Arguments in San Joaquin (II)

Oral argument was held in the San Joaquin litigation today. There were three matters before the court, of which only two were significant - the motion for summary adjudication by Bishop Lamb, the plaintiff "Diocese of San Joaquin", and ECUSA; and their demurrers to Bishop Schofield's cross-complaint, which seeks reimbursement for the expenses (including legal fees) he has had to incur in defending against their main lawsuit.

Arguments began a little after 3:30 p.m., and did not conclude until a little after 5:00 p.m. In between, the court had to hear some other matters, and so in the final analysis, the court heard about an hour of argument on the motion for summary adjudication, and about twenty or so minutes on the demurrers. After it was all over, Judge Corona thanked counsel for their presentations, and took the matter under submission.

There are normally two kinds of outcome to this kind of oral argument after a tentative ruling. In the first, the judge listens politely to all the parties, lets them have their say, and then issues an order affirming his tentative ruling a day or so later---he scarcely changes a thing.

In the second type of outcome, the points made at the oral argument cause the judge to revise and rethink his ruling, and so he takes the time he needs to do so, whether it is one week or two, or even a month or more. (His only deadline is that he has to rule on the matter within 90 days, or else he is barred from collecting a paycheck until he does. What if similar requirements applied to our legislators and executives?) I am hopeful, based on what I heard, that the second type of outcome will be closer to what happens here.

The arguments on both sides zeroed in on the core issue in this litigation: is Bishop Lamb the real bishop of a real Episcopal Diocese, and therefore entitled to sue for what he claims is rightfully its property? The arguments against hammered on the points that the "Special Convention" on March 29 was not validly called or noticed, for the reasons I have discussed in detail in this earlier post. The arguments for maintained that a secular court has no ability to inquire into whether Bishop Lamb is the Bishop of San Joaquin, because the Episcopal Church (USA) says he is, and there the matter ends. As one of the "undisputed material facts" in the plaintiffs' moving papers has it,

Since his election, Bishop Lamb has functioned as the bishop and the ecclesiastical authority of the Episcopal Church's Diocese of San Joaquin with the full recognition and concurrence of the Episcopal Church and its constituent parts. For example:

(a) Bishop Lamb, along with all of the Church's other diocesan bishops, has been asked to consent to the ordination of every new bishop that has been elected by a diocese of the Church since March 28, 2008;

(b) Bishop Lamb has visited the congregations of his diocese, as required by Church Canon III.12(3), and performed Episcopal baptisms and confirmations;

(c) on October 24-26,2008, Bishop Lamb presided over the Diocese of San Joaquin's Annual Convention, at which, among other things, the Diocese elected new officers, including members of the Standing Committee and Diocesan Council;

(d) as Bishop of the Diocese of San Joaquin, Bishop Lamb attended and participated fully in the September 2008 meeting of the Episcopal Church's House of Bishops and expects to similarly participate in upcoming meetings of the House of Bishops; and

(e) as the bishop of the Episcopal Church's Diocese of San Joaquin, Bishop Lamb was invited by the Archbishop of Canterbury to attend, and did attend, the 2008 "Lambeth Conference" of Anglican bishops.

So for the plaintiffs, at least, the fact that the Episcopal Church (USA) and the Anglican Communion have treated Bishop Lamb as a bishop "having jurisdiction" (i.e., in charge of a diocese) is conclusive. Game, set and match.

To which the defendants (and cross-complainants) say: "Not so fast! If recognition and credentials are all that it takes, then ECUSA could have picked any loyal Episcopalian out of the crowd, and said: 'Now you are the "Bishop of San Joaquin"---we'll see that you get invited to the House of Bishops meetings, to Lambeth, and all those other nice things, just you go and file a lawsuit against Bishop Schofield.'"

But as we all know, there are other requirements before one can become a bishop of an Episcopal Diocese. In the first place, one has to be elected. And elected by whom? Not by the Episcopal Church (USA). The Episcopal Church (USA) has no power whatsoever---and never has had the power---to elect Diocesan bishops. Instead, as Article II, section 1 of the ECUSA Constitution provided at the formation of the Church in 1789, a bishop "shall be chosen agreeably to such rules as shall be fixed by the Convention of that State." (Nota bene: the original language said "State", because the original Church was comprised of the Churches in each State---which later came to be called "Dioceses". The current language of Article II, section 1 says that bishops "shall be chosen agreeably to the rules prescribed by the Convention of that Diocese"; so the intent of the provision has not changed in over two centuries.)

