Saturday, January 14, 2012

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.



  1. Episcopalians would be best advised by their bishops to hold on to their wallets, which is exactly what is going to happen after GC 2012.

  2. Except for South Carolina -- they own their property and their bishop made sure of that!

  3. Great report, A.S. Haley! You do good work. Thanks. I've linked to this at Ethics Forum.

    The downward spiral of TEC may be reaching bottom. GS 2012 will be more of the same, nothing new. The media will have to stretch to find something new there. TEC's leadership has hurt so many people. The karma is very heavy and while I don't believe in karma, I do believe what goes around comes around, eventually. The prophets of the Old Testament would probably express it this way: TEC's offering stinks of death before the throne of God.

  4. Actually the SC Supreme Court made sure of that but what our Diocesan Chancellor did (i.e. the quit claim deeds) was just the "in case" suspenders to the belt already provided by the Supreme Court ruling.

  5. What do you think the chances are that this matter could be settled in mediation with the Anglican congregations "buying back" their property from the Diocese? Perhaps with the threat of further appeals and costly litigation, a fair price could be had.

  6. I can't understand how the Judge can say that a Presbyterian church is hierarchical?

    He obviously did not take a good look at the various Presbyterian denomination's Books of Order.

  7. Mr. Haley,
    I believe that there is a fundamental error in your logic. I was a member of an evangelical church in TEC and have been rooting for the conservatives. However, I always knew for the 18 years of membership in TEC that it is a hierarchical church. It is after all called the Episcopal Church which means a church governed by Bishops. A congregational church is ruled by the congregation. A presbyterian church is ruled by the presbytery. This is basic church governance.

    The Va dispute is between a Diocese and a parish. You may have an argument about diocese versus national convention, but there can be no dispute that the diocese trumps the parish in episcopal churches.
    You then cede that the Bishop has spiritual authority over the clergy, but state that he does not have control over the property. As is obvious to the Falls church conservatives now, control of the property is an essential element of power. A bishop who does not control parish property has much less power over a parish then one who does. The episcopal system is the rule of bishops. To rule the bishops need power. To have power they must control the property. Thus, in a church ruled by bishops, the bishops must control parish property. If you don't agree with that join a congregational church.
    Even if your technical argument about the cannon law would lead to the conclusion that parishes control property, you have to realize that most courts will not see it your way, just as j bellows did not. I have done litigation work and I know that judges do not make decisions by considering technical and counter gut justice arguments like yours. Sadly, conservatives in these property battles must face the fact that most judges are going to view TEC as a hierarchical church and find persuasive that conservatives held themselves out as part of this club for many years. Having called themselves Episcopalian (rule by bishops not congreagationalists) and remained members of the club that passed the Dennis Cannon, they can't at this late hour change the rules of the game to benefit themselves. Any good lawyer would tell them that going into litigation. You may have some good technical arguments, but you would be misleading your client if you told them they have a good chance of prevailing in these in episcopal church property disputes. The scorecard so far proves my point. I wish it were not so. I wish my friends could keep their property. I worshipped at the Falls Church and they are good people. It is the height of results oriented jurisprudence to argue that they should get the property because they will do the most good with it.
    I have heard Bishop Duncan give false encouragement to conservatives about their chances of prevailing in property disputes and you have done the same. Its time to come out of denial and face the fact that the conservatives face a very uphill battle to win these property case. My former parish will probably join the litigation here shortly. I hope and pray they have lawyers who tell them that even though the deed is in the name of the parish and Mr. Haley might supply some great technical arguments, they should plan as if they have a good chance of losing.

  8. ordinary, thank you for taking the time to post your views of church law. You do an excellent job of presenting the Episcopal party line, which is too Machiavellian for my taste when it comes to matters of property. We agree that a bishop's relations to the clergy are hierarchical, but then clergy suing their bishops have never gotten anywhere in the courts, and I would never contend that the law should be otherwise. A vow of obedience in all things spiritual is a vow, and cannot be adjusted or interfered with by the secular courts.

    The same reasoning was applied by the U.S. Supreme Court, in Watson v. Jones, to a church property dispute. Courts which follow that line of authority draw the distinction between "hierarchical" and "congregational" churches to which you refer -- but stop and think for a moment. The Watson reasoning entails deference to the "highest adjudicatory body within a hierarchical church." And what, pray tell, is the highest adjudicatory body in ECUSA for resolving disputes over the ownership of property? There is none -- not one.

