists within the meaning of Branan Trust and that said trust monies should go to Christ Church as the alternate beneficiary or, in the alternative, to the Diocese itself.

The question presented to this court is what was Mr. Branan's intent when he used the phrase "in the event The Church of the Good Shepherd shall cease to exist"?

All right, that will suffice as an introduction to the problem posed to the court. Mr. Branan left a will, and expressed that will in words. The Judge's task is to divine what Mr. Branan's intent was by reading those words and by evaluating any other evidence that might bear on the question.

Now there are certain courts---called generally probate courts (in New York, however, they are called "surrogate" courts)---which face these tasks day in and day out. The subject matter addressed in probate (or surrogate) courts has to do with peoples' estates generally. To "probate" a will means to prove the will in court---to prove that the testator signed it and had it witnessed as the law requires, and then to carry out its provisions. So is Judge Lebous a probate judge? No, he is not. And he is not interested in turning the matter over to any probate (surrogate) judge, either---he can interpret the will himself, because he is "extensively familiar" with the case:

Good Shepherd argues that since the sole remaining cause of action - the fourth - involves a will construction that this matter should be transferred to surrogate's court. Good Shepherd does not claim that supreme court lacks jurisdiction, only that practice dictates that a matter involving such a specialized area of the law be transferred to the court with the most experience in that area. As stated on the record during oral argument, this court finds that its extensive familiarity with this case overrides any other concerns and, as such, Good Shepherd's motion to transfer this matter to surrogate's court is denied.

Could the court's "extensive familiarity with the case" possibly mean that the court comes to the present question with its mind already more than a little made up? Perish the thought. Judge Leboux will simply draw upon his "extensive familiarity" with the case to decide what Robert Branan really meant in his will about Good Shepherd ceasing to exist.

Well, what about actually receiving evidence on what sort of man Mr. Branan was, and what his opinion would have been about the current divisions in ECUSA which led to the Church of the Good Shepherd's departure? Judge Lebous rules that further evidence is not necessary---remember, he is already "extensively familiar" with the facts of the case:

The court rejects Good Shepherd's argument that additional discovery is required with respect to the fourth cause of action. Lengthy depositions and paper discovery have been exchanged in this matter which included the subject of the fourth cause of action, namely the Branan Trust. No further discovery on these issues is warranted . . . .

And that is that. Thus, confident in his "extensive familiarity" with the facts, Judge Lebous proceeds to interpret the testator's language. Let us follow his reasoning as he does so:

Good Shepherd argues that while it may have disaffiliated with The Episcopal Church such a disaffiliation does not equate to a legal dissolution. More specifically, Good Shepherd emphasizes that no formal dissolution proceedings have been initiated, let alone completed, for either a judicial or non-judicial dissolution under the Not-For-Profit Corporation Law or a dissolution under the Religious Corporation Law.

The Diocese contends that Good Shepherd no longer exists within the meaning of the Branan Trust. The Diocese asserts there can be little doubt that Mr. Branan intended to benefit an Episcopal Church based upon his choice of another Episcopal Church, Christ Church, as his alternate beneficiary.

Note that word "Episcopal". The only time it appears in Mr. Branan's will (or the portions of it which the court quotes) is in the title of the alternative beneficiary: "Christ Episcopal Church of Binghamton". Mr. Branan could hardly describe it without using its name, and that name includes the word "Episcopal". (Google reports the existence of six other churches in or near Binghamton with "Christ" in their name, including "Christ Church" in nearby Vestal.) And please note, as well, that in his will, Mr. Branan allows for the possibility that even Christ Church might cease to be Episcopal, since he adds to his description of that church the phrase "by whatever name known." But Judge Lebous is not interested in that descriptive phrase, because it does not fit in with the case with which he is so "extensively familiar." No, in the case that he knows is before him, it is the word "Episcopal" that counts. Watch what Judge Lebous is able to conclude from that one descriptive word:

In this court's view, Mr. Branan's Last Will and Testament provides the answer to the question presented. Mr. Branan named The Church of the Good Shepherd - an Episcopal Church - as his primary trust beneficiary. Mr. Branan named Christ Church - the oldest Episcopal Church in the City of Binghamton - as his alternate beneficiary. The court finds Mr. Branan's choice of a second Episcopal Church as his alternate beneficiary most telling. Based upon this language alone, the court finds that Mr. Branan's intent was to benefit an Episcopal Church.

(Emphasis added.) Oh, really? So if I leave my worldly goods to my local (currently Episcopal) church, and in case it no longer exists I specify that they go to a nearby African Methodist Episcopal Church, does that mean that if my original church joins the Southern Cone it can no longer receive my bequest, because the Southern Cone is neither African, Methodist, or Episcopal? But if it happened to affiliate with the Anglican Church of Uganda, or the Anglican Church of Kenya, then that would be OK? That is impressive reasoning, Judge Lebous.

Well, to do him credit, Judge Lebous seems a bit unsure of his reasoning as well. He therefore buttresses it with a few more facts, drawn from his "extensive familiarity" with the case:

Additionally, however, this record reflects Mr. Branan's connection to the Episcopal faith and understanding of the relationship between a local parish and the Diocese by way of his involvement with Good Shepherd during his lifetime. Mr. Branan served as Clerk of the Vestry at Good Shepherd and, in that capacity, executed applications to supreme court to sell or mortgage real property which contained recitations of Good Shepherd's relationship with the Diocese, as well as having annexed thereto the consents of the Bishop for property transactions.

Well that surely is conclusive: as clerk of the vestry, Mr. Branan actually signed his name to a document requesting permission to sell some church property, and that document actually recited that Good Shepherd was part of an Episcopal Diocese, and that its Bishop actually gave his consent to the transaction! Will wonders never cease?

So from those facts, drawn from the court's extensive familiarity with all of the evidence in the case, it can conclude (a) that Mr. Branan was a devoted Episcopalian, and (b) that he never would have wanted his trust to go to the church he attended all his life if it ever ceased to be an Episcopal Church. Heaven forfend! (And that must be why he added those words "by whatever name known" to his description of his intended beneficiary. He really meant to say: "by whatever name known---so long as it is Episcopal.")

Ah, but Judge Lebous is not finished bolstering this magnificent piece of judicial reasoning just yet. He has the little matter of his spleen against Good Shepherd's rector to vent---even though, as he candidly admits, it has nothing to do with the question of Mr. Branan's intent (my interpolations to the court's decision are in red):

Although not pertinent to the issue of the testator's intent,

It certainly isn't, but don't let that stop you.

the court finds instructive

I.e., what I am about to unload is the real reason for my decision:

the actions and representations of Good Shepherd and/or its former Rector Matt Kennedy. It is undisputed

[I am emphasizing all the court's weasel words, just so you cannot miss them.]

that in July 2006, Good Shepherd

[i.e., not Matt Kennedy+ personally, but his parishioners]

adopted a Resolution declaring it intended to dissociate itself from The Episcopal Church and the Diocese. On November 8, 2007, Good Shepherd

[not Matt Kennedy+ again, please note]

passed a resolution stating that they "[d]issociate and end our affiliation with The Episcopal Church in the United States of America and the Episcopal Diocese of Central New York and apply for membership within the jurisdiction of the Anglican Church of Kenya". Additionally, Matthew Kennedy

[ah, now we've got him!]

renounced his ministry within the Diocese and The Episcopal Church.

[But he retained his ministry within the Anglican Communion---oh, never mind.]

On December 9, 2008, The Church of the Good Shepherd filed a Certificate of Amendment, the sole purpose of which was to delete all references to The Episcopal Church

[horrors!]

and stated instead that it would be in communion with the Anglican Province of Kenya.

[Yes, Judge Lebous---in order to affiliate with a different province, it is unfortunately necessary to delete all references to the old one---otherwise people such as yourself might get confused, you know.]

Additionally, Mr. Kennedy's

[Ah, yes---always refer to the minister who leaves for another province as just "Mr."---that will put him in his place.]

recent statements cannot be ignored, including that "The Anglican Church of the Good Shepherd was born last week" and that "seven of your fellow parishioners ... signed (the legal papers to establish a new church corporation called The Anglican Church of the Good Shepherd" (Affidavit of Jonathan B. Fellows, Esq. sworn to March 7,2009, Exhibit J).

[Well, of all things! What a thing to say when you start a new church!]

Finally, it is also noteworthy

[i.e., we're not done with you yet, Mr. Kennedy!]

that any revenue being collected during the pendency of this matter was not been funneled [sic!] to the Church of the Good Shepherd, but rather a separate entity named St. Matthias Society, Ltd.

[Why, of course, Judge Lebous! All those devout Good Shepherd parishioners should have willingly turned over their contributions to the Diocese, so it would not have to draw on its own money to sue them! What a marvelous Christian concept!]

It should also go without saying

[Then why are you saying it, Judge Lebous?]

that the Diocese and The Episcopal Church themselves no longer view Good Shepherd as an Episcopal parish. In fact, in November 2008, the Diocese's Annual Convention passed a resolution that Good Shepherd was no longer a parish in union with the Convention (Affidavit of Karen C. Lewis sworn to March 10, 2009, Exhibit A).

