Can a Diocese Leave ECUSA? Squaring Off in San Joaquin

In the first post in this series dealing with the writ proceedings in the Fifth District Court of Appeal involving Bishop Lamb's and ECUSA's lawsuit against Bishop Schofield, I quoted the sections of Bishop Schofield's opening brief which introduced the matter and laid out the petitioners' (Bishop Schofield and the entities he heads) theory of the case. In this post I shall quote from the sworn allegations made in the petition itself, together with the sworn responses made by Bishop Lamb et al. That way, you can best see how the issues have been joined. In what follows, the purple text is from the Petition filed by Bishop Schofield and his attorneys; the red text is from the Return filed by Bishop Lamb and his attorneys. These are indeed critical to the case, so let those who wish to understand the issues involved "read, mark and inwardly digest':

2. Petitioner The Rt. Rev. John-David Schofield is the bishop of the Diocese of San Joaquin, a California unincorporated association, that withdrew from membership in the Episcopal Church on December 8, 2007. The remaining petitioners, The Episcopal Foundation of San Joaquin, Inc., The Diocesan Investment Trust of the Diocese of San Joaquin, and the Anglican Diocese Holding Corporation are auxiliary entities created and governed by the Canons of the Diocese to hold title to its real and personal property together with property belonging to some of its parishes and missions. Petitioners are the defendants in an action now pending in Respondent Court entitled Diocese of San Joaquin, et al. v. David Mercer Schofield, etc., et al., Fresno Superior Court Case No. 08 CECa 01425 AMC. Plaintiffs are named as the real parties in interest.

2. Plaintiffs deny the allegations in paragraph 2 that David Schofield is the "bishop of the Diocese of San Joaquin" and that the Diocese "withdrew from membership in the Episcopal Church on December 8,2007." Plaintiffs deny that the Anglican Diocese Holding Corporation is authorized to hold the property of the Diocese of San Joaquin. Plaintiffs admit the remaining allegations.

Chronology of Pertinent Events
The Diocese of San Joaquin

3. The Diocese of San Joaquin was, from 1961 to December 2007, one of the dioceses of the Episcopal Church, a constituent member of the worldwide Anglican Communion. The members of the Diocese were the local Episcopal churches (called "parishes" or "missions") located in fourteen Central Valley counties of California. The Diocese was, and continues to be, an unincorporated association governed by California Corporations Code section 18000 et seq., and by its "Constitution" and "Canons" (akin to bylaws). The highest legislative body of the Diocese is its Annual Convention.

3. Plaintiffs deny the allegation in paragraph 3 that the Diocese was a diocese of the Church "from 1961 to December 2007," because the Diocese remains a diocese of the Church. Plaintiffs deny the allegation that "[t]he highest legislative body of the Diocese is its Annual Convention" to the extent that it implies that the Church's General Convention lacks authority over the Diocese. Plaintiffs deny that the Diocese is subject to Corp. Code, § 18000 et seq., without regard to the rules of the Church and the Diocese and other relevant authority.

4. On December 8, 2007, the delegates to the Diocese's 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 which offered the Diocese spiritual protection on an "emergency and pastoral basis" so that it "may continue in the mainstream of the Anglican Communion and be faithful to its Biblical and historic teaching and witness; .... "

4. Plaintiffs deny the allegations in paragraph 4 to the extent that they imply that the Diocese can revoke its accession to the Constitution and canons of the Church and the authority of the Church's General Convention. Plaintiffs deny that the December 8, 2007, vote of the Diocesan Convention was valid or had any effect on the Diocese of San Joaquin's status as a diocese of the Church. Plaintiffs deny that the relationship between the Church and the Diocese was or is merely a "spiritual affiliation." Plaintiffs lack information sufficient to permit them to admit or deny the remaining allegations.

5. At the 2007 Annual Convention, the members of the Diocese expressed their will to disaffiliate from the Episcopal Church by voting overwhelmingly to amend their Constitution to delete the language whereby the Diocese had previously "acceded" to the Episcopal Church Constitution, and to remove limits on its physical boundaries ("the 2007 amendments"). The vote met all canonical requirements for notice, quorum and passage by a super-majority in each of the clerical and lay orders. Prior to the vote, Bishop Schofield announced to the delegates that he would abide by whatever Convention decided with regard to withdrawing from the Episcopal Church; Bishop Schofield did not cast a vote.

5. Plaintiffs deny the allegations in paragraph 5 to the extent that they imply that the Diocese can revoke its accession to the Constitution and canons of the Church and the authority of the Church's General Convention. Plaintiffs deny that the December 8, 2007, vote of the Diocesan Convention was valid or had any effect on the Diocese's status as a diocese of the Church. Plaintiffs admit that the majority of the members present at the 2007 meeting of the Diocesan Convention purported to adopt certain amendments to the Diocese's Constitution and canons, but deny that those actions were valid or effective. Plaintiffs lack information sufficient to permit them to admit or deny the remaining allegations.

6. The language of the Diocese's Constitution reserved to it the unqualified right to make this amendment and nothing in the Constitution and Canons of the Episcopal Church forbade or restricted the Diocese from taking this action. Specifically, the Constitution and Canons of the Episcopal Church contain no language manifesting supremacy, subordination, exclusivity, preemption or finality over the actions of a member diocese.

6. Plaintiffs deny the allegations in paragraph 6.

7. Following the vote at the Diocese's Annual Convention in December 2007, each parish was given the choice to stay with the Episcopal Church along with permission to keep all of its own real and personal property. The vast majority of the Diocese's forty-seven parishes and missions followed it out of the Episcopal Church and into affiliation with the Anglican Province of the Southern Cone. However, seven parishes chose to remain with the Episcopal Church. They were permitted to leave and take their property with them with the blessings of the Diocese and its bishop, The Rt. Rev. John-David Schofield. The Diocese of San Joaquin is the first diocese to leave the Episcopal Church since the Civil War, when nine dioceses departed to form an independent church in the Southern states.

