The Hubris of Spending Other People's Money

Budget discussions in ECUSA's Executive Council continued to be contentious today at the Maritime Center, as the various factions duking it out are beginning to realize how little control they have over the process. For the General Convention activists, it is all about losing sight of the "vision":

“Neither iteration – 19 percent asking or 15 percent asking – provides a new vision,” Katie Sherrod said in reporting the reaction of the Governance and Administration for Mission committee. “We need a vision for the future.”

(Note to Dr. [hon. causa] Sherrod: The vision is right there in front of you, but you are incapable of seeing it because it does not mesh with your view of the world. Meanwhile, facts on the ground are fast overtaking what little remains of the things over which you still have some discretion. Soon you will not have any choices left to discuss, let alone make.)

Laboring under a different form of blindness to the facts, some Council members complained that the numbers were dictating the structure, rather than the other way around:

“This was not a strategic exercise but this was a mathematical exercise,” council member Vycke McEwen said later in the morning while council further discussed the budgeting process. 

Council member Lee Allison Crawford reported that her colleagues at her table felt the church was “just beginning to understand the system we inherited from General Convention 2009 with the last round of cuts.” The reorganized Church Center “has had success” and to change the system again would be wrong, she said. 

“The structure has to be an authentic reflection of our values and so we really should change ministries with deliberation and care and reflection and not just by sweeping cuts in a spreadsheet,” she said.

Yet a third form of blindness manifested itself -- "If we don't like what we're being told are the facts, we don't have to believe that it's really happening":

While council heard much discussion the previous day about declining mainline denominational membership and financial struggles caused both by those membership declines and the current economy, council member Brian Cole said that his table colleagues questioned the assumed implications of that information.  

He said they wanted to challenge the rest of the council to consider “if we believe decline is inevitable and ongoing forever, or do we really believe we have good news to share.”  

Finally, a self-deluding syndrome appeared which is always the fatal sign of a disconnected legislative body -- that is, a body which has disconnected itself from the people who pay for the cost of their very existence in the first place. That syndrome arises from the legislators' firm conviction that they know better how to spend the people's money than the people themselves do:

Cole also echoed a theme of some council members who questioned what they said was an assumption that reducing the amount of money the denomination asks of its dioceses would actually result in increased spending on mission activities at that and the congregational level.  

“We really have to decide what is a fair contribution for the work we want to do at the churchwide level and realize we really can’t control what other people do with the money they keep either at the diocese or a parish,” he said. 

You have that right, Mr. Cole. Please do keep reminding those discussing the budget that it is not their money to spend in accordance with their own beliefs and priorities, but to spend only as responsible stewards on behalf of those who donated it. And if the national church and its member dioceses can think of little more than using their donors' hard-earned money to fund grandiose bureaucratic visions, or  wasteful, alienating litigation, perhaps they should consider not accepting it in the first place.

Meanwhile, as usual, the final decisions will get made by the small group at the top, all the while as the lesser privileged receive reassurances that their concerns are "being heard":

The Executive Committee will meet later in the day Jan. 28 “to respond to recommendations and observations we’ve heard,” Presiding Bishop Katharine Jefferts Schori told council at the end of that discussion. The committee will discuss the result of that meeting with the whole of council on Jan. 29, she added. 

“We’re trying to respond to what we are aware is some anxiety around this,” she said, adding that council had wanted to try a new process for crafting the 2013-2015 budget process and that the process began several months later than the process normally does.

So by tinkering with the process, they managed to leave themselves with still less time to consider the budget, and to create an atmosphere of confusion and disorder:

“That new initiative I think was creative and hopeful, and it has presented us with a reality that is very different than we’ve experienced in the past,” [Jefferts Schori] said. “It’s more chaotic, but I would also remind you that the Genesis story says there’s no creation in the absence of chaos.”

And I would respectfully remind the Presiding Bishop, and the rest of the Executive Council, that they are not "creators", but stewards. Chaos is not the hallmark of good stewardship, but of its opposite.

God save the Episcopal Church (USA) -- if it be God's will, and if not: well, then, let the cup at least pass from them with a minimum of further pain and destruction.


[UPDATE 01/29/2012: Another hallmark of good stewardship is openness and accountability, and after a good start (thanks in no small part to Executive Council member Lelanda Lee and her blow-by-blow accounts on Twitter), suddenly it is "business as usual" again. The Executive Council ended today by adopting a budget, but the statement it released at the close of the session does not say what budget it recommended to the Joint Standing Committee on Program, Budget and Finance! (The latter Committee begins meeting tomorrow at the same venue to shape the final version of the budget to be presented this July at General Convention.)

So we Episcopalians who donate, and have donated, all the funds they are now disposing of, will be kept in the dark until ENS's intrepid reporter, the Rev. Mary Frances Schjonberg, publishes her story about the final day of the meeting. And meanwhile, the Presiding Bishop and the President of the House of Deputies are engaged in a very public tiff over their channels of communication with the rest of the Church.

The Joint Committee's deliberations and changes to the budget will not be published until after General Convention, which means that the rank and file of pewsitters will have to remain ignorant until that Committee releases the budget at General Convention itself. Once they do send the budget to the floor, no doubt each House will allot the customary ten to fifteen minutes for its deliberation before adopting it as presented. And the Church will be launched on another of its triennia, with a formal -- but largely meaningless -- budget in place, which almost immediately the Executive Council will begin to modify yet again on the fly, in order to square with the facts on the ground.

Which facts, by then, will include more unilateral spending decisions by the Presiding Bishop and her Chancellor to launch yet more litigation -- regardless of budgetary constraints.

Isn't the "budgetary process" of the Episcopal Church (USA) one of the true marvels of twenty-first century corporate communication?  As I have earlier observed, the gargoyles of Notre Dame have nothing on the Episcopal Church when it comes to taking all kinds of elaborate measures to fend off demons and other ill-intended spirits who, its leaders fear, might interfere with its functioning. For the pewsters on the ground, however, there is nothing left but to contemplate the grand edifice that has been built with their money, and to admire the skills of its architects, who seemingly have left nothing to chance.]