[Was there some dispute here over whether the Diocese and Good Shepherd parted ways? Forgive me if I missed that point, and I'm so glad you set me straight on the facts.]

So now Judge Lebous, having bolstered his reasoning beyond all necessity, winds up for the Grand Conclusion:

Based upon the foregoing, this Court finds that The Church of the Good Shepherd no longer exists as an Episcopal church, no longer exists in name, and no longer exists within the meaning of the Branan Trust. While The Church of the Good Shepherd may well exist in the legal world as a shell corporation that formerly held its property, but not (yet) dissolved under the auspices of the Not-For-Profit Corporation Law and/or Religious Corporation law, applying such a technical argument to Mr. Branan's intent would violate the spirit of his bequest.

Violate the spirit??! What about the letter of the bequest, Judge Lebous? You know, where the testator said he wanted the money to go to "the RECTOR, WARDENS and VESTRYMEN of the Church of the Good Shepherd"? Do those persons no longer exist?

Stated another way, while Good Shepherd may have abandoned the Episcopal faith,

[Oh, really? So now a church can be convicted for "abandonment" under Canon IV.9? Katharine Jefferts Schori and David Booth Beers, take note!]

Mr. Branan never did, and his intent was clearly

[Remember, judges and lawyers use the word "clearly" as a kind of flying buttress, to prop up a conclusion that cannot stand on its own merit.]

to benefit a local Episcopal Church. By all accounts,

[Really? Whose accounts? Could you name some names of those who testified to that effect? I thought there was no evidence or testimony about Mr. Branan, Judge Lebous, because you decided it wasn't necessary.]

Mr. Branan was an active member of The Episcopal Church and there is simply no basis on which to find that Mr. Branan would want his money to go to those former members of The Church of the Good Shepherd that abandoned the faith that he, apparently, held so dear.

[Why, of course! How could I have missed that? After all, he signed those papers attesting that the Church was part of an Episcopal Diocese, and that it actually had an Episcopal Bishop! From that it is only natural to conclude that when Mr. Branan said he wanted his money to go to "the Rector, Wardens and Vestrymen", he meant only if those gentlemen were still Episcopalians, and not if they remained the rector, wardens and vestrymen of the same church that he attended. It's all so perfectly clear now---thank you for that splendid bit of reasoning!]

In sum, this court finds that an examination of Mr. Branan's Will clearly [there's that word again!] leads to the conclusion that the intention of the testator was to benefit an Episcopal Church. Accordingly, defendant Good Shepherd's motion to dismiss the fourth cause of action is denied, and plaintiffs' cross-motion for summary judgment on the fourth cause of action is granted. The court finds that The Church of the Good Shepherd no longer exists within the meaning of the Branan Trust and, as such, Christ Church, as the alternative beneficiary, is now the primary beneficiary under the terms of the Branan Trust.

What a model of judicial reasoning you have placed before the world, Judge Lebous. It instructs every testator on how to make their intent clear to judges with steel-trap minds such as yours. No doubt the Episcopal Church will no want to adopt a new canon that automatically reads the word "Episcopal" into any bequest left by a parishioner. Because with that one word in a will, as you have so clearly shown us, the courts can work wonders.

[PS.: Although I was unable to contain my curmudgeonly sarcasm when it came to Judge Lebous' decision, Father Matt Kennedy has set a Christian model for us with his letter to his parishioners about the decision, which you may read here. It is a good antidote to the above---by which I mean both what I wrote, and what the judge decided. When it comes to being a curmudgeon, I can plead only what Monty Woolley said in a slightly different context: "What did you expect, madam---chimes?"]

Arguments in Fort Worth

In the litigation in Fort Worth, ECUSA and the rump "diocese" have now filed their response in opposition to the defendants' motion to dismiss the plaintiffs' complaint. The plaintiffs resort to all the tried and true strategies employed elsewhere by ECUSA to hasten a court to judgment without stopping to weigh the facts, or determining whether the factual allegations fit the caselaw as cited in their arguments. Here is a brief rebuttal to their factual and legal contentions (portions of ECUSA's and the rump diocese's brief are quoted in purple; the rebuttal follows in black type):

The Episcopal Church has determined that defendants violated their duties and authority as ecclesiastical officers, and no longer serve as clergy or lay leaders within The Episcopal Church or its Diocese of Fort Worth.

But just who is this "Episcopal Church" that has made such a determination? When was it made, exactly, and in what form was it handed down? Is there any writing to which the plaintiffs can point that sets out findings of fact and explanations of just how "defendants violated their duties and authority as ecclesiastical officers", and that issues from "the Episcopal Church"? Did this "Episcopal Church" also claim to have removed the Corporation's trustees from their office? Again, when and how did it do so? Where is the writing that cites any such removal as having taken place, or any authority to bring it about?

This is not an issue that the Court need - or may - decide. See, e.g., Jones v. Wolf, 443 U.S. 595, 602 (1979) (The First Amendment "requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization.")

And exactly who is on this "highest court" of the Episcopal Church? Where is the Constitutional or canonical provision for its existence? Who appoints its members, and for what term do they sit? Is there any collection of their written decisions --- if not, why not? More specifically: when did the Ft. Worth case come before it? Who were the parties, and who appeared? Where is the ecclesiastical court's final decision on the matter? How can this court defer to something that does not exist?

In the course of their inquiries, these [Texas] courts have routinely reviewed both secular documents such as corporate documents and deeds, and also ecclesiastical documents like the Constitution and Canons of the Episcopal Church, and have uniformly concluded:

(1) That a constituent part of a hierarchical church, entitled to the continued use of property held by that religious entity, is comprised of individuals who remain part of the hierarchical church, regardless of whether a majority of the local entity's current membership wishes to leave the church.

When was the determination made that the Episcopal Church, as presently constituted and existing, is a "hierarchical church"? Who made that determination, and on the basis of what factual findings? Exactly what property is held "by that religious entity" --- i.e., the Episcopal Church --- of which the Diocese of Ft. Worth is "entitled to the continued use"?

(2) That constituent parts of a hierarchical church, like other voluntary associations, are bound by the rules of the general church of which they are a part.

Again, when was it found and declared that the Episcopal Church is hierarchical? And just what are "the rules of the general church" which plaintiffs declare are dispositive of this matter?

The various state courts, using either the "principles of government" or a four-factor "neutral principles" analysis approved by the US. Supreme Court in Watson v. Jones, 80 US. 679, 727 (1871) and Jones v. Wolf, 443 US. 595, respectively, have reviewed corporate documents, deeds, and church rules such as The Episcopal Church's Constitution and Canons and have determined the following issues:

(1) That property held by or for a constituent part of The Episcopal Church must remain with The Episcopal Church in the event of a dispute. See Episcopal Church Cases, 198 P.3d 66 (Cal. 2009); Diocese of Rochester v. Harnish, 899 N.E.2d 920 (N.Y. 2008); In re Church of St. James the Less, 888 A.2d 795 (Pa. 2005); Rector, Wardens & Vestrymen of Trinity- St. Michael's Parish, Inc. v. Diocese of Conn., 620 A.2d 1280 (Conn. 1993); Bishop & Diocese of Colo. v. Mote, 716 P.2d 85 (Colo. 1986); Episcopal Diocese of Mass. v. DeVine, 797 N.E.2d 916 (Mass. App. Ct. 2003); Daniel v. Wray, 580 S.E.2d 711 (N.C. Ct. App. 2003); Trustees of the Diocese of Albany v. Trinity Episcopal Church of Gloversville, 684 N.Y.S.2d 76 (N.Y. App. Div. 1999); Bennison v. Sharp, 329 N.W.2d 466 (Mich. Ct. App. 1982); Tea v. Protestant Episcopal Church in the Diocese of Nev., 610 P.2d 182 (Nev. 1980); Protestant Episcopal Church in the Diocese of NJ v. Graves, 417 A.2d 19 (N.J. 1980), cert. denied, 449US. 1131 (1981).

Isn't each and every one of these cases a dispute between a parish and its diocese? Where is there one decision which holds that a diocese is a "constituent part of the Episcopal Church" which may not leave the Church, and which may not take any of its property upon leaving?

(2) That the Episcopal Church is a hierarchical church in which dioceses and parishes accede to the Constitution and Canons of the Episcopal Church and are subject to the authority of the Church's General Convention. See, e.g., Dixon v. Edwards, 290 F.3d 699, 715-716 (4th Cir. 2002); Episcopal Church Cases, 198 P.3d at 71, 79-80; Diocese of Rochester v. Harnish, 899 N.E.2d at 920; Rector, Wardens & Vestrymen of Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Conn., 620 A.2d at 1285-86; New v. Kroeger, 167 Cal.App.4th 800, 84 Cal.Rptr.3d 464 (2008); Episcopal Diocese of Mass. v. DeVine, 797 N.E.2d at 918-919; Protestant Episcopal Church v. Graves, 417 A.2d at 21,24; Daniel v. Wray, 580 S.E.2d at 714, 718; Bennison v. Sharp, 329 N.W.2d at 472-473; Tea, 610 P.2d at 183-184; In re Church of St. James the Less, 2003 Phila. Ct. Com. PI. LEXIS 91 (Pa. Comm. Ct. 2003), aff'd, 833 A.2d 319, aff'd in pertinent part, 888 A.2d 795 (Pa. 2005).