The role of the dioceses, therefore, is to elect bishops in the first instance. And the role of the national church, acting through those bishops of other dioceses, and through the standing committees of those other dioceses (or through the vote of those dioceses by orders in the House of Deputies), is to ratify the election of a bishop once chosen by the diocese. 

It follows that there was nothing regular or ordinary about the national church or its leadership being involved in the selection of Bishop Lamb as the bishop of San Joaquin. Instead, what should have happened (at least, according to the defendants' view in the San Joaquin lawsuit) is that the actual Diocese of San Joaquin should have come together in a properly noticed Convention, with a quorum of both canonically resident clergy and of member parishes, and voted to elect a bishop, in accordance with its own rules. Moreover, there should have been a duly certified minute book from the Convention produced, kept again in accordance with the diocesan canons, and attested by the Convention's secretary, certifying all of the resolutions, elections and other measures voted on at Convention.

The plaintiffs, however, had offered no such kind of proofs in their moving papers. Instead, here is what the Reverend Canon Mark Hall swore to in his declaration offered to the Court in support of the motion for summary adjudication (I have added the bold for emphasis):

I, Mark Hall, declare as follows:

1. I am an Episcopal priest and am currently serving as the Canon to the Ordinary of the Episcopal Church's Diocese of San Joaquin, the Rt. Rev. Jerry A. Lamb. . . . I was ordained a deacon of the Episcopal Church in 1975, and a priest of the Episcopal Church in 1976. I was canonically resident and active in the Diocese of San Joaquin during the period 1979-1982 . . . I returned my canonical residence to the Diocese of San Joaquin in 1985. Since that time, I have served as the vicar ofSt. Alban's Episcopal Church, Los Banos (1987-1989); rector of Trinity Episcopal Church, Madera (1995-1999); assisting priest at Trinity, Madera and Holy Family Episcopal Church, Fresno (1995-1999); and interim rector and then rector of St. Anne's Episcopal Church, Stockton (2000-2008). I held positions on the Diocesan Bishop's staff from 1979-1982 . . .  the Budget Committee (1989-1995); Education Commission (1988-1991); the ECCO Board of Directors; and the Camp San Joaquin Committee (1990-2000). I have attended and participated in every meeting of the Convention of the Episcopal Church's Diocese of San Joaquin since 1986, with the exception of one meeting in 1997.

2. I make this declaration based on personal knowledge or on the basis of documents provided to me by trusted associates in the ordinary course of my duties as an Episcopal priest and Canon to the Bishop of San Joaquin, and if called as a witness, I could and would testify to the following facts.

. . . 

23. On March 29, 2008, the Diocese of San Joaquin held a special meeting at which the Convention, in consultation with the Presiding Bishop, elected the Rt. Rev. Jerry A. Lamb pursuant to Episcopal Church Canon III.13(1), to be the provisional Bishop of the Episcopal Church's Diocese of San Joaquin, authorized to exercise all the duties and offices of the Bishop ofthe Diocese. A true and correct copy of the "Resolution for a Provisional Bishop" adopted at the March 29, 2008, special meeting is attached hereto as Exhibit 10.

. . .

I declare under penalty of perjury under the laws of the State of California that the foregoing statements are true.

[/signed] Mark Hall"

And that was the entire proof of the election of a diocesan bishop of the Episcopal Church.Who are these "trusted associates" who provided the documents attached to Canon Hall's declaration? He does not say; he says only that they are "trusted associates" whom he personally knows. And that is classic hearsay evidence: testimony offered by someone who is not in court, and not under oath. Not even the Episcopal Church (USA) itself accepts hearsay evidence when it comes to the election of bishops.

Compare and contrast with this declaration, if you will, the proof that a Diocese is required to make to the national Church when it has elected a bishop. Canon III.11.3 requires, in the case of a bishop elected within 120 days of General Convention:

Sec. 3.
(a) When a Diocese desires the ordination of a Bishop-elect, if the date of the election occurs within one hundred twenty days before a meeting of the General Convention, the Standing Committee of the Diocese shall, by its President, or by some person or persons specially appointed, forward to the Secretary of the House of Deputies evidence of the election of the Bishop-elect by the Convention of the Diocese, together with evidence that the Bishop-elect has been duly ordered Deacon and Priest, evidence of acceptance of election, and a testimonial signed by a constitutional majority of the Convention, and a summary of biographical information relating to the Bishop-elect; in the following words:

We, whose names are hereunder written, fully sensible of how important it is that the Sacred Order and Office of a Bishop should not be unworthily conferred, and firmly persuaded that it is our duty to bear testimony on this solemn occasion without partiality, do, in the presence of Almighty God, testify that we know of no impediment on account of which the Reverend A.B. ought not to be ordained to that Holy Office. We do, moreover, jointly and severally declare that we believe the Reverend A.B. to have been duly and lawfully elected and to be of such sufficiency in learning, of such soundness in the Faith, and of such godly character as to be able to exercise the Office of a Bishop to the honor of God and the edifying of the Church, and to be a wholesome example to the flock of Christ.

