Friday, October 2, 2009

The Law Inches Forward in Fort Worth

To understand the significance of the rulings today, you might first want to review two earlier posts explaining what has happened up to this point: here and here. Here is the official post from the Diocese of Fort Worth.

Judge Chupp in Fort Worth had three motions before him today. The first was a motion by the defendants Bishop Iker and his co-trustees of the Diocesan Corporation to continue (postpone) the court's hearing of the plaintiffs' motion for partial summary judgment (without having a trial) on the first claim in its complaint: asking the court to declare that Bishop Iker and his co-trustees were replaced on the Board of the Diocesan Corporation by the "Special Convention" held on February 7, 2009. The court GRANTED this motion and continued the hearing from October 15, 2009 to January 22, 2010 to give time for discovery concerning the issues.

The second motion asked Judge Chupp to reconsider the order he signed at the end of the Rule 12 hearing on September 16. This order declared that the plaintiffs' attorneys could not represent Bishop Iker's Diocese or its Corporation, but refused to strike the pleadings they had filed on behalf of those same entities. The Court DECLINED to revise its Order.

The third motion was to grant Bishop Iker et al. leave to file a third-party complaint joining Bishop Gulick, chancellor Kathleen Wells and the persons elected as the "Standing Committee" in February as defendants, and to make them prove that they were lawfully elected to their positions. The Court GRANTED this motion.

Now let me try to put these rulings into some kind of perspective.

The granting of Bishop Iker's counsel's request to postpone the hearing on the motion for partial summary judgment was not unusual or unexpected; several lawyers who practice in Texas have told me that such motions are routinely granted when a party moves, as the plaintiffs did here, for summary judgment so soon after filing their complaint, and before any meaningful discovery of the evidence pro and con has taken place. What is unusual, however, is that according to the plaintiffs' Website, they did not oppose the request to postpone the hearing. In other words, having filed the motion and set the date for the early hearing, the plaintiffs really just wanted to get their motion on file? And give the defendants over three months in which to prepare to meet it? There must be more here than meets the eye. Let's come back to this after looking at the other two motions, which were interrelated.

The original motion under Rule 12, as I explained in the first post linked above, called on the plaintiffs' attorneys to prove they had the authority to file pleadings on behalf of the "Episcopal Diocese of Fort Worth" and its "Corporation", given that those two entities, first organized in 1983, already had a Bishop (Iker) and trustees elected at the Diocese's previous Annual Conventions. The attorneys responded to the motion by disclaiming any intent to represent the entities which were under Bishop Iker's control; they maintained that the entities they were representing still belonged to the Episcopal Church (USA), because the vote to leave the Church taken at the last Annual Convention of the Diocese had been beyond its powers. Thus neither the "Diocese" nor its Corporation had ever really left, they argued: only their bishop and officers had left, and the Presiding Bishop had kindly stepped in to call a "Special Convention" (since there was no Bishop or Standing Committee left to do so) to fill the vacancies thus created. And once a new bishop and standing committee had been elected, they were the ones who authorized the plaintiffs' attorneys to file suit in the name of the Diocese Which Had Never Left, and Its Corporation Which Never Left Either.

At the two sessions of argument held on the Rule 12 motion, as again explained in the second of the two posts linked earlier, the Judge clearly did not buy the argument that the vote by the Annual Convention in November 2008 to leave the Church had been beyond its powers. He pressed the plaintiffs' attorneys again and again to cite to him chapter and verse from either the national Constitution and Canons, or their Diocesan counterparts, that placed any kind of restrictions upon a member Diocese leaving the voluntary association of Dioceses which makes up the Church. They were unable to point to any such language, and so the Judge ordered that they could not represent the Diocese Which Left Lawfully, or Its Corporation.

