Saturday, July 25, 2009

The Fresno Court Decision Examined

The ruling by the Fresno Superior Court in the San Joaquin case has now been put online (by another remnant Diocese, naturally), so it is possible to do a more detailed examination of its reasoning, which lay people can follow. (One of the disadvantages of Blogger as a host site is that it does not yet allow the uploading of Adobe Acrobat documents.) Moreover, there is (as I predicted) so much trumpeting of the case by the Episcoleft as a "final, definitive and authoritative adjudication" of the issues that I feel compelled to put the matter into a better legal perspective --- again, for the lay person who wonders what all the fuss is about.

First of all, as to the "finality" of the decision: it is anything but "final". It is a ruling on a "motion for summary adjudication" --- that is, a motion claiming that there are no disputed issues of fact needing a trial --- on one cause of action in a second amended complaint, which is no longer operative, because that version has been superseded by what is now the fourth amended complaint, and which has seven causes of action.

Thus in the first place, the ruling has to do with a pleading that no longer even counts in the case. As I explained in my earlier post on the subject, that makes the decision irrelevant --- even though the court itself at the moment does not agree. But it is just the court assigned to the case for law and motion purposes, and is not necessarily the court that will actually try the case. (The master calendar judge of the Fresno Superior Court will assign a trial judge only when the case comes up for trial, and his assignment will depend on which judge has a calendar clear enough at that time to handle a two-to-three-week trial.)

As an interim ruling, and not a final decision, it is subject to modification, or even reversal, at any time up to the entry of final judgment. Moreover, the decision is not binding at all on the defendant law firm of Wild, Carter and Tipton, because they were added as defendants by the third amended complaint, and this ruling deals with the second amended complaint. So the defendant law firm will, notwithstanding the ruling, be able to offer evidence at the trial to the effect that ECUSA is not hierarchical with respect to its Dioceses.

So with that out of the way, let's proceed to the ruling itself, and see how it has been put together, and how well it stands up to an examination of its reasoning.

It must first be acknowledged that this is a court that knows the rules it must follow on summary adjudication / summary judgment (op. at page 2):
In ruling on a motion for summary judgment or summary adjudication, the court must "consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three-prong analysis: identifying the issues as framed by the pleadings . . .
Now let us look at how the court follows the first step it acknowledges, namely, to "identify the issues as framed by the [now irrelevant and superseded] pleadings . . .": First it states the question involved:
Defendants argue that the issue of whether the relationship between an Episcopal diocese and the Episcopal General Convention is one of first impression [i.e., meaning that no cases have previously decided this issue]. It is true that cases regarding the Episcopal Church have involved the relationship between parishes and their dioceses. However, it is beyond dispute that the Episcopal Church is a hierarchical church.
Well, now, that's a nice way to go about your task, isn't it? State what your view of the ultimate issue is before you get around to looking at any of the evidence. Acknowledge that it is a question that has never been decided before, and then decide it --- just like that! Now, of course, follow that up with your authority for making such a statement --- and be sure to cite as authority those very cases you just acknowledged did not decide this particular question:
Both the California Supreme Court in In Re: Episcopal Church Cases and the appellate court in New v. Kroeger found it to be so. (In Re: Episcopal Church Cases, supra, 45 Cal.4th at p. 494; New v. Kroeger, supra, 167 Cal.App.4th 816-817.)
Oh, really? One might have thought, from what was said earlier, that those cases involved the relationship of individual parishes to a diocese, and not that of a diocese to the Church as a whole, and so were not authority on this issue. Well, if one had thought that, one would simply be wrong, evidently:
The fact that the Supreme Court and the Fourth District were ultimately analyzing the actions of a parish, rather than the actions of a diocese, do [sic] not invalidate the findings regarding the nature of the Church as a whole.
Now that certainly follows from the premise, doesn't it? Let me restate the argument just made in classical Aristotelian form:

A. (Major premise) Whether the Episcopal Church (USA) is hierarchical in respect to an individual diocese has never been decided by the courts before.

B. (Minor premise) Two California courts, however, decided that the relationship of a diocese to a parish was hierarchical.

C. (Conclusion) Therefore, it is "beyond question" that the Church must be hierarchical as to one of its dioceses.

Yes, that clears it up --- all nice and logical, isn't it? Let's look at how the court now justifies its conclusion, by citing to the plaintiffs' evidence on the point:
Moreover, and more importantly, a review of the Constitution and Canons of the Church indicates that it is indeed hierarchical.

