Wednesday, February 17, 2010

A Vestry Member Returns the Favor

When the motion expressing a desire to be in communion with ACNA was before General Synod last week, Simon Sarmiento of Thinking Anglicans was instrumental in laying before its members a position paper which made the following claim in rebuttal to a paper that had been circulated by Synod member Lorna Ashworth:
The [Ashworth] paper misleadingly claims as follows:

Lawsuits Concerning Property

. . .

In the United States, a particularly unpleasant aspect of litigation has been the willingness of TEC and some dioceses such as San Diego and Los Angeles to sue individual vestry (the American equivalent of PCC) members of departing congregations, in addition to the parish corporations of which they were trustee members. Litigation of this kind has the consequence of putting at risk of forfeiture the personal bank accounts, savings and homes of lay church officers. Some have had difficulty in refinancing their mortgages (as defendants in a personal financial lawsuit) and have had their credit ratings put in jeopardy.

. . .

The paper complains about the liability vestry members may encounter when their congregation moves to disassociate from the Episcopal Church. While acknowledging that this is the law in Canada, the author appears not to understand that it is also the law in much of the United States (again, such matters vary from state to state but the liability of vestry members for their corporate acts is a matter of civil law not church law.) In those states where this is the case, vestry members are generally covered by Directors and Officers Liability Insurance, for that very reason. In fact, it is contrary to the policy of The Episcopal Church to seek financial remedies from laypersons, and it has never done so.
It is Mr. Sarmiento who misled the members of General Synod, not Ms. Ashworth. Notice first of all that he evaded Ms. Ashworth's point. She asserted that the Church's lawsuits named individual vestry members as defendants, and he responded that such defendants are "generally covered" by insurance. (That has not been my experience in any church litigation with which I have been associated; only the largest Episcopal parishes can afford to budget for such insurance.) He does not deny that individual vestry members are named, but claims that no damages are sought against them.

This is, as I say, highly misleading. Any individual named in a lawsuit can be held liable for costs if he or she ends up losing; such costs in protracted cases (such as the Dennis Canon ones usually are) can run into the many thousands of dollars. And for an example where ECUSA sought $500,000 plus additional damages from a church's law firm, one needs look no further than this earlier post. (The pseudo-diocese of San Joaquin has carried on the tradition by naming the individual vestry members and rector of St. Francis' Anglican parish in Turlock as defendants in its latest lawsuit. The plaintiff Bishop Lamb made a point of telling his flock that it "is not a suit against any individuals." But the story about the suit linked earlier has a copy of the complaint which you may download, and see for yourself that the defendants named [scroll down to page 5] include the rector and nine vestry members, who are sued "as individuals". Those individuals still need to pay an attorney to defend them [no insurance is applicable], and there is always, as I say, individual liability for court costs if they lose [see paragraph H. of the prayer for relief on page 24 of the complaint (page 28 of the document)].)

But now we have a different kind of response to ECUSA's bullying tactics -- one might even say that ECUSA has sued one vestry member too many. For one such vestry member whom the Church named in a lawsuit to recover a parish's property in San Angelo, Texas is also an attorney: his name is Mark Brown. And in his capacity as an attorney, Mark Brown has filed an amicus brief in the writ proceeding currently pending before the Court of Appeals in Fort Worth.

It is a brilliant brief, and may do far more damage to ECUSA's claims in that case than ECUSA has been able to do to Mr. Brown. So that you can read it in full, I have uploaded it to this link. But I will give you its highlights in what follows. It is a very clear and succinct response to the contentions which ECUSA made through Mr. Sarmiento and at General Synod -- which were the same as ECUSA is making to the courts in Fort Worth, San Joaquin, Pittsburgh and Quincy.

Mr. Brown opens his brief with three simple facts:

1. The association that identifies itself as "The Episcopal Church" is a multinational, unincorporated amalgamation of over 100 non-uniform dioceses and other miscellaneous entities in the U.S., Venezuela, Colombia, Cuba, Taiwan, Europe, Haiti, Ecuador, Honduras, and the Dominican Republic (hereinafter "The Episcopal Church").

2. The Episcopal Church has no express provision in its organizational documents that prohibits dioceses from withdrawing from the association.

3. The Episcopal Diocese of Fort Worth withdrew from The Episcopal Church in 2008, placing it beyond any authority of The Episcopal Church.
I love the term "multinational, unincorporated amalgamation" which he uses to describe the Episcopal Church (USA). I shall have to start using it myself. Thank you, Mark Brown!