However, as I also pointed out in the earlier posts, both the complaint (petition) filed by the plaintiffs, as well as the amended one filed a few months later, stated in unequivocal language that the plaintiff "Diocese" had been started in 1983, as had the plaintiff "Corporation." Now maybe in the spiritual realm it is possible for one religious corporation to split into two, which then can be superimposed on one another to still look like one, but that does not fly in the temporal world. There is and can be in law only one Corporation of the Episcopal Diocese of Fort Worth which was incorporated under the Texas statutes in January 1983. And likewise, there is and can be under Texas law only one voluntary association called "the Episcopal Diocese of Fort Worth" that was formed in 1983, as well.

So I do not know what type of Southern stimulant the persons who hired Kathleen Wells and Jonathan Nelson to file this lawsuit were ingesting when they did so, but what I do know is that it was not the Corporation or the Diocese Which Left Lawfully, both of which were the only such entities organized under Texas law in 1983. So if we are to take the plaintiffs' Website at its word, and accept at face value their assurance that they never at any time claimed to represent those entities, then what entities, pray tell, do they represent? When were the entities which they say they represent organized -- if not on February 7, 2009 or shortly thereafter?

The motion for reconsideration which the Court denied today simply asked the Court to revisit its ruling, and accept the logical consequences of it: if the entities hiring the plaintiffs' attorneys could not have existed prior to February 2009, then why not strike their pleadings, which allege they were organized in 1983? Why not make them file new pleadings which conformed to what they claimed actually to be?

And, to take the matter a little further -- why would the plaintiffs themselves and their counsel not want to do so on their own? What possible advantage can they gain from leaving on file pleadings which on their face are false? How can they even ask for summary judgment on behalf of entities which they admit they do not claim to represent?

It seems to me that the Judge, who is still getting his judicial stripes after having been on the job for about only a month, has not yet acquired the confidence to go where the logic of his own rulings actually takes him, to follow things through to where they lead. He can see that there can only be one Corporation and one Diocese organized in 1983, and that the plaintiffs do not and cannot represent those entities, but he can also see that there is a lot of money and property at stake, and that there are some very wealthy Texans (including Anne T. Bass) who are taking sides on this matter. So he is proceeding cautiously for the time being, and leaving the plaintiffs' presumably well-compensated lawyers to sort out what they should be doing, rather than deciding for them what they have to do.

We come thus to the third motion, which gives Bishop Iker and his counsel leave to file a "third-party petition" -- meaning a complaint which brings in additional parties, outside the circle of the current plaintiffs and defendants. This petition names as (third-party) defendants Bishop Gulick, the diocesan chancellor Ms. Wells, and the standing committee elected at the "Special Convention" on February 7, 2009 -- including the aforementioned Anne T. Bass. A copy of this pleading is attached to the motion to file it, which is linked at this page.

As you will see from reading the third-party petition, it squarely challenges the authority of the named defendants to hold themselves out as duly elected (or appointed) officials of entities which style themselves as "the Episcopal Diocese of Fort Worth" and "the Corporation of the Episcopal Diocese of Fort Worth." It is about time someone called the Presiding Bishop's bluff in this contest, and this petition will do just that.

There are two levels of action playing out here -- one in the Church and the other in the courts. Churches are protected from secular court interference in their internal affairs by the Free Exercise Clause of the First Amendment. At the same time, however, the Establishment Clause of that same Amendment prohibits the secular courts from preferring any one church over any other under the law. The two clauses create a tension between them, and that tension is what is creating the problems for the court and the parties in this case.

As the Episcopal Church (USA) sees things, it gets to claim all sorts of things as a church which it says the courts must not question: it says it gets to say what is a diocese and what is not, and what dioceses can do and cannot do, who is a bishop of a diocese and who is not, and what can happen to diocesan property. Some of these arguments can indeed be made, such as who the church says is one of its bishops, but some cannot -- such as whether a diocese may lawfully leave or not when there is no express language to which that diocese agreed which would preclude its withdrawal. The Church has to be under the law just like every other part of society. If it wants to form a religious corporation, it has to comply with the secular formalities in doing so. And if it wants to break up or dissolve a religious corporation that it earlier formed, it again has to comply with the statutory requirements in order to achieve any such result. (Also complying with its own canonical requirements would not be a bad idea, either.) The Presiding Bishop cannot simply bring a diocese or a religious corporation into existence under the law by fiat, and ignore the Church's own Constitution and Texas law in doing so.