Same cases, same question. Where does one of these cases expressly hold that a diocese of the Episcopal Church is "subject to the authority of the Church's General Convention" --- particularly in matters of its own property? (The Dennis Canon applies only to property held by or for specific parishes, and not to property held by dioceses as such.)

(3) That once an individual decides to leave The Episcopal Church he or she can no longer hold offices within or act on behalf of an Episcopal Church entity, and that attempts to amend bylaw and articles of incorporation in contravention of the Episcopal Church's Constitution and Canons are null and void. New v. Kroeger, 167 Cal.App.4th at 819-820, 84 Cal.Rptr.3d 464 ("We conclude that (1) ... defendants lacked the power and authority to amend the bylaws and articles of incorporation of the Parish corporation to make it part of the Anglican Church, and their actions in this regard are a legal nullity; [and] (2) by taking the actions they did defendants were no longer a part of the Episcopal Church and could not be the lawful directors" of the parish corporation.); Graves, 417 A.2d at 24-25 (the "individual defendants have disaffiliated themselves from The Protestant Episcopal Church and thereby automatically terminated their eligibility to hold office as Wardens and Vestrymen of [the parish]."). See also Korean United Presbyterian Church of Los Angeles v. Presbytery of the Pacific, 230 Ca1.App.3d 480, 505-506, 81 Cal. Rptr. 396 (1991) (amendments to religious corporation's bylaws by church official who had "renounced the jurisdiction of [the denomination] over him and persuaded his followers to vote to leave" the denomination were "immaterial" because official and his followers thereby had "in effect, renounced their membership in the plaintiff nonprofit corporation").

Which of the defendants in this case are members or wardens of a parish vestry, as were the defendants in New v. Kroeger and Grave? And where is the provision in the diocesan Constitution that makes the Diocese of Ft. Worth the "agent" of the national church for managing its property, as was the situation in the Korean United case? Or where is the provision in the ECUSA Constitution that corresponds to the Book of Order of the Presbyterian Church in giving to the regional Presbytery the power to designate which of two groups is "the continuing church", as was also true in the Korean United case?

In summary, none of the points made, or cases cited, has any bearing on the facts involved in this particular case. This is not a dispute between a parish and its diocese, or bishop, where there is a clear and long-established hierarchical relationship. This is a lawsuit between a voluntary association and one of its former members, also an unincorporated association (albeit with a related corporation which holds the title to the real property), which has split into two different factions, a majority and a minority. The real dispute is over who shall control the religious corporation which holds the title to all of the diocesan property. The minority group claims to have taken over control of the unincorporated association from the majority, and it is being backed by the parent association.

We are not dealing here with hierarchical structures within the Presbyterian Church, governed by provisions in the Book of Order, which confer the right upon higher judicatories to determine which of two or more quarreling factions represents the "true church". If that were the situation, this case would be governed, as plaintiffs suggest, by the decision in Presbytery of the Covenant v. First Presbyterian Church, 552 S.W.2d 865, 871 (Tex. Civ. App.-- Texarkana 1977, no writ). There are no comparable "judicatories" within the Episcopal Church (USA) with the power to decide disputes between factions within a diocese.

At least one Texas court has summarized the factors used to characterize a church as hierarchical: (1) affiliation of the local church with a parent church; (2) an ascending order of ecclesiastical judicatories in which the government of the local church is subject to review and control by higher authorities; (3) subjugation of the local church to the jurisdiction of a parent church or to a constitution promulgated by the parent church; (4) a charter from the parent church governing the affairs of the local church and specifying ownership of local church property; (5) the repository of legal title; and (6) the licensing or ordination of local ministers by the parent church. Templo Ebenezer, Inc. v. Evangelical Assemblies, Inc., 752 S.W.2d 197, 198-99 (Tex.App.1988, no writ). In this case, the plaintiffs have pled factors (1), (3 [subjugation to a national constitution]), and (6), but they are unable to plead the existence of the other three factors --- (2), (4) and (5). They do not, therefore, even have more than half of the characteristics of a "hierarchical" church under Texas law.

Under these circumstances, the case that is actually the most analogous on its facts to this one is Hawkins v. Friendship Missionary Baptist Church, 69 S.W.3d 756 (Tex.App. 2002). There the court described the factual background as follows:

After a dispute arose among the parties, the Church and Bailey sought injunctive relief to prohibit the Deacons from interfering with Bailey serving as Pastor of the Church or expending church funds, and from refusing Bailey or the Church body access to Church property and records. In response, the Deacons filed a plea in abatement and motion to dismiss arguing that Bailey had no authority or legal capacity to bring suit on behalf of the Church; the Deacons were not liable in the individual capacities in which they had been sued; and the trial court had no subject matter jurisdiction to hear the case because it concerned ecclesiastical decisions that were made by the duly empowered Board of Deacons of the Church (the "Board").

The trial court's grant of an injunction restraining the deacons from interfering with the pastor and his followers was reversed on appeal. The appellate court held that since there was no written constitution or bylaws which governed the facts of the dispute (just as, in this case, ECUSA's constitution and canons do not control how a dispute within a diocese is resolved, or place any limitation on how a diocese can amend its governing instruments), the civil courts could not adjudicate the dispute without having to delve impermissibly into religious matters of church polity and doctrine:

In this case, there is no Church constitution, by-laws, or other document indicating how or by whom the Church is to be governed. The trial court based its granting of the injunction on: (1) the testimony of Church members and current and former church office holders regarding past practices; and (2) a determination that the Church is congregational. However, it is undisputed that the Deacons held some position of authority within the Church, and the fact that the Church is congregational does not establish what powers, if any, the Deacons held within the Church's congregational form of government, under what circumstances those powers could have been revoked or overridden, if at all, by the congregation, or whether any such conditions were met in this case. [Footnote omitted.] Without governing Church documents which could be construed in purely secular terms, the power struggle between the Church, Deacons, and Pastor cannot be resolved based only on neutral principles of law, but apparently only by delving into religious doctrine or polity. Because we therefore agree with the Deacons that this dispute involves an ecclesiastical matter, we sustain their first point of error and need not address their second point of error challenging the injunction on the merits. Accordingly, we reverse the trial court's judgment and dismiss the case.

Interestingly, the dissenting opinion in Hawkins cites in favor of asserting jurisdiction over the dispute an old, pre-Erie decision (1872) of the United States Supreme Court: Bouldin v. Alexander, 82 U.S. 131. There the controversy revolved around the use and occupancy of the real property of a congregational Baptist church in the District of Columbia. The founding pastor of this church and a minority of the church membership, after a falling out with the majority of the congregation, purported to remove from office, without cause or notice, four of the seven trustees who held title to the church property. (Just as, in the current case, the minority faction claimed the authority to declare as vacant, and to fill with its own candidates, the five positions on the board of trustees of the diocesan corporation.) The minority also purported to declare that the majority were no longer members of the voluntary association that was the congregation.

In its opinion, the Supreme Court analyzed its task as follows:

This is not a question of membership of the church, nor of the rights of members as such. It may be conceded that we have no power to revise or question ordinary acts of church discipline, or of excision from membership. We have only to do with rights of property. . . . We must take the fact of excommunication as conclusive proof that the persons exscinded are not members. But we may inquire whether the resolution of expulsion was the act of the church, or of persons who were not the church and who consequently had no right to excommunicate others.

The Court went on to rule that, as a general principle of voluntary associations, the majority – so long as it follows the group's agreed procedures and bylaws – controls how the property shall be kept, and the minority has no power to take it over. It pointed out that the majority group (as in this case) was still the same association as before, with "the same trustees, the same deacons, and they claimed to be [the same c]hurch, and as such they were recognized by councils of Baptist churches duly called", just as in this case the defendant Episcopal Diocese of Fort Worth has the same officers and trustees as before, and is still recognized as a constituent part of a province within the Anglican Communion. The Court concluded: “[a]n expulsion of the majority by a minority is a void act.”

Thus even if the court were to retain jurisdiction in this case for the purpose of examining the diocese's governing instruments, and of determining whether the majority followed the procedures spelled out by those documents, this case would still reduce to the simple proposition that the minority faction in an unincorporated association has no power to dictate to the majority how it must act. The complaint should, for all these reasons, be dismissed.

The Oxymoron of Church Politics

[O/T: See this post for an update (scroll to the bottom) on the San Joaquin litigation.]

Perhaps no event in current memory has so well brought into focus the aims and aspirations of the LGBT wing in ECUSA as the recent publication of the Communion Partner Bishops' Statement, in conjunction with the Anglican Communion Institute. The Statement, and the circumstances surrounding its publication, served as a filter of sorts, eliminating all the usual background noise and hiss, and allowing one to perceive in its raw and unmitigated form both the political ambitions of the Episcopal left, as well as the sheer fury of which they are capable over any attempt to thwart them.

It was indeed extraordinary to be able to read the Statement in its complete form (with footnote references) on the sites of Episcopal LGBTs and their supporters before the ACI officially published it (with slightly different signatories). Not only did they rush to publish it ahead of time, but they also published the private and confidential emails that were exchanged between the drafters and some of the signatories (I shall not compound the offense by providing a link). As BabyBlue documented, they then indulged in an orgy of self-congratulation over their breaches of privilege.