Next, he gives a short and pithy summary of his argument:
Texas has adopted the neutral-principles approach to church property disputes. Texas courts are constitutionally authorized to follow neutral principles of law, and to enforce the express organizational documents, by which the Episcopal Diocese of Fort Worth validly withdrew from The Episcopal Church. The position of The Episcopal Church, that courts may not question the great and powerful Oz; is as hollow as the wizard's famous declaration to Dorothy, and is wholly foreign to the rule of law.
That was just for openers. Now note the care with which Mr. Brown constructs his argument. It is in five parts, with this being a condensed version of the first part:

ISSUE 1 Diocese Has Common Law Right
To Withdraw
From Association

The position of the Episcopal Diocese of Fort Worth headed by Bishop Iker (hereinafter "the Diocese") and its corporation, that they have withdrawn from The Episcopal Church, is supported by the common law and the First Amendment.

1. Common law gives right to withdraw. The common law of associations and contracts entitles a member to withdraw without the consent of the association.

A. Principle of association law. Ordinarily, an individual is free to resign from an association, subject to any financial obligations due and owing the group, and a by-law which restricts this right or makes the withdrawal subject to the organization's approval is invalid. 6 Am. Jur. 2d "Associations And Clubs" §26 (2009).

B. Presumption of contract law. Association law is grounded in contract law. The constitution and by-laws of an association are a contract between the members themselves and between the association and the individual member. Lundine v. McKinney, 183 S.W.2d 265,273 (Tex.Civ.App. - Eastland 1944, no writ); State of Oklahoma v. Gasaway, 863 P.2d 1189,1193-1194 (Okla. 1993).
Having established that association law is a matter of contract between its members, Mr. Brown next establishes a basic principle of contract law: nothing is perpetual unless you expressly make it so in the wording of the contract.
(i) Obligation in perpetuity must be unequivocally expressed. A contract will not be construed to impose an obligation in perpetuity unless the intention is unequivocally expressed and the language of the contract compels such construction. [Citations omitted.]

(ii) Continuing obligations indefinite in length are terminable at will. Contracts that contemplate continuing performance but are indefinite in duration can be terminated at the will of either party. [Citations omitted.]
Next, Mr. Brown supplies specific illustrations of these principles in the context of cases involving churches:

C. Common law presumptions can apply in church cases. In the landmark Jones v. Wolf, 443 U.S. 595, 607 (1979), where a congregation in Georgia had by majority vote elected to withdraw from the Presbyterian Church in the United States, the Court held that a common law rule (the presumptive common law rule of majority representation, which generally governs religious societies) would be consistent with neutral-principles analysis under the First Amendment, would avoid questions of religious doctrine or polity, and could be applied to determine which faction controlled a local parish in a hierarchical church.

. . . [T]he U.S. Supreme Court previously had recognized the right of congregations to withdraw from a general eldership in Maryland & Virginia Churches v. Sharpsburg, 396 U.S. 367, 367-368 (1970).

3. The Diocese's common law right to withdraw is unrebutted.

A. No express prohibition of withdrawal. Plaintiffs in this case have not shown that The Episcopal Church has any express prohibition of diocesan withdrawal that would override the common law right to withdraw.

B. Implied prohibition would not suffice, and would be forbidden by First Amendment. An implied prohibition of withdrawal would be inadequate to satisfy the contract law requirement noted above that membership in perpetuity be expressed unequivocally. Moreover, plaintiffs cannot ask the courts to search for an implied prohibition of diocesan withdrawal, for that would be a "searching and therefore impermissible" inquiry into church polity. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723 (1976).
Having laid out the law supporting a diocese's right to withdraw from the common-law association which is the Episcopal Church (USA), Mr. Brown then draws the logical conclusion: if the diocese withdrew from the Church as it had every right to, then it can no longer be subject to the reach of the Church. "The Episcopal Church's efforts in 2009 to remove Bishop Iker and the trustees were void ab initio," he writes. This fact also makes the cases on which the Church relies so heavily irrelevant to the argument:
In the Serbian Orthodox Church and Greek Orthodox Church cases cited by plaintiffs, where the hierarchy possessed express authority to remove a bishop of a diocese or trustees of a parish, respectively, that authority was exercised against a diocese and a parish that were still part of the hierarchical church. The diocese and parish had not withdrawn, and they therefore remained subject to whatever degree of ecclesiastical authority the highest church judicatory possessed. In the instant case, however, the Diocese has withdrawn, making this a property dispute between independent entities rather than an "internal" church matter.
The next part of Mr. Brown's argument is specific to Texas law, and shows how the courts in that State have adopted a "neutral principles" approach. I omit summarizing it here, and pass to his third point:

Even If Texas Followed "Deference" Approach,
Merely Being
Does Not Entitle Church To "Deference"

1. No deference without tribunals and rules. Texas follows the neutral principles approach, as noted above. Even if Texas followed the "deference" approach, however, that approach would not automatically entitle a church to "deference" from the courts merely because the church was "hierarchical". Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-725 (1976). A church can be "hierarchical" and yet not have created appropriate hierarchical tribunals or internal rules to which a court can defer. The Milivojevich opinon concluded by holding:

[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them. [italics added]
In the instant case plaintiffs have not shown that The Episcopal Church has created any hierarchical tribunal with authority and rules to make the many purported adjudications trumpeted by plaintiffs.

2. Compulsory deference rejected. Plaintiffs argue over and over that courts must always defer to a church's decision, but the rule of "compulsory deference" was expressly rejected by the U.S. Supreme Court in Jones v. Wolf, at 605.
These are telling points, and are inarguable. General Convention is not a court, but a legislature. As such, it cannot "adjudicate" anything; it can only pass new resolutions and canons. Article IX of ECUSA's Constitution grants what adjudicatory powers there are in the Church to the ecclesiastical courts (which, however, have no jurisdiction over church property cases).

You can read points four and five in the uploaded document. Suffice it to say that in just fifteen brief pages, Mark A. Brown has sliced the heart out of 815's legal contentions, and exposed them for the hollow and unsupported propositions which they are.

The Wizard of Oz, indeed. Nice job, Mr. Brown! Consider the score between you and ECUSA more than even.


  1. It is so blatantly obvious that 100% of the TEC lawsuits re diocese or parish property are just that, about property. TEC is not a church any longer, that is, in the sense that it is no longer a Christian Gospel preaching church. It is a church, but appearing to appear as a cult or a pagan organization, perhaps it's looking more like a branch of the UN. Even mentioning vestry members/lay people in a suite is beyond comprehension. Is church property worth that?

  2. Hello, Mr. Curmudgeon!

    These are the points I think Mark might get tripped up on:

    1) Where he cites 6 Am.Jur. 2d "Associations and Clubs" section 26 (2009):

    Yes, it's true that an individual has a right to disassociate from a club. But does a diocese? (That is, an unincorporated association?)

    After all, a diocese is an "unincorporated amalgamation" of parishes in most cases. Even where a diocese decides to incorporate, does it necessarily get the powers that an individual would with respect to free association?

    I bet most of those Fort Worth parishes have language in either their charters or deeds saying something about the work "of the Episcopal Church", which we all know would be taken to mean the Protestant Episcopal Church (USA), headquartered in New York.

    2) The Acrobat download didn't work so well for me, but Mark is saying something about "hierarchical polity" vs. neutral principles. If the various Fort Worth parishes have language saying that they are formed in order to do the work of the Episcopal Church, I'm not sure that the difference of hierarchical or neutral principles really matters. Isn't the Fort Worth diocese implying that they are a hierarchy within the diocese?

    3) I totally agree that the "ecclesiastical tribunal" approach of Milivojevich is unworkable. It tends to suggest that these "hierarchical polity" religions MUST have a court system to decide issues--a total brush-off of the civil courts workload onto a religion, and a denial of the court system to aggrieved parties who happen to be in a hierarchical-designated religion.

    But if a denomination has simply promulgated canons, who is to say that a court can't adopt these under neutral principles of law? So long as any religiously defined term is left to the religion to explain, all the rest of the canons should be able to be interpreted the same as if the court is interpreting items in Red Cross charter. What's the difference?

    I wish Mark and Fort Worth luck in this case. But I'm not certain that one would have to agree with Mark's assumptions if he/she were a judge with the case before him or her.

  3. Thanks for your comments -- and good wishes, Hoofin. Here are a few further points for you to consider:

    1) The latest version of the Revised Uniform Unincorporated Non-Profit Associations Act defines a "member" of an association as "a person that, under the governing principles, may participate in the selection of persons authorized to manage the affairs of the unincorporated nonprofit association or in the development of the policies and activities of the association." And it defines "person" as "an individual, corporation, business trust, statutory entity trust, estate, trust, partnership, limited liability company, cooperative, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity."