The secular courts can enforce only the secular law, including the First Amendment. When the plaintiffs in Fort Worth come into court and play games -- "now we are the Diocese and the Corporation, but not that Diocese or that Corporation" -- it will get them only so far. They have postponed, for the time being, their day of reckoning for a little while yet. (And perhaps that explains why they dropped their opposition to postponing their motion for partial summary judgment -- they recognized that they could use a little time to regroup, to rethink, and to reorganize.)

The law may be slow, but it is inexorable. Come next January 22, it must recognize the real Episcopal Diocese of Fort Worth, and leave the impostor to its own devices.


  1. I cannot imagine that Bishop Gulick and his fellow "trustees" have any legal standing in their filings.

  2. A.C what do you think Judge Chupp meant by this closing comment.

    “I hope to see you all soon on another motion.”

    There may be something so obvious to you as a lawyer but I don't see what it could be. Maybe something things arising out of the discovery process?

  3. Randy Muller, I will be adding to this post later on with some thoughts along the same line.

    Deck, I gather what the Judge was saying was something along the lines of: "I have really enjoyed the arguments in this case, which is unlike any case I have ever encountered before. Y'all have done a fine job of presenting your respective positions and arguments, and I look forward to the next time that we do all of this again."

    Now he could have genuinely meant that sentiment, or he could have used a mildly ironic tone, and have been suggesting somewhat the opposite. You were the one there, and so you will have to tell us which it was.

  4. Mr. Haley, rather than question the judge's experience and logic, I think you ought to take him at his word. He made very clear in the September transcripts that he wasn't going to play the game the Anglican Diocese's lawyers wanted him to play by resolving the case on a preliminary procedural matter (Rule 12).

    As he recognized, there are two groups claiming to be the continuation of the formerly united Episcopal Diocese of Fort Worth, and he needs to decide which gets the property, name, etc. In other words, he would prefer to get to the merits and resolve the case then, and he recognizes that all the parties ought to be before him when he does that.

    I also think that you have spent so long preaching against TEC's logic and legal position that you aren't thinking clearly about what they're going to do next. They're not going to form a new corporation. They're not going to amend their pleadings to say they're no the continuation of the formerly united Episcopal Diocese of Ft Worth. They're going to proceed on their theory until summary judgment, at which point they'll win or lose.

    And this is exactly the way it should work -- get to the merits and resolve the case.

    [OT] Can we expect you to post and comment on the supplemental brief that the St James (CA) petitioners filed in the US Supreme Court?

  5. Very interesting. I always wonder, when a judge drags a case on and on, if he is hoping the parties will get tired or spent and just go ahead and settle.

  6. Allan,

    Unfortunately I was not there. I just gleaned that tidbit from the Diocesan website posting. Maybe someone that was there may pass by and comment on the tone.

  7. DavidH, thank you as always for engaging the posts here. You say about Bishop Gulick and his attorneys:

    "They're not going to form a new corporation. They're not going to amend their pleadings to say they're no the continuation of the formerly united Episcopal Diocese of Ft Worth. They're going to proceed on their theory until summary judgment, at which point they'll win or lose."

    Right -- so, assuming they continue with their insistence that they are the entities organized in 1983, and given the Judge's (a) written order that they are barred from representing the 1983 entities currently controlled by Bishop Iker, and (b) his verbal ruling that the entities associated with Bishop Iker withdrew from the Church lawfully, would you consider answering my question in the post as to exactly what entities are the plaintiffs who brought the lawsuit? Please explain, if you would, using the terminology DWNL and CWNL, and DWLL and CWLL, and explain also where each of those entities came from, and exactly when they sprang into existence, so that we can understand how you believe it a viable strategy to move for summary judgment on behalf of an entity which you deny you are representing, and which the court has barred you from representing.

