Friday, June 25, 2010

ECUSA's Strategy Goes Down in Flames in Fort Worth

As predicted last September on this blog, the Court of Appeals for the Second District of Texas has shot down the claims of ECUSA and its puppet Bishop Gulick to be able to come into court pretending they are the true "Episcopal Diocese of Fort Worth" and its associated Corporation. The Court's opinion and order represent an unqualified victory for the Diocese and Corporation headed by the Rt. Rev. Jack L. Iker, which were both established in 1983. Here is the essential quote from the Court of Appeals' opinion (footnotes are omitted; bold emphasis added):
It is undisputed that there is only one Corporation and only one Fort Worth Diocese, regardless of how those entities are named or characterized in the underlying suit - whether as entities, as individuals "holding themselves out" as those entities, or as individuals "associated with" one or the other Bishop. There is a single Fort Worth Diocese and Corporation, which both a majority and a minority faction claim to control. The attorneys whose authority is challenged are either authorized to represent those two entities or they are not. But the trial court has barred them from representing only the Corporation and the Fort Worth Diocese associated with the Iker Group. We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction.
This is correct, both as a matter of law and of common sense. As I explained in my earlier analysis,
The original motion under Rule 12, as I explained in the first post linked above, called on the plaintiffs' attorneys to prove they had the authority to file pleadings on behalf of the "Episcopal Diocese of Fort Worth" and its "Corporation", given that those two entities, first organized in 1983, already had a Bishop (Iker) and trustees elected at the Diocese's previous Annual Conventions. The attorneys responded to the motion by disclaiming any intent to represent the entities which were under Bishop Iker's control; they maintained that the entities they were representing still belonged to the Episcopal Church (USA), because the vote to leave the Church taken at the last Annual Convention of the Diocese had been beyond its powers. Thus neither the "Diocese" nor its Corporation had ever really left, they argued: only their bishop and officers had left, and the Presiding Bishop had kindly stepped in to call a "Special Convention" (since there was no Bishop or Standing Committee left to do so) to fill the vacancies thus created. And once a new bishop and standing committee had been elected, they were the ones who authorized the plaintiffs' attorneys to file suit in the name of the Diocese Which Had Never Left, and Its Corporation Which Never Left Either.

. . .

However, as I also pointed out in the earlier posts, both the complaint (petition) filed by the plaintiffs, as well as the amended one filed a few months later, stated in unequivocal language that the plaintiff "Diocese" had been started in 1983, as had the plaintiff "Corporation." Now maybe in the spiritual realm it is possible for one religious corporation to split into two, which then can be superimposed on one another to still look like one, but that does not fly in the temporal world. There is and can be in law only one Corporation of the Episcopal Diocese of Fort Worth which was incorporated under the Texas statutes in January 1983. And likewise, there is and can be under Texas law only one voluntary association called "the Episcopal Diocese of Fort Worth" that was formed in 1983, as well.
Thus, the Court of Appeals has soundly rejected ECUSA's Machiavellian strategy, as I laid out in this earlier post. Although ECUSA's own complaint (and motion for summary adjudication) will stand for the time being, Bishop Gulick and his five "trustees" will have all their pleadings stricken, and so will have to start from scratch (with Bishop Ohl, who replaced Bishop Gulick during the proceedings, in the lead). They will have to admit this time that the entities they claim to represent were newly organized in 2009, and that will undermine ECUSA's position as argued in its motion as well. So my guess is that if this decision stands (and there is every reason to expect that it will, since it is so straightforward), ECUSA will have to refile its motion for summary adjudication also. Given the appellate court's ruling as quoted above, ECUSA cannot go forward on its preferred theory that "dioceses never leave, only people do." That is why this decision is such a huge victory for Bishop Iker and the true Diocese of Fort Worth.

The left, of course, will see this post as a gloat -- because had they prevailed, that is what they would have indulged in. But I do not gloat. I celebrate simply the ability of rational analysis to carry the day in the face of obfuscation and distortion, aimed at securing a quick advantage. (This post went up just after 9 PM PDT on the day the decision was handed down. As of this writing, the pseudo-diocese has not acknowledged the decision, while Bishop Iker's diocese already has it posted on their Website. It will be instructive to see how the left deals with the news, since they studiously avoid linking to analyses on this blog.)

[UPDATE 06/26/2010: The one and only Episcopal Diocese of Fort Worth has now posted this statement about the decision on its Website, as of 12:30 pm PDT, and other sites in sympathy, such as TexAnglican and Apostolicity, have quoted it as well. Meanwhile, the Potemkin diocese's Website is still silent about the news, as are the usual sites in the left's echo chamber: Episcopal Cafe, Thinking Anglicans, and individual blogs such as Katie Sherrod, Grandmère Mimi, Preludium, Lionel Deimel and the Three-Legged Stool. It would seem as though the latter Websites do not recognize news until it is published on an authenticated, left-recognized Website. So be it -- do you see why it is better to follow as many blogs as you can on all sides, instead of just those who form the left's echo chamber? The news is still the news, whether commented upon to one's liking, or not. (This is so much fun to watch in real time -- when will they acknowledge the decision, and who will be the first to take the hit?)

