Tuesday, November 3, 2009

Can a Diocese Leave ECUSA? Laying out the Case in San Joaquin

Speculation circulates on the Web concerning the appeal that Bishop Robert W. Duncan has announced will be taken from the ruling by Judge James of Pittsburgh that the Diocese violated an October 2005 stipulation by voting to leave the Episcopal Church (USA). The speculation is meaningless, because until the appeal has been taken and the briefs have been filed, it is impossible to evaluate the merits of the appeal.

Meanwhile, back in Fresno, the briefs have been filed in the writ proceeding in the Fifth District Court of Appeal, and it is now possible to look at how each side is arguing the case. It is called a "writ proceeding" because it is not an appeal from a final judgment in a case, but a petition for the Court to issue a "writ of mandamus" (from the Latin for "we command [you] . . ."), directed to the trial court, and ordering it to vacate (erase) an interim order which it entered last June granting summary adjudication to Bishop Lamb, the rump diocese and ECUSA on the first cause of action in their complaint. (For more detail on the trial court's ruling, see this post.) No date for oral argument has yet been set by the Court.

The importance of this appeal for the Church's litigation with other dioceses cannot be overemphasized. At issue in the San Joaquin, Fort Worth, Pittsburgh and Quincy cases is whether a Diocese of the Church may leave it by amending its Constitution. The current leadership at 815 is contending that once it joins the Church, a Diocese must forever remain a part of that organization. It has neither language nor logic on its side, but it still makes the argument. The California Fifth District Court of Appeal will in all likelihood be the first appellate court in any State to evaluate the merits of the Church's case.

In a series of upcoming posts, I will lay out the positions taken by the respective sides, by publishing extracts from their briefs, which are now a matter of public record. For this initial post, I shall reproduce here the Introductory Statement and the "Petitioners' Theory of the Case" section from Bishop Schofield's opening brief. Taken together, they provide a good introduction to the issues at stake.

First is this excerpt, from the Introduction to the Petition:
The action below arises from an internal church dispute over the ownership and control of real and personal property located in nine Central Valley counties. Its outcome will affect thousands of worshipers attending weekly services at some forty missions and parishes, from Stockton to Bakersfield. In the context of Episcopal Church litigation, the dispute presents a case of first impression. For the first time ever, the Episcopal Church is pitted in a property dispute against an autonomous member diocese -- as opposed to an individual parish under diocesan control. The member-diocese was the Diocese of San Joaquin as it existed on December 8, 2007, when the delegates to its Annual Convention voted overwhelmingly (90 percent) to end the Diocese's spiritual affiliation with the Episcopal Church and affiliate instead with the Anglican Province of the Southern Cone of America, another member church of the worldwide Anglican Communion.

The ultimate factual question is this: as to diocesan governance, which body is, in Supreme Court parlance, the "highest judicatory" in the structure of the Episcopal Church? Is it the Diocese of San Joaquin that amended its Constitution in 2007, or is it the General Convention of the Episcopal Church, or some third entity claiming authority on behalf of the "Episcopal Church" as a whole? Both sides claim final authority over the Diocese's own property, and only one can be right.

Determining religious hierarchy is a complex undertaking often involving numerous factual variations as evidenced by the wide range of hierarchical denominations that exist today. It is not enough to know that a church is hierarchical. When faced with a property dispute, a civil court applying neutral principles must undertake the careful factual inquiry required by Jones v. Wolf1 and, more recently, the Episcopal Church Cases,2 to determine what the highest judicatory is in the case at hand. Classifying a church as hierarchical entails only that there is such a body, but not what that body is.
1 (1979) 443 U.S. 595.
2 (2009) 45 Cal.4th 467.

In ruling on the motion at stake, Respondent Court refused to allow petitioners to dispute plaintiffs' factual representations about the Episcopal Church's structure and authority -- and hence the very standing of plaintiffs to conduct the lawsuit in the name of the Diocese that voted to disaffiliate in 2007. Respondent Court simply ignored that petitioners disputed 28 of plaintiffs' 66 identified material facts. The motion should have been denied and the matter set over for trial. However, because other courts (in cases involving parishes) have labeled the Episcopal Church "hierarchical," Respondent Court allowed no inquiry into its structure and brushed aside the factual conflicts. Respondent Court then compounded its error by drawing improper legal conclusions from contract language (parts of church constitutions) that provides no support for the conclusions drawn.

The order granting summary adjudication of the first cause of action for declaratory relief is not only wrong, but it infects the six succeeding causes of action through chain-pleading of the issues summarily adjudicated. The declaratory relief issues that were improperly adjudicated in the first cause of action will, in all likelihood, preordain the outcome on the succeeding legal causes of action set for trial on February 1, 2010.* Since the summary adjudication ruling ultimately cannot stand, another trial on all issues and causes of action will be required with the attendant cost, delay and chaos caused by interruption of the status quo.

. . .

For these reasons, petitioners seek relief expressly authorized by statute. However, merely reversing the improvident summary adjudication order is not enough. Since Respondent Court undertook to interpret key provisions of governing documents of the Diocese and Episcopal Church as a matter of law, the conclusions drawn from this erroneous analysis should be specifically addressed by this Court to ensure they will not govern the remainder of this case.

* Ed. note: since this was written, the parties have submitted a stipulation to continue the date for the trial until after the appellate court has issued its decision.
And now, here is an excerpt explaining the petitioners' "theory of the case":

The Episcopal Church is a voluntary unincorporated association created in 1789 by preexisting state (diocesan) churches and not the other way around. Because it was created in this manner, the Episcopal Church, under common law principles, acquired only the power and authority expressly ceded to it by its founding members. Similarly, under Anglican canon law, power is generally reserved to a local body if not expressly granted to the central body.