Episcopal Church Faces Budget and Structural Challenges

The Executive Council of the Episcopal Church (USA) opened its winter meeting today at the Maritime Institute in Linthicum Heights, Maryland. Immediately two widely differing plans for the next triennial budget of the Church were presented for its consideration.  (The Executive Council has to approve a draft budget at this meeting to hand off to the General Convention's Joint Standing Committee on Program, Budget and Finance, which will finalize it between February and July for presentation at General Convention.)

The first version of the proposed budget came from the Presiding Bishop and her Chief Operating Officer, the Rt. Rev. Stacy Sauls.  It maintains the percentage which the Church will ask for in contributions from its member Dioceses at the current 19% for the next triennium (it had been reduced from 21% to 19% in the budget adopted in 2009 at Anaheim.)  It also projects a reduction of $5.9 million in income over the period 2013-2015, and calls for a corresponding reduction in outlays.

The second version of the proposed budget came from the President of the House of Deputies, Bonnie Anderson.  It calls for a reduced asking of 15% from the Dioceses, and would result in a budget reduction of $19.3 million, which Finances for Mission Committee Chair Del Glover admitted would lead to (further) "personnel adjustments."

Both the Presiding Bishop and the President of the House of Deputies made opening remarks to the Council, along with COO Bishop Sauls. (Bishop Jefferts Schori's remarks were not made from a prepared text, but are summarized in this ENS article.)  Reading between the lines of each, and translating the Presiding Bishop's earlier prepared remarks about coming changes in structure, which may be viewed here, it is clear that the heads of the Church are not of one mind about how to deal with the challenges which it faces in the twenty-first century.

And those challenges are significant and substantial. They are summarized graphically in a presentation to the Council (zip file download is at this link) by Kirk Hadaway, who is the church official in charge of congregational research, and by Matthew Price, of the Church Pension Fund. Among other facts shown, 72% of Episcopal congregations were in financial stress as of 2010 (compared to 58% of other denominations for the same year) -- the highest level in the past decade, by far.

It is clear that there is momentum gathering for a proposal for structural changes in the Church, either to be presented at General Convention itself, or referred to its Standing Committee on Structure for analysis and a report to the 2015 Convention. There have even been hints that the Church cannot wait that long, and that a Special Convention might have to be called in the interim to make the cost-saving changes necessary if the Church is to adapt to the decline in its membership and finances.  (Previously, I wrote about how the structure of the Episcopal Church as founded was not capable of carrying the modern superstructure which in recent times has been imposed upon it. Those observations are even more relevant now.)

The problem is that there are, as always, at least two conflicting constituencies striving for consensus on how best to make use of the Church's dwindling resources. The first constituency consists roughly of the Church's clergy, but its political power is wielded chiefly by the Bishops, through whom all constitutional and canonical changes must pass. The second constituency is made up of the active laity, along with many clergy, who do not have the time for the national politics of a socially activist church, and who want to see more resources remain with the Dioceses and congregations, for their mission efforts and local programs.

There is a third constituency as well, but its influence is waning. It may be said to consist of those clergy, bishop and lay activists who use the triennial General Convention as their springboard to launch ever more programs, Commissions, Committees, Agencies and Boards, and who then populate their creations in the interim between Conventions.  This has resulted over time in a structure so top-heavy and convoluted that even Bishop Sauls complained he was having difficulty tracking all of them down when he began in his current position as COO. The interests of that constituency are unsustainable in a declining church.

The Presiding Bishop appears to float above the contesting factions, mouthing reassuring platitudes about the mission of the Church in a modern age, but then confers privately with her staff and her Council of Advice to map out the moves that will actually determine the future of the Church. The resulting tension between her and President Anderson is sometimes palpable, as may be seen in the presentation to the Executive Council of the dueling budgets.

These are indeed interesting times for the leadership of the Episcopal Church (USA). To this observer, who has been very critical of the quality of that leadership, the current deliberations at Lithicum Heights appear to signal that word has finally reached the bridge that the ship of the Church has struck some kind of floating object, perhaps an iceberg, and may be taking on water.

I say "perhaps" an iceberg, because there does not yet appear to be any open recognition, whether on the Executive Council or at 815, of just how much the disastrous policy of "sue first and worry about the costs afterward" has split the Church from its basic mission, has alienated thousands of churchgoers, and has certainly contributed to the severe decline in funds available for mission. The refusal to acknowledge facts extends through the entire House of Bishops -- as witness the remarks by Bishop Shannon Johnston of Virginia at his most recent Diocesan Council meeting (H/T: BabyBlue):

As all of you know, the matter of our size, resources and abilities has been–over the past five years–under worldwide scrutiny. Our diocese is navigating a complex set of circumstances regarding our effort to return Episcopal properties to the mission and ministry of the Episcopal Church in the Diocese of Virginia. It would be a big mistake to characterize this simply as a “legal” battle. Rather, at its core, this is (make no mistake about it) about theology, meaning who we are as a Church in relationship with Christ and the world. At stake is our polity, that is, our ancient and defining order of our being the Church. Thus, it is altogether a matter of nothing less than our very faithfulness. It will therefore take more than the courts to settle things. . . .

It certainly will, Bishop Johnston, it certainly will. And you may eventually have to eat your next words, which I have emboldened for your benefit:

Despite the recent court ruling in our favor, we simply don’t know now what the future holds. Nonetheless, we have reason to be more confident than ever that our properties will be returned. For nearly two years, we have considered and discussed such a positive outcome, and now we must move to put contingency plans in place. We will be fully prepared for any eventuality... I strongly believe that we will be able to do what it takes over the next months and years to be faithful to the Church’s mission with respect to each one of the properties involved. . . . 

Bishop Johnston? You may want to review pages 11 and 12 of that presentation made to the Executive Council mentioned earlier. They show two maps depicting the changes in Average Sunday Attendance in each Diocese between 1995-2000, and 2005-2009. The first map shows the Diocese of Virginia among the group reporting growth between 5-10%. But the second map shows the Diocese of Virginia in the group of dioceses which lost between 10 to 25% in ASA.  With what people, I ask again, are you going to fill the churches whose properties you just took back in your lawsuits, and thereby "be faithful to the Church's mission" for them?

As I say: big changes are coming, but no one seems to have a clue what has brought the need for them about.

Cui Bono?

At the risk of turning this into a political blog ten months before the election, I just have to note a few observations.

