Tuesday, September 1, 2009

815's Day of Reckoning Approaches

The Episcopal Church (USA) currently is a party to some sixty lawsuits across the United States. Its litigation budget from 2006-2012 could approach $7 million, or more than $1 million per year -- and that is according to just the official, published figures. There is another considerable amount going out to prop up its Potemkin dioceses in San Joaquin, Fort Worth, Pittsburgh and Quincy.

Those are the four dioceses which have thus far voted to leave the Church, and each departure has spawned a lawsuit. ECUSA from the beginning has adopted a high-stakes, winner-take-all strategy which depends for its success on its ability to prove in court the proposition that a diocese is not free to withdraw from the voluntary unincorporated association which ECUSA has been since its formation at common law in 1789.

By contending that its dioceses may not withdraw, ECUSA maintains the fiction that its Potemkin creations -- clergy and laity hobbled together into a hastily, but illegally, called "special convention" and programmed to vote for a new "standing committee" and (perhaps) a provisional bishop -- are the real continuing diocesan entities in the eyes of the law. The people voting earlier to amend the diocesan Constitutions acted beyond their lawful powers, the argument goes. The lay deputies to the diocesan Conventions are thereby supposed to have violated Canon I.17.8, which reads:
Any 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 this Church and of the Diocese in which the office is being exercised.
Forget that the language "any office in this Church" has to be stretched far indeed to reach lay deputies elected to a local diocesan convention; that is a minor leap compared to the interpretation given to this Canon by the Presiding Bishop and her Chancellor. They contend that by the very act of voting to amend the diocesan Constitution, the deputies are in violation of this Canon and from that very moment disqualified further to act as deputies.

The inverted logic of this argument should be apparent to any mind that loves reason. The Presiding Bishop and Chancellor first contend that ECUSA's Constitution and Canons prohibit any Diocese from amending its Constitution so as to withdraw from the Church. They can point to no language in the national Constitution and Canons which says as much; they argue that the prohibition against leaving is implicit. Then they contend that because it is forbidden implicitly to withdraw, a vote to do so pursuant to the express power to amend spelled out in the diocesan Constitution (which, in the form approved by General Convention when the diocese in question was admitted, was an unlimited power to amend the document in any manner whatsoever) violates that implicit prohibition. So an implicit and unwritten understanding overrides the express language of amendment: the latter does not mean what it says, because despite its unrestricted language, it is to be understood that certain amendments are out of bounds. And it is further understood (although nowhere expressly written) that you are out of office the moment you choose to follow the express language in a manner that is implicitly prohibited.

To recap: a diocese approves a Constitution which has an unrestricted power of amendment, and applies to join ECUSA. General Convention approves the diocesan Constitution with its unlimited power of amendment. Then, when the diocese tries to exercise its power of amendment so as to withdraw, it is told that such an amendment is implicitly forbidden. The joining of ECUSA, it is told, was an irrevocable act.

Well, what proof can the Presiding Bishop and her Chancellor offer of such an implicit understanding? Certainly the nine dioceses that withdrew at the outset of the Civil War had no such understanding. (To be sure, the ones that remained kept the places available and continued to call the roll for the absent dioceses at General Convention; this facilitated the ease with which the latter rejoined after the South lost the War. But during the War, those nine dioceses came together in a new and independent Protestant Episcopal Church in the Confederate States of America. By forming, and then dissolving, that Church, they proved twice over that dioceses are free to associate together with such Churches as they choose.)

The fact is that ECUSA has never -- until now -- had to prove its unwritten prohibition against leaving in a court of law. But there are four court cases currently pending in which it will have to do so, sooner or later.

In Pittsburgh, Judge James currently has under submission a motion to enforce a previously agreed stipulation to settle the suit brought by Calvary Church. The question has been avoided there for the time being; the parties stipulated that for purposes of enforcing the stipulation, the Diocese of Pittsburgh could be deemed to have withdrawn from ECUSA lawfully. However, the question will eventually rear its head, because even if Judge James rules that there is nothing to enforce in the stipulation, ECUSA and its Potemkin creation have intervened to assert their right to all of the diocesan assets. A ruling on the motion to enforce the stipulation is not expected until later this month, or perhaps in October.

In Quincy, ECUSA has requested to change the venue of the diocese's suit for declaratory relief to a different county in Illinois. That motion is under consideration for the time being, and so the main issue will not be reached at any time soon. But the court (in whichever county the lawsuit ends up) will eventually have to sort out whether ECUSA can assert any claims to the diocesan assets under its theory that a diocese may not withdraw.

