Oral Arguments Set in San Joaquin and Pittsburgh Cases

The parties have been notified by the Fifth District Court of Appeals in Fresno that the Court wishes to hear oral arguments on the petition filed by Bishop John-David Schofield and the other defendants in the case brought against them by Bishop Jerry Lamb and what the plaintiffs (following the same tactic they tried unsuccessfully in the Fort Worth litigation) call "the Episcopal Diocese of San Joaquin." The Court will set the precise date and time for the arguments later this month, but they will take place on a date between September 7 and 17. [UPDATE 08/15/2010: The Court of Appeals has now notified the parties that argument will be held at its chambers in Fresno beginning at 10:00 a.m. on September 8.]

For a summary of the arguments and issues briefed to the Court, please see this prior post, and this one. A full background of the history and litigation involving Bishop Schofield is given in the posts collected on this page. For the present, I will highlight the main issue by repeating the passages from the defendants' opening brief which I quoted earlier:

The action below arises from an internal church dispute over the ownership and control of real and personal property located in nine Central Valley counties. Its outcome will affect thousands of worshipers attending weekly services at some forty missions and parishes, from Stockton to Bakersfield. In the context of Episcopal Church litigation, the dispute presents a case of first impression. For the first time ever, the Episcopal Church is pitted in a property dispute against an autonomous member diocese -- as opposed to an individual parish under diocesan control. The member-diocese was the Diocese of San Joaquin as it existed on December 8, 2007, when the delegates to its Annual Convention voted overwhelmingly (90 percent) to end the Diocese's spiritual affiliation with the Episcopal Church and affiliate instead with the Anglican Province of the Southern Cone of America, another member church of the worldwide Anglican Communion.

The ultimate factual question is this: as to diocesan governance, which body is, in Supreme Court parlance, the "highest judicatory" in the structure of the Episcopal Church? Is it the Diocese of San Joaquin that amended its Constitution in 2007, or is it the General Convention of the Episcopal Church, or some third entity claiming authority on behalf of the "Episcopal Church" as a whole? Both sides claim final authority over the Diocese's own property, and only one can be right.

Determining religious hierarchy is a complex undertaking often involving numerous factual variations as evidenced by the wide range of hierarchical denominations that exist today. It is not enough to know that a church is hierarchical. When faced with a property dispute, a civil court applying neutral principles must undertake the careful factual inquiry required by Jones v. Wolf¹ and, more recently, the Episcopal Church Cases,² to determine what the highest judicatory is in the case at hand. Classifying a church as hierarchical entails only that there is such a body, but not what that body is.
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1 (1979) 443 U.S. 595.
2 (2009) 45 Cal.4th 467.

In ruling on the motion at stake, Respondent Court refused to allow petitioners to dispute plaintiffs' factual representations about the Episcopal Church's structure and authority -- and hence the very standing of plaintiffs to conduct the lawsuit in the name of the Diocese that voted to disaffiliate in 2007. Respondent Court simply ignored that petitioners disputed 28 of plaintiffs' 66 identified material facts. The motion should have been denied and the matter set over for trial. However, because other courts (in cases involving parishes) have labeled the Episcopal Church "hierarchical," Respondent Court allowed no inquiry into its structure and brushed aside the factual conflicts. Respondent Court then compounded its error by drawing improper legal conclusions from contract language (parts of church constitutions) that provides no support for the conclusions drawn.

. . .

The Episcopal Church is a voluntary unincorporated association created in 1789 by preexisting state (diocesan) churches and not the other way around. Because it was created in this manner, the Episcopal Church, under common law principles, acquired only the power and authority expressly ceded to it by its founding members. Similarly, under Anglican canon law, power is generally reserved to a local body if not expressly granted to the central body.

The General Convention of the Episcopal Church does not "create" dioceses as plaintiffs insist. Rather, dioceses self-organize and apply for admission by submitting their constitution to General Convention for its acceptance. Dioceses joining the Episcopal Church signify their affiliation by ratifying the general Constitution through an "accession" clause in the diocesan constitution. "Accession" (through its cognate "accedes to") has been the mode of diocesan affiliation from the creation of the Episcopal Church in 1789 until today. "Acceding" is a technical term from international law used to describe the act of a sovereign state becoming a party to a treaty signed by other sovereign states. As explained by the United States Court of Appeals: '''Accession' is 'the act whereby a State accepts the offer or the opportunity of becoming a party to a treaty already signed by some other States .... '" (Avero Belgium Ins. v. American Airlines, Inc. (2nd Cir. 2005) 423 F.3d 73, 79, n.7.) "Accession" does not connote irrevocability, but the opposite.

Turning to the national Constitution, one finds no language creating a hierarchical relationship with a diocese. A check of the general Constitution with any search engine reveals that none of the routine terms indicating hierarchy can be found: "supreme"; "supremacy"; "highest"; "subordinate"; "sole"; "preempt"; "final"; and "contrary." These terms do not appear because it is the diocese that is the highest authority in the Episcopal Church.

The General Convention of the Episcopal Church is a legislative body and not a judicatory body. The Presiding Bishop is merely a "first among equals" and has no metro-political authority over bishops or dioceses. Under the national Constitution and Canons, neither the General Convention nor its Presiding Bishop is given authority to act within a diocese, or to control its actions. There is no ecclesiastical body within the Episcopal Church given authority over the actions of a diocese, only over Bishops.

Finally, the relationship between a diocese and the General Convention of the Episcopal Church has never been adjudicated by a civil court. All reported cases to date involving the Episcopal Church hold that a diocese or a bishop is the hierarchy vis-à-vis a parish; not a single one adjudicates issues between General Convention and a diocese. Significantly, the diocese-versus-parish cases have all been decided based on the presence of hierarchical language in the diocese-parish governing documents--but this same hierarchical language is conspicuously missing from the diocesan and national counterparts. This is no accident. From all this, only one conclusion is possible: the diocese is the central authority, the "highest judicatory," in the Episcopal Church structure. This conclusion is also logically and legally consistent with the Episcopal Church's legal structure as an unincorporated association whose members are autonomous dioceses. Thus, plaintiffs cannot prove the crucial assertion upon which their entire case is based, namely, dioceses are "subordinate" entities that cannot "unilaterally" withdraw from the Episcopal Church.

The astute reader will see from the foregoing how similar the issues are to those involved in the Fort Worth litigation, and in the Pittsburgh litigation as well. In the latter case, the Commonwealth Court has tentatively set the date for oral arguments on November 8, 2010 (scroll down to the last page of the docket sheet). Although the Court of Appeals in Fort Worth has already issued one ruling there, it had to do with the inability of the plaintiffs' attorneys to represent the entities they called "the Episcopal Diocese of Fort Worth" and the "Corporation" of that "Diocese." Now those entities have to regroup and refile their papers, so the trial court will not address the merits of the case there for some time yet. The Fresno Court of Appeals could thus be the first appellate court squarely to address the issue of whether dioceses are subordinate to some abstract entity called "the Episcopal Church", and thus whether it is as hierarchical as its Presiding Bishop and her Chancellor claim it is. If the arguments take place in September as scheduled, the Court may be expected to issue its decision in October or November, at the latest.