Non-Diocese Systematically Suing "Former" Parishes

In the geographical area of the one, true, and only Diocese of San Joaquin in the Anglican Communion, we have an anomaly. There is another group that also claims to be a "diocese" in the Anglican Communion, and specifically within the Episcopal Church (USA). Both ECUSA's Presiding Bishop and the President of its House of Deputies have connived together with the resigned former diocesan of Northern California, the Rt. Rev. Jerry A. Lamb, to bring this result about. No General Convention of ECUSA, however, has ever gone through the steps required to admit this second "diocese" into union with it, and that is why I call it a non-Diocese. That is also why I say that there is only one true Diocese of San Joaquin -- which is now affiliated both with ACNA and with the Anglican Communion through the Province of the Southern Cone. (Once the Global South members of the Anglican Communion act to recognize ACNA, there will no longer be any need for the affiliation with the Southern Cone. And such recognition will occur soon, spurred on by the impending confirmation of yet one more same-sex partnered individual to the episcopate in ECUSA.)

Bishop Lamb, Presiding Bishop Jefferts Schori, and President Anderson are all pretending as though ECUSA's former Diocese of San Joaquin never left it to realign with the Southern Cone and ACNA. However, they really have nothing to say about it, because the departure of that Diocese from ECUSA raised only questions of California corporate law. There was no Canon or Constitutional provision of ECUSA which placed any restriction on the power of the Diocese to amend its own Constitution, and no limit on that power within the Diocesan Constitution itself. The Diocesan Convention, in two annual meetings called pursuant to the Constitution, at which a quorum was present and the required supermajorities voted, adopted measures which made it no longer possible for that Diocese to be a member of ECUSA, since the language reciting that the Diocese "acceded" to ECUSA's Constitution was deleted.

Oh, to be sure, the dissenting minority reassembled a few months later, and in a "special convention" not properly called, on insufficient notice, and without a quorum present, went through the motions of "rescinding" the majority's votes, and proclaiming itself as a proper Diocese of ECUSA once again. But since those actions had zero validity under the procedures of the Diocesan Constitution, all they did was constitute the formation of a new California unincorporated association which took the pretend name "the Episcopal Diocese of San Joaquin." And that new group has yet to be formally admitted into union with General Convention -- nor could it be until General Convention adopts some changes to its current canons, for technical reasons which I will not go into here. The next General Convention will not meet until the summer of 2012, and I am perfectly content to predict that the requisite canonical changes will not be made even then, so it is safe to say that there will not be any real Episcopal Diocese of San Joaquin in existence any time soon.

Meanwhile, the non-Diocese of San Joaquin is running through the funds being given to it at a record rate of depletion. And despite severe budgetary cutbacks in its administration, office space, mission and programs, it is plunging full steam ahead with -- you guessed it -- more litigation expense, and more lawsuits (financed, as one can read in the link just given, by a line of credit from the Domestic and Foreign Missionary Society -- the corporate arm of the national Church). Such a rash act may be in the fine tradition of Admiral David Farragut, but one may still question whether it is in the best interests of those who ultimately must finance it.

This new program of legal mayhem began with the filing of this suit against the parish of St. Francis Anglican Church in Turlock. St. Francis is a duly constituted member of the only true Diocese of San Joaquin, and wants nothing to do with the non-Diocese. But the non-Diocese wants to claim its property and assets -- its bank accounts, its prayer books and altar furnishings, and the building which it owns, and in which it worships.

How can this be? Well might you ask. For in the make-believe world of Bishop Lamb, the Presiding Bishop and President Anderson, St. Francis still "belongs" in some fashion to ECUSA -- in their eyes, it never left. And so they want to "embrace" it in their loving grasp, and to take all of its property and assets. Never mind that although there are some Episcopalian parishioners in Turlock, who are worshipping for the time being in other premises, they by themselves would not be enough to maintain and insure the property, and pay for a full-time rector. If the Anglican parishioners choose not to return to the fold and support their church, well, the Episcopal remnant will just run through the parish bank accounts until the property can be sold to someone else (but certainly not to the Anglicans, because they are in "competition", and the Presiding Bishop is dead-set against helping "competitors"), and then that money can be used to prop up the non-Diocese. What a wonderful and Christian-like plan!

