Friday, January 21, 2011

Fort Worth Judge Signs ECUSA Orders

There is not much to say about the recent news from Fort Worth, except that there will certainly be an appeal. (Note to partisans: had the decision gone in Bishop Iker's favor, I still would have had to report the same conclusion.)

The judge did not issue a decision of his own, but simply signed the pro forma orders submitted by ECUSA and the local Gulick parties. He made a few deletions in the former, to make it clear that he was deciding the case by deference to the "hierarchy" of the Episcopal Church (USA), and not on neutral principles of law. Indeed, he staked his all on a bet that the Texas higher courts would not follow the latter approach, since he struck out the proposed paragraph that would have said he would reach the same result under "neutral principles" analysis. Thus if the Court of Appeal rules that he should have applied neutral principles, he will have to start all over again.

Also, no findings of fact, or sanctions issued, for the unprofessional conduct with which Bishop Iker charged his former counsel. So that will be more grist for the appeal.

Ho, hum -- this decision represents just another notch in the belt, another appeal, and more dollars to be spent because the lower courts are consistently proving themselves unequal to the task of analyzing all the points of real conflict and dispute -- which in this case should have required a trial, with appropriate findings of fact made after a weighing of all the evidence.

Fort Worth deserved better, but we shall have to wait.


  1. It's interesting that the judge rejected the "neutral principles" argument as an alternative basis for his ruling given that the Fort Worth Court of Appeals has not only used the neutral principles approach (albeit not in a property case), it has a reputation for reversing summary judgments.

  2. A.S. - this will be appealed to the Ft Worth Appellant Court and then to the Texas Supreme Court, no matter who looses. The judge ordered that we vacate all property, etc. in 60 days and to not hold out as the Diocese of Ft. Worth. Pending the appeals process, does this mean that, e.g., Bishop Iker will still be paid his salary, that the parishes can continue to receive pledges and use them as necessary to operate the parishes, etc.? Or, when an appeal is filed, does it enable us to function as if it were yesterday?

  3. DDR, part of the process of taking an appeal will include obtaining a stay of the trial court's 60-day order. If Judge Chupp refuses to grant such a stay, Bishop Iker can ask the Court of Appeal to issue one. So nothing should change in operations until the appeal is heard and resolved.

    First, however, Judge Chupp has asked ECUSA's attorneys to confer with Bishop Iker's attorneys and submit a more detailed ruling. Until that gets settled and signed by the Judge, there is nothing from which to appeal.

  4. Under texas procedure, a stay is not necessary unless damages are awarded. Given that no damages were awarded, then all that is necessary is to appeal the judgment, which removes the trial judges jurisdiction and places it in the hands of the appellate court.

    Reference: Texas Civil Practice and Remedies Code Chapter 51.012, and Chapter 52

  5. Are the lower court judges in Texas just trying to make the lawyers rich? This strikes me as a perfectly silly result.

    But, then again, I have been blessed - cursed? - with a thought process which demands that things be logically decided. The law certainly does not lend itself to such behavior.

  6. Given Judge Chupp's decision, can the accounts and funds of the diocese currently administered by Bishop Iker be frozen pending appeal and is that likely to happen?

  7. I am not a lawyer, but have read most of the documents submitted to the court. I believe that this ruling is not following Texas law on neutral principles. But, my question to you is, why isn't the Worldwide Anglican Communion also hierarchical and therefore The Episcopal Church of USA should therefore ascend its U.S. property to Rowan Williams, Archbishop of Canterbury? It appears to me IF the Diocese of Ft. Worth is hierarchical to TEC then the TEC is hierarchical to the Anglican Communion under Rowan Williams.

  8. Thank you, Joe -- perhaps you might also address Emily's question? I assume that a stay of the judge's turnover order will not equate to a freezing of accounts, since the banks where the accounts are located have never been brought into the action. Where accounts have been frozen, they were frozen by the banks on their own decision, after ECUSA presented them with a disputed claim to the funds. But I gather that has not worked in Fort Worth.

    Mark, your logic is impeccable, but you see, when you talk of ECUSA you are talking about people who are impervious to logic. When they come in to power, they remake the rules as they want them, and to hell with what the Canons say -- they could care less. Or else, as with the Dennis Canon, they want the power to override the laws of fifty states with a single stroke.