Many other bloggers have excoriated those who have no regard for the privacy of communications between an attorney and his clients, but I find nothing new in how low those on the left can sink in order to (as they believe) advance their cause. After all, they did not treat as confidential the email they purloined from Bishop Duncan, because they believed it would assist in getting him deposed without a trial. Yet they are the first to cry "Foul!" when their own emails published on the House of Bishops/House of Deputies list, which go to thousands of subscribers, and then (surprise!) turn up published elsewhere without their permission. As I have demonstrated time and again, the left generally abhors the consistency that logic impels; for them the end justifies the means nearly every time.

Their level of ad hominem attack is just as typical. Forget that fifteen ECUSA bishops have endorsed the Statement as an accurate description of Church polity; focus on the person who advised them---and don't forget to slur the only woman bishop among the signers, too. Along the way, add in some sexual innuendo and calls for deposition and "excommunication" (now there's a hierarchical idea), and you have a particularly odiferous gallimaufry of sentiments. (Again, I refuse to perpetuate the calumnies by repeating them, or by linking to them; you can find them on your own.)

The Statement by the Bishops was also nothing new or surprising---it amplified on the ACI paper written by Mark McCall and published one year ago, but proceeded from the perspective of those bishops who signed it. Given this fact, one has to ask the question: why the outrage this time? It exceeded by far anything which the earlier statement provoked.

After slogging through the Episcopal LGBT posts, and mining them for what substantive points in opposition they contain, I believe I have one explanation, at least, for the overreaction on the left. Keep in mind that the bishops are circulating this Statement just three months before the start of General Convention 2009. Now if ever there was a legislative body about to be convened over which the LGBTs in ECUSA think they have complete control, it is GC2009. Louie Crew has been hard at work for years to prepare first for the diocesan conventions which would elect their deputies, and in the time since has researched and published the name and email of each and every deputy, and identified LGBTs and their supporters among them. The catalog of Resolutions proposed for a vote includes no less than eight proposing to overturn or modify the infamous Resolution B033 from General Convention 2006---as though it had been binding in the first place (it was not).

In short, GC 2009 is slated as the Convention where Episcopal LGBTs can and will finally take complete control over ECUSA's agenda---approving rites for same-sex blessings, adopting canons that would prohibit priests from solemnizing civil marriages, encouraging open communion for all without regard to baptism, pushing off consideration of that dreaded Anglican Covenant, and so on and so forth. The years of patience in mastering the complexities of diocesan elections, in seeing LGBTs and their supporters elected as deputies and then appointed to major committees, and in steering both the budget and the agenda in the directions desired, are about to pay off.

But what if the castle that has been the object of such effort does not actually command the territory? What if, like Dorothy, the Episcoleft finds that there is no omnipotent Wizard on the throne, but just a little man pulling levers and throwing switches behind a curtain? What if the LGBTs manage finally to take over the governing levers of ECUSA only to find out that ECUSA is not hierarchical after all? Ay, that would indeed be tragic, if such years of effort proved to be ultimately in vain.

Therein lies, I think, the source of the ferocity summoned to defend the proposition that the Episcopal Church (USA) is hierarchical. And therein lies also the explanation for the Presiding Bishop's campaign to become a metropolitan in deed, if not in word. For those on the left, authority is useless if it cannot be exercised to further the agenda, and to increase one's hold on power. (This is why their ultimate authority is the Holy Spirit---no one can say for certain what He does and does not approve, and so He can be cited as in support of anything. Power without accountability is to those on the left as catnip is to a cat.)

The Statement from the Communion Partners Bishops strikes straight at the heart of the many-headed Episcopal hydra, by insisting that each of the heads is not subject to an overarching authority in all things, but is capable of making autonomous decisions on its own where no power has been ceded---regardless of what resolutions may be passed (or defeated) by General Convention. A resolution from General Convention is nothing more than a momentary consensus, just like a resolution from Lambeth. But there is this difference: there is no Constitution spelling out any authority of the Lambeth Conference, with the result that its powers of suasion are purely moral and collegial. The Constitution of ECUSA, on the other hand, spells out in detail the makeup, the procedures and the authority of General Convention, so that anyone who wants to know whether it has power to legislate on a given subject can look it up. (Hint: if it's not there, then it has no power to legislate.) Lambeth at its roots is moral, while General Convention is pretty much political.

And being political, it is a prize to be taken over, from the left's point of view. The right has all but ceded the contest, and is of necessity retreating to the ultimate reality of ECUSA's polity: ECUSA is a voluntary confederation of dioceses. It always has been, and will continue to be unless and until the requisite language of supremacy is adopted in the Constitution. Even then, however, there would be no mechanism for resolving disputes between the various branches about meaning and interpretation unless there were also created a Supreme Ecclesiastical Court, or unless a metropolitan were created and vested with that authority. (Then we would have the anomaly of an Anglican Church vesting supreme authority in a "pope"!)

Since ECUSA for the time being is a voluntary confederation, the solution for those who cannot agree with the decisions taken and directions announced at the national level is to withdraw from the confederation. The mystical idea that the dioceses are joined in some kind of indissoluble "union" that is greater than any of their individual selves is a leftist fantasy that has no support in either the Church's history or its governing documents. It springs from a desire to control---or more correctly, from an instinct not to cede control when the battlements have been breached, and the mechanism taken over.

What that mechanism today chiefly amounts to is the power to decide how money shall be spent. The Church's triennial budget exceeds $150 million, and that is a lot of money. Even more, there are hundreds of millions---even billions---behind that in long-term investments and trust funds. It is thus no small prize to be taken over, I grant you.

Viewed as a political prize, however, the Church ceases to be a Church. Its mission is being determined by politics rather than under the governance of the Holy Spirit. So long as the battle rages for the prize, the fiction that it is a Church has to be maintained at all costs, because no one who could affect the outcome must realize what is at stake. And with the publicizing of views like those expressed in the Bishops' Statement, the risk is now great that the momentum so carefully accumulated over the years will be seen for what it is: nothing more (or less) than a political attempt to take over a money machine.

And that is why the Bishops, the ACI and its lawyer have received the treatment they did. Only those who are plotting already can regard the publication of such a power-renouncing statement of subsidiarity as "an unprecedented power grab by anti-gay bishops who will assert they are not bound by the Episcopal Church's governing body: General Convention."

The spectacle of taking over a church politically, of even speaking in terms of a church "power-grab", is so antithetical to the essence of a church that in the end it must be self-defeating. Let the Episcopal LGBTs take over General Convention, I say, and let them show the entire church how quickly $9 million can go down the drain in just twelve days. Offer resistance, to be sure, but let it be only as much as may be required to make them show their colors. Once they have declared themselves completely, let them have the floor for as long as they want. Attendance will dwindle, voluntary contributions will evaporate, and eventually the trust funds themselves will be depleted. The true test of what ECUSA can be will come when it has no more money.

Friday TED Talk: Willie Smits on Re-Growing a Rainforest

With the Green Revolution that is so much in the news, I have picked for this Friday morning's TED talk a true example of what everyone must have in mind when they refer to that topic. The variety and differing styles of TED speakers make it hard to rank the talks, but this was by consensus one of the finest delivered at the TED 2009 Conference in Long Beach earlier this year. Biologist Willie Smits explains exactly how to go about re-growing a rainforest that had been clear-cut earlier:

The high-res mp4 version of his talk is here (requires appropriate player). You may read more about Willie Smits and his story here, and here. The homepage of his non-profit ecological organization is here, and the homepage for his "Orangutan Outreach" project is here. The world could use a great many more people like Willie Smits.

To Whom It May Concern (II)

In my previous post, I gave examples to illustrate the following points:

1. The Episcopal Church (USA) is not a hierarchical church at the national level. There is no absolute authority or supreme pontiff. There is only the Presiding Bishop, who presides mainly over the House of Bishops, and who has no authority over dioceses. (In one of those happy Internet coincidences, the Anglican Communion Institute and the Communion Partner bishops have issued a joint statement that says the same thing, in a much more detailed and comprehensive way. In that respect, however, it complements what I have been arguing on this blog for more than a year now. I shall have more to say about the brouhaha surrounding its publication in a later post.)

2. Notwithstanding those facts, the current Presiding Bishop has arrogated to herself a putative national authority, including the right to organize the Episcopalians remaining in a given area into a "new" diocese after their former diocese has affiliated with another church.

3. This putative authority involves (1) removing the former bishop, either by pronouncing his deposition after a canonically insufficient vote, or by treating some statement or writing of his as a "voluntary renunciation of orders" (even though it was nothing of the kind); (2) "derecognizing" the former Standing Committee by a misapplication of Canon I.17.8 to clergy, and by reading into it an "ejector seat" for laity and clergy alike that simply is not there; (3) convoking a new "special diocesan convention" in violation of the terms of the very diocesan constitution which the group is claiming to uphold; and (4) presenting that illegally called "convention" with a pre-approved bishop to install, who will toe the party line.

4. The result is a manufactured Potemkin diocese, complete with a Potemkin as its bishop, who then marches into court and claims the right to all of the former diocese's assets and property This is a high-risk, winner-take-all strategy that has to be tried out anew in front of each of the different State courts with jurisdiction over any given former diocese.

