Mike Watson Shines Light into ECUSA's Dark Corners

My friend and colleague Mike Watson has been making signal contributions to the debate over the wisdom and appropriateness of the current litigation strategy being pursued by the Presiding Bishop. Two months ago he published a scholarly study at the Anglican Communion Institute which took the Presiding Bishop head on with regard to her claim to be litigating every case of departure from the Church in obedience to her "fiduciary duty". He questioned at the outset whether she was even the correct person within the Episcopal Church (USA) to exercise the responsibility she claimed, and observed tellingly:

One thing to note at the outset is that fiduciary duties do not require an individual within an organization to do something that the individual is not authorized to do. To the contrary, one of the duties of a person in the Presiding Bishop’s position is to take action only within the scope of her actual authority.

He went on to examine in great detail the scope of that authority, and presented convincing textual arguments from both the Constitution and the Canons that the Presiding Bishop had never been given the authority to commence lawsuits on behalf of the voluntary association of dioceses which is the Episcopal Church (USA). Here is his key point (I have omitted his footnotes in all the quotations that follow):

TEC is not a corporation but an unincorporated voluntary association. (The identity of TEC as a voluntary unincorporated association and how that characteristic fits into a broader analysis of TEC’s polity is discussed in more detail in Mark McCall’s paper “Is the Episcopal Church Hierarchical?”) For an unincorporated association, there is no statutory framework conferring on a board of directors or other body the power and authority to manage the association’s affairs. Instead, when the managerial roles are not performed by the associating parties themselves (in TEC’s case the member dioceses), the primary relationship defining those managerial rules is that between principal and agent. The scope of duties and authority of those acting on behalf of the association is determined by the law of agency, as supplemented by the association’s internal rules. Agency is the relationship that arises when one person (a “principal”) authorizes another person (an “agent”) to act on the principal’s behalf and subject to the principal’s control. In the case of TEC, the persons who act in a managerial capacity and therefore act as agents include members of the Executive Council, the Presiding Bishop, TEC’s various other officers and the members of its other committees and boards. From a legal perspective, they function as agents of the members of the unincorporated association (the dioceses), or to the extent the unincorporated association is recognized as an entity itself, agents of the association. Although it would be possible for TEC to restructure itself so that the role of the Executive Council approximates that of a corporate board, to do so would require changes to TEC’s Constitution and Canons or conversion to another form of entity, neither of which has been done. As TEC is now structured, the board of directors analogy does not provide a way around the necessity to identify specific sources for the authority of the Executive Council.

The point is that General Convention, as the legislative agent for the member Dioceses, has never expressly voted to authorize the Presiding Bishop to decide just what litigation to institute on behalf of the entire Church. Instead, the authorization (such as it is) consists of its approval of an overall budget containing a line item for legal expenses. As I discussed in this earlier post, that line item, which began as a perfectly legitimate budgeting of money for disciplinary proceedings against bishops under Title IV, has under Presiding Bishop Jefferts Schori mushroomed out of control, to the point where the Executive Council, and not General Convention, retroactively has to increase by manyfold the amount which General Convention originally authorized. Not once has General Convention itself ever voted to approve the actual amounts which the Church is currently spending on litigation in the state courts.

Mike Watson goes on to point out that the Church ignores the procedural rules applicable to voluntary associations, in particular in its suit in intervention filed against the Diocese of Pittsburgh:

A question related to authorization concerns the “capacity” of an unincorporated association to sue on behalf of its members. The common law rule is that an unincorporated association does not have the capacity to sue or be sued, so that the parties to any litigation would have to include all the individual members of the association. In many jurisdictions, the common law rule has been varied by statute. For example the Uniform Unincorporated Nonprofit Association Act, adopted in about a dozen states, provides that a nonprofit unincorporated association may initiate, defend and otherwise participate in litigation and other proceedings in its own name. Other states specify particular procedures necessary for an unincorporated association to bring suit in its own name. For example, in Pennsylvania, there is a rule of procedure requiring suits by an association to be prosecuted in the name of one or more members appointed as trustees ad litem. Thus in the current Pittsburgh litigation, TEC’s pleadings have been filed on [its] behalf [by] the Right Reverend John C. Buchanan, said to be acting as Trustee ad litem. Bishop Buchanan does not, however, appear to fulfill the requirement of the rule that a trustee ad litem be a member of the association.