In San Joaquin, the Fresno Superior Court made an initial ruling on summary adjudication in which it agreed with ECUSA, and declared that the Diocese was restricted from withdrawing. Bishop Schofield asked the Court of Appeal to review that ruling, and the Court has recently asked ECUSA and its diocesan creation to respond to the petition. It should decide whether or not to grant review by the end of October. If it does, it will be the first appellate court in the country to take up the question.

In Fort Worth, the question is now being presented at the trial court level. Bishop Iker and his diocesan corporation have filed a motion challenging the authority of the plaintiff "trustees" appointed by Bishop Gulick pursuant to a recommendation by the "special convention" to claim to be the Board of the corporation, and to bring suit in its name. The plaintiffs defend their position based on the argument that Bishop Iker and his trustees left the Church when the diocesan convention voted to amend its Constitution. Thus, according to the plaintiffs, the seats on the Board were automatically vacated by the implicit "ejector seat" provision which they read into Canon I.17.8, quoted above. And once the seats became automatically vacant, they claim to have moved lawfully to fill them again at the earliest opportunity.

The motion challenging the authority to bring the lawsuit will be heard by the Court on September 9. The court could rule at the close of the hearing, or take the matter under submission for a ruling later. One way or another, however, the power of the Diocese to amend its Constitution -- and hence the authority to act for the diocesan corporation -- will have to be addressed.

Four lawsuits in four different courts, each with the same underlying question: what prohibits a diocese from leaving a voluntary association of dioceses when there is no express language prohibiting withdrawal?

ECUSA will have to hope and pray that the four courts will each give the same answer. For if even one does not, there will be a precedent against it; if two or more courts reject ECUSA's position, it will be a disaster for its "winner-take-all" strategy. Three of the decisions will be by lower courts, and hence subject to appeal. But the decision in the San Joaquin lawsuit, if the court accepts review, will be at the appellate level already, from which further appeals are discretionary.

That is why I say that, one way or another, the day of reckoning for 815 and its grand legal strategy slowly but surely approaches.


  1. The balloon could pop, but so far, TEC has, with the exception of Virginia, pretty much had it their own way. Suppose all four diocesan cases go to TEC. Any departing diocese will do so with the near-certainty that it will mean leaving with the clothes on their backs, and only if they have proof of ownership to them. The same is already true of parishes.

    What options then remain? I suppose they could do something like a local parish is doing, and DioSC may do. This is to say they are still in TEC, but will in all respects act as if they are not. That game may work for a time, but ultimately a new priest or bishop will be needed. Trying times for the faithful.

  2. Courage, Tregonsee. ECUSA's track record thus far is only with parishes trying to withdraw, not dioceses.

    The articles of parish corporations generally have language in them which subject them "always", "forever" or "permanently" to ECUSA's Constitution and Canons; frequently the latter are even incorporated into the Articles by reference. That lightens the court's job in each such instance.

    But there are very few dioceses who make themselves subject to ECUSA's Constitution and Canons. Most simply "accede" to them, which in the language of international treaty law, simply means that they consent to be bound by them for the time being. Such consent can be withdrawn at any time, particularly if there is no limitation on the powers of a Diocese to amend its Constitution, as is the case with these four dioceses.

    I think at least one court, and probably more, will be able to tell the difference between the current situation vis-a-vis the dioceses and the earlier situations involving parishes. With no language to point to, ECUSA is left with its "unwritten" argument -- and the case of the nine dioceses in the Civil War disproves that argument.

  3. The day of reckoning is not only for ECUSA but for those who asserted claims to property that was formerly clear Episcopal Church property. As I have stated many times, in the absence of some ecclesiastical body that could settle these disputes, all the parties are quite justified in asserting their claims. It is, IMV, a matter of stewardhip.

  4. I wonder if there will be a additional lawsuit over the case of the ten sisters from the Society of All Saints' Sisters of the Poor in Catonsville who are converting to Roman Catholic.

  5. UP, it looks as though the property of the Society belongs to them outright, so there will be no dispute over who owns it. They are not a "parish" or "mission" or "congregation" within the meaning of the Dennis Canon, so it cannot apply to them.

  6. Daniel+

    What will TEC do with hundreds of empty buildings, no people to pay for upkeep and the costs to keep the buildings?

    If +KJS had followed +Griswold's path very little of this would be happening and we would not be transferring the wealth of TEC to trial lawyers.

    Phil Snyder

  7. Sir -
    Thanks so much for "unraveling" these things for us.

    Will you do the same re: Dennis Canon?


  8. J Iovine, if you click on "A Guide to This Site", you will find a page which collects all my posts to date on the Dennis Canon. I am planning to add more posts on that topic, but in the meantime, those links should give you a pretty good start.

  9. . . . And word on the street has it that the "considerable amount going out to prop up its Potemkin dioceses" is about to dry up soon--and I know that at least in the one situation I'm most familiar with, the pseudo-diocese will be hard-pressed to function without it.