(Date) __________ (Signed) _______________

The Secretary of the Convention shall certify upon this testimonial that it has been signed by a constitutional majority of the Convention.

(b) The Standing Committee shall also forward to the Secretary of the General Convention, with the testimonial and other documents, certificates from a licensed medical doctor and licensed psychiatrist, appointed by the Ecclesiastical Authority with the approval of the Presiding Bishop, that they have thoroughly examined the Bishop-elect as to that person's medical, psychological and psychiatric condition and have not discovered any reason why the person would not be fit to undertake the work for which the person has been chosen. Forms and procedures agreed to by the Presiding Bishop and The Church Pension Fund shall be used for this purpose.

(c) The Secretary of the House of Deputies shall present the testimonials to the House, and if the House consents to the ordination of the Bishop-elect, notice of its consent, certified by the President and the Secretary of the House, together with the testimonials, shall be sent to the House of Bishops.

(d) If a majority of the Bishops of this Church exercising jurisdiction consent to the ordination, the Presiding Bishop shall, without delay, notify the Standing Committee of the Diocese electing and the Bishop-elect of the consent.

So that is what the Church requires for proof that a person has been duly elected as bishop by a Diocese. Yet apparently a court of law may manage on much less---just someone's sworn declaration to the effect that "I was there, and we voted for him per the attached resolution, given to me by people whom I trust, and it passed." The declaration says nothing to prove that the Convention was duly called and noticed, or that there was a quorum in each order present and voting. Nor does it offer a certification by the duly elected Secretary of what was voted on at the meeting, in accordance with what the Rev. Gordon Kamai, Secretary of the Convention of the Diocese of San Joaquin, attested was required by the San Joaquin canons:

11. In addition to complying with the rules governing authority and notice (Const., Art. V, Secs. 3-4), there are several additional steps that must be followed in order to convene and conduct a canonically proper Convention. All members of Convention must be credentialed and certified before they can attend and vote. (Canon II.) One week before the Convention, the "Ecclesiastical Authority" (the Bishop or Standing Committee in the Bishop's absence) "shall" prepare a list of all Clergymen canonically resident in the Diocese. (Canon II, Sec. 2.01.) "Such list shall be laid before the Convention at the opening of the meeting and prefixed to the Journal. In said list shall be declared the names of those Clergymen entitled to seats and votes in the Convention ... "(Id.) The reason for this is so that the Secretary of Convention can determine and certify whether the required "quorum" exists to conduct a Convention as mandated by Canon III, Sec. 3.01. If no quorum exists, then "no business shall be transacted except that of adjournment from time to time until a quorum shall be present." (Id.)

12. In addition to Clergymen, members of convention include Lay Delegates from each Parish and Mission ofthe Diocese entitled to representation. (Canon II, Secs. 2.02-2.04.) To constitute a quorum for Convention, "at least one (1) Lay Delegate from each of one-third of all the Parishes and Missions entitled to representation" must be present, together with the requisite number of Clergymen discussed above. (Canon III, Sec. 3.01.) The Secretary of Convention oversees the taking of the roll and certification of a quorum. (Canon VI, Secs. 6.01(2), (3).) Certification of a quorum is entered into the Minutes of Convention by the Secretary of Convention and becomes a permanent part of the official records. (Canon XI, Sec. 11.01; Const., Art. VI, Sec. 2.)

So none of the canonical requirements for the election of a bishop were shown to have been satisfied. At the time of his supposed confirmation as "Provisional Bishop", Bishop Lamb was already a bishop in ECUSA, and so the Diocese did not have to prove his election as though he was a new bishop. But consider: the "Diocese of San Joaquin" (meaning the group that is the plaintiff, and that views itself as the only legal continuation of what had been there before) was, in its view, without a legal Bishop from and after March 12, 2008, when the House of Bishops (with less than the required majority of "the whole number of bishops entitled to vote") actually failed to pass a resolution to depose Bishop Schofield, until its convention on March 29, when it supposedly elected Bishop Lamb. And under its Constitution and canons, only it has the power to do so---provided that there is a quorum of both clergy and laity present---even though the plaintiffs nowhere certify that fact, and even though (given the number of clergy and parishes that had left for the Province of the Southern Cone) a quorum of each order in fact could not have been present. 