    As for St. James, I am working on a post about the certiorari petition and ECUSA's opposition, hopefully to be put up on Monday when we see whether cert will be granted. I note that the experienced attorneys at SCOTUSblog, linked at the right, have not mentioned the case as being "certworthy" in their five posts on the "long conference" of last Tuesday, and given that SCOTUS has been accepting fewer and fewer cases since John Roberts became CJ, I am pessimistic about the chances of the case being accepted right now. The conservatives on the Court are more likely to want to wait until there is a final judgment in California -- if they are inclined to take up the issues at all. And by then, the last proponent of "neutral principles" on the Court will be long gone.

  8. Mr. Haley, thank you for the response. I am happy to answer your question, although I imagine you won't like the answer. I decline to use the initials you request because I find them far more confusing than using non-acronym-heavy and non-loaded terms. Therefore, I'm going to refer to the +Iker Group (encompassing the diocese and corporation it claims to be), the +Gulick Group (encompassing the diocese and corporation it claims to be), and the 1983 Diocese (meaning the formerly united, pre-disaffiliation Episcopal Diocese of Ft Worth and associated corporation).

    The Judge has ruled that the attorneys for the +Gulick Group cannot represent the +Iker Group (or as the judge wrote in the Rule 12 order, the diocese and corporation "that are associated with Bishop Iker"). That's it. That's all he ruled. (As an experienced attorney, you know that comments from the bench never memorialized in orders aren't rulings, so it's inaccurate to refer to the "verbal ruling" you claim. It's also inaccurate to claim that the court has barred the +Gulick Group from claiming that they are the 1983 Diocese.)

    What's left after the Judge's ruling is two groups that are before the judge claiming to be the 1983 Diocese.

    You asked for me to explain who the plaintiffs are. They are a group of people who claim to be the continuation of the 1983 Diocese. I'm not sure when TEC would claim that their reorganization occurred. Presumably no later than the TEC-called Special Convention.

    Who are the defendants? They are a group of people who claim to be the continuation of the 1983 Diocese.

    This sets up the merits of the case: who will the law recognize as the continuation of the 1983 Diocese, and what rights do the two claimant groups have with respect to property, naming, etc. Judge Chupp will decide those things in due course, and there is certain to be an appeal and so on. Presumably sometime in 2011 or 2012 we'll have answers.

    Now, one of your objections to the above is undoubtedly that the +Gulick Group isn't actually a diocese, so I will detour to address that. I understand your reasoning, although I think you overreach in claiming that TEC's Constitution and Canons support your reading. It would be more accurate to say that they are unclear as to what happens when the majority of a diocese leaves (re: how the denomination can react, how the minority can be reorganized, etc.). In any event, in an objective moment, you should acknowledge that TEC can choose to recognize the +Gulick Group as a diocese (and even as the continuation of the 1983 Diocese) regardless of what the State of Texas ultimately rules. The legal effect of TEC's recognition is up to the Texas courts, but as you note, the Free Exercise Clause means that the State has nothing at all to say about the ecclesiastical decisions that a church makes.

    And one more thing. Again, I don't think you're thinking clearly about the opposition when you suggest uncertainty or weakness (that "they recognized that they could use a little time to regroup, to rethink, and to reorganize"). As an experienced attorney, you know that fighting tooth and nail on every little thing isn't always the best strategy. If the other side makes a motion that doesn't really hurt you and is likely to be granted regardless of your position, you may well choose to consent to it, even if it isn't what you'd have chosen on your own. I'm sure the +Gulick Group and TEC can think of some discovery they'd like to do and other ways to pass the time.

  9. DavidH, thank you for your answer -- and you are right; I do not believe it is a satisfactory explanation of what is happening in Fort Worth.

