A Ceasing of Seizing

Father Mark Harris is upset on the eve of Thanksgiving. Actually, I am, too -- so that makes two of us. Except that what upsets Father Harris has little to do with reality, so that I cannot empathize with him this time (usually I can manage a sentiment or two in his direction); the ill-founded basis for his plaint leaves him beyond my pale.

Let us begin by looking at the litigation in San Joaquin, already covered extensively in multiple posts on this blog. One would think that by now, one could agree on the simple facts.

In December 2006 and again in December 2007, an overwhelming majority of both orders of deputies (lay and clerical) to the Diocesan Annual Convention voted to approve amendments to the Diocese's Constitution. The vote was strictly in accordance with the provisions in the Constitution for its amendment, and the measures to amend passed at two successive annual Conventions with the required supermajorities.

The amendments thus approved were not to Father Harris' liking, or to the liking of ECUSA's Executive Council, or of its Presiding Bishop. The reason is that they effected the realignment of the Diocese of San Joaquin. By the amendments adopted, the Diocese withdrew its affiliation with ECUSA, and affiliated temporarily with the Anglican Province of the Southern Cone -- a co-equal member with ECUSA of the Anglican Communion.

The terms of the realignment were especially generous to those parishes which wanted to remain in alignment with ECUSA: each such parish was given the option of declining to realign with the Diocese, and of staying instead within the structures of ECUSA. Each such parish was assured that it would not have to follow the rest of the parishes, nor would it have to vacate its property and allow the Diocese to take it over. As long as it did not owe the Diocese any money for its property, the Diocese would yield title to it, free and clear.

Now, as has been noted many times on this site, ECUSA's Dennis Canon has no language that makes it applicable to property held by a Diocese, as opposed to "property held by or for the benefit of any Parish, Mission, or Congregation." Nor is there any language in the Constitution or Canons of ECUSA that requires a Diocese to surrender its own property should it choose to withdraw from the Church. (Imagine if you belonged to a road association with your neighbors, which maintained the common road that served each of your properties, and benefited you all equally. Now imagine if the association tried to claim that you were "free to leave the association if you move away from the neighborhood, but in that event your property belongs to the association, and so you have to vacate it and leave us the keys." What would your response be to such poppycock? I thought so -- just don't try to tell that to Father Harris, or to any of the others who make up the rules as they go along, instead of sticking to the plain words of the Constitution and Canons.)

So what, exactly, has given Father Harris his indigestion on the eve of a bountiful Thanksgiving dinner? It is this reporting by Father George Conger at his Website of the latest developments in the litigation filed by ECUSA and Bishop Lamb in San Joaquin (the bold has been added by Father Harris):

"In California’s Fifth District Court of Appeal in Fresno, briefs were filed last week in the case of the Episcopal Diocese of San Joaquin v. the Anglican Diocese of San Joaquin. In June a lower court granted summary judgment to the Episcopal diocese in its bid to seize the assets of the Anglican diocese."

Here is Father Harris' criticism of this reporting (with my bold for emphasis):

The reality is that The Episcopal diocese wishes to retrieve (not seize) the assets taken by certain persons who then constituted the Anglican diocese. From the realignment perspective the officers of the Diocese retained those assets rightfully. From the Episcopal Church perspective the departing officers wrongfully took the silver with the[m], or foolishly believed they were entitled to do so. So a more fair-minded writer would have said, "the Episcopal diocese in its dispute with the Anglican diocese over the ownership of certain assets." That does not make as good press as claiming that the Episcopal diocese is out to seize.

With all due respect (as we attorneys are wont to say), Father Harris, you can only "retrieve" something that was yours in the first place. The very use of the word prejudges the pending case by indicating your view of how the court should decide it. "Retrieve", in the context of the San Joaquin litigation, is not a neutral word, and would certainly not qualify for the epithet "fair-minded".

Quick review for the uninformed: California, as does every other State, recognizes what are called "unincorporated associations." They are groups of people who come together for a common purpose, but who do not (for whatever reason) wish to incorporate, that is, form a separate corporation which is recognized as a separate legal person by the State. Instead, an unincorporated association is not a separate entity in the eyes of the law. It is simply an aggregate of its members. For the sake of legal expediency, most States allow associations to sue and be sued in their own name. But a judgment against a corporation can be executed only against the assets held by the corporation, and not against the individual assets of its shareholders.