First: At present, the Republican candidates have the field. This is not yet, at any rate, a contest between any one such candidate and President Obama. It is a contest solely among Republicans.  Could we please get that fact straight?

Second: Could Republicans please resist the pressure from all corners to declare a "winner" of their presidential nomination until they hold their national Convention this August? Surely anyone can see that the only voices pressing for a final selection now are those in the dedicated Obamedia, or those in the Republican Party establishment who superciliously think they would somehow benefit from having a known result at this point.

Third: The 2012 election will be a watershed -- so much is at stake that everyone and his brother is trying to manipulate the outcome this early, nine months and thirteen days before the election. That realization alone should furnish motivation enough to resist their slurs and blandishments.

Fourth: I would go further, and suggest a ban on all announcements of any kind of poll results which claim to match up candidates against each other, whether Republican vs. Republican, or Republican vs. Democrat. Can such polls, taken ten months before the election, have any meaning or significance whatsoever? Do you already know how you will vote when it is November? (How could you, since you won't even know until this summer who has the nominations?)

Fifth: As of this writing, a grand total of just sixty delegates to the Republican Convention have been determined by the primary results to date. That is sixty -- "six - oh" -- out of a total of 1,144 delegates needed to secure the nomination.  Here is a graphic that puts into perspective where we are versus where things still have to go before there can be a definite result. The math can get complicated, because party rules require that delegates chosen in primaries before April 1 be allocated proportionately, while after that date the rules allow for "winner-take-all" results. Essentially, however, it remains true that someone new could enter the race in February or March and still have a possibility to win the nomination.

The 2012 election won't be over until it's really over, folks. Lots of things can happen between now and September, and even more between September and November. So don't get caught up in the media frenzy to know right now just who the nominees will be. Sit back, put your feet up, and enjoy the spectacle! It is truly one of a kind -- because who could stand it if this happened more often than once every four years?

How to Fight the pro-Obama Media and Win

This exchange opened the much touted Republican candidates' "debate" tonight on CNN.  It was entirely predictable from CNN's standpoint that they would try to build upon ABC's despicable pandering to its few remaining viewers, and generate a supposed "momentum" that would embarrass Newt in front of South Carolinian voters. John King's gambit backfired, in a manner most gratifying to watch -- Newt places his "question" into its proper political context, and Mr. King stammers to recover his aplomb:

Once Burned, Twice Shy: the Cautious Jurisprudence of Judge Randy Bellows

Judges do not like being reversed by higher courts, although it is a constant possibility that comes with the territory. (One federal trial judge once told me point-blank: "I just get paid to make decisions. The Ninth Circuit gets paid to make them right.") The recent decision by Fairfax County Circuit Judge Randy Bellows comes after his first set of decisions, carefully researched and painstakingly supported with references to the record, was reversed by the Virginia Supreme Court in a rather slapdash effort which essentially told him nothing more than: "We don't think so. We don't agree with your reading of the [division] statute [Virginia Code § 57-9]."

So it was back to the drawing board -- and this time around, Judge Bellows has done everything in his power to make certain that he cannot be reversed again. He has carefully and thoroughly laid out all of the precedents he is bound to follow (there were not as many of them last time, under the division statute), and has even consulted other decisions at the trial court level (which are not binding on him). He has applied those precedents literally, taking them only for what they say, and nothing more -- so that if the Virginia Supreme Court wants to reverse him this time, they will first have to reverse themselves.

His opinion is laid out in nine sections: introduction, a statement of the case (background and procedural history), a description of the parties, a discussion of "neutral principles of law" under the applicable precedents, and then the meat of the decision, a section in which he goes through a detailed application of neutral principles to the facts brought out in the twenty-two days of testimony. There he considers the applicable statutes, deeds, church constitutional and canonical provisions, as well as the lengthy course of dealing between the national Church, the Diocese, and the eight individual parishes. He then adds two brief sections in which he disposes of the counterclaims, rules that the Falls Church endowment fund is under the control of the vestry recognized by the Episcopal Diocese, and finishes with a conclusory section in which he deals with the details of the surrender of the properties. (I set out this last section of his opinion in my previous post.)

As carefully reasoned as it is, Judge Bellows' opinion still came as quite a shock to most of the parishioners who have been worshipping in their familiar churches these past five years. And no doubt in the case of the Episcopal Diocese, the decision came as a species of "Watch out what you wish for" surprises: the Diocese has no congregations which are sufficient to put any of the properties to the uses of which they are capable, and no long-term means of financing their upkeep through pledges and contributions from the remnant faithful, who are in a steady decline. As this article painfully details, the Diocese of Virginia has stopped planting new churches, its membership has dropped by more than a quarter in just the last decade, and it had to take out a multi-million-dollar line of credit just to finance the cost of the litigation.

In its statement on the decision, the Diocese puts up a brave front about wanting to "return faithful Episcopalians to their church homes and Episcopal properties to the mission of the Church", but the realities contradict that pious sentiment, as the article just linked spells out:

The congregations of Church of the Apostles and Truro Church, both in Fairfax, Virginia, departed in their entirety; there are no continuing Episcopal congregations to inherit these buildings.  

Other parishes, such as The Falls Church, in the city of Falls Church, and Church of the Epiphany in Herndon, Virginia, have seen small continuing Episcopal congregations separate from the much larger departing groups. These continuing congregations have meanwhile been meeting in nearby rented facilities. The state of these continuing congregations – often by their own admission – can be described as at best poorly prepared to maintain and operate large church properties, or at worst, teetering on the edge of being non-viable.  

. . .

The Epiphany continuing Episcopal congregation has “…fewer people than most people might consider viable…” according to the parish report of the current priest-in-charge.

Thus what the Diocese asked Judge Bellows to do is precisely what Judge Bellows did, and now the Diocese has to admit that it will have to sell some of the properties in order to pay off its debts. This is not acting prudently, or even out of a sense of fiduciary duty -- a fiduciary acts to conserve assets, and does not sacrifice them to solve troubles of one's own devising. This is more the story of the dog in the manger, only written on a truly grand scale. Nevertheless, like the proverbial dog, the Episcopal Diocese will now pretend that it really wanted that hay all along, even though it can make no use of it.