The Episcopal Church's Constitution provides for the establishment of a General Convention composed of two houses, the House of Bishops and the House of Deputies, each with the right to originate and propose legislation. (Mullin Decl. Exhibit 1, Constitution of Episcopal Church Article I, Sec. 1.) Among the duties of the General Convention is the enactment and amendment of the Canons. (See Mullin Decl. Exhibit 1, Canons of Episcopal Church Title I, Canon I, sec. (2) (n) (3), Title V, Canon I, Sec. 1.) The General Convention approves and consents to the admission of new dioceses and the election of new bishops. (Mullin Decl. Exhibit I, Constitution of Episcopal Church Article II, Sec. 2, Article V, Sec. 1.) Currently, new dioceses must express "unqualified accession to the Constitution and Canons" before they can be in union with the general convention and admitted to the Episcopal Church. (Mullin Decl. Exhibit 1, Constitution of Episcopal Church Article V, Sec. 1.)
Why, it is now just so absolutely clear, isn't it? There are two houses in the Church's legislature, and the legislature adopts rules (canons) and admits new dioceses! And those new dioceses (but not the Diocese of San Joaquin, which was admitted well before the Constitution was amended in 1982) have to express an "unqualified" accession to the Constitution and Canons, too. (Ignore the fact for the moment that the Diocese of San Joaquin did not accede to the Canons, but only to the Constitution. We'll get to that later.) So the Church must be hierarchical --- because (today, but not earlier) you have to say that you join it without any reservations!

Well, that's what the plaintiffs' evidence says. So what about the defendants' evidence? (Remember the very first rule acknowledged by the Court in dealing with summary judgment motions [see first quote above]: the court must "consider all of the evidence".) And how does the court proceed to follow that rule? Why, simply by excluding the defendants' evidence, that's how:
Defendant's attempt to dispute the hierarchical nature of the Episcopal Church with the declaration of Rev. Wantland is unavailing. His declaration as to the nature of the Church is an inadmissible opinion and a legal conclusion. "[It] is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide." (Carter v. City of Los Angeles (1945) 67 Ca1.App.2d 524, 528.)
Again, one might have thought the court had just admitted Dr. Mullin's expert evidence on the very same issue. One would have been mistaken. Apparently citing to Dr. Mullin's declaration is not the same thing as considering it. Or maybe it is that when a court first proceeds to decide the issue before looking at any of the evidence, then it needs to look at and cite just that evidence which supports the conclusion it reached beforehand. Yes, that must be it; that must be how a court proceeds to make a decision in accordance with the rules stated at the outset above.
Nor is the hierarchical nature of the church something to be determined on a "case by case basis" or based on a showing of the powers and authority ceded to the general Church by the various constituent Dioceses, as defendants have argued. The hierarchical nature of the Church is apparent from its governing documents as a matter of law.
Not supposed to look at "the powers and authority ceded to the general Church by the various constituent Dioceses", are we? But the court said this just three paragraphs earlier:
A hierarchical church is one in which individual churches are organized as a body with other churches having similar faith and doctrine, and with a common ruling convocation or ecclesiastical head vested with ultimate ecclesiastical authority over the individual congregations and members of the entire organized church. (New v. Kroeger (2009) 167 Cal.App.4th 800, 815 (New).) In a hierarchical church, an individual local congregation that affiliates with the national church body becomes a member of a much larger and more important religious organization, under its government and control, and bound by its orders and judgments.
So how is one supposed to determine the nature of the relationship between the Dioceses and the Church if one does not look at "the powers and authority [they] ceded to the general Church"? Oh, remember: one does not look at the "powers and authority they gave up"; one looks at the powers of the national Church as expressed in the Church's governing documents. Yes, it all becomes quite clear now, if we again put the syllogism into Aristotelian form:

A. (Major premise) To be termed "hierarchical", a Church must be governed by a religious organization which is "much larger and more important" than any individual local congregation.

B. (Minor premise) To determine if that is the case, one looks just at what the Church's governing documents say, and not at what powers the individual members gave up in creating the national organization, or at the powers they retained (such as the right to amend their own Constitution).

C. (Conclusion) Therefore, if the governing documents say there is a religious organization which is "much larger and more important" than any individual Diocese on its own (which must, for these purposes, be considered as identical to a "local congregation"), we don't have to look at the powers retained by the individual Dioceses.

Or, stated in other terms, the fact that the governing documents spell out that General Convention is "much larger and more important" than any one Diocese is sufficient on its own to determine the issue.