In contrast, the law allows a judgment against an association which collectively (through its members) has done something wrong, such as maintain a nuisance in the neighborhood (like a cooperative slaughterhouse for the members' livestock, say), to be executed against each member of the association participating in the wrong -- to the full extent of that individual's assets. The reason -- again -- is that the law does not see any kind of separate entity when it deals with an association; it sees only the members which make it up.

Thus in an association, each member retains his/her/its own property. If there is property which belongs "to the association", it is property held by every member as co-tenants, in equal proportions as they acquired it. There is nothing that can be "retrieved", because when you leave an association, you take with you your own property. (And if you have an interest in the common property, you give that up, and allow the other members to go on holding it without you.)

Now, let us add the wrinkle here that the Anglican Diocese of San Joaquin, which up until December 2007 was the Episcopal Diocese of San Joaquin, was an unincorporated religious association of separate parishes which did not own any property as an association. Instead, eight parishes at that time held the title to their own properties in their own names (since they were religious corporations, which -- remember -- could hold title in the name of the corporation). The rest were unincorporated, and so the title to their properties were held for them by the corporate agents of the Diocese formed for that purpose (among others), as I shall explain in a minute.

So that is my first point in reply to Father Harris: there never was any property "held by the Diocese" which he or any other group of Episcopalians could "retrieve".

But the Diocese, you say, must have had money and property -- the bishop's offices, and the Diocesan bank accounts, for example. Who held the title to those? The answer is that they were held by various corporate and trust entities which were agents of the association that was the Diocese. Since it made no practical sense for the Diocese (or for unincorporated parishes and missions) to try to hold any property in their own names, as associations, the Diocese formed certain holding corporations and trusts to hold the legal title for it and for the parishes and missions as agents.

Now, what is an agent? It is somebody whom you appoint, and who agrees to act for you, and in your behalf. And who appoints the agent, again? It is not the Episcopal Church (USA), and it is not the seven parishes who decided to remain with ECUSA when the Diocese voted to realign. The entities holding the diocesan assets were all created and appointed by the Diocese, acting collectively. That Diocese did not pass out of existence just by voting to realign. Its membership remained the same after the vote as it had been before, with the exception of the seven who voted not to realign. Thus, the association had forty-seven parish members before the vote, and forty afterwards.

Are you, Father Harris, now going to say that the seven who dissented are entitled to retrieve the property that belonged to the forty-seven, through their agents? The agents were the agents of the majority, not the minority; and they remained the agents of the majority when it was reduced from forty-seven to forty. The seven were allowed to keep all of their own property, just as would any member of an association be allowed to keep its own property on withdrawing from the association. But they have no legitimate claim to the property held for the benefit of the members who chose to remain in the association.

And that is the conceptual problem here. The seven who chose to remain with ECUSA, and not to realign, did not thereby somehow remain "the association" which was the Diocese that voted to amend its Constitution. That association continued after the vote to amend as it did before, but with a now amended Constitution. The seven who dissented could not, in law, remain that "association." Instead, they formed a brand-new association, with just seven parishes in it.

Let them call themselves what they will, and let the Episcopal Church (USA) recognize them as one of its "dioceses" without their having to be formally admitted by General Convention, as with every other Diocese up until the term of the current Presiding Bishop. The Episcopal Church (USA) and its majority of remaining dioceses can likewise remain the Episcopal Church (USA) -- the four Dioceses that have withdrawn to date make no claim to be "the Episcopal Church". In just the same way, the seven San Joaquin parishes who dissented from the amendments approved by the majority of forty would do well not to claim to be the continuing entity that is the Diocese made up of the forty who voted to realign.

On this Thanksgiving, therefore, I pray that Father Mark Harris and all who think as he does will be led into the way of truth, and see the legal realities on the ground for what they are. An association is just an association; it is not some mystical entity, and calling it a "diocese" may be meaningful for Church canonical purposes -- but in the law, all associations are equal, and obey the same rules. This is a nation of laws, and not a country where some get to make up the rules as they go along to suit their own ends, pace ECUSA and the current Administration. (Temporary victories in the courts may give the wrong impression, and may end up going to one's head.) We would all do well to recognize that fundamental principle, which keeps us together as a nation of law-abiding people.

God bless Father Harris, and God bless all Episcopalians everywhere. Give them the grace to enjoy the things that are truly theirs, and to leave alone the things that never were theirs to begin with. Let them, in short, reprieve, and not retrieve, the property of others; let them cease their attempts to seize.