UPDATE 06/28/2010: I just cycled through all my links above to the Episcoleft's blogsites again, at 10:30 a.m. PDT, and amazingly enough, there is still not one word being written about the decision -- 67 hours after it was handed down! One now sees it, clearly: news simply does not exist for those people unless they hear it from one of their own first. They are a closed system, admitting and reflecting nothing but what others of their own ilk say. FURTHER UPDATE: At last, we have a press release from the pretenders, and now the echo chamber has been able to begin its work of spreading the spin. The release states in part (I have added the emphasis):
The Court emphasized that "[t]he trial court did not determine on the merits which Bishop and which Trustees are the authorized persons within the corporation and the Fort Worth Diocese, nor do we. The question of ‘identity' remains to be determined in the course of the litigation." Thus the Southern Cone parties failed to achieve their goal of getting the Court of Appeals to declare that Bishop Iker represented the continuing Episcopal Diocese of Fort Worth and its Diocesan Corporation.

The Court also noted that "[w]e are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction." As applied to both factions in the litigation, the bishops and trustees from each faction are already named as parties in the case pending in the 141st District Court.
Two rejoinders: 1) The motion by Bishop Iker achieved its objective of requiring the pretenders to prove they had authority from the "one Diocese and the one Corporation [organized in 1983]" to represent them in court. As both the trial and the appellate courts found, they failed to carry their burden of proof on that point. Since they are not able to continue their pretense of acting for those 1983 entities, that leaves Bishop Iker and the attorneys he hired to act for them. So without having to decide the merits, the appellate court as a practical matter has left the 1983 entities fully in control of Bishop Iker and his trustees. As I note in the comments below, the only avenue this leaves for the pretenders is to show that ECUSA's Constitution and canons prohibit dioceses from voting to leave, and this they cannot do.

2) The suit by the pretenders was a suit on behalf of an admitted minority faction against the bishop and trustees elected by the majority, and was brought in the name of the diocese and corporation, as though they were controlled by the minority. The third-party petition filed by the Diocese itself against Bishop Gulick and his "co-trustees" was not brought on behalf of any "part or faction of the Diocese." It was brought by the whole Diocese itself, for a declaratory judgment that the pretenders had no authority to govern in the name of the Diocese. So the meaning of the passage cited is not quite what the pretenders would like to have it say.]

But now back to earth, in the year 2010. It is my fervent prayer that ECUSA and its attorneys will cease playing this game, which has thus far managed to succeed with trial judges, but which has now met with its first defeat on appeal. Still to come is a decision by the Court of Appeal in Fresno, which has yet to announce any date for oral arguments.

If ECUSA and Bishop Gulick's attorneys seek a mandamus review of this ruling by the Texas Supreme Court, then we will all know how high of a premium they place on their strategy. But such a review would be wholly dependent on whether the Supreme Court thought there was reversible error in the decision. One of the virtues of higher appellate courts is that they usually have the time and the acumen to sort through the hyperbole and fluff, in order to reach the substance. Texans may take justified pride today in their Second District Court of Appeal, who stuck to basic legal principles, and as a result, got it right. I thus do not give any great chances for the success of a petition in the Supreme Court, but we shall see.

P.S.: If there is a mandamus petition to the Texas Supreme Court, it occurs to me that it may be dictated by the immediate need of the Rev. John Stanley, Ms. Cherie Shipp, The Rev. James Hazel, Mr. Robert M. Bass, and Dr. Trace Worrell to try to avoid the liability that they might incur to Bishop Iker and his diocese for damages under Texas law resulting from their filing official documents misrepresenting who they were, as I noted long ago in this post, which I entitled "To Whom It May Concern." Well, now they know: the post was addressed to them. They may want to request, perhaps, that a certain entity headquartered at 815 Second Avenue, New York City, New York step up to indemnify them -- if it would not serve to point up just who is controlling this little stage-piece. (I cannot say anything about the possible additional criminal liability mentioned by JoeMonk at that post, as I am not a Texas lawyer, and besides, any such charges would probably have to be brought by public prosecutors, and not by the aggrieved parties. Perhaps some readers who are familiar with Texas criminal procedure will comment, in light of the decision by the Court of Appeals.)


  1. You wrote, But one of the virtues of higher appellate courts is that they usually have the time and the acumen to sort through the hyperbole and fluff, in order to reach the substance.

    Agreed, unless you happen to be in Virginia. :-(

  2. Correct, Anxious Anglican -- and the same would appear to apply to California's Supreme Court, alas. However, the latter has agreed to review the effect of its egregious decision on the parish of St. James, and now it looks as though the Virginia Supreme Court will also be given one more chance to correct its mistake. Thus there is something yet for which we can pray.

  3. Wonderful news...
    Excellent call, Mr. Haley !!!

    Your "P.S." is noteworthy, indeed.