Thus far, ECUSA has been encouraged in its strategy by successes in cases involving parishes leaving dioceses. That is not the same thing, however, as dioceses leaving the Church, as I explained in great detail in this earlier post. This strategy has not yet been tested in any court that I know of thus far, but its day in court is coming soon. Pending before the Fresno County Superior Court in California are two motions. The first is the motion brought by Bishop Lamb and his putative "diocese" for a declaratory judgment that they are the legal successors to all of the property and assets of the former Diocese of San Joaquin (now "the Anglican Diocese of San Joaquin"). The second is a challenge by ECUSA and its corporate alter ego, the Domestic and Foreign Missionary Society (DFMS), to a cross-complaint that seeks to hold them liable for the costs of defending against the suit by Bishop Lamb et al., on the ground that the suit could not have been brought but for the improper machinations of ECUSA and its Presiding Bishop as outlined above.

The second motion will be heard on April 28, and the first on April 29. Although the rulings will be only at the trial court level, they will, as I say, be the first to consider the merits of the Presiding Bishop's and her Chancellor's legal strategy. That strategy has been extended, and the level of risk correspondingly increased, by what has recently taken place in Fort Worth, as I shall now explain.

The Diocese of Fort Worth began its status as a diocese of ECUSA on January 1, 1983. Like all ECUSA dioceses of which I am aware, it began as an unincorporated association of representatives from individual parishes who joined together, adopted a constitution and canons, and then elected a bishop. In this particular instance, the diocesan constitution also called for the creation of a non-profit corporation under Texas law which would hold legal title to all Church property in the diocese:

The title to all real estate acquired for the use of the Church in this Diocese, including the real property of all Parishes and Missions, as well as Diocesan Institutions, shall be held subject to control of the Church in The Episcopal Diocese of Fort Worth acting by and through a corporation known as “Corporation of the Episcopal Diocese of Fort Worth.” All such property as well as all property hereafter acquired for the use of the Church and the Diocese, including Parishes and Missions, shall be vested in Corporation of the Episcopal Diocese of Fort Worth.
. . .
All other property belonging to the Diocese, as such, shall be held in the name of the Corporation known as "Corporation of the Episcopal Diocese of Fort Worth", and no conveyance or encumbrance of any kind shall be valid unless executed by such Corporation and as may otherwise be provided by the Canons of the Diocese.

The original articles of the Corporation, filed February 28, 1983, specified a five-member Board of Trustees, whose election would be as provided "by the by-laws of the corporation as the same may be adopted and from time to time amended." The Bishop of the Diocese was ex officio the Chairman of the Board of Trustees, and thus a sixth member.

Articles IV, V and VI of the Corporation's articles were amended, and a restated version of them was filed with the Texas Secretary of State, in 2006. As so filed, the amended articles recited:

Amendments [of] these Amended and Restated Articles of Incorporation were approved by a unanimous vote at a meeting of a quorum of the members of the board of trustees (the "Board" as hereinafter defined in Article VI) for the Corporation held August 15, 2006. The Corporation has no members with voting rights.

The sentence "The Corporation has no members with voting rights" tells us that the Board of Trustees is self-electing, that is, upon the occurrence of a vacancy in any Trustee's term of office, the remaining members choose a new person to fill the post until the next Annual Convention of the Diocese. (Under Diocesan Canon 17, one Trustee is elected annually at each such Convention to a staggered five-year term.) To make such an interim appointment valid under the bylaws, all that is required is for a quorum of the trustees to be present at a properly noticed meeting. There is no provision for any involvement in such an interim appointment by the diocesan convention or any of its committees or officers---a point of some significance, to which I shall return.

As amended and restated in 2006, Articles V and VI provided:

ARTICLE V

The registered agent of the Corporation is Rt. Rev. Jack Leo Iker, D.D.; 2900 Alemeda [sic semper] Street, Fort Worth, Texas 76108; the registered office address of the Corporation is 2900 Alemeda Street, Fort Worth, Texas 76108.

ARTICLE VI

The number of trustees constituting the board of trustees is six (6) (collectively, the ''Board"). The Bishop (herein so called) of the body now known as the Episcopal Diocese of Fort Worth shall be the Chairman of the Board. For the remaining five (5) trustees (the "Elected Trustees"), the manner of election and the period of time for which the Elected Trustees shall hold office shall be fixed by the Bylaws of the Corporation as the same may be adopted and from time to time amended.

In the event of a dispute or challenge regarding the identity of the Bishop of the body now known as the Episcopal Diocese of Fort Worth, the Elected Trustees shall have the sole authority to determine the identity and authority of the Bishop, as provided in the Bylaws of the Corporation, for purposes of these Amended and Restated Articles of Incorporation. In the event the body now known as the Episcopal Diocese of Fort Worth is without a Bishop, the Elected Trustees shall have the sole authority to appoint, as provided in the Bylaws of the Corporation, a Chairman of the Board for purposes of these Amended and Restated Articles of Incorporation and the Bylaws of the Corporation.

If a determination pursuant to this Article VI becomes necessary in the discretion of any member of the Board, a member of the Board may call a special meeting of the Board for the purpose of making such determination, as provided in the Bylaws of the Corporation.

The names and addresses of the current trustees are:

Dr. Franklin Salazar

Mr. Rod Barber

Mr. Chad Bates

Mr· Walter Virden

Mrs. Jo Ann Patton

Rt. Rev. Jack L. Iker

In 2008, as is well known, the unincorporated association which constituted the Episcopal Diocese of Fort Worth voted at its annual convention to amend its Constitution and canons to delete its affiliation with ECUSA and to enable it temporarily to affiliate with the Anglican Province of the Southern Cone. Shortly thereafter, the Presiding Bishop chose to treat Bishop Iker's public (and completely accurate, as explained in the ACI/CP article linked above) statement of his relationship to her ("never have been subject to her jurisdiction, and never will") as a "voluntary renunciation of his orders", and pronounced him no longer a Bishop in ECUSA. She thereby initiated the first part of her litigation strategy (step 1 in item #3 above); parts 2 through 4 were put into execution last month.

As explained above, however, implementation of steps 1 through 4 did not affect the status of Church property or the diocesan corporation which held title to it. The Presiding Bishop and her Chancellor therefore had to take the strategy to a new level, and implement step 5: first, "derecognize" all the members of the Board of Trustees, so that the entire Board becomes vacant (including the position of Bishop Iker, previously deposed). Next, have the specially but illegally summoned diocesan "convention" confirm the Presiding Bishop's selection of a "Provisional Bishop", who (notwithstanding his temporary and provisional status, and notwithstanding the prohibition in ECUSA's Constitution, Article II, Section 3 ["A Bishop shall confine the exercise of such office to the Diocese in which elected . . ."] against his assuming jurisdiction as ordinary in more than one diocese) will thereupon be treated as an "ex officio" Trustee, and who then may appoint (on the advice of the "convention") the five new trustees required.

We find out that this is precisely what happened by reading closely the set of "amended and restated articles" of the Corporation which were filed under the direction of Provisional Bishop Gulick with the Secretary of State just nine days ago, on April 14, 2009. These "articles" add a new "Article VII", which reads in part as follows:

To the fullest extent permitted by Texas law, the Corporation shall indemnify any person who is or was a Trustee or an officer of the Corporation, and may indemnify any person ("Discretionary Indemnitee") who is or was an employee or agent of the Corporation . . . . Neither the future amendment nor repeal of this Article shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any cause of action, suit, or claim that, but for this paragraph, would accrue or arise, prior to such amendment or repeal, provided, however, that this paragraph (A) shall apply only to the following persons: (1) a person who became a Trustee by virtue of an advisory election by delegates to a Special Convention of the Episcopal Diocese of Fort Worth and subsequent appointment by the Provisional Bishop as Trustee on or about February 7, 2009 and his or her successors; (2) a person who was elected as an officer of the Corporation on or about February 12, 2009 and his or her successors; and (3) a Discretionary Indemnitee who was appointed, elected, or requested to serve by a person identified in (A)(I) or (A)(2) above, on or after February 7, 2009.

There could not be any more tailor-made language than this. It says that the Corporation shall indemnify (that is, protect from any financial consequences) any person who became a director of the Corporation "by virtue of an advisory election by delegates to a Special Convention of the Episcopal Diocese of Fort Worth and subsequent appointment by the Provisional Bishop as Trustee on or about February 7, 2009 . . .". That description fits exactly the following five persons, who are named as Trustees of the Corporation in the "newly restated" Article V as follows:

The Rev. John Stanley

Ms. Cherie Shipp

The Rev. James Hazel

Mr. Robert M. Bass

Dr. Trace Worrell

These "trustees", of course, are completely different from the ones elected by the previous Board of Trustees and listed earlier. Notice, too, that the indemnity provision is so tightly drafted that it excludes from its terms the Right Reverend Edward Gulick himself, who as Provisional Bishop became (in 815's distorted view of the matter) an ex officio Trustee (and Chairman) of the Corporation upon his confirmation at the "Special Convention" held February 7. For he is neither a person who became a Trustee "by virtue of an advisory election . . . and subsequent appointment by the Provisional Bishop" (since he is the "Provisional Bishop"), nor is he "a person who was elected as an officer of the Corporation on or about February 12, 2009", since he assumed his office not by election on February 12, but (according to 815's elaborate strategy) earlier on February 7, ex officio after his confirmation as Provisional Bishop.