And what, in the end, has Judge Bellows accomplished? Did he uphold Virginia law and precedent? Yes, he certainly did -- once he was instructed by his superiors that the division statute did not apply to the facts of this case. But by awarding all the property to the people least able to maintain it and keep using it for church purposes, he took "neutral principles of law" to a truly Pyrrhic level. And in the process, the decision makes a mockery of all the hundreds of years of tradition which it claims to honor and uphold.

Judge Bellows finds, for example, that the course of dealing between the parishes and the Diocese over hundreds of years demonstrated beyond any rational doubt that "TEC and the Diocese, through their Constitutions and Canons, and through the direct involvement of the Diocese, its Bishop and its personnel, had pervasive and controlling involvement in these churches and their properties . . ." (Opinion, p. 100). Perhaps that is why the decision comes as such a shock to those parishes. Little did they know what a court would deem important in deciding who ultimately controlled their properties. (And it turns out that it was not even the Dennis Canon that was decisive! So much for Canon Walter Dennis and his machinations to keep Episcopal parishes within the fold, no matter what the cost to the Church itself.) Judge Bellows cites details such as this, for example (Opinion, p. 93):

(3.) Each of these churches were known in the community as Episcopal churches, using the names and symbols of denominational affiliation, including street signs to point the public in the direction of an Episcopal church.
. . .
(6.) Each of these churches were served by a Rector who was an ordained Episcopal priest, a Rector who made at his or her ordination the Declaration of Conformity to the Doctrine, Discipline, and Worship of the Church. Further, at each of these churches, the Diocese has been involved in the selection of one or more of its Rectors. 

(7.) Each of these churches used the Episcopal Church's Book of Common Prayer. 

(8.) The vestry members of each of these churches, upon taking office, have sworn to uphold the doctrine, worship, and discipline of the Church. 

(9.) Each of these churches used the Episcopal Church Hymnal. Some used Episcopal Sunday School materials or other Episcopal hymn books. . . .

My goodness -- do you realize what Judge Bellows left out? He forgot to mention the Sunday bulletin inserts that came from Episcopal News Service!

This, I say, is the work of a painstaking craftsman who wants to be certain that his carefully constructed edifice cannot be torn down by any higher court. He has diligently amassed thousands of minutiae from the daily transcripts, and used them to his overall purpose. One cannot fault the workmanship of his opinion.

In the final analysis, however, Judge Bellows has pointed up the extreme hypocrisy of current Virginia law with regard to church property disputes. For this entire structure that he has been at pains to erect is necessary only because of one thing: the Supreme Court of Virginia, while giving lip service to so-called "neutral principles," is in actuality still in thrall to the artificial dichotomy it draws between "hierarchical" and "congregational" churches. The outcomes of any given case turn not upon the neutral principles themselves, as they should, but instead upon the category into which a court places the disputants at the outset.

Are the parties members of a congregational church? Fine, then the majority decides who keeps the property -- no other result is possible, unless the articles or bylaws spell out some different requirement, which is highly unlikely.

Are the parties in a "hierarchical" church? Well, then, that makes all the difference! For just because the Church is hierarchical, that gives it all kinds of privileges which congregational churches can never have -- such as the ability to bypass the Statute of Frauds, and acquire a "proprietary and contractual" interest in a parish's property without that interest ever appearing of record in a chain of title, without ever having to contribute any money to its upkeep ("not necessary to demonstrate a 'proprietary interest'," says Judge Bellows, citing the Virginia Supreme Court), and without that interest interfering in the slightest way with the parishes' use of their property until such time as they want to affiliate with a different denomination. Then all the alarm bells will go off, the gendarmes will swoop down, and the parishes will learn whom they really have been supporting all these years.

Perhaps the most surprising part of Judge Bellows' opinion, therefore, comes early on, at pages 16 to 17, where he offhandedly asserts that "[t]here is no dispute in this litigation that TEC is a hierarchical church", and then justifies that assertion with this footnote:

A “hierarchical church” is a church “such as Episcopal and Presbyterian churches, that are subject to control by super-congregational bodies.” 280 Va. at 13 (footnote omitted); see also Baber v. Caldwell, 207 Va. 694, 698 (1967). The term “hierarchical” includes “super congregational” and “connectional” churches. Reid v. Gholson, 229 Va. 179, 188 (1985). Reid provides the following description of a “hierarchical” church:
. . . 

Hierarchical churches may, and customarily do, establish their own rules for discipline and internal government. They may, and frequently do, establish internal tribunals to decide internal disputes arising in matters of discipline and internal government. These tribunals may be guided by a body of internally-developed canon or ecclesiastical law, sometimes developed over a period of centuries. The decisions of such tribunals may be promulgated as matters of faith and are entirely independent of civil authority. One who becomes a member of such a church, by subscribing to its discipline and beliefs, accepts its internal rules and the decisions of its tribunals. For that reason, the civil courts will treat a decision by a  governing body or internal tribunal of a hierarchical church as an ecclesiastical determination constitutionally immune from judicial review. To do otherwise would precipitate the civil court into the "religious thicket" of reviewing questions of faith and doctrine even when the issue is merely one of internal governance, because in such churches the resolution of internal government disputes depends upon matters of faith and doctrine.    

If the court were as painstaking with the evidence of "hierarchy" as it was with the parties' course of dealing, it could not have so easily reached this initial conclusion. For the only hierarchy which truly exists in the Episcopal Church (USA) is between a bishop and his clergy; the relationship between parishes, dioceses and the national church is not what one would traditionally call "hierarchical." The Reid opinion, for example, cites the establishment of "internal tribunals to decide internal disputes arising in matters of discipline and internal government" as one of the hallmarks of a hierarchical church. The Episcopal Church (USA), however, has no "internal tribunals" to resolve property disputes, or other matters of "internal government" -- that is why this dispute had to go to a civil court!

The national canons of discipline are not binding upon the member Dioceses (which have to adopt their own disciplinary canons if they want to implement the national ones) -- as the current case of South Carolina makes clear, and as was the case throughout the entire Church before the 1996 revisions to Title IV. There is a world of difference between "acceding" to canons (agreeing to follow them), and being "subject to" canons, i.e., being bound by them, without further ado. General Convention, for all its hyped-up vainglory, could never pass a canon giving it the right to select the bishop for each member diocese -- because that would contravene the fundamental autonomy of each member diocese to select its own leader in the first instance.

