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.