Monday, November 16, 2009

Appellate Court Stays Proceedings in Ft. Worth

The Court of Appeals for the Second District in Fort Worth, Texas has issued an order staying all further proceedings in the trial court in Tarrant County between Bishop Edward Gulick's rump "diocese" of Fort Worth and ECUSA, on the one side, and Bishop Jack L. Iker and his co-trustees of the Diocesan Corporation of Fort Worth on the other side. The order (which has been posted at the Diocese's Website) comes in response to a petition for writ of mandate filed by Bishop Iker's attorneys (copy also downloadable from the previous link), following the order signed by Judge Chupp after the oral arguments I described in this post, followed by this post, and then this one. Although by no means a definitive indication of the Court of Appeal's sentiments in this matter, the order recites the following basis for its issuance:

The court has considered relators' [Bishop Iker et al.] petition for writ of mandamus and motion for stay and is of the tentative opinion that relators are entitled to relief or that a serious question concerning the relief requires further consideration.
This cannot be good news for the ECUSA forces. If you recall, they have been trying the "Potemkin Plan" strategy in the trial court, with only moderate success thus far. Under the Presiding Bishop's Potemkin Plan ("PBPP" -- outlined in detail in the first post linked earlier), the way to deal with a Diocese which has voted to realign itself within the Anglican Communion is to assert that it did so illegally, that its actions were ultra vires and void, and that it accordingly never left the Church. You call a "Special Convention" of the remnant as quickly possible, at which you dispense with all constitutional requirements for notice, call and a quorum of clergy and lay delegates from the respective parishes. You ram through a slate of new officers and trustees, and "confirm" a puppet bishop whose principal function is to bring a lawsuit to recover all the assets of the departed Diocese.

In this case, Bishop Gulick of Kentucky was confirmed as the "Provisional Bishop of the Potemkin Diocese", and he thereby became, in ECUSA's fantasy world, ex officio a trustee of the Corporation of the Diocese of Fort Worth. Since all of the previously duly elected trustees of that Corporation had departed with the Diocese, Bishop Gulick then conveniently declares that the remaining seats are now "vacant", and uses his powers under the bylaws to appoint interim trustees previously selected for him at the Special Convention. These new trustees next proceed to file amendments to the corporate articles and bylaws of the Diocesan Corporation which proclaim themselves the incumbents (and adopt provisions to indemnify them in case it should turn out that they are not the incumbents). Then, purporting to act on behalf of the Corporation, they (and ECUSA) hire counsel to file suits against Bishop Iker and his co-trustees to declare them ousted and no longer in control of the Corporation. (Since the Corporation is the legal entity which holds title to all of the assets and bank accounts of the Diocese, Bishop Gulick and his cohorts in this manner plan to lay claim to the whole kit and kaboodle.)

This strategy unfortunately failed to take into account the legal savvy of Bishop Iker's counsel, J. Shelby Sharpe of the firm of Sharpe Tillman & Melton in Fort Worth, and the attorneys from the firm of Andrews Kurth LLP (as co-counsel). Mr. Sharpe promptly filed a motion under Rule 12 of the Texas Rules of Civil Procedure, which challenged the authority of the attorneys hired by Bishop Gulick to file suit in the name of the Diocese of Fort Worth and its Corporation. The attorneys in question -- Jonathan D. F. Nelson and Kathleen Wells -- had to show to the trial court that they were duly and properly hired to act for those two entities by people who were properly in charge of them.

You see, both the Diocese of Fort Worth (an unincorporated association of parishes under Texas law) and its related Corporation were organized in 1983. Five trustees of the Corporation had been elected to staggered five-year terms at each one of the preceding five annual Diocesan Conventions up until the one held in November 2008, and they, along with Bishop Iker, constituted the full Board of the Corporation going into 2009.

But as we have seen, Bishop Gulick declared the seats of the five "vacant" in February 2009, and filled them with the five people nominated for that purpose at the illegally called "Special Convention" in February 2009. Then those new five, along with Bishop Gulick, hired Mr. Nelson and Ms. Wells, and instructed them to bring the current lawsuit in the name of the Corporation and the Diocese affiliated with it.

The problem was that Bishop Iker and his co-trustees considered themselves still fully the Board of the Corporation, and they did not hire Mr. Nelson or Ms. Wells, or instruct them to file suit in the Corporation's (and the Diocese's) name. Thus by challenging their authority to do so, Bishop Iker's attorneys put directly into issue the legality of the procedures used to create the Potemkin "diocese" and to elect new officers for the Diocesan Corporation.

When confronted with this conflict, newly appointed Judge John Chupp of Tarrant County District Court in Fort Worth ruled, Solomon-like, that
Upon conclusion of the hearing, the Court finds that the attorneys cited to appear have not discharged their burden of proof that they were hired by individuals holding positions at the time of the hiring within The Episcopal Diocese of Fort Worth and The Corporation of The Episcopal Diocese of Fort Worth that are associated with Bishop Iker.

IT IS THEREFORE ORDERED that Jonathan D. F. Nelson and Kathleen Wells are barred from appearing in this suit as attorneys for The Episcopal Diocese of Fort Worth and The Corporation of the Episcopal Diocese of Fort Worth that is associated with Bishop Iker.
However, Judge Chupp struck language from the proposed order which also would have stricken the complaint and other pleadings filed by Mr. Nelson and Ms. Wells in the name of the Corporation and the Diocese which he had barred them from representing. This was so even though those pleadings had plainly alleged that the Corporation and the Diocese in whose name they had been filed were the ones started in 1983 -- which still had Bishop Iker and his co-trustees representing them.