But once Judge Bellows placed the Episcopal Church (USA) into the "hierarchical" category, the result under Virginia law and precedent followed, as the night follows the day. And it is not right, under our First Amendment, that there should be such a profound dichotomy in our religious jurisprudence. The States (and the federal Government itself) are forbidden from establishing any Church. That means they cannot favor any one church over another -- but that is exactly what the courts do when they call a church "hierarchical", and then allow it to circumvent all manner of civil property law and recorded notice.

The irony is that the distinction was introduced in the first place as a means of keeping the courts from getting too involved in the internal polity of churches -- by way of respecting the restrictions imposed through the First Amendment! But the distinction has now been carried way too far to the other extreme, so that the courts have erected a privileged class of religious litigants who are able to control real property in a way that no other citizen can. The consent necessary for such an arrangement has to be what the law calls "implied", because it is rarely express or explicit. (Actually, the courts infer from the surrounding facts and circumstances that you must have meant to imply your consent to the other party's having final control over your property.) And to infer such an all-yielding consent requires judges to fill up a hundred pages with minute details of every sort, just to make it appear as though there really is some substance there -- that by using ECUSA's Hymnal and Prayer Book, and by putting a sign out front that they are an "Episcopal" church, the parishes in question really did mean to surrender final control of all of their property and bank accounts to outside entities who do nothing to sustain that property.

Not only that, but the consent which the law thus deems to have been "implied" has to be taken to cover even the case where neither the Diocese nor the national Church has any use for the properties, except to turn them into cash and prevent their continuing use for purposes of worship.

This is a sorry state of affairs, indeed. I am sorry to be an Episcopalian, and to be associated with such rapaciousness in the name of "fiduciary duty." (I am doing my utmost to try to convince my fellow Episcopalians of their leaders' folly.) No Episcopalian should be proud of what their national Church has accomplished in Virginia, or in New York, or California, or Ohio, or Connecticut, or North Carolina, or Georgia, or New Jersey. Instead, one should convict the Episcopal Church (USA) and all of its bishops of a massive breach of fiduciary duty themselves. For they have manifestly failed utterly to warn and advise their parishioners that any contributions made to their local parish church would become forfeit to the diocese and the national Church should they ever have a falling out over doctrine -- instead, they have allowed those parishioners to believe, over hundreds of years, that the local parishes were in control of their own property.

Passing national canons in General Convention does not excuse the bishops from their fiduciary duty to advise and warn parishioners constantly and in advance of the consequences of giving money to their local church. For as Bishop O'Neill of Colorado famously testified in court there, "No one expects church members to know about the canons."  It is up to the Bishops to see to it that every parish is made fully aware of the consequences of belonging to ECUSA, and they have failed miserably to do that. And for that very reason, we have the spectacle of the shock and surprise that comes after contributing  millions and millions of dollars -- only to be told that what you were supporting really belonged to distant authorities who would never be able to put your good works to the use that you did, for so long.

"The Episcopal Church welcomes you."  Indeed.

Harrumph. 

A Picture Worth a Thousand Words

I am working on a more detailed analysis of the Virginia decision, and hope to have it completed by this weekend. In the meantime, here is a great graphic, which makes its essential point simply, subtly and elegantly, for your appreciation:

Satire on "Primates" with Sir David Attenborough

As an interim post while I deal with more weighty matters, I offer some (perhaps needed, perhaps not) levity.

This video has been around since last July, but for lack of publicity has garnered only 830 views or so on YouTube. The satire is of the highest order, as only the Brits can do it, and deserves a much wider audience -- so I hope all the Anglican blogs will pick it up:

Fairfax Circuit Court Awards Parish Properties to Episcopal Diocese

Word has just been received that Judge Randy Bellows of the Fairfax County (Virginia) Circuit Court has issued a 113-page letter opinion deciding the issues in the lengthy property trial last year completely in favor of the Episcopal Diocese of Virginia and the national Church. The Judge's summary of his rulings is as follows:

In this Letter Opinion, the Court makes three princip[al] rulings: 

1. TEC and the Diocese have a contractual and proprietary interest in each of the seven Episcopal churches that are the subjects of this litigation.  Specifically, the Court finds for TEC and the Diocese in their Declaratory Judgment actions and, among other relief, orders that all real property conveyed by the 41 deeds, as well as all personal property acquired by the churches up to the filing date of the Declaratory Judgment actions (on or about January 31, 2007 or February 1, 2007) are to be promptly conveyed to the Diocese.  (Additional instructions are provided at the conclusion of this Letter Opinion.)

2. The CANA Congregations‟ Amended Counterclaims are denied in their entirety.  Specifically, the Court finds that the CANA Congregations, in that they are not Episcopal Congregations, do not possess either contractual or proprietary interests in the property of the seven Episcopal Churches at issue. They are, therefore, enjoined from further use or control of these properties and must promptly relinquish them to the Diocese.  Moreover, the Court finds no merit in the CANA Congregations‟ claims for unjust enrichment, quantum meruit, and constructive trust and grants TEC‟s and the Diocese‟s motions to strike these claims. 

3. The vestry empowered to elect directors to the Falls Church Endowment Fund is the vestry recognized by the Diocese as the Episcopal vestry of The Falls Church, that is to say, the Continuing Congregation.   

The opinion then concludes (after 100 more pages):

It remains to determine the disposition of the personal property of the seven churches.   Virginia Code §57-10 provides as follows:

When personal property shall be given or acquired for the benefit of an unincorporated church or religious body, to be used for its religious purposes, the same shall stand vested in the trustees having the legal title to the land, to be held by them as the land is held, and upon the same trusts or, if the church has created a corporation pursuant to §57-16.1, to be held by it as its land is held, and for the same purposes.

Thus, the disposition of the personal property of these churches follows the disposition of the real property of these churches, that is to say, it must also be turned over to the Diocese.   There is a significant caveat to this, however, and it arises from the fact that there came a point in time when it was absolutely clear that a contribution or donation or the payment of membership dues to one of the seven congregations was not a contribution to an Episcopal congregation.    