Not only is Bishop Buchanan not a member of the voluntary association of dioceses, but there is currently no single member Diocese of ECUSA which could be said to be an appropriate agent to file suit in Pittsburgh as a trustee ad litem on its behalf. ECUSA's wishful dream that the members of its voluntary association are nevertheless involuntarily required to remain perpetually in its thrall is about to be blown sky-high in the courts of Texas and California. The entity currently calling itself "the Episcopal Diocese of Pittsburgh" has never been admitted to General Convention as a full-fledged Diocese, so it cannot serve in that role any more than Bishop Buchanan can.

As Mike Watson's paper goes on to demonstrate in detail, there no restriction upon a Diocese's withdrawal from the voluntary association that is ECUSA, and there is also no warrant in law for its claim that the diocesan deputies who vote for departure are automatically disqualified from serving further as deputies by the language of Canon I.17.8 (which applies only to lay persons appointed to office within ECUSA itself, and not to positions created and filled by the respective dioceses and their parishes, such as deputies to diocesan conventions):

The first problem with this approach is that it purports to apply to offices not only within TEC as such, but also within dioceses, other diocesan entities and even congregations. At least as to positions other than clerical positions to which TEC’s disciplinary canons apply, it would create conflicts with provisions covering removal from office under the other entities’ governing instruments and applicable state law. Second, the automatic vacancy approach attempts to turn standards of conduct into mere qualification requirements (implying an objective standard such as qualification requirements typically entail) and then substitute an automatic removal mechanism for the normal procedures for adjudication of whether standards of conduct have been violated. The automatic vacancy mechanism asserted is, as to violations of the Declaration of Conformity, inconsistent with TEC’s own canons which would require presentment and trial under Title IV. The alleged mechanism for creating automatic vacancies based on violation of Canon I.17.8 not only has no basis in existing canons, but would go even further than a once-proposed canonical amendment withdrawn by its proposers in the face of opposition. Specifically, a January 2008 proposal for discipline of laity for noncompliance with canon I.17.8, put forward by the Title IV Task Force II on Disciplinary Policies and Procedures, was later withdrawn by the Task Force in view of “extensive objections as being overreaching and unnecessary.” Not even the withdrawn Task Force proposal would have operated automatically as the Presiding Bishop’s litigators would have it, but would have required action by the Ecclesiastical Authority, with the advice and consent of the Standing Committee, following an opportunity for the accused to be heard by the Ecclesiastical Authority on the grounds for removal.

Mike Watson concluded his ACI paper with further observations about the inappropriate arguments ECUSA's Presiding Bishop was making in the courts with regard to the Dennis Canon, and in seeking universal deference to the "hierarchy" which her Chancellor maintains that ECUSA itself represents. By undermining the authority of the individual Dioceses themselves, and by subordinating them to an abstract entity which the Presiding Bishop alone controls, the Presiding Bishop is actually betraying her fiduciary duties to the Dioceses she claims to be leading, and acting contrary to their best interests.