Once again, it all becomes perfectly clear when the logic of the argument is laid out for anyone to see. And what is that bit about "bound by its orders and judgments"? One must have missed the language in ECUSA's Constitution where it says: "This Constitution, and the Canons and other Enactments of General Convention which shall be made in pursuance thereof, shall be the supreme Law of the Church; and the several Dioceses in each State shall be bound thereby, any Thing in their Constitutions or Canons to the Contrary notwithstanding." So that explains why, when General Convention enacted Canon III.9.6 (a), requiring equal licensing of priests for women as well as men, and then later amended it to require the same for all persons without regard to their sexual orientation, all the Church's Dioceses immediately began to employ women and gay priests. And that is why Bishop Lamb himself is free to offer communion to the unbaptized, notwithstanding the language of Canon I.17.7 stating that Holy Communion is only for those who have been baptized.

Yes, it all becomes perfectly clear, now --- the Episcopal Church (USA) must be hierarchical, because its Constitution says so. We cannot be troubled to look at any evidence (other than the plaintiffs', of course, which happens to agree with us) --- that might confuse things, and one must have clarity, not confusion. Ah, but we are not done with the legal argument just yet. We still have to deal with that pesky fact that the Diocese of San Joaquin never agreed to abide by or accede to ECUSA's Canons:
Although defendants make much over the fact that the Diocese acceded only to the Constitution, and not the Canons of the Episcopal Church, the court finds that the only reasonable interpretation of the documents before it is that the Diocese implicitly acceded to both the Constitution and Canons by virtue to acceding to the Constitution. The function of the Constitution is to form a legislative body, the General Convention. The General Convention adopted and amends the Canons. Acceding to the Constitution that creates the legislative body, and recognizing the authority of the legislative body, while simultaneously denying accession to the product of the legislative body is nonsensical.
Once again, this needs to be put in the form of a syllogism so the logic of it may be appreciated:

A. (Major premise) The function of a legislative body like General Convention is to make Canons.

B. (Minor premise) A Diocese which accedes to the document creating the legislative body must thereby also accede to the product of that legislative body, i.e., the Canons in this case.

C. (Conclusion) Therefore the requirement that a new Diocese accede to the Constitution and the Canons of the Church is superfluous. By acceding to the Constitution, one necessarily accedes to the Canons as well.

Apparently the court had its own undisclosed reasons for refusing to follow this principle of contractual interpretation, as expressed in Section 1641 of the California Civil Code:
§ 1641. Whole contract, effect to be given

Effect to be given to every part of contract. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.
Under that statute, the words "accession . . . to the Canons" have to have a meaning that is separate and apart from the meaning of the words "accession to the Constitution." But no longer. The latter now means the same as the former. Thus ECUSA no longer has to worry about the fourteen Dioceses that were like San Joaquin, and never acceded to the Canons upon joining the Church. (Maybe it doesn't have to worry about the twenty-nine Dioceses that never acceded to either, as well. That is some hierarchy.)

And what about the meaning of the word "accede"? As defined in the dictionary, it means "to agree to, to accept". And as used in the world of treaties, it means "to sign on to, or to accept." Thus many countries have acceded to the Charter of the United Nations. But it has never been implied from that act that a nation could not ever withdraw its accession. (The Charter, like the Constitution of ECUSA, is silent on the subject of member withdrawal.) Moreover, the United Nations fits the court's definition of a hierarchical organization, because its General Assembly is "much larger and more important" than any one single member country. But if that is the case, how is it that a country can withdraw from the United Nations on its own (as Indonesia did on January 7, 1965)? And why are not the resolutions of General Assembly binding on its member nations, such as Iraq under Saddam Hussein?

For the Fresno Superior Court, "accede" appears to have a peculiar and special meaning. In the court's view, accede means "agree forever", "to sign on to for all time":
Defendants contend that there was no legal impediment to their 2006 amendment qualifying the accession clause such that they acceded to the Episcopal Church's Constitution only to the extent that it was not inconsistent with the Constitution and Canons of the Diocese, as amended from time to time and further this 2006 amendment allowed for the 2008 amendment deleting the accession clause entirely and withdrawing from the Episcopal Church. Defendants are incorrect. The original accession clause itself prevents such amendment. If the Constitution of the Diocese incorporates and accedes to the Constitution and Canons of the Episcopal Church, which require accession, then the Constitution of the Diocese cannot be amended to remove such language.
One wonders where this reading of the word came from, other than from the briefs of ECUSA's attorneys. To quote the California Civil Code again:
§ 1644. Sense of words

Words to be understood in usual sense. The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.
The court cannot be using the word in a technical sense, or in a special meaning given to it by usage, because both of those senses would require expert testimony to explain the special meaning, or the particular usage. And that would mean that it was an issue of fact, not decidable as a question of law. So it is puzzling to think how the court could be using the word "accede" in its "ordinary and popular sense." Under that sense, a person can freely change his mind about giving his consent, and can withdraw next week from that to which he accedes today.