Therefore, the personal property acquired by the CANA congregations after this point in time should remain with the CANA congregations.   There are four possible points in time which the Court has considered:  

First, the Court has considered using as a point of demarcation the various points in time when the congregations made varying arrangements to withhold contributions from the Diocese.[FN 84]
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[FN 84]According to CANA, “all of the CANA Congregations curtailed or terminated their donations to the Diocese in response to the actions of the denomination at its 2003 General Convention.” (CANA Brief #1A at 159.)   Congregants were given the opportunity to designate that no portion of their title should go to the Diocese; or the congregation stopped giving money to the Diocese entirely; or the congregation established a congregation only fund.  Id. at fn. 120.
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Putting aside the accounting difficulties in applying these various dates to the various circumstances, and whether it would even be possible to account for the individual choices of parishioners where they were given the opportunity to designate, there is a much more dispositive  objection to using this as the point of demarcation:  Whatever may have been the level of discord and disenchantment with TEC and the Diocese, each of the seven churches in 2003, 2004, 2005, and through most of 2006 remained Episcopal churches, constituent members of the Diocese and TEC.  

Second, the Court has considered using as the point of demarcation the date upon which each of the CANA Congregation voted to disaffiliate pursuant to §57-9(A)(December 2006-January 2007).   (Alternatively, the Court could use the date when each congregation filed its §57-9(A) petition.) Here, too, there are significant problems:  first, it has now been conclusively determined that §57-9(A) is inapplicable to these proceedings; second, it is not the act of taking a vote, or even the filing of a petition, that renders a decision to affiliate with a different denomination final and conclusive – rather it is the Court‟s approval of the petition.   That did not come until January 8, 2009, and in any event was reversed by the Virginia Supreme Court. 

Third, the Court has considered using as the point of demarcation the Diocese‟s January 22, 2007 Notice of Inhibition, or January 22, 2007 resolution determining the properties to have been abandoned, or the August 1, 2007 Notice of Removal.   While arguments could be made in support of each of these dates, especially the January 22, 2007 resolution declaring the properties to be abandoned, they do not have the public notice character of the fourth possibility, which is the one this Court adopts. 

This fourth possibility, which this Court adopts as the point of demarcation, is the filing date of the Declaratory Judgment actions by the Diocese against each congregation on either January 31, 2007 (involving five of the congregations) or February 1, 2007 (involving the two remaining congregations).    

After this date, no contribution made, no donation made, no dues paid by a congregant, could reasonably have been made with the understanding that the money was going to Episcopal congregations.   (While the seven churches, for the reasons stated in this opinion, never lost their character as Episcopal churches, the Court‟s focus here is on the actions taken by – and the Declaratory Judgment actions filed against – the CANA congregations.) 

Therefore, the Court orders that all personal property acquired by the congregations before January 31, 2007 or February 1, 2007 (depending on the congregation) shall be conveyed to the Diocese and all liquid personal property (e.g., contributions and donations of money) acquired after these dates shall remain with the CANA Congregations.   As to tangible personal property acquired by the CANA Congregations after these dates, they shall be conveyed to the Diocese unless the CANA Congregations can establish that they were purchased solely with funds acquired after these dates or were donated to the CANA Congregations after these dates.[FN 85]
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[FN 85] As to the argument that the CANA Congregations should not have to convey to the Diocese funds on hand as of January 31, 2007 because such funds were used to maintain the church facilities since then, the Court would note the obvious fact that the CANA Congregation had the use of the property since that point in time as well.
______________________

TEC and the Diocese seek an accounting as part of their requested relief.   To the extent an accounting is necessary to implement the Court‟s orders, an accounting is ordered.

TEC and the Diocese are to prepare and submit a proposed final order within 45 days of the issuance of this Letter Opinion, affording the CANA Congregations a reasonable opportunity to note their exceptions.   If either party believes a hearing is necessary regarding the terms of the Final Order, they should communicate this to the Court, by letter, no later than 30 days from today.

The opinion is remarkable for its exhaustive consideration of every possible Virginia statute and previous case (including an unreported one) that could bear on the issues at stake. Along the way, it notably holds that the Dennis Canon (and its local diocesan equivalent) were ineffective per se to create a trust interest in favor of the diocese or national Church. But the bulk of the opinion appears (on a very quick first read) to be devoted to arriving at the same result (i.e., as if the Dennis Canon and its local equivalent had established a trust) by other means. It reaches its conclusion in favor of ECUSA and its diocese by drawing upon a minutely detailed analysis of the course of conduct between the parishes in question and the former entities over more than a hundred years (and in the case of Falls Church and a few others, for many more years than that -- but in the case of the Church of the Epiphany, on a course of conduct extending for just the first twenty of the last twenty-four years).

In doing so, however, the court ends up equating what it terms a "proprietary and contractual interest" of the diocese in individual parish property to the functional legal equivalent of an express or implied trust in favor of the diocese (and the national Church). And since it recognizes that Virginia law does not allow express or implied trusts in favor of denominations, the marvel is that Judge Bellows can still conclude, by drawing heavily upon his interpretation of a Virginia statute (§ 57-16.1), that the parishes effectively controlled their own properties only for so long as they remained constituent members of the Episcopal Church (USA) -- which is exactly what the Dennis Canon states, in haec verba.

The result is a carefully-crafted holding that appears (at first blush, at any rate) to be insulated against any federal constitutional grounds for overturning it -- unless it can be argued that the "proprietary and contractual interest" which the court found to be decisive is simply the inherent byproduct of being affiliated with what the Virginia Supreme Court already deemed (without any distinctions) to be a "hierarchical church." If that is the net effect of this decision, one has to wonder whether or not Judge Bellows has given the Episcopal Church (USA) an unassailable preference by the back door, and so thereby "established" it as a specially preferred type of church for purposes of resolving property disputes, in violation of the First Amendment.

It will take some time to analyze the opinion more carefully, because Judge Bellows is nothing if not painstaking and thorough. I also have to prepare for a court proceeding of my own tomorrow, and so it may be a day or two before I can publish a full assessment and analysis. Baby Blue has more background and first-person reportage at this post.

Prayers go out to all the congregations affected by this ruling.

The Republican Nomination Process in 2012

Today I start a new category of posts: "Election 2012." Although this is not a political blog, part of its leavening consists of commentary on the contemporary scene -- and that certainly includes politics. And since this will be a decisive election year for our country, I will do my small part to illuminate the various forces which are at work even now, eleven months ahead of the election, to shape our future.

