Saturday, April 16, 2011

Fresno Court Affirms Its Denial of Motion to Consolidate

The Fresno Superior Court, which had issued a tentative ruling denying the motion to consolidate nine separate cases against individual San Joaquin parishes into one court, has now adopted that ruling as its final decision on the matter. Pending further moves by the rump diocese and its bishop, the nine cases will continue to remain before the courts of six different counties -- Kern (3 cases), Tuolumne, Fresno, Stanislaus, Tulare (2 cases), and San Joaquin. The rump diocese brought the suits in an attempt to hasten its planned takeover of all of the property and assets of the Anglican Diocese of San Joaquin and its parishes. The strategy thus far, however, has served only to multiply its already stretched litigation budget many times over, and to burden its attorneys with keeping up with motions and status conferences spread all over the southern half of the State. The denial of the motion to consolidate means that, for the time being, at least, the rump diocese and its attorneys will have to lie in the bed they have made for themselves.

The Fresno Court's ruling offered an interesting take on the claims the rump diocese was seeking to advance in their complaints against the individual parishes. It observed:
Plaintiffs claim that the actions are virtually identical. In around December 2007, all named defendants sought to dissociate from the Protestant Episcopal Church. After doing so they continued to occupy and exercise control over real and personal property claimed to be owned by plaintiffs. Plaintiffs contend that “[o]ther than the location of the property at issue and other minor historical facts regarding the incorporation of the defendant parish corporations, there is no variation in the material operative facts of each complaint.” (See Request for Judicial Notice at Exhibits 1, 3, 5, 7, 9, 11, 13, 14, and 16, esp. ¶¶ 66-81.)

This is more or less correct. The 90 paragraph complaints are nearly identical. Plaintiffs are seeking possession of disputed real and personal property on two separate theories. First they allege they are entitled to corporate control of the parish corporations which hold title to and possession of the property. Second, plaintiffs assert the parish property is subject to a trust in their favor.
But then the court noted:
Nowhere in the complaints do plaintiffs ask that legal title be vested anywhere but in the name and control of the “Parish Corporation.”

The gravamen of plaintiffs’ legal position is that parishes cannot “unilaterally” disaffiliate from the Church (Complaints ¶ 24); that the parishes’ attempt to disaffiliate from the Church was ineffectual and none of the individual defendants hold any office or position with the defendant parish (Complaints ¶¶ 77-78); and that under the governing instruments of the “Church and Diocese, Plaintiff Bishop Lamb has designated a Priest-in-Charge of the Parish who has authority to act on behalf of the Parish Corporation. (Id. at ¶ 79.)

However, paragraph 35 of the complaint quotes the text of diocesan Canon XX, section 20(g), which allows parishes to disaffiliate “with the prior written approval of the Ecclesiastical Authority . . . of the Dioceses.” As further stated in the complaint, the “bishop serves as the ‘ecclesiastical authority’ and chief executive officer of a diocese and is in charge of both ecclesiastical and temporal affairs within that diocese.” (Complaints ¶ 19.) In December 2007 the parishes were given approval to disaffiliate by Bishop Schofield. (Complaints ¶¶66-67.) Schofield’s status as the “Episcopal Bishop” at this time is an “ecclesiastical fact” established in the Schofield v. Superior Court opinion and is not subject to further adjudication. (Schofield v. Superior Court (2010) 190 Cal.App.4th 154, 162.)
Thus under the diocesan canons then (and still) in effect, parishes were allowed to disaffiliate from the Episcopal Church (USA) if they received the written permission of the "Ecclesiastical Authority" of the Diocese -- who at the time, as the Court notes, was indisputably none other than Bishop Schofield. The complaints not only set out the text of the disaffiliation canon, but they also recount the events leading up to the withdrawal, including the acts of Bishop Schofield in facilitating and allowing the process to go forward.

How, then, can the rump diocese maintain the claim that the parishes were "without any authority" to withdraw? The Canons of the Diocese have not changed to this day. The rump diocese still allows parishes to disaffiliate "with the prior written approval of the Ecclesiastical Authority . . . of the Diocese" (Canon 20.01 (g), on p. 16 of the document linked). It can thus scarcely argue that its own Canons are unlawful, or unauthorized.

The theory of its complaints, as read by the Court, is that the diocese's local canon may authorize disaffiliation, but its parishes' properties remain impressed with a trust in favor of the national Church. Said the Court:
Plaintiff’s trust theory will depend on analysis of the various Church, Diocese and parish records and documents to determine whether they create a trust in favor of plaintiffs.

The common questions of fact are the happenings in the Diocese that lead to the grant of authority to the parishes to disaffiliate. Much of this appears not to be adjudicatable by the courts per Schofield v. Superior Court, supra, 190 Cal.App.4th 154. Thus, the facts of each matter should be limited the actual disaffiliation procedure in each parish and the examination of the parishes’, Dioceses’ and Church’ governing documents.
Even the Dennis Canon, however, has never been applied so far as to maintain its hold on property sold or transferred by a parish with the permission of the local ecclesiastical authority. For example, in the Good Shepherd case in Binghamton, the Diocese took the property back from the parish when it left ECUSA pursuant to the court's interpretation of the Dennis Canon, but then the Diocese itself sold the property to a Muslim organization. If the Dennis Canon could still be asserted against the property after the sale, how could parish properties ever be declared free and clear of its terms?

There is thus a tension between the rump diocese's theories of the case which remains as yet untested and unresolved. On the one hand, the rump diocese acknowledges that each parish it has sued had "the prior written approval" of Bishop Schofield to disaffiliate, but on the other hand, it claims still to be able to enforce an implied trust on the properties notwithstanding that approval. And yet every month, year in and year out in the Episcopal Church (USA), former parish properties are transferred, sold and disposed of free and clear of the Dennis Canon -- with the written permission of the ecclesiastical authorities of the respective dioceses.

Whether the rump diocese can maintain its conflicting theories to get the nine cases to trial is very much an open question -- even apart from having the legal resources necessary to do so.

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