Now there is a new article by Mike Watson in The Living Church, entitled "'Handmaidens of Arbitrary Lawlessness' - A Critique and a Plea for Restraint." Like his earlier article at the Anglican Communion Institute, this one is well worth your careful attention. It is a wide-ranging survey of the victories -- and losses -- which the Church has garnered as a result of its aggressive litigation strategy to date. He sums up and recapitulates much of his argument in the ACI paper, but also adds a new dimension. He asks how the bishops in ECUSA can be claiming to divine the donors' intent to which they assert they are being "faithful":

If these are meant to be moral arguments — and Bishop Jefferts Schori uses the word moral — they are founded on an empirical premise. How would one go about determining donor intent? Are Bishops Gulick and Jefferts Schori in a better position to determine it than, for example, Bishop Iker and the majority of the Fort Worth diocese that voted to leave? As [Professor Kurt] Greenawalt writes: “Do local church members mean to adhere to hierarchical decisions in … altered conditions, rather than to the principles prevailing when they decided to join, or to local officials who refuse to follow the hierarchy? No confident generalization can capture what highly diverse local members have in mind.” And he continues, in an especially pertinent passage for our current circumstances:

Perhaps donors of property or large sums of money have more attachment to a central denomination than the average parishioner, but one can hardly assume that loyalty is to the general denomination, regardless of how doctrines shift, procedures are observed, or foreign political influences are brought to bear. And, as Michael Galligan has urged, “[s]ome churches resemble a federation of autonomous groups rather than a totally integrated entity. Even when a church is essentially hierarchical, agreements of union between specific churches and the central body may modify the amount of power granted church authorities.” Any notion that loyalty would be to the general church in all circumstances is a fiction about the wishes of donors and contributors grounded upon the division of all church government into two rigid boxes.

Because we don’t know specifics about donor intent in most cases, a neutral principles approach properly carried out won’t make assumptions about donor intent that aren’t reflected in relevant documents in a legally effective way. Moreover, since most local donors do not give subject to an explicit restriction that favors the national denominational organization, the suggestion that such restrictions nonetheless exist de facto in all cases raises a question of disclosure: “Why weren’t we told this when we made the contributions?” One answer might be, “Everyone knows this is a hierarchical denomination.” But to say there is a hierarchy does not describe its structure and to what substantive areas its authority extends; nor, again, have sweeping assertions regarding the existence of a putative three-tiered hierarchy in TEC been demonstrated from its constitution and canons.

Once again, the claims of "hierarchy" which ECUSA's leadership is making in the various courts are completely at odds with the interests of the Dioceses themselves. Not only do the claims of a national hierarchy over the Dioceses run counter to what the Constitution and Canons actually provide, but they are in the end futile and self-defeating as well. The reason is simple, and Mike Watson adverted to it in his first paper: as an unincorporated association at common law, ECUSA is incapable of holding title to real property. (Remember that it had to organize the New York corporation known as the Domestic and Foreign Missionary Society in order to receive gifts of money and real estate.)

Although an unincorporated association may be the beneficiary of a religious charitable trust, it is again only the members of that association, or its duly authorized officers, who can be recognized in court as capable of enforcing the terms of the trust for the benefit of the association as a whole. Thus when "ECUSA" as an entity claims to join in a lawsuit brought against a departing parish by the Diocese which that parish left, it adds nothing to the claims already being asserted by the Diocese on behalf of the whole church. Presiding Bishop Griswold, for all his other faults, at least got this one right: litigation over church property is a matter for the individual dioceses to handle, and the national Church has no business mingling in.

Mike Watson's most recent article concludes on a note of hope that there might be a sea change occurring in the House of Bishops, and that its members might be starting to realize just how much damage is being done to their authority by the positions being taken by the Presiding Bishop in the name of the whole Church. I am skeptical, since there does not appear to my curmudgeonly view to be a more meek collection of invertebrates anywhere than in the assembled House of Bishops (there are of course a few exceptions, but they serve only to prove the general rule). The House does not meet again until next March, and by then we should have some written decisions from the courts in both Texas and California which establish the legal right of any Diocese to withdraw from a voluntary association of co-equal Dioceses. Perhaps those decisions will serve as a catalyst for the assembled bishops to reign in their overweening colleague. As I say, I am skeptical; but I salute Mike Watson for encouraging the process, and for his salutary additions to the overall dialogue.