Some disclosures at the outset: I am registered with neither major political party, but vote as an Independent. That being said, I am very much against allowing Barack Obama another four years in which to wreak his particular brand of havoc more than he has already.

As for the current crop of Republican candidates, I have to say I am not yet enthusiastic about any of them. At the same time, one of my most strongly held beliefs is that January or February is way too early to settle upon a candidate who will oppose Obama in November.

To do so simply plays into the media's hands. For make no mistake, the media is desperate to control the outcome of the forthcoming election. And the sooner the Republicans pick a candidate, the sooner the media can send out their legions to pry into every nook and cranny of his or her life -- in a manner they have never inflicted upon Barack Obama -- and never will. That is the scandal of the present-day hacks who populate the "media" in this country.

Thankfully, to counter such blatant partisanship, we have the Internet as an equalizer. On the Internet, the media's gross partisanship is exposed every day, for all to see. Anyone can dissect a so-called "story" or column by E. J. Dionne, or David Brooks, or Paul Krugman -- only those already fully indoctrinated, and who still pay to read those folks in their printed versions, are incapable of perceiving their bias.

And it's not really their bias that I am attacking. Bias I can easily deal with -- as an attorney, I am trained in techniques to expose it, and thereby to neutralize it. All of us, frankly, are biased in some sense -- because it is impossible to make any choices without exercising some bias. So bias, per se, is not the problem.

Instead, the problem is the products of their bias: their opinions, their criticisms, their recommendations as to what should be done. Paul Krugman, for example, is mentally incapable of conceiving a government subsidy which he would actively oppose. And E.J. Dionne is mentally incapable of evaluating objectively anyone who bears the label "Republican" -- just as is Maureen Dowd, or Eleanor Clift, or Jonathan Alter.

I read copiously from a wide spectrum of opinion every day. And given my own bias, I of course prefer those writers with whose opinions or criticisms I most agree. "Even a dog, however, knows the difference between being stumbled over and being kicked," said Oliver Wendell Holmes. And while I see a good deal of stumbling on both the right and the left, it is in the media --mostly populated by the left -- that I am struck by the continual kicking that goes on.

Where but on the left, for example, did we see the criticisms of the Santorums' treatment of their short-lived infant son as "ghoulish"? And where but on the left have we seen the smear pieces proliferate, from Robert Bork and Clarence Thomas all the way down to Newt Gingrich and Herman Cain? No, the left specializes in kicking; it even kicks those who dare to publish hard facts about their own. Rep. Darrell Issa, for example, has done a yeoman's job of exposing the hard facts about Attorney General Eric Holder's "Fast and Furious" gun-running operation, but the only ones who have accused him of "racism", and who otherwise have tried to smear him, have been the left's attack dogs. The rest of us can tell the difference between exposing inconvenient facts for evaluation on their own, and slanting the facts to produce a smear -- just as a dog can tell when he's been kicked.

So I come back to the 2012 Republican primaries. It is not, I humbly suggest, in any Republican's interest to have a clear choice of nominee settled upon before this summer's convention. The sooner a nominee emerges from the pack, the sooner will the attacks, or what I call "the kicking", commence on the left. To be sure, there is a lot of that going on already, but it has been diffused among the eight primary candidates, and has yet to gather any force, or achieve any lasting effect.

And look at how Mitt Romney has largely escaped most of the kicking from the left to date. Herman Cain was sunk after a few outings; Ron Paul, Newt Gingrich, and now Rick Santorum have each suffered in the voting from smears directed their way as each seemed to surge momentarily ahead. But Mitt Romney, who has been at the top of most of the polls from the outset, has largely been immune from the left's attacks -- why is that?

The answer is patent: the left wants to see Republicans select Romney as their candidate, and wants to see it happen as early as possible. They see Romney, with his Mormonism, his backing of universal healthcare as governor of Massachusetts, and his Wall Street ties, as the ideal opponent for Barack Obama to defeat. In the liberal media, the fix is in for Romney in 2012, just as it was in for John McCain in 2008. Better the mincemeat they know they can make from what they are given, than the unknown ingredients of an upstart, or black horse. So fear not -- once Romney (or whoever) becomes the Republican nominee, the gloves will be taken off.

As the coming weeks of the Republican primaries unfold, therefore, I am all for every candidate placing first or second at least once, and preferably several times. That is the only guarantee that Republicans will be able to make a free and unhurried choice at their convention in August. Everyone talks of a "brokered" convention, but that nineteenth-century phenomenon is a dinosaur in these days of the Internet. There will be no smoke-filled back rooms where destines are settled, so long as everyone at the convention has access to the Internet and can report what is going on for instant assessment and reaction.

Therefore I say: bring it on, and let everyone have their day in the sun! A convention with no clear winner at the outset will be a far more effective means of solidifying the opposition to President Obama than will someone who makes it into August so battered and bruised by the kicks they have received in the media that the overall perception they can generate by that point is little better than one of damaged goods.

Meanwhile, back on the hustings -- is anyone for directing a few kicks Obama's way -- without hesitating for fear of being called a racist? (I know, I know -- there will be those who will readily jump on any combination of "kick" and "Obama" in the same sentence as being racist per se. But we have to live with what we have, and Obama is what he is. So get over it, and focus on his policies that need to be attacked for the disasters that they are.)

Whatever criticisms of President Obama are made from the right, no matter how factually based or objective they may be, will never be viewed as anything but "kicking" on the left. So the candidates should not let that reaction deter them. And for heavens' sake, cease letting the media set the goal posts! Today's "debate" in New Hampshire should be the very last one which the media is allowed to stage just so they can try to embarrass the candidates with questions they would never dream of directing at President Obama. Enough already -- nothing productive is gained on either the right or the left by such mismatched spectacles. The gulf between the two sides just gets wider and wider.

Whatever positions and priorities can usefully be staked out in the 2012 campaign at this point will most likely have to be reshaped once we know what the Supreme Court's decision on Obamacare will be. That will not be announced until the end of June, after most of the primaries are over; the Republican convention will begin on August 27. Republicans have more than enough time to choose a candidate wisely and deliberately, without being rushed into it by the media's manipulations. Here's a toast, therefore, to a wide-open field come August!