The court's puzzling opinion goes on to find that it is immaterial that the Episcopal Church did not follow its own rules in electing Bishop Lamb:
Defendants contend that there was no proper notice of the March 29, 2008 special convention at which Lamb was elected. It is true that there is no competent evidence that 30 days notice of the meeting was given. Hall's declaration only establishes that he received the notice on March 2, 2008. (Decl. Hall ¶ 20; Exhibit 9.) He did not mail the notice. It is undated. Defendants also contend that the deposition of Schofield was contrary to Church policy, procedure and law. However, we may not look into the propriety of the election and deposition of church officers according to church regulations and rules.
Thus according to the Court, the Diocese of San Joaquin must follow the rules, and the Court will inquire into whether it did so in withdrawing from the Church. But the Court will not inquire into whether ECUSA itself, or the Diocese's successor did so --- that would be a forbidden inquiry into matters of church polity. So the question naturally suggests itself: Why is the withdrawal of a Diocese not a "forbidden question of church polity" every bit as much as the recognition of a new one? One will look in vain in the court's ruling for an answer to that question. Logic does not appear to be the rule in this particular domain.

In fact, one of the cases cited by the court, Vukovich v. Radulovich (1991) 235 Cal.App.3d 281, would appear to be contrary to the very ruling made by the court in the present case. In Vukovich, the Court of Appeal affirmed a trial court's decision that it could not interfere in the decision of a disaffiliated church to rejoin the mother church. It said that was a forbidden issue of church doctrine and polity. But the decision of a Diocese to leave the mother church, apparently, is not such an issue. Go figure.

The court's most striking departure from the rules of logic, however, is reserved for this observation:
Defendants claim that the corporation sole that is a party plaintiff is not the true corporation sole known as No. C0066488, the latter of which they claim to operate. Defendants are incorrect for the reasons previously expressed above. The Diocese of San Joaquin (plaintiffs) is not a new organization that "split off" from defendants' older organization. It is the older organization from which defendants' removed themselves.
Let us see if we can grasp what the court is really saying here. One can have a Diocese consisting of forty-seven parishes and 82 ordained clergy, governed by its own Constitution. Of that total, forty parishes and 61 clergy vote to amend the Constitution. The court appears to recognize that the Constitution was amended, for it refers to the "other Diocese" that was not joined as a party to Bishop Lamb's suit. So that "other Diocese" still has its Constitution --- the one it started with --- as it voted to amend it.

The dissenters, however --- seven parishes and 21 clergy --- had to come together in their own special assembly, sign a special "oath of conformity" to ECUSA in order to participate, and then they proceeded to vote to "undo" the changes that were made by the majority at the earlier meeting. As the court admits, the dissenters did not follow the rules of the group's Constitution in so assembling, and came together without lawful notice having been given. Under any version of Roberts Rules except the one apparently invented by ECUSA and Bishop Lamb, their meeting was, therefore, null and void. And despite that fact, the court treats the ones who broke their own laws as the continuation of the older group --- again, because ECUSA waves its magic wand and "recognizes" them as such.

One is entitled to be very confused here. At the outset of its opinion, the court claimed that it was applying "neutral principles": that it would look only at "the deeds to the property in dispute, the local church's articles of incorporation, the general church's constitution, canon, and rules . . .". Here, however, we see the court deliberately ignoring the church's Constitution and canons, and saying that because it is a church, ECUSA and whoever it recognizes as a "diocese" get to do whatever they like, whether it is in accord with the Constitution and canons, or not.

But no one contends that Bishop Schofield's Diocese is not a church as well. So why the double standard? Why does the court find that by withdrawing, Bishop Schofield's Diocese failed to follow the proper procedures, but that by staying, Bishop Lamb's Diocese did not have to follow any procedures whatsoever? What is going on here makes no sense.

It will be up to the Court of Appeal for the Fifth Appellate District --- not the one that decided In re: Episcopal Church Cases, or New v. Kroeger, but the one that decided California-Nevada Annual Conference of United Methodist Church v. St. Luke's United Methodist Church (2004) 121 Cal.App.4th 754 --- to set things right, whether now or at the end of the whole case.