So on the one hand, we had the Judge telling Mr. Nelson and Ms. Wells that they could not represent the Corporation and the Diocese "associated with Bishop Iker", which Corporation and Diocese were the only such entities begun in 1983, and yet leaving on file the pleadings which they had filed on behalf of those same 1983 entities.

This played right into the hands of the ECUSA Potemkin Plan, by allowing Bishop Gulick and his followers to maintain their theory that the 1983 entities had never validly departed from the Church, and that they were now the ones legally in control of those entities. Except -- except that Judge Chupp had ruled that there was a Diocese and a Corporation which was legally associated with Bishop Iker; and if the entities which were associated with Bishop Iker were not the ones formed in 1983, then where did they come from, and when were they legally created?

That anomaly created the basis for the petition filed by J. Shelby Sharpe and his co-counsel -- -- in particular, Scott A. Brister, who recently returned to practice after retiring from the Texas Supreme Court -- with the Second District Court of Appeal. Based on the order quoted, it would appear that the two Justices issuing the order were struck by the same anomaly.

Thus now we shall be treated to an explanation in writing from Mr. Nelson and Ms. Wells of how they can claim to represent two entities legally created in 1983, and still governed by Bishop Iker and his co-trustees, when they have been barred from representing those entities. For there cannot be two sets of Dioceses and Corporations created in 1983, since under the genius of the Potemkin Plan, the old entities are pressed into service as having never left, and so no new ones are created (in order to be consistent with the claim of never having left). When the fact of the Diocese having voted to leave is shown, the claim is made that the vote was illegal under the ECUSA Constitution and Canons -- even though Mr. Nelson admitted at the hearing below there was no language in those documents making the vote illegal. (See the quotation given in this earlier post.)

Instead, he said, "the courts have held that they [the Dioceses] cannot leave" -- when no court anywhere to date has said any such thing. The "courts" to which he was referring were all courts which had held that particular parishes could not leave the Diocese to which they had sworn eternal subordination.

This is, therefore, precisely the same question as is currently before the Fifth District Court of Appeal in the San Joaquin litigation, as I have briefed in several earlier posts. And since the same question is now before two different Courts of Appeal in two different States, we should have some very illuminating rulings with regard to the Potemkin Plan very soon.


  1. It sure is a long, long repast with multiple many-flavored courses between the soup and the just desserts [sic].

  2. The Diocese of Ft. Worth has posted the docs on the website. Very interesting. I can't help but think "Don't Mess with Texas"!

  3. Delighted to see TEC oriented entities and individuals have been appropriately required by a court to prove they are who they claim they are.

    Hopefully, TEC oriented entities and individuals will likewise be appropriately required by courts to prove the structure of entities within the structure of TEC as well as the very structure of The Episcopal Church itself, is what they claim it is.

    Lastly, hopefully TEC oriented entities and individuals will be appropriately required by courts to prove their actions and failures to act are consistent with the requirements of common law, statutes, rules and regulations, internal and external, both civil and criminal to which they claim they adhere.

    Matthew 10:26 -
    "Fear them not therefore: for there is nothing covered, that shall not be revealed; and hid, that shall not be known."

  4. My favorite quote from the petition for writ of mandamus:

    TEC’s own consitution acknowledges that “in every Diocese the Bishop ... shall be chosen agreeably to the rules prescribed by Convention of that Diocese.” No matter how the Episcopal Church was organized in the 18th Century, these provisions make clear that in Fort Worth, Texas, the Diocese governs its own affairs and chooses its own Bishop.

    Anybody remember the game “rock em sock em robots”? Body Blow! Body Blow! Uppercut!

  5. If I were representing the Presiding Bishop and her Potemkin Diocese, I would seriously consider settling or even dismissing the case against Bp. Iker and the real Diocese of Ft. Worth.

    I am a lawyer licensed in Virginia and Maryland, not Texas. But in Virginia and Maryland a mandamus petition is almost never granted. In my state, the appellate court's order is a strong hint (not a guaranty) that the court will grant the mandamus petition. Perhaps Texas is different.

    If the mandamus issues, TEC will be forced to concede that their Potemkin diocese is a sham. That development would fundamentally change the nature of the claims against Bp. Iker and the real Diocese; TEC and its accomplices is Texas would be able to claim only, as outsiders to the real Diocese, that Bp. Iker and the real Diocese had done something to harm them. As the Curmudgeon has posted, none of the TEC documents create any duties the dioceses owe to the "national" church. On what basis, therefore, would TEC and its Potemkin creations in Texas be able to base their calim?

    In short, the Presiding Bishop's litigation position, in Texas at least, is in serious, and imminent, jeopardy.

  6. This must be my week for musical allusions. After posting on another blog that my principal candidate for TEC's official anthem is the song You Can All Join In by Traffic, I read this post yesterday.

    Upon further reflection overnight I am reminded of the expression "watching a train wreck in slow motion" to describe the likely eventual outcome of TEC's war of litigation. And I have a sense that even the first disastrous legal decision they encounter may well not move TEC to abandon, or even modestly to ameliorate, their campaign. Which, of course immediately brought to mind Locomotive Breath by Jethro Tull, the opening lines of which [emphasis added] seem aptly to descibe TEC's behavior:

    In the shuffling madness
    Of the locomotive breath,
    Runs the all-time loser,
    Headlong to his death.
    He feels the pistons scraping —
    Steam breaking on his brow—
    Old Charlie stole the handle and
    The train won't stop going—
    No way to slow down

    Pax et bonum,
    Keith Töpfer

  7. Publius - Just to give you some numbers - in 2002, there were 246 applications for writs of mandamus and the court only granted 7 (2.8%).

  8. Make that 8. The court of appeals
    has apparently granted this one.
    for the court's ruling.