7. Plaintiffs deny the allegations in paragraph 7.

That is a remarkable denial. ECUSA and Bishop Lamb are denying that any parishes left (since they want to reclaim them once they have defeated Bishop Schofield), but they also deny that any parishes stayed and were allowed to keep their property. In the world of Bishop Lamb, his "Diocese" remains exactly as it was under Bishop Schofield, with all the same parishes, missions and congregations (just not the same clergy, since he claims to have deposed 65 of them). Note also that ECUSA denies that any Dioceses left it during the Civil War.

8. Three months after the Diocese voted to disaffiliate, the small minority of stay-behind parishes, in concert with the Presiding Bishop of the Episcopal Church, purported to conduct, without any call or notice given in accordance with the Diocese's requirements, a separate "Special Diocesan Convention" where a "re-vote" was taken to reverse the democratic vote of the majority and to install new leaders, including a new provisional bishop. The group also purported to designate that bishop as the incumbent of the Diocese's corporation sole in place of Bishop Schofield, even though it did not, as the minority, have any control over the corporation sole. In addition, at the "Special Diocesan Convention" the minority claimed the authority not to create a new diocese of their own, but to nullify all the amendments adopted the majority in annual conventions since 2003, and to continue as the "Diocese of San Joaquin" itself.

8. Plaintiffs admit the allegation in paragraph 8 that the Diocesan Convention held a Special Meeting in order to select new Diocesan leadership after defendant Schofield and his followers left the Church. Plaintiffs deny the remaining allegations.

9. None of these actions taken by the minority, including the election of a new diocesan bishop, complied with the call, notice, quorum, election or amendment requirements of the Diocese's Constitution and Canons. In addition, these actions did not comport with the Constitution and Canons of the Episcopal Church. Neither General Convention nor the Presiding Bishop elected by General Convention is given authority to act within a diocese to control its decisions. Further, there is no ecclesiastical body within the Episcopal Church which has been given authority over the actions of a diocese.

9. Plaintiffs deny the allegations in paragraph 9.

Again, Bishop Lamb and ECUSA have to make these denials. As I discussed in detail in this earlier post, their failure to follow the notice and quorum requirements of San Joaquin's Constitution invalidates everything they did to elect Bishop Lamb and authorize him to file the present lawsuit.

10. Following the "Special Diocesan Convention" held by the minority, the new diocesan bishop filed papers with the California Secretary of State purportedly installing himself as the incumbent of the Diocese's corporation sole (Corp. Code, § 10010), renaming the corporation and instituting other material changes. The object of this self-help enterprise was to seize the entity that holds title to the Diocese's real property as well as the property held in trust for some, but not all, of the disaffiliating parishes.

10. Plaintiffs admit that on April 9, 2008, the Rt. Rev. Jerry Lamb caused to be filed with the Secretary of State corrected Articles of Incorporation of the Corporation Sole, which Articles are in the Record, the contents of which speak for themselves. Plaintiffs deny Petitioners' characterization of those Articles. Plaintiffs deny the remaining allegations in paragraph 10.

11. Thereafter, on April 24, 2008, the minority and its leader, Bishop Lamb, caused the action below to be filed in the name of the "Diocese" and its corporation sole even though they have no authority or standing to act for either of these entities. The Episcopal Church, presenting itself as an unincorporated association of dioceses, joined in the action as a plaintiff.

11. Plaintiffs admit the allegation in paragraph 11 that Plaintiffs filed this action. Plaintiffs deny that the Church filed this action "as an unincorporated association of dioceses." Plaintiffs deny the remaining allegations.

Another remarkable denial: “that the Church filed this action ‘as an unincorporated association of dioceses.’” This denial goes to the heart of the matter before the Court of Appeal. In each version of the complaints they filed below, ECUSA began with this sentence: “Plaintiff Episcopal Church . . . is an unincorporated association headquartered in New York, New York.” The next sentence alleges: “It is a religious denomination, comprising 111 geographically-defined, subordinate entities known as ‘dioceses’ . . .”

In the metaphysics of 815's megalomania, when 111 independent dioceses join together in an unincorporated association at common law (the Church began in 1789, without organizing under a charter or the laws of any particular State), the association becomes an entity in the abstract which is superior to any of the members who actually make it up. Without any language of hierarchy whatsoever in the Church’s governing documents, such a metaphysical abstraction cannot be declared to exist as a matter of law. The great jurist William Blackstone had this to say about voluntary associations (Commentaries, Book I, ch. 18, *467-*68; italics added):

To show the advantages of these incorporations, let us consider the case of a college . . . founded . . . for the encouragement and support of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they **468]could neither frame, nor receive, any laws or rules of their conduct; none, at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? . . . So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals . . .

In short, the “general Church” of which ECUSA speaks throughout its brief is a mere mental abstraction, and not a legal entity in its own right. The Constitution of the Episcopal Church (USA) was formed after the Revolutionary War by the agreement of the various successors of the Church of England in the States of Connecticut, New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia and South Carolina, who each sent delegates from their respective churches to a gathering in New York in 1789 for that purpose. The result was, as the current Preamble to the Constitution recites, “a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and regional Churches in communion with the See of Canterbury . . .”

Thus, the plaintiff Episcopal Church alleges in its complaint below that it is an unincorporated association, but then denies before the Court of Appeal that it has brought the action as such. The inconsistency boggles the mind, but not 815.

Would the real “Episcopal Church” please stand up?


[To be continued.]