And note, please, that the California Supreme Court's decision is not binding in this matter, either. As regards ECUSA, it was simply a decision that overruled the defendants' demurrer to ECUSA's complaint. Thus it was describing the law that would apply if ECUSA proves the allegations in its complaint --- such as that it is the hierarchical church it claims to be. The allegations in ECUSA's complaint in the Fresno case are necessarily different from those involving the parish of St. James in the Newport Beach case, except for the claim to be hierarchical. ECUSA will still have to prove that is the case in its Newport Beach lawsuit, and if the Court of Appeals corrects Judge Corona's decision as it should, then ECUSA will have to prove it in Fresno as well.

In the meantime, it would be helpful to public discussion if people recognized that (a) the ruling by the Fresno Superior Court is not final; hence (b) it is not authoritative; and hence (c) it cannot serve as a precedent for any other court, in California or elsewhere.


  1. It almost seems that the ruling judge did so in a manner which would guarantee that an appeal would be upheld. Perhaps the judge did so in light of the fact that this case is now in its fourth filing?

  2. It appears the key question is whether the Episcopal Church is hierarchical. The Court's other nonsensical reasoning has some coherence if you swallow the camel.

    The question of whether the Episcopal Church must be a question of fact and not a question of law. If it is a matter of law, we have an "establishment" issue since the state has then will enforce the decrees of the denomination declared to be hierarchical, giving it preferential treatment. Indeed, the law itself has made the denomination hierarchical (whether or not it was hierarchical as a matter of fact) by giving it "ultimate and complete authority" by the power of the state through legal enforcement. The declaration of the court of hierarchical status is self-fulfilling because the state then enforces the status. The "free exercise" rights of those who have associated with such a denomination, not believing it to be hierarchical, are violated by the state enforcement of hierarchical status as a matter of law.

    If the question of whether the Episcopal Church is hierarchical is a question of fact, then there is no establishment question and no free exercise question, because those joining do so (presumably) with the factual knowledge of that status. However, if it is a question of fact, then no party may be bound by a prior court decision that the Episcopal Church is hierarchical unless they were a party to that action. As the US Supreme Court said in Hanson v Denckla, 357 US 235, 250:

    "With the adoption of [the l4th ] Amendment, any judgment purporting to bind the person of a defendant over whom the court had not acquired "in personam" jurisdiction was void within the state or without." Pennoyer v Neff, 95 US 714.

    This inability to peremptorily declare the denomination hierarchical contrary to fact does not suit those judges who wish to proceed from the hierarchical premise so as to fulfill their desired outcome.

    Whether a denomination is hierarchical is likely to involve ecclesiastical and theological issues, which if contested, the courts are incompetent as a matter of law to decide. For example, courts have presumed that Presbyterian denominations are hierarchical. Such presumptions are factually, ecclesiastically, and theologically wrong. If you will not believe me, believe John Calvin, who speaking of the government of the early church said:

    "To the government thus constituted some gave the name of Hierarchy - a name, in my opinion, improper, certainly one not used by Scripture. For the Holy Spirit designed to provide that no one should dream of primacy or domination in regard to the government of the Church." - John Calvin, Institutes, Book 4, Chap 4, Sec 4.

  3. As one of the attorneys that litigated the St. Luke's case, as well as other denominational cases, I've always been frustrated by the "heads the denomination wins, tails the local church loses" approach.

    Hence, the court can look to the denomination's constitution as "neutral language of contract" that is legally enforceable against the local church. But when that language serves as a restriction on denominational power, suddenly the constitution becomes theological language which is not enforceable against the denomination.

    Likewise, if neutral principles apply, then we might be interested in finding out what the language of the denomination's charter means by the approach applied to "ordinary" contracts, such as custom and practice and the background history in order to construe the words used in the charter. In that case, it might constitute evidence that the tradition of most Christian episcopal bodies is that bishops have substantial autonomy in their own diocese and tht bishops are all considered equal to each other.

    But, of course, that kind of evidence is treated as an impermissible intrusion into theology, which results in the Court applying its "common sense" ecclesiology.

    In the St. Luke's appeal, in oral argument, I pointed out that "ecclesiology is theology" and that for the court to make inferences about the effects of hierarchical conclusion without a clear writing subscribed by the local church had the effect of "establishing religion." The justices then turned to the UMC attorney and asked, "well, why isn't that right?"

    To me, it still seems like a good question.