Friday, January 6, 2012

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, MissouriSouth 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.]


  1. What a wonderful gift on Epiphany!

  2. Yep, the Episcopal strategy seems to be coming apart at the seams.

  3. There is a case in Nashville, TN which might benefit from such a ruling.

  4. Judge Chupp may not have written the order, but his crossing out those portions of the proposed order supporting the ruling on "neutral principles" grounds is significant.

    (and in Texas it's "Court of Appeal_s_") ;-)

  5. In one sense I agree with you, Paul Powers -- it's almost as though Judge Chupp wanted to present the higher courts with the purest case he could for the old deference standard, and thereby put ECUSA's legal arguments on that score to the test. And for that very reason, the prospects for that point of view are now looking dim in the Texas Supreme Court.

    Thanks for reminding me of the difference, once again, between Texas and California -- the "correction" has been removed.

  6. Dear Mr. Haley,

    I completely agree with your observations concerning the choice of terminology in the statement by the Local Episcopal Parties. My immediate reactions to their quoted comments were:

    (1) that they are engaging in "whistling past the graveyard," and,

    (2) that I was immediately reminded of a quotation attributed to the Rev. Ian Paisley concerning the provision of teeth, but in a different context. Rather than the context of being "cast into outer darkness where there will be weeping and gnashing of teeth," the context suggested to me was one of telling falsehoods through one's teeth. Rev. Paisley's comment was that "for them as haven't any, teeth will be provided."

    I will be neither surprised nor unhappy if the Texas Supreme Court's decision renders Paisley's adage apt with respect to the Local Episcopal Parties—a fate well-deserved by them, IMHO.

    Pax et bonum,
    Keith Töpfer

  7. Who writes these things? People who are trying to convince you that you have lost and that there is no point in trying to contest such "decisions". Typical ECUSA lawyer-speak.

    As far as I know, California is the only place that ECUSA has really won any victories. But, if I recall, no resolution has come down in any of the suits involving the Diocese of San Jaoquin. That would be a case which is comparable to this one.

    Best wishes for a glorious Epiphany to all!