And now, as I have reported, the non-Diocese has embarked on a program to sue all of the individually incorporated parishes in the Anglican Diocese, using the St. Francis complaint as a template. A second such lawsuit has now been filed against St. Michael's in Ridgecrest, and still others are in the works. Each of the lawsuits seeks a "declaration" from the court where it has been filed that the parish corporation's assets are held in trust for ECUSA and Bishop Lamb's group, and so cannot be controlled or used by the people who are the current vestry members and clergy. (The latter have been "deposed", don't you remember? So they cannot function in an Episcopal church, and must be made to hand their churches over to those who will "loyally guard and preserve the Parish Premises and Parish Assets for the mission of the Church, . . . adhere to the Church and Diocesan Canons and . . . protect and serve loyal Episcopalians in the Parish", to quote from paragraph 80 of the complaint.)

Other lawsuits against the remaining incorporated parishes in the Diocese of San Joaquin are surely coming. And why are the suits against only those parishes which are separately incorporated? Because, as religious corporations under California law, they each hold title to their own property and bank accounts. The Diocese itself (through its corporation sole) holds title to the property of the remaining congregations and missions in the Diocese, and Bishop Lamb has already sued the Diocese for that property. But he cannot get control of the incorporated parishes' property by means of that lawsuit, and so must file all these new ones.

Bishop Lamb initially claimed that these lawsuits were not targeting any individuals, but then he was forced to withdraw that assertion when the Modesto Bee made a copy of the complaint filed against St. Francis available for downloading by anyone, and all could see that the complaint named, in addition to the parish corporation, the rector and the individuals on the vestry of St. Francis. This is a particularly nefarious attempt to force the defendants to waste money on the litigation brought by the non-Diocese and its non-diocesan Bishop. In California, each named defendant must pay an "appearance fee" to the court when he, she or it files a response to a complaint. That fee is currently $355 per person or entity. Thus, just to respond fully to the complaint against it, its rector and vestry -- eleven named defendants in all -- will cost the parish of St. Francis a cool $3,905 in court filing fees, to say nothing of the legal fees that will be incurred. Repeat this same expenditure for seven incorporated parishes, and the bill for all the defendants will come to something like $27,000+ before the lawsuits even get out of the starting gate!

Trying to force your opponents to put up nearly thirty thousand dollars as a litigation strategy, just so they can be in the game, stands in rather stark contrast, does it not, to this assertion for the benefit of the public made by the faithful remnant in Turlock:

St. Francis Episcopalians have always known and acknowledged that there were differences in individual members’ understanding and interpretation of the Bible, even while the Bible is recognized as the foundation of our Christian faith. As Episcopalians, we are bound together in many ways, but particularly by the words of the Nicene Creed and by our profound understanding of the meaning of the Sacraments.

We are a loving and inclusive Christian community and are deeply saddened by the unnecessary fracture of our Christian body.

Look, people, there is nothing nice, loving or friendly about litigation. Litigation -- especially against your fellow Christians -- is itself un-Christian, as St. Paul told us nearly two thousand years ago, when similar divisions threatened to wreck his newly established parishes.

So please, no matter how well-meant, let us refrain from public hand-wringing about the nasty things that litigation "forces" one to do. The truth is that the pew-sitters are pawns on a much larger battlefield, where the Episcopal forces are marshaled by a vengeful leadership that is hell-bent on making people who are brave enough to leave the Church pay, and pay plenty, for that privilege. There is absolutely nothing Christian-like about this litigation. If the only relief being sought were truly "declaratory relief", then suing just the parish corporation itself would have sufficed. But a glance at the complaint shows that it buries in its allegations a plethora of other claims sounding in tort against the individual defendants. Here, for example, is the very charitable and Christian-sounding paragraph 82 of the St. Francis complaint (italics added for emphasis):

The acts of the former members of the Parish were meant to steal, convert, and seize the Parish Assets and Parish Premises from the Church, Plaintiffs, and its faithful members.

Let us examine more closely the extraordinary assumptions that are behind this claim made by the charitable Christians of San Joaquin. The first thing to note is that the complaint alleges that the defendants are all former members of the parish of St. Francis. But those members have not gone anywhere: they took no vote as a congregation to leave. They simply elected to remain part of the Diocese to which they have always belonged. As a parish, they still have the same rector, the same vestry, and the same church they had before the Diocese voted to amend its Constitution.

How does one steal something by not taking it anywhere? How does one "convert" a church building by remaining true to the faith of that church's ancestors? Ah -- "the Dennis Canon," you say. "Remember, the Dennis Canon requires that the property always be used for the benefit of the Episcopal Church."

Look again: in the first place, the Diocese of San Joaquin, when it was admitted into union with General Convention in 1961, acceded only to the Constitution -- and not to the Canons -- of ECUSA. It's right in the St. Francis complaint (paragraph 52):

Article II of the Constitution of the new Diocese provided: "The Church in the Diocese of San Joaquin accedes to the Constitution of that branch of the Holy Catholic Church known as the Protestant Episcopal Chureh in the United States of America and recognizes the authority of the General Convention of the same."