    "As an experienced attorney" -- I am going to give your words back to you, and ask you why you believe it wise to ignore or completely discount what a judge says from the bench. Yes, they are not "rulings" until they are incorporated into a written order; and as we both know, a trial court may reverse any interim order, not least a written one, before final judgment is entered. That being said, such reversals are relatively rare, which is why it pays to build your strategy around how a judge signals he is thinking by what he says from the bench.

    No attorney can come away from a reading of the two transcripts of Sept. 9 and 16 without being convinced that Judge Chupp found no illegality, or violation of any written restrictions, in the vote taken by the 1983 Diocese's Annual Convention in November 2008 to amend its Constitution. If, therefore, he is going to find that the 1983 Diocese did not legally withdraw, it will have to be because of unwritten custom and practice in the Church to that effect. And that would involve a "he said, she said" battle of experts, or in other words, a disputed issue of fact, so that such a question cannot be the subject of a motion for summary judgment by ECUSA or the +Gulick group.

    My next question to you, then (should you care to continue this exchange), is this: Take a look at the plaintiffs' summary judgment papers (downloadable from this page). Read just the introductory pages, and then tell me why you, if you were Bishop Gulick's lawyer, would still want to press forward with a motion which asks the Judge to declare that his previously indicated sense -- that the Diocese's withdrawal violated no constitutional provision which you were able to show him -- was nevertheless erroneous as a matter of law?

    Contrast this route to the alternative before you, which you now have plenty of time to execute: you adapt to the Judge's indicated sentiments, and amend your pleadings to assert that the plaintiffs are the "Episcopal Diocese of Fort Worth", as reorganized in 2009, and the Corporation of that Diocese, also incorporated in 2009. You then file a new motion for partial summary judgment on your first and third causes of action making exactly the same arguments -- that Texas law allows property given to churches to be used only by the denomination, that Bishop Iker and his Diocese are no longer part of ECUSA, and so on -- exactly as laid out in the current motion. However, the difference is that you are no longer trying to convince the Judge that you are what he has indicated you cannot be under Texas law, regardless of what "TEC" (and just who is that, by the way?) may say. He has told you in his order that you cannot be the Diocese or the Corporation associated with Bishop Iker. And since Bishop Iker's Diocese and Corporation were unarguably founded and organized in 1983 (in fact, they still have all the original corporate books and seal to prove it), it is impossible for you to claim to be those same entities unless the Judge changes his order.

    Your reading of the situation, and hence the strategy that would imply, makes no sense to me, because it takes on a battle the plaintiffs have no need to fight. The Judge has given them room to be whatever they want to call themselves, as long as they are lawfully organized and existing under Texas law, and separate from the entities associated with Bishop Iker. It is foolishly risky and counterproductive not to take him up on that, and not to stop hawking a horse which he isn't buying.

  10. A.S,
    It would look, at least to this lay person, that the Gulick is between a rock & a hard place. If they continue to proceed as the 1983 DioFTW/Corp, they are going against the judges order, right? If they claim the vote (of over 80% BTW) of Nov 2008 is null/void, then, well, they are then no longer in any position at all. Afterall, if the Nov '08 vote is void, then +Iker is still Bishop of FTW (ECUSA) and the Standing Committee is still..well, the Standing Committee and we are back to pre-Nov 2008 vote. If they proceed as the Episcopal Diocese of FTW/Corp FTW formed in Feb 2009, they are not going against any secular/State law, but against ECUSA C&C. Anyone who has ready your postings (and that of others) knows that a diocese can't be formed from nothing straight into a Diocese; can't be formed without Gen'l Convention approval (which was in July 2009 and they didn't approve a "new" DioFTW); nor does the PB have the authority to put a Bishop in place; nor would that bishop have the authority to install a new Standing Committee all at one time (at least not per the C&C of the DioFTW...if of course they are saying they are the 1983 diocese). So, the Gulick group can't be the 1983 DioFT/Corp because the Judge said so; they can't be a new 2009 DioFTW/Corp because ECUSA didn't approve that at the July GC.