  4. Forgive the following demonstration of my legal ignorance, but as I have some friends on staff at The Falls Church, your comment here that the Virginia Supreme Court will have "one more chance" has made me most curious. What is a "Notice of Intent to Apply for Rehearing blah blah blah"? What are Rules 5:39 and 5:39A? Does this mean the case is going to be retried in the Supreme Court, before it goes back down to the lower courts? Whats the significance of this for the CANA churches?

  5. Thank you for your analysis, Mr. Haley. Your comments here regularly help laymen like myself follow these events with understanding.

  6. Adam, the pleading to which I linked is the precursor to the filing of a petition by the CANA parishes which asks the Virginia Supreme Court to reconsider some aspect of its ruling. Doubtless it will focus in on the treatment the Supreme Court gave to the word "branch." So there is a chance that, on reading the petition, the justices of the Virginia Supreme Court may rethink their views and grant a rehearing, in which case there would be new briefs and arguments, and a new decision. Of course, since most courts do not like to keep cases floating around on their docket, there is a strong likelihood that any such petition, no matter how well argued, will simply be denied without comment. (It's easier for courts to send the case back to the trial court than to have to grapple with the issues all over again.) But as I say, you should pray that the justices may be enlightened by the petition to be filed.

  7. Allan -

    Since the attorneys were not hired correctly, there can be no attorney client relationship formed. Does this not make all of the TEC legal strategy immediately discoverable?

  8. Alex,

    It is my understanding that in the Virginia case it only takes 1 justice to grant rehearing. We need to be in much prayer for the justices who heard this case that God will give the CANA congregations favor with at least 1 if not more justices.

  9. If the idea that dioceses in the Episcopal Church are created by the actions of both the organizing convention (or in the Forth Worth case by a vote to divide an existing diocese) and the General Convention has any merit, then, however sloppy the legal work, the Episcopal Church should defend that position. TEC may not prevail, but this is, IMV, a necessary legal battle. It is also a legal battle in which every member church of the Communion would engage if one of their dioceses took such unilateral action.

  10. Allan -

    The hard thing for them to get around is this:

    “Moreover, as the parties are currently postured, any judgment against the Iker Group would be reversible because the Iker Group was not shown to have authorized bringing this suit on behalf of the Corporation or the Fort Worth Diocese.”

    I dont see how changing the posture to "individual" is going to get around this. The court is basically saying that Iker is still in charge.

    And the court has told them they have no case:

    "We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction."


  11. Hi, Joe -- let my try to answer some of your questions.

    First, the opinion does not hold that the attorneys were "improperly" hired, but only that they were not hired by the Corporation or the Diocese. It said they were hired by individuals who did not represent those entities, and that they could continue to represent those individuals. So there would not be any basis on which to claim that no valid attorney-client relationship was formed between the attorneys and the individuals hiring them.

    Now, what kind of case could those individuals still bring to court? You are correct that the court has said they cannot base their claims on just the fact that they are the minority. My guess is that what they will try to do is make out a case that dioceses cannot leave, only people can -- and thus that while Bishop Iker et al. could vote to leave, they had to leave the structures -- the Corporation and the diocese -- behind them, with every position vacant, as it were.

    However, since in oral arguments before the trial court, their attorney could not point to any constitutional or canonical provision that prohibits dioceses from withdrawing from union with General Convention, I do not give them much chance of getting very far with that kind of claim.

    Bottom line: ECUSA, Ohl et al. will have a very hard time picking themselves up after this decision. That is why they will first appeal it to the Texas Supreme Court.

  12. Allan -

    Just as an FYI. There is no appeal from grant of writ of mandamus in Texas, because those are "original proceedings" in the appellate courts.

    Rule 53.1:
    The Supreme Court may review a court of appeals' final judgment on a petition for review addressed to "The Supreme Court of Texas."

    A writ of mandamus is not a "final judgment" of a court of appeals.

    So ECUSA would have to apply to the Texas Supreme Court for a writ of mandamus to tell the lower appellate court to vacate its writ.

    Kind of funny huh?

  13. Thanks for that info, Joe. In any event, then review of this decision by the Supreme Court would be discretionary.

    Two questions for you:

    1) if the trial court does what the appellate court suggested, so that no writ needs to issue, how does a final judgment get entered in the mandamus proceeding?

    2) will the opinion of the Court of Appeals be published in S.W.2d?

  14. Allan -

    They have conditionally granted the writ. If the trial court does what they say, then there will just be this opinion, as the need for the writ will be moot.

    This will be published in SW 3d. You can tell in Texas by whether it is designated as a "memorandum opinion" or an "opinion". Both are precedential, but only "opinions" are designated for publication.

    This is designated as an "opinion" so it will be sent to westlaw for publication.

  15. The “left’s echo chamber” actually has taken some note of the court action. Since the Appeals Court decision hardly signals the end of litigation in Fort Worth, I did not feel there was much to be said about it on my own blog. The event was nonetheless newsworthy, and I wrote of it on Progressive Episcopalians of Pittsburgh’s blog Pittsburgh Update.