From this we may conclude that the Church itself requires more proof of the proper election of a bishop (with signed testimonials, no less) than it thinks a court of law should have. Thus, the plaintiff Church wants the court to accept Bishop Lamb as the current diocesan bishop, on little more than its say-so.  And when challenged, the Church hides behind the First Amendment: "Goodness, gracious! You courts cannot inquire into how we elect a Bishop, because that would involve an invasion of the courts into our rights as a religion to decide to worship under whomever we decide to choose."

Faced with such an argument, I recall well the lesson taught to me by my professor of evidence in law school. He gave us an assignment to practice offering evidence on behalf of the plaintiff in a hypothetical court. My job was to examine the plaintiff, who was another student given a script for the purpose, with the essential facts of the case. Confident in my ability, I started off:

Q Please state your name.

A Alfred Smith.

Q And Mr. Smith, where do you reside.

A 3555 Hollyhock Lane, Nowhere, Nostate, USA.

Q Now, Mr. Smith, were you driving a car on the morning of April 18, 1984?

---At this point, the professor loudly interrupted me: "Objection!" 

And then, assuming the role of a hypothetical judge, he intoned in a deeper voice: "Sustained. Ask your next question."

I tried again:

Q Mr. Smith, do you own a car?

---"Objection!"  

---"Sustained. Ask your next question."

Q Mr. Smith, were you ever in any kind of automobile accident?

---"Objection!"

---"Sustained. Ask your next question."

And on and on it went.  No matter how many different avenues of inquiry I tried, in order to lead up to the fact that my "client" had been injured in an automobile accident by a car driven by the defendant, I could not get past the first question. Everything I said, the professor objected to, and then, acting as the judge, he sustained (upheld) his own objections! Finally, in desperation, I turned to him and said: 

Q But your Honor, I just want to ask this witness about the facts to which he can testify from personal experience. I am trying to lay the foundation for his his testimony as to the events that he suffered through. After all, he is the plaintiff in this case.

To which "His Honour" immediately rejoined:

THE COURT: But that is what you have not shown. Ask him whether he is in fact "the plaintiff."

Q Are you the plaintiff?

THE COURT: "In this case?!"

Q Are you the plaintiff in this case?

A Yes.

THE COURT: Now, Mr. Haley, you may proceed with the rest of your questions. Until you established that your witness was indeed the plaintiff in this lawsuit, all of your questions of him were irrelevant. What does the court care about whether he drives or not, if he is not the plaintiff who was injured??

I never, never forgot that lesson. Ever since, my second question to every (plaintiff) client I have put on the stand has been (after I ask them their name): "And are you the plaintiff in this case?"

So that is the problem I have with the case being presented to the court by Bishop Lamb and his Diocese. How do we know that they are who they say they are---the "Bishop of San Joaquin" and the "Diocese of San Joaquin"? Normally this is not a difficult matter for a plaintiff to prove, and the issue is not in dispute. But in this case, the group which is claiming to be "the Diocese" failed to follow its own procedures as set out in its Constitution and Canons.  It did not see to it that its special convention was called by the Secretary of the Diocesan Convention, upon the request of the Ecclesiastical Authority of the Diocese. (On March 2, when the Rev. Hall claimed to have received his notice of the "Special Convention", that Ecclesiastical Authority was still Bishop Schofield, who was not allegedly "deposed" by the House of Bishops until March 12.) 

Instead, the Presiding Bishop herself claims to have given the notice. But pursuant to what authority? The national Church has no role whatsoever to play in the election of a diocesan bishop---all it can do is ratify the election once it has been duly certified by the Diocese. Under the ECUSA Constitution as quoted earlier, the procedures of how a bishop is elected are left "agreeably to the rules prescribed by the Convention of that Diocese." And those rules, in the case of San Joaquin, are very specific:

Sec. 1.02 The election of a Bishop shall be made in either the Annual or a Special meeting of the Convention called for that purpose. The Secretary of the Standing Committee shall notify the Diocese, through the Secretary of Convention, of such meeting in the manner prescribed by Article V, Section 3, of the Constitution.

Constitution of San Joaquin, Article V, Section 3:

Sec. 3. Ninety (90) days notice shall be given of the meeting of every Annual Convention by the Secretary of Convention. The mode of notice shall be a circular addressed to every member of the Clergy and to each Parish and Mission in this Diocese.

Thus the Secretary of the Diocesan Convention is the only person authorized to give the notice, and it is to be given in the form of "a circular addressed to every member of the Clergy and to each Parish and Mission in this Diocese." But none of that was done in Bishop Lamb's case---or at least, no sworn proof was offered that the March 29 Convention was called in that fashion.