The entire process of thus replacing all of the Trustees of the Corporation of the Episcopal Diocese of Fort Worth rests upon several very shaky legal propositions, to wit:

(1) the Corporation, whose only function is to administer and hold title to parish and diocesan property, is nonetheless a religious entity "of this Church" for purposes of Canon I.17.8, thus making the position of its Trustees an "office in this Church";

(2) the provisions of that Canon as interpreted by the Presiding Bishop (whose interpretation is of course final, non-appealable, and not open to question or challenge in any secular court) provide an "ejector seat" for anyone who dares to do something of which she disapproves, or who is blocking her attempt to achieve a certain goal;

(3) a "Provisional Bishop" elected pursuant to Canon III.13.1 may exercise all the functions of an ordinary despite the provision of Article II, Section 3 of the Constitution quoted earlier, since the "Ecclesiastical Authority" [who is the Presiding Bishop, under 815's reading of the Canons] of the "diocese" in question asked him to do so; and

(4) the convocation of a Special Convention of Fort Worth in violation of its own Constitution (since its "Ecclesiastical Authority" did not convoke it, unless you adopt 815's reading of the Canons) nevertheless managed canonically to elect appropriate officers and committees, and to confirm a Provisional Bishop.

As a church canon lawyer for many years, I would not like to stake any outcome on any of those propositions, which as a matter of contractual interpretation have practically no support in the language of the governing instruments.

The indemnity provision quoted above for corporate Trustees thus is and will be a legal nullity unless and until the Presiding Bishop's newly summoned "diocese" of Fort Worth prevails in Tarrant County District Court over the established and existing Diocese of Fort Worth. And in the event it so prevails, the indemnity provision will be entirely unnecessary. It is only if the pseudo-diocese loses in court that the indemnity provision will come into play---but then the Corporation per se will not have to honor it, because losing the case means that the pseudo-trustees were never actual trustees when they voted on the indemnity clause.

For these reasons, the enactment of the indemnity provision by the pseudo-trustees following their pseudo-election can only have been with the following provision of the Texas Business Organizations Code in mind:

BOC §4.007. LIABILITY FOR FALSE

FILING INSTRUMENTS

(a) A person may recover damages, court costs, and reasonable attorney's fees if the person incurs a loss and:
(1) the loss is caused by a:
(A) forged filing instrument [meaning articles of incorporation, or amended or restated articles, as in this instance]; or
(B) filed filing instrument that constitutes an offense under Section 4.008; or
(2) the person reasonably relies on:
(A) a false statement of material fact in a filed filing instrument . . .
(b) A person may recover under Subsection (a) from:
(1) each person who forged the forged filing instrument or signed the filing instrument and knew when the instrument was signed of the false statement or omission;
(2) any managerial official of the entity who directed the signing and filing of the filing instrument.

In other words, if the pseudo-trustees lose their case, they could be held liable for damages as a result of anything they purported to do on behalf of the Corporation of the Diocese of Fort Worth. And thus if they lose, it apparently eases their minds to know that their pseudo-Corporation will be on the hook to indemnify them. (Where it will get the assets with which to do so will be 815's problem.)

But there is one more provision in the Texas Business Organization Code, which the pseudo-trustees and their counsel may have overlooked. For section 4.008 of the Code provides a criminal penalty for filing false papers with the Secretary of State---for which, of course, no indemnification is possible:

(a) A person commits an offense if the person signs or directs the filing of a filing instrument that the person knows is materially false with intent that the filing instrument be delivered on behalf of an entity to the secretary of state for filing.

(b) An offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony.

As you can see, the strategy adopted by 815, and followed dutifully by those wishing to remain Episcopal in Fort Worth, is very high-risk indeed. Things are about to get a whole lot more interesting in Fort Worth.

To Whom It May Concern (I)

The Episcopal Church (USA) enjoys today a considerable momentum in American courts, chiefly in cases involving parishes that elect to leave their diocese. The success that momentum has brought to date may have made the Church increasingly careless, however. In implementing its current litigation strategy against the departing dioceses, it is making assumptions as to its structure and polity which it may not be able to defend.

The assumptions stem from an earlier time, when the Church was rarely to be found in the courts as a matter of its own initiative. With the withdrawal now of four separate dioceses from the Church, the latter is finding it necessary more and more to come into court as a plaintiff, and to assert its rights as a “hierarchical” organization, even as the departing dioceses demonstrate with their feet that such is not the case.

In fact, the Episcopal Church (USA) never has been a “hierarchical” organization, in the sense that the Roman Catholic Church is. In the first place, the Church has no Pope or his equivalent. Its Presiding Bishop, although bestowed by the Canons with the title of “Primate”, is not a Primate with the powers that position carries in other churches of the Anglican Communion. The authority of the Presiding Bishop derives entirely from that of the House of Bishops, of which that person is the chair---hence the adjective “Presiding”. The only body over which the Presiding Bishop regularly presides is the House of Bishops---and General Convention, when there is the rare joint session of both Houses. Since General Convention exists for only two weeks out of every 156, however, and joint sessions of both Houses last for at most just 2-3 hours out of the 336 during which a General Convention may be said to exist, it is a ludicrous exaggeration to claim that the Presiding Bishop "presides" over the whole Church, in the sense of governing it like a Chief Executive.

It is also highly debatable that the Presiding Bishop possesses the authority, all by herself, to decide what to say on behalf of the Episcopal Church (USA) when it makes an appearance in court. Still less does she have the express authority granted to her by any Canon to formulate and carry out an overall litigation strategy that is directly contrary to the positions of the various dioceses which make up the actual membership of the Church.  The analogy would be a little bit like this: under the United States Constitution, the Vice President is the presiding officer of the Senate when he is present. Imagine, however, if the Vice President as President of the Senate were to go into court and claim that in that capacity, he had the authority to represent the position of the United States as a whole. Or imagine if he were to hire a personal attorney and then together with that attorney, formulate an overall litigation strategy for cases in which the United States was a plaintiff.

Such a position would be ridiculous, right? Yet it is no more ridiculous than what the Presiding Bishop is claiming the authority to do on behalf of the entire Episcopal Church (USA). Under the Canons, the Presiding Bishop is charged with "responsibility for leadership in initiating and developing the policy and strategy in the Church and speaking for the Church as to the policies, strategies and programs authorized by General Convention." (Canon I.2.4(a)(1); emphasis added.)

Thus the Presiding Bishop develops and initiates policy and strategy for relations within the Church; but the Presiding Bishop has authority to speak "for the Church" (i.e., to outside parties and third persons, such as a court of law) only when she is carrying out "policies, strategies and programs" that have previously been authorized by General Convention. Yet General Convention has never authorized the current litigation strategy that has led to the spending of simply enormous sums---over $4 million in the last year alone!---on lawsuits against departing churches and dioceses; the last budget approved by General Convention 2006 allocated just $100,000 per year for such expenses. Yes, the increase in the expenditures was authorized by the Executive Council, but the authority of that body is defined by Canon I.4.1 as "to carry out the program and policies adopted by General Convention." (Emphasis added.) And when it votes to spend money, the Executive Council is acting as the Board of Directors of the Domestic and Foreign Missionary Society (DFMS), which is the corporate arm of the Church that holds all of the money, property and other assets. In that capacity, Canon I.4.3(f) provides (italics again added):

In its capacity as the Board of Directors of The Domestic and Foreign Missionary Society, the Council shall have the power to direct the disposition of the moneys and other property of said Society in accordance with the provisions of this Canon and the orders and budgets adopted or approved by the General Convention.

Jumping the budget for litigation by over 1,560% from the amount last approved by General Convention does not sound to me like carrying out a program or policy "adopted by General Convention." This is particularly the case where the Church has voluntarily chosen to come into court as a plaintiff, and initiate the lawsuits. Such decisions are discretionary; it is not like the case when the Church has been sued and is a defendant, with no choice but either to answer or suffer a judgment against it by default. 

Such is the current state of the Church, however, that the entire Executive Council believes it has the authority to authorize the Presiding Bishop---no, wait; that is an incorrect way of stating the matter. I shall start again. Such is the current state of the Church, however, that the Presiding Bishop believes she has the authority to commit the Church to spending over $4 million in excess of the approved budget for litigation, and the Executive Council, in its capacity as Board of Directors of DFMS, rubber-stamps her actions after the fact without question, and without any apparent dissent. A proper regard for their authority as conferred by the Canons would suggest that they might have to seek prior authorization from the entire General Convention before approving such enormous expenditures in pursuit of what is a highly risky litigation strategy.

The Church is out of control. There are no longer any operative checks or balances in its polity. The Presiding Bishop is bent on a scorched-earth policy that commits enormous resources to outspending its opponents in court; the Executive Council passively goes along with her scheme, and General Convention, when it does finally meet, will be presented with a fait accompli that no one will be able to challenge or question. The parallels with the current out-of-control spending by our federal government are not exact, but they are similar: in each case, a supposedly democratic polity is being trampled under the stampede of a majority that wants to ensure it remains in power.

