Tuesday, February 8, 2011

Fort Worth Judge Modifies Orders; Appeal Delayed

Bishop Iker's Episcopal Diocese of Fort Worth has put up the following statement about the outcome of today's hearing in front of Judge John Chupp of the Tarrant County District Court regarding the orders he signed granting Bishop Ohl's and ECUSA's motions for summary judgment:

Revised order a first step toward appeal

In a hearing today before the Hon. John Chupp, attorneys for the Diocese and Corporation persuaded him to grant all our objections to the Partial Summary Judgment orders he issued Jan. 21. As a result, The Episcopal Church authorities will not succeed in their efforts to force some 6,000 regular Sunday worshipers to vacate their churches any time in the near future – and perhaps never, depending on the results of an appeal of the case. As the appellate process proceeds, the Bishop, clergy, and elected lay leaders will continue to carry out their duties and ministries as in the past.

Responding to one of the most serious concerns raised in the objections, Judge Chupp said that he does not “want to see empty buildings.” He added that in his original orders, all he intended to say was that “the Diocese should be holding property in trust for the national church.”

Attorneys for both sides cooperated with the court in drafting a revised order which will be in effect until final a judgment is signed in March, after the judge returns from a medical leave of absence. Once the judgment is signed, the Diocese and Corporation will pursue their appeal. The judge agreed with attorneys for both sides that the case is ultimately bound for a ruling from the State Supreme Court of Texas.

The parties expect to return to the 141st District Court in about 30 days.
By removing the provisions of the previous orders which would have required Bishop Iker's diocesan Corporation to turn over all its assets within 60 days, Judge Chupp recognized that such a provision turned an order granting summary judgment on a cause of action for declaratory relief only into a temporary injunction, which the plaintiffs had not asked for. (One still has to ask why, if they had not asked for it, they included it in the orders they submitted for the judge to sign.)

Now the case will proceed normally, with about a month's delay for health reasons having to do with the judge. The parties will settle on a form of judgment granting the requested declaratory relief. After Judge Chupp signs the judgment on his return to the bench, Bishop Iker and his attorneys will file an appeal with the Second District in Fort Worth, which heard the previous writ proceedings involving an earlier order made by Judge Chupp.

Once the appeal is filed, and briefing is completed, the Court will probably not schedule oral arguments for a number of more months, due to its backlog. Expect a hearing sometime late next fall or winter, with a decision issued sometime in the first part of 2012.

[UPDATE 02/23/2011: A link to download the revised order signed by Judge Chupp is here. It contains a few more puzzlements, however. By ruling that the changes made to the diocesan constitution and canons were null and void, the order opens up a can of worms: if the Court can pass on the validity of the acts of a diocesan convention, then it can rule also that the acts of the "Special Convention" held in Fort Worth in February 2009, and convened not by the ecclesiastical authority of the Diocese as required by its Constitution, but by the Presiding Bishop, were "null and void" as well. The effect of that ruling would not be to reinstate Bishop Iker as the Bishop of the Diocese, because ECUSA will argue that he was lawfully deposed (although again, there is nothing now to stop Judge Chupp from reviewing the validity of his illegal deposition, as well). However, it would mean that a majority of the parishes which support Bishop Iker would again be in control of the Diocese, and they could meet to fire the attorneys and have the lawsuit dismissed!

The ruling ends with a nonsensical statement "when this order becomes final and appealable" -- the last word has to read non-appealable if it is to make any sense. In other words, the command in the order to the defendants not to hold themselves out as the leadership of the Diocese would go into effect only if the order is upheld on appeal. That, for reasons discussed in other posts, is not very likely.]


  1. Judge Chupp is scheduled to undergo surgery tomorrow, Feb. 9, as treatment for colon cancer. He is a young and vigorous man in his mid-30s with a young family, and he is from a tradition of faith. Following our hearing today, after the court room had been cleared, a deacon of our diocese asked the bailiff if the judge would be willing to receive prayer for healing. Judge Chupp returned from his chambers and received prayer and anointing from a group including a senior priest, the deacon, and a lay woman. We hope your readers will join us in praying for the judge's successful surgery and a complete recovery and healing.

    Suzanne Gill
    Director of Communications
    The Episcopal Diocese of Fort Worth

  2. I just cannot understand how he reached the conclusion that the Diocese holds property in trust for the "national church". Is there any hope that this erroneous idea can be corrected?