    If a confederation of dioceses into a denomination is a "hierarchy", then so is a confederation of denominations into a Communion. But since those at 815 do not want to be "bound" by what the Communion says, then according to them, the Communion is just an "informal association of like-minded churches." But as for the Episcopal Church (USA), now that's a hierarchy.

  9. I'd like to know how Judge Chupp can say one thing in September--that the ECUSA constitution & canons do not prohibit a discese from leaving, that Fort Worth left in 2008 and that we took our property with us--and turn around just 4 months later and say the exact opposite. Someone please explain that one to me.

  10. Good point, hobbshous. What the judge did was simply (a) ignore the fact that there is no language in ECUSA's Constitution preventing a diocese from withdrawing (it would be unconstitutional if it were there); and (b) treat this case like just another parish church leaving a diocese. Look at paragraph 1 of the declaratory judgment which the court signed on p. 3 of the order: it says "the Court follows Texas precedent" -- and then cites two cases about individual parishes splitting up, not dioceses withdrawing. Only in the topsy-turvy world of 815 could cases like that have any relevance at all to the issues involved here. But it's their formula; it has worked for them again and again; and they are sticking to it.

  11. I'm not sure that Joe is correct that a stay is automatic once the appeal is filed. The statutes he cited are silent on stays of judgment where no money damages have been awarded, but under Rule 24 of the Texas Rules of Appellate Procedure, if no damages have been awarded, the appellant must post a supersedeas in an amount to be set by the trial judge (subject to adjustment by the court of appeals).

    In answer to Emily's question, the court could probably order a freeze if it were asked to do so (and I don't know whether that has happened yet), but a total freeze seems unlikely. Nor would it necessarily be in the Local Episcopal Parties' best interests (e.g. if funds were needed to call a plumber to fix frozen pipes). A temporary injunction designed to prevent a wasting or dissipation of assets seems more likely.

    It should be noted that the Southern Cone/ACNA diocese's legal fees have been underwritten by separate donations and have not been paid from the diocese's funds.

    I disagree with the result because based on dicta in earlier Texas Supreme Court and Fort Worth Court of Appeals decisions, I believe that under current Texas law, church property dispute issues should be adjudicated under a "neutral principles" analysis instead of the "deferential" approach used by Judge Chupp. However, given that neither court has directly addressed this issue in a property dispute case since Jones v. Wolf was decided, I wouldn't call Judge Chupp's ruling "silly." Erroneous, yes. Silly, no. We also need to keep in mind that if the Court of Appeals reverses his decision, the case will be remanded back to his court for further proceedings (perhaps to make the neutral principles analysis he declined to do on Friday).

  12. Hobbshous - if you read the actual transcripts from one of the first hearings in Judge Chupp's court, you will see that he really didn't/doesn't have a clear understanding of the Anglican Communion, TEC, dioceses and parishes and how they all are related or not related.

  13. Thank you, Paul Powers, for that contribution.

    DDR and hobbshous -- apparently the judge at the hearing on these motions on Jan. 14 again made remarks similar to those he made last September. I understand that a transcript has been ordered, and the diocese will post it as soon as it receives it from the court reporter. That's why this ruling came as a bit of a surprise to those who had been present for the arguments.

  14. Paul is correct in that a stay is not automatic.

    However, in Texas the way to supersede a judgment pending appeal is with a superseadas bond. You can file a $10 bond, which will supersede the judgment, and then the appellee will have to ask the appellate court to determine the bond to be insufficient, and then discovery will have to happen to set the bond amount, which will only further drag out the process.

    Most people would rather just do the appeal as a practical matter.

  15. Paul Powers -

    I apologize for my use of the word "silly" in reference to Judge Chupp's ruling. Just a sign of my frustration with a court which seems determined not to make a ruling by "neutral principles." It seems the judge just does not want to make the effort. I agree with you, "erroneous" is a better word to use in this context.

    It is a shame that so much time, energy and resources are being used in this vindictive attempt by ECUSA to get their way, no matter what rules must be bent or mangled in order for that to happen.

    Veriword: lushi