    So under these definitions, the several dioceses of ECUSA are its members even if they themselves are unincorporated associations. And ECUSA admits as much in each of the complaints it files.

    2) Section 20(a) of RUUNA provides: "A member may resign from membership in an unincorporated nonprofit association in accordance with the governing principles. In the absence of applicable governing principles, a member may resign at any time." And in the comment to that section, the Commissioners state flatly: "Preventing a member from voluntarily withdrawing from a UNA would be unconstitutional and void on public policy grounds."

    So under the RUUNA, unincorporated associations have the same rights as members as do other legal entities.

    3) Sorry about difficulties with the Acrobat download. If you email me, I will send you back a copy of the brief.

    4) ECUSA's own Canons provide (IV.14.2): "No Member of the Clergy of this Church may resort to the secular courts for the purpose of interpreting
    the Constitution and Canons, or for the purpose of resolving any dispute arising thereunder . . ." ECUSA's Constitution (Art. IX) gives exclusive jurisdiction to adjudicating matters of "discipline" (i.e., the canons) -- and also "doctrine and worship" -- to the ecclesiastical courts established under it. Any secular court who tried to interpret and enforce a canon (as opposed to determining whether there was fraud, arbitrariness or lack of due process in its application) would entangle itself in questions of church discipline and polity in a manner forbidden by the First Amendment.

  4. It would seem to me that Mr. Brown has followed the advice given to me by my second C.O. when I served as a Department Head. Namely, that in writing to anyone in authority one should logically "take them by the nose and lead them to the conclusion you wish them to reach." It is, in some ways parallel to the idea of "defeating an enemy in detail."

    Based on this filing by Mr. Brown, I certainly "like the cut of his jib." Nothing quite makes my day as much as a thorough, direct and cogent argument, forcefully stated.

    Pax et bonum,
    Keith Töpfer

  5. Mr. Curmudgeon, you say Canon IV.14.2, but I believe it's 19.2 (nineteen point two). Maybe there was a renumbering in a year after the one you quoted.

    "Sec. 2. No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons, or for any purpose of delay, hindrance, review or otherwise affecting any proceeding under this Title."

    This is a bit of Episcopalian dog-chasing-its-tail. The "title", which is Title IV, provides extensive guidance as to how members of the clergy are supposed to be disciplined in the Episcopal Church.

    Then, if for some reason the "hierarchy" ignores what has been written, here is another canon saying that no one can take it to court. Well, which is it? If it's a "volunatary association", did the clergy and the denomination agree to the terms for discipline or no?

    How is it any different than an agreement a union makes with management for the disciplining of any additional member. It seems to me that it fits the dicta of "arbitrariness" as a matter of course, whenever a denomination does not follow its own rules.

    Of note, after that section somces this gem:

    "Sec. 3. No secular court shall have authority to review, annul, reverse, restrain or otherwise delay any proceeding under this Title.

    No action shall be brought in any secular court to enforce the terms
    or provisions of any Accord or Order unless otherwise expressly
    provided therein."

    Here, it sounds like the Episcopal Church is telling the civil courts what to do. What can be heard and what can't. If it's a bench that has been subsumed into Roman Catholicism like Pennsylvania's has, then maybe this text has some value. It gives the judges another avenue to expand their view of religion onto the unsuspecting populace.

    But to any judge that actually respects the Constitution and the rule of law, Section 3 is offensive. Section 2 says "we'll do whatever we want." Section 3 says "to hell with any court that would come in and say we can't."

    But before there is any religious practice, there is an agreement to abide by the laws of the land. The first amendment is that Congress (or any other government) shall legislate a religion. The first amendment is NOT that anyone can do anything and use religion (or religious belief) as an excuse.

    Again, hotshot lawyers attached to General Convention were once again at work.

    I leave aside this whole point about how there aren't really "ecclesiastical courts" to make the decisions that the Milivojevich case assumes. Regardless, it sounds like the "due process" one would get under Canons IV.19.2 and .3 is none.

    I will hit RUUNA in another post. E-Church canons are enough RUUNAcy to handle in one.

  6. Hoofin, you are quoting from the revisions to Title IV approved at the last General Convention. However, look at Canon 20.2 in that revision -- they do not come into effect until July 1, 2011. So we are currently operating under Canon IV.14.2, which I quoted.