And Article II of the non-Diocese of San Joaquin's Constitution still reads that way, as well. So the Diocese of San Joaquin did not automatically "accede" to the Dennis Canon when it was adopted in 1979. But it "recognized the authority of General Convention", you say. And just what is the "authority" of General Convention? Well, to pass canons such as the Dennis Canon, for example.

Look again: there is no express grant of authority in ECUSA's Constitution to General Convention to pass canons. The authority to do so is implicit in other language, but it is not express. And there is no language of supremacy, either -- no language that makes any canon passed by General Convention superior to canons passed by a Diocese, for example. (Earlier language which could perhaps have been so read was removed in the 1901 revisions to the Constitution.) That means, according to well-established principles of legislative authority, that where two bodies both have power to legislate, with neither's legislation being automatically superior to the other's, the legislation most recently enacted by one of the two bodies is what will have effect, in the eyes of the law. Now take a look at this provision, which was added to the Diocese's canons in October 2005:

No ownership or proprietary interest in any real or personal property in which title and/or ownership is held by the Diocese of San Joaquin, its churches, congregations, or institutions, shall be imputed to any party other than the Bishop as Corporation Sole (including a trust, express or implied) without the express written consent of the Bishop and the Standing Committee of the Diocese.

This provision overrode any trust imposed by the Dennis Canon, if any such trust was ever imposed. Being later in time than the Dennis Canon, and being duly adopted by the legislative body of the Diocese in accordance with its authority, it took precedence over any contrary language in the Dennis Canon. And it was thus the provision that was operable when the Diocese amended its Constitution so as to leave the Church in December 2007.

Moreover, here is another Canon of the Diocese that was in effect before the vote in December 2007, and which remains in effect today (Canon 20.01 [g], on p. 16):

All property of an incorporated Parish is irrevocably dedicated for religious (education, health and welfare) purposes, and upon dissolution of a Parish, all properties, investments and assets shall be conveyed only to the Protestant Episcopal Bishop of San Joaquin, a Corporation Sole, to be held in trust by it or to be disposed of at its discretion. No such Parish shall elect to dissolve or terminate or dispose of all or substantially all of its assets, or merge with or into any other corporation, or disaffiliate itself from the Episcopal Church, except with the prior written approval of the Ecclesiastical Authority as defined in Article III of the Constitution of the Diocese.

Notice two things about this Canon: it says that all parish property is irrevocably dedicated "for religious . . . purposes", and not for specifically Episcopalian religious purposes. So this provision, too, which even the non-Diocese retains in its canons today, would tend to undercut the language of the Dennis Canon. But even if it did not, the last sentence of this Canon is the kicker. For it says that a parish may disaffiliate from the Episcopal Church, with the consent of the Ecclesiastical Authority of the Diocese. Before the final vote was taken on the amendments in December 2007, and before he had been inhibited or "deposed" as the duly constituted Bishop of the Diocese, Bishop John-David Schofield gave written permission to St. Francis and to the other incorporated parishes of the Diocese to disaffiliate from the Episcopal Church (USA). Again, the granting of such permission was specifically authorized by diocesan canon, and such authority remains with the bishop today.

Thus Bishop Lamb is hardly in a position to claim that Bishop Schofield acted beyond his authority in granting the parish of St. Francis that permission. The authority is right there in the diocesan canons -- and the authority, as I say, remains there today, as you can verify by downloading the non-Diocese's own version of its canons.

These lawsuits, therefore, are ill-framed, and could prove expensive to the non-Diocese, as well as to those whom they have named in their complaints. And in the end, what will be gained? The plaintiffs come into court saying that their canonical rights are established by church enactments which no secular court can judge or question. But if that is true, then what about the canon that allows the ecclesiastical authority of the diocese to grant permission to a parish to leave it? Why should that provision not be given effect as well in a court of law? And if it is given effect, then what remains of the claim that the defendants "stole" the parish property?

Thus while the pew-sitters in the non-diocese of San Joaquin may wring their hands and profess that they are acting only out of Christian love and with deep regret for the "unnecessary fracture" of their community, the actions being taken in their name belie their words. This is one more demonstration, even though another one is by no means needed, of the hypocrisy that lies at the heart of ECUSA's litigation strategy. When you are saying one thing in court but doing another thing on the ground, eventually you get tripped up, no matter how much prior court decisions may go in your favor. No court likes to be toyed with, because courts expect litigants to be straightforward and honest about their claims. And there is nothing straightforward about the claims currently being filed against the independent parishes of San Joaquin, their vestries, and their clergy.