San Joaquin - a Further Update

The parties on both sides of the lawsuit brought by Bishop Jerry Lamb et al. against Bishop John-David Schofield et al. in Fresno County Superior Court have been awaiting the court's tentative ruling (announced in advance of a hearing) on the motion for summary adjudication brought by ECUSA/Bishop Lamb on a part of their second amended complaint. (Here is the link to the first amended complaint on the San Joaquin website, while the second amended version was to my knowledge never posted; it has also been superseded by a third amended complaint, which was filed when Bishop Lamb/ECUSA decided to sue Bishop Schofield's attorneys for the retainer they had been paid. It is a nice legal question just what effect any decision based on the second amended complaint could now have, since it is no longer operative as between the parties, and the defendant law firm had no opportunity to oppose the motion based on it.)

Today, however, came word from the court's research clerk that any hearing on the motion would be postponed yet one more time, until April 29. This now marks the fifth time the court has postponed the hearing since its originally scheduled date of February 25. The clerk's letter acknowledges the importance of the issues to all of the parties, so there is no doubt that the court is examining them carefully. At the same time, it has to deal with all the usual law and motion matters in a multitude of other cases that flood its desk with each passing week. There is nothing to be read into this news, therefore, other than that the court wants to take the time to be careful, and to do a good job, and that it simply needs more time to do so.

Putting the hearing on the summary adjudication motion over to April 29 will mean that it will be heard one day after the court has another matter in the same case on its calendar. Right after Bishop Lamb/ECUSA announced their intention to amend their complaint to add the defendant law firm, Bishop Schofield and the other defendants already in the lawsuit served the plaintiffs with a cross-complaint. (In a lawsuit, the plaintiff files a complaint asking for certain relief against the defendants; when the defendants file in turn a pleading asking for relief against the plaintiffs, it is called a "cross-complaint".) The cross-complaint alleged that ECUSA's corporate and financial arm, the Domestic and Foreign Missionary Society ("DFMS"), had enabled ECUSA in instigating the lawsuit which Bishop Schofield et al. were now being called upon to defend, and so asked that DFMS be required to pay for the resulting litigation expenses, including attorneys' fees.

ECUSA, the DFMS and the plaintiff "Diocese" (I have to use the quotation marks, because for reasons I have explained at length in other posts, there is currently no official Diocese of San Joaquin within ECUSA) challenged the cross-complaint by "demurring" to it, which means they do not think it alleges any claim upon which the court could grant relief. The parties select their own dates when such matters get heard, and ECUSA and Bishop Lamb's attorneys long ago selected April 28 as that date. So the question of whether or not DFMS may be brought into court to answer for the actions of ECUSA in stirring up the lawsuit brought by Bishop Lamb and the "Diocese" will be decided one day before the motion for summary adjudication is decided. How the court rules on the demurrer may furnish some small clue to how it will rule on ECUSA's motion for summary adjudication.

As time permits over the coming two weeks, I will see what I can put up in the form of extracts from, and summaries of, the arguments by both sides on these matters. They are issues of cardinal importance to ECUSA's grand legal strategy against the departing dioceses, since a decision by the Fresno court could well be the first decision by any court on the ability of a diocese to amend its governing documents so as to remove itself from ECUSA. (At the same time, I would strongly caution against expecting too much from the forthcoming rulings. If the court were simply to deny the pending motion for summary adjudication on procedural grounds---meaning that there was something incorrect about the way it was noticed or filed---then we would not learn anything about the larger issues. The matter is entirely in the court's hands, and it has wide discretion to determine just what, and how much, it will choose to decide.)

I will make this observation, however. The recent decisions by the California Supreme Court in The Episcopal Church Cases, and in deciding to republish the Court of Appeal's opinion in New v. Kroeger, are in my view of limited usefulness in predicting what will happen in the Fresno court. The reason is that those decisions each involve individual parishes leaving a diocese, and not the question of a diocese leaving the national church. Parishes are generally bound to dioceses much more stringently than dioceses are to the national church of which they are members. Moreover, different rules apply (the Dennis Canon, for instance, applies only to property held by or for parishes, and not to any property held by or for a diocese). So it is simply not true to say that everything is over and decided in California. There is much, much more still to come.

[UPDATE 04/27/2009: The Court late this afternoon decided to postpone the hearings on both the motion for summary adjudication and the demurrers to the cross-complaint to Tuesday, May 5, 2009 at 3:30 p.m. Once again, the court indicated that more time was needed to address the issues raised by the parties.]