    I agree -- it gets much worse after July 1, 2011 -- since for the first time, the Church is trying to prevent lay people from challenging the Dennis Canon (as well as any other canons) in court.

  7. Excellnt job, Mr. Brown and Mr. Haley for bringing to the attention of many !! Bless you both!!

  8. Mr. Haley,

    I don't know if the Title IV (new or old) can apply to lay people directly. In the beginning of the 2009 version, it clearly states that the title applies to clergy because of their additional responsibilities.

    "CANON 1: Of Accountability and Ecclesiastical Discipline

    By virtue of Baptism, all members of the Church are called to holiness of life and accountability to one another. The Church and each Diocese shall support their members in their life in Christ and seek to resolve conflicts by promoting healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among all involved or affected. This Title applies to Members of the Clergy, who have by their vows at ordination accepted additional
    responsibilities and accountabilities for doctrine, discipline, worship and obedience."

    Nothing about the laity there--even though the later canons (new) IV.19.2 and .3 suggest that a lay person can't use the court system for a matter involving clerical eccesiastical discipline, and that "secular" judges aren't allowed to hear the cases anyway.

    Maybe poor drafting on the General Convention officers' part.

    I can say for certain that the Episcopal Church (through its affiliated parish!) seeks damages for secular enforcement of canons. In re St. Clement's Church, Philadelphia, 687 A.2d 11 (Pa. Cmwlth. 1996). This is so, apparently, even when the respondent is in the right.

  9. Regardless of the current provisions of RUUNA, it's worth pointing out that in this specific case (as in, I expect, most in Texas), the diocese is a corporation with explicit organizing documents. In this case, the formal name is the Corporation for the Episcopal Diocese of Fort Worth.

  10. chryslis, you are confusing the diocesan corporation with the Diocese itself. The former is a Texas non-profit religious corporation which holds the title to all the real property in the Diocese. It has five trustees plus Bishop Iker as its board of directors; one trustee is elected each year to a five-year term by the delegates and clergy at the Diocesan annual convention.

    The Diocese itself is a Texas unincorporated association; its members consist of the various parishes (represented by their delegates) and the clergy. If you go to the Constitution and Canons of the Diocese, you will see where all of this is spelled out.

  11. I would like to add an additional rejoinder to an earlier comment, in which the ECUSA was compared to the American Red Cross (ARC). I will grant that this is an interesting comparison; however, I believe that it actually works counter, to the point that was being attempted. And that this comparison would clearly show why, within its own governance documents, the ECUSA is not a hierarchal organization with no right of disassociation.

    Starting with the Congressional Charter of the American National Red Cross (36 U.S.C. §§300101-300113 recodified 2007), where Section 3b states that: “The chapters of the corporation are the local units of the corporation. The corporation shall prescribe policies and regulations related to: …
    (C) the relationship of the chapters to the corporation; and
    (D) compliance by the chapters with the policies and regulations of the corporation.”
    Then moving to Section 8 of the Bylaws, which starts with the following: “8.1 Nature of Chartered Units. Chartered Units are local units of the Corporation and shall not be constituted as legal entities separate from the Corporation.” This document then moves successively through Chartered Unit Governance, Section 8.2; Power and Authority with Respect to Chartered Units, Section 8.3; to Funds, Accounts and Assessments, Sections 8.4, 8.5 and 8.6 respectively. The net effect of this section is to clearly delineate the local units, as a part of and subordinate to, the national organization.

    So I would think that anyone asked to compare the documents, of these two organizations, would quickly and clearly see the difference between the two structures set forth.

  12. I actually have read all of the filed documents that are available via the Web. It's my understanding that (1) the Corporation holds title to all of the property in dispute and that (2) the Corporation was the entity that had been admitted into GC. (In Northwest Texas, for example, parishes are required to incorporate and then apply for admission into the diocese.)

    Am I mistaken, and if so, is the Diocese of Fort Worth organized in a similar form to the ECUSA+DFMS pair?

  13. Right, chrylis, it is a pair. If you look at this motion filed by Bishop Iker et al., you will read that they allege in the first paragraph that "[t]here is only one Texas unincorporated association named The Episcopal Diocese of Fort Worth. . . . in continuous operation since its inception in 1983 . . .".

    Then look at paragraphs 1 and 2 of their Rule 12 motion challenging the plaintiffs' authority to file: paragraph 1 describes the unincorporated association that is the Diocese, and paragraph 2 describes the separate corporation that is associated with it.