  3. Carolyn, as I tried to explain in this earlier post, ECUSA and Bishop Ohl argued the law of Texas as it was last laid down by the Texas Supreme Court in 1909, when the Court ruled that a local parish (not a diocese) held its property subject to a trust in favor of the national denomination. Judge Chupp, not understanding what a diocese is in relation to ECUSA itself, mistakenly bought into their argument. His (and their) mistake will be corrected, I feel sure, by the Second District Court of Appeal.

  4. I share the same concern as Carolyn, but Bishop Iker has an excellent legal team. So everything takes time and patience, and in time God will make all of this right.

  5. After again reading the amended judgment signed by Judge Chupp on 8 Feb, I found the following line which I didn’t really see before. 
    (Para 3, final page)
     “…the Court further declares that the changes made by Defendants to the articles and bylaws of the Diocesan Corporation are ultra vires and void”.
    Wouldn’t this mean that since the changes made to the articles and bylaws of the Diocesan Corporation made by the majority who are with Bishop Iker are, per this judgment, are no longer in place/in force (ultra vires & void), therefore revert back to 2008?  This would mean, then, that the Diocese of Ft. Worth is still under the leadership of Bishop Iker and the standing committee as in 2008, correct?  In other words, the changes never happened.
    And finally, what does the last line mean re holding themselves out to be leaders of the Diocese “when this order becomes final AND appealable”?  The line above does not mention “appealable”.  What is the difference here?


  6. DDR, thanks for the lead. I have posted an update above which addresses your questions.

  7. 2/24 - Thank you, A.S., for your answers. I have confidence that our attorney’s and Bishop Iker have also seen it and will do with it what they feel is legally possible, if anything. Interesting that TEC’s Beers didn’t catch it! (I’m sure they will now as they more than likely monitor this blog). You mention the effect of the ruling would not reinstate Bishop Iker as Bishop because he was “lawfully deposed” (a joke in itself, but); however, wasn’t he deposed because of the changes made in the C&C of the Diocese of Ft. Worth? I guess one might say that if the ruling were to reverse everything, that would also mean his un”lawfull” deposition. We all know that won’t happen but it’s fun to think of these things. I do like your statement that if all was reversed, that would mean a majority of parishes, the majority being Iker supporters, would in fact be in control again of the Diocese and could in effect fire the TEC lawyers. Unfortunately, a majority of parishes, clergy and lay couldn’t call for a new Bishop of their choosing because we all know how that would go with regards to General Convention and HOB. We can only pray that the judges on the 2d Court of Appeals will take the time to read all of the available documents and put the pieces together with regards to the “special convention “ which TEC held here, etc.

  8. AS- the link is going to an article re Title VI, not Ft. Worth

    "A link to download the revised order signed by Judge Chupp is here. It contains a few more puzzlements.."


  9. Thanks for the heads up, DDR -- the link has been fixed.

  10. The Diocese has posted the court transcripts for the hearings of Jan and Feb. It is so obvious that Judge Chupp still doesn't get the difference between a Diocese, a Parish, a Province and the Episcopal Church (TEC/815). Let's pray the 2d Court of Appeals can understand the major differences and rule accordingly.

  11. Post on Dio FTW Website:

    Call for prayer as legal team
    prepares for March 31 hearing.

    In the weeks since the 141st District Court issued its interim summary judgment order (Feb. 8), the local supporters of The Episcopal Church have begun demanding financial records, property inspections, and extensive additional proceedings in the trial court.

    On Thursday, March 31, at 9 a.m., a hearing has been set on a Motion filed by the Diocese and Corporation to stay (suspend) all those activities until the appellate courts decide whether the summary judgment was improper. Our attorneys will also be asking Judge John Chupp to sever (separate) that order from the remainder of the lawsuit to pave the way for an immediate appeal.

    Please pray this week for Judge Chupp as he prepares for Thursday's hearing and considers the requests we have placed before him. Keep our legal team – Shelby Sharpe, Scott Brister, and David Weaver – in your prayers as well, as they continue to work with the plaintiffs' attorneys on specific points of concern for the two sides.

    On Thursday morning, please join Bishop Iker in prayer and fasting for the hearing.