Big News in Fort Worth

Today the Supreme Court of Texas noted probable jurisdiction over the direct appeal filed by Bishop Jack L. Iker and his diocesan corporation from the summary judgment granted in favor of ECUSA and the rump diocese of Fort Worth a year ago.  (The Texas Supreme Court accepts very few direct appeals from the judgments of trial courts, and there are strict standards which such requests must satisfy.  The Court's  acknowledgment that there is "probable jurisdiction" means that, at this stage of the case, it appears that all of the jurisdictional requirements for a direct appeal are satisfied. By doing so, the Court signals that it will postpone any final decision on whether it in fact does have jurisdiction under the applicable standards to its  eventual disposition of the case. Meanwhile, it will hold oral arguments and deliberate on the case as though it had been an appeal accepted from one of the Courts of Appeal.)

No definite date for oral argument appears to have been set yet. The arguments in the San Angelo case (Church of the Good Shepherd), currently set for February 29, 2012, are the last dates for arguments which the Court currently has scheduled.  Its calendar of arguments for March and April should be published shortly.

Of course, this is huge news for Bishop Iker and his Diocese. First, the Texas Supreme Court accepts the petition for review in the Good Shepherd case, in which it notes that the issues to be decided are as follows:

The principal issues in this property dispute between the diocese and a breakaway congregation are (1) whether in Texas the dispute should be decided by “neutral principles” – using established trust and property law and taking account of deeds, the governing language employed by a local church and the larger denomination – or by “compulsory deference” – determining where church members place ultimate authority over property use and (2) whether the trial court erred by deciding the diocese owns the property.

Now that same Court signals that it will decide also the issue of whether, under "neutral principles," the national Church can impose any kind of trust on the property and assets of one of its member dioceses. Along the way, it will also address the question of whether there is any impediment to the decision of a religious corporation, organized under Texas law, and reached democratically in accordance with its governing documents, to amend those documents so as to dissolve that religious corporation's affiliation with the national Church.

The Court's eventual decision could have ramifications for the similar cases at issue in San Joaquin and Quincy. As soon as I learn more about the date for oral arguments, I will update this post.

[UPDATE 01/06/2012: I have now learned the briefing schedule for addressing the merits of the appeal from Judge Chupp's decision. (The previous briefs addressed only the grounds for taking jurisdiction of the appeal directly, without going through the Court of Appeal.) Bishop Iker's opening brief on the merits is due February 6, 2012. The response by ECUSA and the "Local Episcopal Parties" is due February 27, 2012, and the reply by Bishop Iker is due by March 13, 2012. This schedule means that oral arguments will probably not be held before May or June 2012, and by then we should know what the Court decided in the San Angelo case.

The rump diocese has published its view of the Supreme Court's action at this link; the statement from Bishop Iker and his diocese may be read here. It is most interesting to see how the former group now tries to spin this news in a positive direction -- from its point of view, of course. Thus, the Local Episcopal Parties say:

While the Local Episcopal Parties believe that this case does not fit within the "very limited," "strictly construed" requirements for a direct appeal, we welcome the chance to reach an expedited resolution of this matter.

Is that so -- that they truly welcome the chance to reach an expedited resolution of this matter? Does that now explain, perhaps, why they hired four separate law firms, brought no less than four individual lawsuits in Texas state and federal courts against Bishop Iker, repeatedly filed, withdrew and then amended their motions for summary judgment in the trial court, added in as parties every single one of their parishes and Bishop Iker's parishes, and generally did everything in their power to make the lower court proceedings as complicated and as expensive for everyone as possible? (Please see this page for individual posts chronicling all the gory details.) And is that why they spent so much in legal resources in opposing at every step the direct appeal to the Supreme Court? Such maneuvering seems to this attorney a very strange way to signal your "welcom[ing] the chance to reach an expedited resolution of this matter."

But there is more. The statement by the Local Episcopal Parties goes on to assert:

Judge Chupp’s Order is well-reasoned, correct on the facts and the law, and consistent with the vast majority of cases around the nation – including, in the last months alone, those of the Austin Court of Appeals (Mar. 16, 2011), the Georgia Supreme Court (Nov. 21, 2011), the Pennsylvania Supreme Court (Oct. 17, 2011), and the Connecticut Supreme Court (Oct. 11, 2011). All of these cases stand for the simple proposition that individuals may leave a Church, but they cannot take the Church's property when they leave.

Who writes these things? Don't they realize that there was no decision by Judge Chupp himself, but that he simply threw up his hands and signed the version of the summary judgment order presented to him by ECUSA's and the rump diocese's attorneys -- rather than independently analyze the law and the facts on his own, and without anyone's putting words into his mouth? "Well-reasoned, [and] correct on the facts and the law," indeed. No doubt that is why the Supreme Court of Texas feels that this is one of the very rare cases in which they should grant a direct appeal from the trial court's decision.

And please -- Judge Chupp's "decision" (such as it wasn't) was "consistent with the vast majority of cases around the nation? Including the March 2011 decision by the Austin Court of Appeals which the Texas Supreme Court also recently saw fit to decide to review (the "San Angelo case")? And including the refusal by the Pennsylvania Supreme Court to review the decision from the lower Commonwealth Court -- which was no decision at all by that Supreme Court, but simply an order denying review?

There go two of the four decisions listed as being part of the "vast majority" of decisions "around the nation" which were decided "correct[ly] on the facts and the law." And what about the decisions reported on this blog from Indiana, Louisiana, Missouri, South Carolina, and -- most recently -- Illinois? How do they figure in calculating what the Local Episcopal Parties are pleased to describe as the "vast" majority of cases from around the nation? And why should the independent Texas Supreme Court jump onto an imaginary and selectively constituted bandwagon, that is constructed uniformly out of other state courts' failures to comprehend just what "neutral principles" really means? Is that how you would like a court judging your case to behave?

Notably, of course, it does not bear mentioning that every single one of the cases so cited involved suits between parishes and their dioceses, and not suits between a diocese and the national Church (which is not a separate legal entity in its own right, but is simply the agglomeration of its individual members, acting only when those members gather in a general convention).

But that, of course, is a topic for a separate post. Enough for now -- I hope that even the most jaded of Jefferts-Schorians can see the rose-colored spin being adduced here by those who should most be leery of any notice of their case taken by Texas' highest court.]