The General Convention of the Episcopal Church does not "create" dioceses as plaintiffs insist. Rather, dioceses self-organize and apply for admission by submitting their constitution to General Convention for its acceptance. Dioceses joining the Episcopal Church signify their affiliation by ratifying the general Constitution through an "accession" clause in the diocesan constitution. "Accession" (through its cognate "accedes to") has been the mode of diocesan affiliation from the creation of the Episcopal Church in 1789 until today. "Acceding" is a technical term from international law used to describe the act of a sovereign state becoming a party to a treaty signed by other sovereign states. As explained by the United States Court of Appeals: '''Accession' is 'the act whereby a State accepts the offer or the opportunity of becoming a party to a treaty already signed by some other States .... '" (Avero Belgium Ins. v. American Airlines, Inc. (2nd Cir. 2005) 423 F.3d 73, 79, n.7.) "Accession" does not connote irrevocability, but the opposite.

Turning to the national Constitution, one finds no language creating a hierarchical relationship with a diocese. A check of the general Constitution with any search engine reveals that none of the routine terms indicating hierarchy can be found: "supreme"; "supremacy"; "highest"; "subordinate"; "sole"; "preempt"; "final"; and "contrary." These terms do not appear because it is the diocese that is the highest authority in the Episcopal Church.

The General Convention of the Episcopal Church is a legislative body and not a judicatory body. The Presiding Bishop is merely a "first among equals" and has no metro-political authority over bishops or dioceses. Under the national Constitution and Canons, neither the General Convention nor its Presiding Bishop is given authority to act within a diocese, or to control its actions. There is no ecclesiastical body within the Episcopal Church given authority over the actions of a diocese, only over Bishops.

Finally, the relationship between a diocese and the General Convention of the Episcopal Church has never been adjudicated by a civil court. All reported cases to date involving the Episcopal Church hold that a diocese or a bishop is the hierarchy vis-à-vis a parish; not a single one adjudicates issues between General Convention and a diocese. Significantly, the diocese-versus-parish cases have all been decided based on the presence of hierarchical language in the diocese-parish governing documents--but this same hierarchical language is conspicuously missing from the diocesan and national counterparts. This is no accident. From all this, only one conclusion is possible: the diocese is the central authority, the "highest judicatory," in the Episcopal Church structure. This conclusion is also logically and legally consistent with the Episcopal Church's legal structure as an unincorporated association whose members are autonomous dioceses. Thus, plaintiffs cannot prove the crucial assertion upon which their entire case is based, namely, dioceses are "subordinate" entities that cannot "unilaterally" withdraw from the Episcopal Church.
Many of these arguments, of course, are already familiar to readers of this blog. Nonetheless, it is fascinating to see how they are stated and opposed in the context of formal legal briefs to an appellate court. In the next post in this series, I will quote the parties' allegations and responses in the formal body of the petition itself. That will allow a reader to see most directly how the main issue has now been joined in the San Joaquin litigation.


  1. Dear AC:

    Though I am an attorney by training, I have not followed this saga of litigation as closely as you. But, I seem to recall that, at one point, 815 argued that irreducible sovereign unit of the then (P)ECUSA was the Bishop Ordinary.

    Is my memory correct? And could not (P)ECUSA/TEC's representations constitute a judicial estoppel against their present position that a diocese cannot leave the "national church," whatever that may be?

  2. Dear Death Bredon: Time was when various bishops in (P)ECUSA could be heard to make that argument, certainly. But they never committed to it on a collective basis, to my knowledge, in any judicial proceeding, thereby precluding the application of judicial estoppel to their (individual) assertions.

    That being said, ECUSA now seems to claim that it is a hierarchical entity that exists above and beyond the Dioceses which make it up. So to argue is to take abstraction to the extreme -- because in the sense that ECUSA is something which is greater than its individual Dioceses, ECUSA is claiming to be some kind of person emerging out of a collective entity which the common law, at least, does not yet recognize. (Statutes in given States provide otherwise, but ECUSA was not organized under the laws of any one particular State.) An association of persons at common law remains just that -- a collection of individuals, with no one authorized to speak for everybody, and hence no one capable of acting for the group as a whole.

  3. I hope & pray that the judge in the FTW case, Judge Chupp, has the opportunity to hear this kind of testimony. I hope he asks the TEC lawyers one question, like he did recently - "where does it say that the Diocese of FTW cannot leave TEC?" and of course the reply would have to be "well...it doesn't". I also hope he asks to see the property deeds for which TEC isn’t listed as “owner”. I wish someone on the TEC side would simply post the text in the TEC C&C which states that a Diocese is subordinate to the GC & PresBp. Of course they can't, but it would be interesting to see what they would come up with.

  4. Dear Mr. Haley,

    At long last, a brief on one of the four prominent cases which explicitly addresses the foundation upon which all else rests.

    Am I incorrect in believing that the argument quoted was not so explicitly addressed in a prior brief in the San Joaquin case? If so, I fear it was a serious, but I would sincerely hope, not fatal, omission.

    Pax et bonum,
    Keith Töpfer

  5. It's not that it was omitted from the briefing below, Martial Artist, but that given the way Bishop Lamb et al. brought their motion, they tried to finesse the issue. (You can read the brief filed below in this post.) But as the trial court actually ruled on the motion, he found that the Diocese had "exceeded its powers under ECUSA's Constitution" when it voted to leave the Church in 2007. So in this writ proceeding, that is now the central issue in the case, although as I will show in my later posts, Bishop Lamb and his attorneys are still doing their utmost to dance around it.