  12. Also posted today on the Diocesan website re tomorrows hearing.


    A.S. - in your humble expert legal opinion, is this inquisition from TEC normal in a property dispute case? Or, is this a sign of a desperate TEC who is frightened of the 2d Court of Appeals? I guess a third reason, combined with being frightened, is that they are plain vindictive and are doing as much "scorched earth" policy as they can, win or lose.

  13. DDR, the files posted at Bishop Iker's site are not currently available to me; the server must be down for maintenance, or something similar.

    However, I would say that IMHO, ECUSA and the local group have far outstretched themselves in asking for all of this discovery and inspection at this point. I am not aware of what, procedurally, Judge Chupp would have to do to enable an immediate appeal from his (modified) order granting partial summary judgment, but if he has to do something to make the order immediately appealable, there is no good reason for him not to do so.

    The question that Judge Chupp decided is the very heart of the case. If the parties have to go on litigating with that ruling guiding their steps, it would be a monumental waste of resources to go to trial and judgment, and then eventually have the Court of Appeals reverse and remand for a new trial. This is one of those cases where the appeal should take place now, so that the parties will know whether they are on the right track or not.

    If they engage in extensive and costly discovery now, it would all have to be done over again, should the judgment be reversed on appeal and the case come back for a retrial. So the sensible thing to do would be to stay all further proceedings pending a decision by the Second District Court of Appeals.

    Thus, were I Judge Chupp, I would grant the motions, and stay further proceedings pending an appeal. Should he deny the motions, then he has some sort of agenda to keep the case in his court -- but in that case, Bishop Iker's attorneys could present an emergency request to the Court of Appeals to enter a stay against further proceedings until Judge Chupp's summary adjudication order can be reviewed. Let's take another look after today's hearing.

  14. Mr. Haley, do you think it matters a lot, a little, or not at all that one of the minority faction's attorneys is also Judge Chupp's mother's attorney?

  15. Carolyn, it would matter if it had not been disclosed to Bishop Iker's attorneys, but it was. Since they have not asked Judge Chupp to disqualify himself, they must have concluded that it was not that crucial.

  16. Today's hearing ended with no order or decision by the Judge other than he will try to rule by tomorrow. That's because TEC filed a last minute petition of more than 2,000 pages!! (see image on Diocesan website). How long will it take to scan that into a PDF file?

    My lay legal opinion is that TEC is very scared and is doing anything they can do to make this drag on and on. If they truly believed they were in the right, legally that is, they would just sit back and let everything run its course. They have been successful in other states but this is Texas. If Ohl wants parishioners to stay in the parishes (if they win), he sure isn't going about it the right way.

  17. What on earth does one say in 2000 pages?!?!?

  18. The local Episcopal plaintiffs (Bishop Ohl, his rump "diocese", and the parishes in it) opposed the defendants' motion to sever the declaratory judgment claims (in order to allow them to take an immediate appeal from Judge Chupp's ruling). They argued that the declaratory relief claims could not yet be severed, because they still had lots of them to present to the court, in another motion for summary judgment. In order to show the judge what they were talking about, they filed their motion, which itself is not all that long, but the supporting papers were, as David says, thousands of pages long. That's because, in order to obtain a summary judgment, you have to lay out evidence of all the facts which you claim are undisputed, and in this case the evidence involved each of some three dozen or so parishes.

    The judge said he would look at their papers to determine if he should first decide their motion before severing the declaratory claims. My bet is that he will sever the claims anyway, without deciding the local plaintiffs' motion -- but we will see.

  19. The Diocesan office just posted the massive multi-section amended petition by TEC. The amount of paper rivals the Obama healthcare plan bill and will take days to read by the Judge and his staff (if he has one). Unbelievable!

  20. Judge Chupp has granted the Diocese of Ft. Worth's motion to sever and stay the proceedings pending appeal.
    So the 2,000 pages apparently didn't convince him.
    I think he's starting to "get it". :^)

  21. Carolyn,
    You could say it that way or one might believe that Judge Chupp would rather this case be out of his court once and for all. The TEC lawyers know that the Judge is somewhat inexperienced so they would rather flood him senseless filings, etc. Now this will go to the 2d Court of Appeals. Those judges are more experienced; I'm not sure TEC can play the same games.

  22. DDoR, all I know is that the horrendous, spiteful "discovery" they were trying to inflict on the Diocese is now on hold. And that is a very good thing.
    Keep praying - I think it's working!