    The question is obvious: Who are they then????

  11. Mr. Haley, I am happy to continue the conversation.

    I do not believe it wise to ignore what a judge says from the bench. The +Iker Group has good reason to be optimistic. But at the same time, they and their supporters overreach in saying that the judge has ruled on more than he has. And I think their motion to reconsider the Rule 12 ruling was unproductive and doomed to failure (in that case they were the ones ignoring clear comments from the bench).

    Re the plaintiffs' summary judgment motion, you present an interesting alternative and bit of advice. (Is David Booth Beers reading your blog, I wonder?) On first glance, without having thought long and deeply about it, it sounds perfectly reasonable. I wonder if it would cause problems in the case that aren't immediately apparent though. If they were to follow your advice, they would then have to persuade the Judge to transfer the assets held by the +Iker Group to a new corporation, as opposed to ruling that the +Iker Group cannot maintain control of the 1983 Diocese's corporation. It would tend to separate the property issues from the ecclesiastical ones, which isn't in TEC's favor. And it would also be inconsistent with TEC's chosen litigation strategy and require some degree of change in their position, which might reduce their ability to argue from precedent outside Texas.

    I tend to think TEC will plow ahead and that their consent to the continuance of the summary judgment motion does not reflect any strategic change. OCICBW.

    You've written before that TEC's litigation strategy is overly risky. But then, that's litigation generally: instead of settling for some dollar figure in the middle (which I think would be possible in some, but not all, of these church property cases), you risk getting nothing (and actually winding up below zero after paying your attorneys) for the chance to get everything.

    To answer what I suspect was a rhetorical question on your part as well, TEC is the chosen acronym (for now, at least) of the denomination. I think I understand why some people have philosophical reasons they don't want to use it, but generally speaking, I defer to people's titles and official names.

  12. A.S.,
    Would the following scenario have worked in Ft. Worth? In other words, if it had happened, could ECUSA done anything to stop it, etc?

    1. Each individual parish in FTW votes to leave the Diocese of Ft. Worth.
    2. The Bishop & Standing Cmte approve and allow them to keep their property.
    3. Each individual parish aligns itself with Southern Cone.
    4. Those parishes who vote to remain with ECUSA
    5. After the last parish has left and been permitted to take their property, the Bishop & Standing Cmte vote to leave ECUSA for the Anglican Prov. Southern Cone.
    6. A Diocese of Ft. Worth - Anglican Prov. Southern Cone is then formed.
    7. All those former ECUSA parishes then are joined together to form the new Diocese.

    Would this have worked? After all, if the Bishop & Standing Cmte permitted each parish to leave and take their property, what could ECUSA do?


  13. David J, I have not ignored you on purpose; your comments here are most welcome.

    With regard to your latest questions, the only thing that gives me pause is your step 3: "Each individual parish aligns itself with the Southern Cone." The trouble is, parishes align themselves with Dioceses, and the Southern Cone is a Province of the Anglican Communion, which is made up of individual Dioceses (Argentina, Chile, Paraguay, Uruguay, etc.) So it would not be possible for individual parishes to align themselves with anything but another Diocese.

    However, if a temporary Diocese were to be formed, and to align itself temporarily with the Province of the Southern Cone, then I see no problems with your proposed procedures. The key to your scenario is that the Diocese allows the parishes to leave first, and then it follows -- after leaving the ones who want to remain behind. That procedure would either force ECUSA to try to intervene early, by deposing the Bishop and "derecognizing" the Standing Committee because of their "unEpiscopal acts" in allowing the parishes to leave, or it would leave ECUSA with a fait accompli, about which it could do nothing.

    Once the real Diocese withdraws, it could then absorb or take the place of the temporary Diocese formed to give the withdrawing parishes a temporary home. The end result would be that the Diocese and the parishes that wanted to leave would have accomplished their goal.