In the second part of this post, I shall explain, using the recent events in Fort Worth, how the Presiding Bishop's single-minded strategy translates into actual steps on the ground that are, to the utmost degree, risky and questionable. Episcopalians of all stripes may want to take heed. 

Friday TED Talk: Dan Ariely on the Bugs in our Moral Code

Why do we think sometimes it is OK to try to get away with something? I can't assure you that this will help get to the bottom of the troubles in the Episcopal Church (USA), but it is fascinating to watch Dan Ariely explain about his discoveries regarding human behavior:

Dan Ariely was one of the featured speakers at the 2009 TED Conference in Long Beach. You can watch a high-res MP4 version of the video here, if you have a player like Windows Media Player or Quicktime. Also very worthwhile is this interview, in which he discusses the lessons that can be learned from the Madoff swindle, and much more.

Having Celebrated Easter, Let's Get Back to Business

The Episcopal Church (USA)----that is how I wanted to start this post, at least. But as I thought more about what I was going to write, I realized that to begin with those words would be to succumb to the mind-trap that the Presiding Bishop and her minions would like everyone to fall into: that she, and she alone, is "the Episcopal Church (USA)." So let me begin again:

The Presiding Bishop of the Episcopal Church (USA) is at it again. Easter is over, with its message of love so great that it could overcome even death on the Cross. "A new commandment I give to you: that you love one another as I have loved you." That was then; this is now, post-Easter. Time to get back to the courts, and get the message out again: "The Presiding Bishop gives the commandments in this Church. All else is as nothing, and the courts are bound to recognize that fact, because they are forbidden by the First Amendment to question anything that is done in her name."

In the District Court of Tarrant County, Texas, the Presiding Bishop has caused a petition to be filed. (And before anyone protests that she had nothing to do with it, that it was only loyal ECUSA supporters in Ft. Worth who were responsible, wait until I show you just what the petition says.) The plaintiffs are "the Episcopal Diocese of Fort Worth, the Corporation of the Episcopal Diocese of Fort Worth," and---you guessed it---"The Episcopal Church". The defendants are the five persons who currently serve as the Trustees of the Corporation of the Diocese of Fort Worth, Bishop Jack Iker, and "the Anglican Province of the Southern Cone's 'Diocese of Fort Worth,' holding itself out as 'The Episcopal Diocese of Fort Worth'".

Now that should give anyone pause. We have a corporation (the "Corporation of the Episcopal Diocese of Fort Worth") coming in to court to sue its own Trustees. (Think of the Trustees as the equivalent of Directors---they hire the management, and oversee the running of the corporation.) So just who is bringing the suit on behalf of the plaintiff corporation, since it cannot be its trustees? The suit does not say.

And what about the other local plaintiff, the unincorporated association which is "the Episcopal Diocese of Fort Worth"? Who claims the authority to file on its behalf? Again, the suit does not say. It simply alleges that these entities are before the court as plaintiffs, on the sole authority of the attorneys who signed and filed the petition.

[UPDATE 04/16/09: It turns out that ECUSA has followed the pattern it set in San Joaquin even more closely than I thought. Before filing the lawsuit, it filed "Amended and Restated Articles of Incorporation" with the Texas Secretary of State, by which it claimed to have replaced wholesale all the directors and the chairman of the Diocesan Corporation in one fell swoop, as you can read in this well-researched article. The author suggests that in doing so, those perpetrating the deed may have violated a Texas criminal statute. Things will soon get very interesting in the Lone Star State---and Bishop Iker is not even back from meeting with the GAFCON primates yet!] 

Now this is a fine ploy. What is to stop, say, some attorney from filing a petition in the name of General Motors, and claiming some more bailout money on its behalf? Apparently, in Texas, nothing but the attorneys' having to stand behind the pleadings they sign. The petition has not been verified---that is, read through by someone with an actual office in, or position of authority with, the entities in whose name the suit is brought, who then signs a statement under penalty of perjury that everything in the petition is true.

The lack of any verification immediately raises an issue of standing. Courts cannot recognize just anything that is filed with them as a legitimate "case or controversy", to use the words that are in Article III of the federal Constitution. Out of those two words, "cases" and "controversies", has grown an entire body of case law attempting to lay down rules for just what is a "case or controversy" within the meaning of the Constitution.

One of the most fundamental requirements is that the plaintiff bringing the case actually be the person who he, she, or it claims to be. If you file a suit claiming to be General Motors Corporation, you actually have to be that corporation, and no one else. The reason is that the courts will not consider a trumped-up lawsuit.

So there had better be a pretty good reason why the people responsible for this petition in Tarrant County have the authority to sue the Corporation's own trustees, as well as its chief executive officer, Bishop Iker. In the first place, a religious corporation such as the one filing the petition generally does not have shareholders, as in the usual case of a secular corporation. And as we read through the petition, we find that the trustees of the Corporation of the Episcopal Diocese of Fort Worth are self-electing, that is, they elect their own successors. Given that fact, there is no need for the Corporation to have members, either, whose function (akin to secular shareholders) is to elect the Board of Trustees. The question therefore naturally arises to this skeptical lawyer's mind: exactly who has claimed the authority to assume the right to speak for this Corporation, and how did they manage to do so lawfully?

Let us begin to go through the petition, therefore, and trace the theory under which it claims to be filed by the real "Corporation". As we do so, I shall have occasion to note the pattern of allegations which is the same, whether it be in San Joaquin, Pittsburgh, Fort Worth, or wherever else the Presiding Bishop has filed or joined litigation and claimed to do so on behalf of the Episcopal Church (USA). It is a pattern that is dictated by the Presiding Bishop's grand strategy for domination of the Church, as I discussed in this post.

Notice how the petition describes its rival:

Defendant The Anglican Province of the Southern Cone's "Diocese of Fort Worth" (hereinafter the "Southern Cone Diocese") is an entity of unknown form which has no relation to the plaintiffs Church or Diocese and purports to be affiliated with the Anglican Province of the Southern Cone. The Southern Cone Diocese holds itself out and is doing business as "The Episcopal Diocese of Fort Worth.". . .

The contempt fairly drips from this paragraph: "an entity of unknown form" which "has no relation to the plaintiffs Church or Diocese" and "purports to be affiliated with the Anglican Province of the Southern Cone. How can the entity be "of unknown form", when one plaintiff is claiming to be that very entity? How can the Diocese of which that plaintiff pretends to be the continuation "have no relation to" the plaintiff Diocese? And notice how much communion is implied exists between ECUSA and the Province of the Southern Cone, whose dioceses only "purport" to be its members.

Having set the tone, the petition continues in the same vein. The Episcopal Church Constitution and Canons "are binding on every subordinate unit and member of the Church", although the word "binding" or its equivalent nowhere appears in those documents. The several Dioceses "belong to, are subordinate to, and are under the jurisdiction of the international body . . .". You might be surprised to learn, a few words later, that local parishes are also "under the jurisdiction of the Church". Oh, really? So now all parish rectors and vestries are subject to the Presiding Bishop's jurisdiction? When did that amendment to the Constitution get adopted?

Just to be clear, the petition sets out the authority of the Presiding Bishop in these words:

12. The "Presiding Bishop" is the "Chief Pastor and Primate" of the Church. The Presiding Bishop is elected by the General Convention and is charged with responsibility for leadership in initiating and developing policy and strategy in the Church and speaking for the Church as to the policies, strategies, and programs authorized by the General Convention.

I guess that among the "policies, strategies and programs" she has been charged with responsibility in initiating and developing is the Church's litigation strategy---I must have missed the General Convention session that conferred that authority upon her. But wait---I thought that the Episcopal Church (USA) never initiated lawsuits? So how can the Presiding Bishop get involved in "developing" them, if she doesn't initiate them?

Next, the petition acknowledges, at least, the existence of the Anglican Communion:

14. The Church is a member of the Anglican Communion, a worldwide fellowship of 38 autonomous regional churches generally known as "Provinces." The historic tradition of the Anglican Communion is that each Province forms its own constituent units and exercises jurisdiction within its own geographic territory, and not within the geographic territory of any other Province.

Isn't that strange? Is it by following the "historic tradition" of the Communion that the Episcopal Church acquired dioceses "within its own geographical territory", from Taiwan to Haiti to Europe? I thought the name of the Church was the "Protestant Episcopal Church in the United States of America." Must be my mistake, again.

On to the next paragraph (aren't you learning things you never knew?):

15. The next level of the Church's organization and governance is the diocese. A diocese may be formed only by action of the General Convention, and only with an unqualified accession to the Church's Constitution and canons. . . .

I wonder why the petition does not mention the Diocese of Washington, which required an Act of Congress to bring it into being, and which has no accession clause of any kind, let alone an unqualified one, in its Constitution? Or the Dioceses of Maryland, Central New York, Haiti or Long Island, which also do not have any such accession clauses? This allegation is flatly untrue.