So we have a failure by the plaintiffs to carry their burden of proof to show the fundamental element of every plaintiff's case: that they are the plaintiffs they claim to be. If they are not the real plaintiff in the case, then the court lacks jurisdiction to go forward. Thus, if you brought a lawsuit in my name in the courts of Maine, and if the defendant challenged you, you had better be prepared to prove that you are in fact me, or else you are guilty of fraud upon the court.

Exactly in analogous fashion, the defendants in this case have challenged the identity of the plaintiff "Bishop of San Joaquin" and "Diocese of San Joaquin".  In the case of Bishop Lamb, they say: "Prove that you have been elected as Bishop in accordance with the Constitution and canons of the Diocese which you claim to lead."  And in the case of the plaintiff Diocese, we say: "Prove that you are a Diocese that has been admitted to union with General Convention by the vote of both Houses of an organization which will not meet until July 2009."  Needless to say, no such proof has been forthcoming.

But the plaintiffs thus far have been remarkably successful in persuading the courts in California that no such proof is necessary. Because they claim ECUSA is "hierarchical" (even though ECUSA cannot elect a diocesan bishop), they assert: "How we elect our bishops is our business, and under the First Amendment, you (the court) have no power to inquire into what we do as a Church."

Most frequently, they cite in support of this argument a United States Supreme Court case, Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich (1976) 426 U.S. 696. In that case, the respondent Milivojevich came into an Illinois court to get a judgment challenging the right of the Holy Assembly of the Serbian Eastern Orthodox Diocese to defrock him as one of its bishops. The Illinois Supreme Court found that the Assembly had not followed its procedural rules in defrocking him, and ruled that its actions were invalid. The Supreme Court of the United States reversed the judgment of the Illinois Supreme Court, on the ground that State courts had no authority under the First Amendment to reject "the decisions of the highest ecclesiastical tribunals of this hierarchical church upon the issues in dispute . . ." (426 U.S. at 708; italics added). 

Unlike the Serbian Eastern Orthodox case, however, Bishop Schofield is not seeking a court ruling that Bishop Lamb's election was invalid per se. As far as he is concerned, the Episcopal Church and the group it calls "the Diocese of San Joaquin" is perfectly free to recognize the Rt. Rev. Jerry A. Lamb as a diocesan bishop. The difference here is that Bishop Lamb is coming into court as the plaintiff, and claiming to have legal standing to sue Bishop Schofield as "the Episcopal Bishop of San Joaquin", and to have Bishop Schofield's status as bishop revoked.

If it did not succeed for Bishop Dionisije Milivojevich, why should that maneuver succeed for Bishop Jerry Lamb? What right, under the Serbian Orthodox decision, does anyone have to come into a secular court and seek a declaration that Bishop Schofield has been duly and properly deposed, and is no longer the "Bishop of San Joaquin"?  

And, even more pertinent to the issues at hand, who is to say that the Rt. Rev. Jerry A. Lamb is the proper person even to bring such a claim? If we are to look only to the Episcopal Church (USA) to say who is one of its bishops, then as already mentioned, what is to stop the Episcopal Church from picking out any loyal parishioner and saying: "You are now 'the Bishop of San Joaquin.' Please sign this lawsuit for us. Thank you."

The answer to that last question is simply what has already been noted: the Constitution and Canons of the Diocese of San Joaquin, as duly enacted and adopted over the years, are the only authority that can specify just who is and who is not a Bishop of that Diocese.  Unless and until they have been followed to the letter, the defendants contend that there is no person who can in law (as opposed to whatever the Episcopal Church (USA) wants to do) claim to be that Bishop. And since they were not followed in the case of the Rt. Rev. Jerry A. Lamb, he cannot, they maintain, be entitled to bring a suit in law as "the Episcopal Bishop of San Joaquin."

In sum, standing to sue on behalf of a group or entity is conferred not by fiat, but by following the previously established rules and procedures of that group or entity. Just as I could not decree that you are me, and authorized to bring suit as though you were me, so the Episcopal Church cannot by fiat endow Bishop Lamb with such standing on behalf of the Diocese of San Joaquin. He has to earn it "the old-fashioned way"---by going through a proper diocesan election at a duly called and noticed diocesan Convention, with a Constitutional quorum of both clergy and laity present. And the Diocese has to earn its standing, too, by applying for and then being admitted as a proper diocese of the Episcopal Church (USA).

Well, that, at least, is the gist of the defendants' arguments made today. Whether they convince the trial court to modify or reverse its tentative rulings remains to be seen. To those on both sides, I say: have patience, and wait for the wheels of justice to grind out a final decision. Once the court has ruled, we can go on from there.