    Under the later standard of neutral principles of law, there is no need for any distinction between types of churches, because they are all judged by the same neutral principles. Does the Diocese own an equitable interest in a parish's property, such that the parish cannot dedicate it to the use of a different denomination? Fine, then let that interest be legally conveyed by the parish to the Diocese in a recorded deed of trust, so that all the world has notice of it. But don't try to tell me that expressing the "trust" in a church canon constitutes putting the trust into a "legally cognizable form."

    You may be content with sloppy, follow-the-crowd judicial reasoning, but such reasoning inspires no loyalty in my mind. My arguments are not "technical"; they are black-letter trust law, grounded in the statute of frauds which has been with us since 1657. In your Machiavellian view, the unwritten "power" of a bishop trumps the statute of frauds. Well, not in mine.

  9. Mr. Haley,
    As I said I am personally a conservative. I was on the vestry of a very conservative parish. Many of my very good friends are still members of a conservative ACNA parish. I very much want them to win. So, no I am not spewing the TEC line because I have drunk the TEC koolaid.
    You may be deluded by your own considerable intellect (I mean that I am not being sarcastic) to have a realistic assessment of these cases.

    As you practically admit, J bellows bought the TEC line. In fact what is the score now? How many courts have followed your argument? You cant separate the spiritual from the secular. Power is power. If bishops are to have power, they have to control the property.
    J bellows and Judge james in Pittsburgh (a light weight judge I practiced before him) have both implicitly ruled that the TEC has declared who are the true Episcopalians.
    My point is you could almost convince me of your technical arguments, but the reality is most judges will not buy them. Read judge james opinion in B Duncans case. He assumes the TEC diocese is the true TEC diocese because it follows the doctrine and discipline of the TEC. Yes, you have good arguments about the corporate technicalities, and If I were the judge I would rule in your favor.
    The problem is we don't get to litigate in a court system that should follow the correct interpretation. we litigate in the real world where everyone thinks TEC is hiearchical and you wont get too far challenging the dennis cannon 31 years later after having lived with it that long. Try getting a preliminary injunction against a departing employee to prevent irreparable harm 6 months after the employee left and you will be laughed out of court for waiting so long and then crying immanent harm.

    The Va conservatives have excellent lawyers. I worked with stephen johnson in the bush administration. Despite excellent work, they could not convince the fair minded j bellows (he did rule in their favor on the statute so he must not be a biased hack) of your arguments.
    At the end of the day the gut equities of the nature of the church and playing by the club rules, will prevail over your technical arguments.
    If you and the conservatives continue to live in denial about what the courts will actually do, more money will be wasted on legal fees in a hopeless cause.
    I say again Mr Haley what is the actual score in this battle. How many courts have bought your argument? Please tell me how many?

  10. ordinary, thank you again for clarifying your views, and for sharing some of your personal experiences. However, I never cast any aspersions on your conservative fides, or accused you of "spewing" the ECUSA line -- I said only that you presented it accurately.

    Then, of course, I went on to express my dissatisfactions with how the ECUSA line squares with traditional law -- and so you come back at me again for making what you call "technical" arguments. If traditional law, with us since 1657, is now to be regarded as just "technical" details that get in the way of "gut" decisions, then I plead guilty of being "technical", and indeed, of preferring the technical which my mind tells me has always been the law over what my gut may tell me about what a judge is or is not likely to do in a given case, depending on what he had for breakfast, or on how he feels about engaging in honest (to you, "technical") analysis that morning.

    (How many people in Virginia claimed that Judge Bellows was following his "gut" when he read Section 57-9 in CANA's favor the first time around -- or that the Virginia Supreme Court was following its collective "gut" when they reversed him? "Gut feelings" are hardly the jurisprudential equivalent of a ratio decidendi.)

    You ask for a tally of the cases on both sides, and I am preparing a post which will give you just that. The score is by no means as one-sided as you seem to assume, let me tell you. If we count just State supreme and appellate courts, then Virginia does not yet enter into the tally, because the earlier decision simply came down for "neutral principles", and not in favor of a church because it was regarded as "hierarchical."

    Against the decisions upholding the Dennis Canon in New York, California, Georgia, Connecticut, New Jersey, Pennsylvania, Colorado and North Carolina, I can cite decisions in not only South Carolina, but also Louisiana, Kentucky, New Hampshire, Missouri, and soon (I expect) in Indiana. So, what is that -- 8 to 6? Hardly the sweeping unanimity that you imply is the case -- just a lot, as I say, of sloppy, "follow-the-crowd and don't think for yourself" cases among the 8, and quite a number of independent and thoughtfully reasoned cases among the 6, who dare to not follow the crowd.

    Please watch for my post dealing with the most recent decision in Missouri, and then you will have the details of the current lineup.