Now watch carefully the next little trick:

20. Canon I. 17(8) of the Church, "Fiduciary Responsibility," applies to all officers at each level of the Church's governance and provides that "[a]ny person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of [the] Church and ofthe Diocese in which the office is being exercised. "

In my copy of the Canons, the words "Fiduciary Responsibility" appear as an editorial explanation of the Canon in the margin, and are not part of the official text. The actual title of the Canon, which the petition is careful not to quote, reads as follows: "CANON 17: Of Regulations Respecting the Laity". The Laity, in case the plaintiffs need reminding, are not the same as the Clergy, who form half of the membership of any diocesan Standing Committee. But you would not know any of that from reading this Petition.

The heart of the entire case---the gist of this lawsuit---is set forth casually, in just 22 words:

22. Under the Church's Constitution, canons, and polity, no diocese or parish may unilaterally divide or separate or otherwise disaffiliate from the Church.

"Under the Church's Constitution"? No---there are no words in the Constitution that say any such thing. "Under the Church's canons"? Again, there are no such provisions---and anyway, as we have seen, there are a number of Dioceses who do not even accede to the Church Constitution or its canons. And under its polity? Pray tell, how does one discern what makes up the Church's polity, and how does one know whether a given Diocese has agreed to that discernment? Isn't this what one would call a circular argument? Yet as I say, it is the heart of the plaintiffs' case.

The untruths continue in paragraphs 23, 24 and 26, which simply repeat the allegations I have shown to be untrue above. (Paragraph 25, which describes "Missionary Dioceses", is wholly irrelevant.) Next, the petition goes on to set up the plaintiffs' case, by sketching the history of how the Diocese of Fort Worth came into being in 1982. It quotes the original accession clause that was in the Diocesan Constitution as approved by General Convention, but it does not quote (are you surprised?) the amendment clause in that same Constitution, which placed no restriction whatsoever on the powers of the Diocese to amend its Constitution, and which in that unrestricted form was also approved by General Convention.

So how will the plaintiffs claim that the recent amendments made to the Diocesan Constitution were unlawful and void? Oh, just watch them:

38. Diocesan Canon 11 (now Canon 17) provided that the Diocesan Corporation would be governed by a "Board of Trustees of five elected members, all of whom are either Lay persons in good standing of a parish or mission in the Diocese, or members of the Clergy canonically resident in the Diocese, in addition to the Bishop of the Diocese who shall serve as Chairman of the Board or may designate the President or other officer of the corporation to serve as such."

Pay attention to that language "persons in good standing". For it seems that in 2006, there were certain changes made to the corporation's articles: these changes (1) deleted "provisions of the 1983 Articles describing the property held by the Diocesan Corporation as property 'acquired for the use of the Episcopal Diocese of Fort Worth'  . . . [and] stating that the aforesaid property 'shall be administered in accordance with the Constitution and Canons of the Episcopal Diocese of Fort Worth'; [and (2) inserted] provisions purporting to give the Trustees of the Diocesan Corporation the 'sole authority to determine the identity and authority of the Bishop [of the Episcopal Diocese of Fort Worth]' and, in the event of a vacancy in the office of Diocesan Bishop, 'appoint ... a Chairman of the Board' for the Diocesan Corporation; and [(3) inserted language to] provide for election of Trustees by the Board itself, instead of by the Annual Diocesan Convention as required by Diocesan Canon 17.3."

The petition next alleges that these changes were unlawful, because they conflicted with---guess what?---not the Diocesan canons as such, but "the individual defendants' constitutional
and canonical obligations described in paragraphs 20 and 21 above"---i.e., the "obligations" imposed by ECUSA's Canons, on the "laity" by Canon I.17.8, and on the clergy by their oath of conformity subscribed at ordination. How those "obligations" spelled out whom the Board must appoint as a chairman in the absence of a Bishop is, well, not spelled out in the petition.

Now I must have missed the part where the Articles of the Diocesan Corporation require that all its trustees conform their conduct and articles of incorporation to the "Constitution and Canons of the Episcopal Church". Even the court judgment approving the transfer of property to it recited only that (as alleged in paragraph 39):

"Plaintiff, Corporation of the Episcopal Diocese of Fort Worth ... is a Texas non -profit corporation, duly organized under the Constitution and Canons of the Episcopal Diocese of Fort Worth."

(Emphasis supplied.) Nevertheless, according to the plaintiffs, these same traitors later voted to amend the Diocesan Constitution to take the Diocese out of ECUSA, and that is when they violated Canon I.17.8:

51. Those individuals comprising the former leadership of the Diocese, including each of the individual defendants, who supported the purported withdrawal of the Diocese from the Church and the purported affiliation of the Diocese with the Anglican Province of the Southern Cone by those acts left the Church, violated their obligations under the Church's Declaration of Conformity and/or Church Canon 1.17(8), and ceased to be eligible to hold any office in the Church, the Diocese, or any of the Church's or the Diocese's other subordinate units, including but not limited to the Diocesan Corporation; and their offices became vacant.

Now you see the strategy: if their conduct was not sufficiently bad to make their positions vacant in 2006, well, it certainly was by 2008, after they voted to leave. But again I must be missing something here: where in Canon I.17.8 does it say that the position of a lay officer becomes automatically vacant when that officer fails to abide by its terms? And what about the clergy members of the Standing Committee? Canon I.17.8 simply does not apply to them---and before they can be removed as clergy, and their positions declared vacant, there is a certain procedure in Canon IV.10 that has to be followed.

Don't let a little detail like that detain us, however. Plunge on: the petition alleges the facts of the new convention that was held (on whose call? it does not say) and the new bishop that was installed, and the new Standing Committee that was elected. Then it says:

54. The Church recognizes the plaintiff Diocese as the continuing Episcopal Diocese of Fort Worth. The Church and the Diocese recognize the bishop described in Paragraph 53 above as the bishop with Episcopal oversight of the Diocese, the persons elected to the Standing Committee described in Paragraph 53 above as the Standing Committee of the Diocese, the persons described in Paragraph 53 above as the Trustees of the Diocesan Corporation; and the persons described in Paragraph 53 above as the elected deputies or representatives of the Diocese to the Church's General Convention.

Isn't it all just marvelously clear? "The Church recognizes . . . the Church and the Diocese recognize . . ." And just who is this "Church"? Has General Convention met yet? Have all the other Dioceses voted to admit this plaintiff "Diocese"? I don't think so.

So it all comes down to the fact that the Presiding Bishop is "the Church", for purposes of the present petition. She is the one deciding whom and what to recognize, and her act ipso facto becomes recognition by "the Church." And she is the one who goes into Court and alleges that all the Dioceses are subordinate to---the Church (meaning, once again, the Presiding Bishop).
Once again, we are going in circles. The Church does this because the Presiding Bishop says she is the Church, which means that if the Presiding Bishop is the Church, then she is the one doing this as the Church . . .", and on and on, in a never-ending loop.

How can this be? Well, over in Pittsburgh, the Diocesan attorney---er, that is, the chancellor for the "Diocese" which the Presiding Bishop recognized as a Diocese has filed a pleading (CAUTION: big .pdf file) in the court there which makes it all perfectly clear. (Sources tell me that the court will hold a hearing on April 17 to sort out just which diocese is what, and whether the Morgan Stanley accounts should have been frozen.) Listen now as he quotes from a portion of the transcript of the court hearing held last October on releasing Calvary Church's funds from escrow, and in which he explains to the Court what happened following the vote by the Diocesan Convention to amend its Constitution so as to remove it from ECUSA (I have added the bold for emphasis):

[Chancellor Roman:] We then subsequently informed -- Reverend Simons subsequently informed the presiding bishop's office -- the presiding bishop is the bishop who is elected by the general convention of the Episcopal Church. It may have -- it may be the House of Bishops who elects her, Your Honor. In this case it happens to be a woman.
THE COURT: This is TEC?
MR. ROMAN: TEC.
THE COURT: She's the presiding Bishop of the Anglican -- of the Episcopal Church --
MR. ROMAN: Correct.
THE COURT: -- of the United States?
MR. ROMAN: Correct.
THE COURT: All right.
MR. ROMAN: She was informed of what proceeded, of what happened. She requested that Reverend Simons send letters to the other eight members -- the other seven members of the Standing Committee to glve them a chance to say that: no, they did not support the efforts to realign. None of the other seven members of the Standing Committee responded that they agreed with Mr. -- with Reverend Simons. And so on the basis of that information, she made an ecclesiastical determination--- exercised her jurisdiction---her ecclesiastical jurisdiction under the Constitution and canons of the Episcopal church. She determined that Reverend Simons was the sole remaining member of the Standing Committee of the Episcopal Diocese of Pittsburgh.

She made an ecclesiastical determination.

That ecclesiastical determination was conveyed to Reverend Simons, and we have provided Mr. Fletcher's clients with that documentation. Our position is, Your Honor, there is only one Episcopal Diocese of Pittsburgh: we are -- we represent that Episcopal Diocese of Pittsburgh, that it is founded on an ecclesiastical determination. And ultimately, to the extent that we have to apply to the courts to enforce that determination, we would be asking the courts to defer to that determination because it is an ecclesiastical matter.

So that settles it, does it not? The Presiding Bishop---er, should I now say---the Supreme Head of the Episcopal Church (USA) has made an ecclesiastical determination that is binding pro urbe et orbe---upon the Church, the courts, and, well, the whole world.

As I say, forget Easter. It's back to business as usual with the Episcopal Church (USA).