Fort Worth Files Its Opening Brief

The Episcopal Diocese of Fort Worth, along with Bishop Jack L. Iker, his Diocesan corporation and its trustees, and forty-three congregations have filed their opening brief in the Texas Supreme Court (the brief and the appendices may be downloaded at the link). The brief is very well written, and extremely readable; I commend it both to legal and lay minds alike.  The statement of facts begins as follows (footnotes omitted):

This is the largest church property dispute in the history of Texas. The suit involves control of property rather than title: all parties agree the Corporation holds legal title, but they disagree whose representatives are entitled to sit on its Board of Trustees. The facts are undisputed; the only question is whether the case is governed by: (A) the Corporation’s articles of incorporation, by-laws, and applicable state laws, or (B) documents and opinions about the structure, practices, and beliefs of the churches involved.

The description of the controversy and how it came to its present posture is clear and succinct (again, all footnote references to the record are omitted):

The Controversy. In recent years, many in the Diocese believed that TEC’s actions reflected “a substantial departure from the biblical and historic faith.” Accordingly, in 2007 an amendment was offered to remove references to TEC from the Diocese’s Constitution. At that year’s Diocesan Convention, a huge majority (83% of clergy, 77% of lay delegates) voted to adopt the changes. At a second convention in 2008 (as required to amend the Diocese’s Constitution),the changes were approved by similar majorities (79% of clergy, 80% of lay delegates) and went into effect.  

The Diocese Attempts Conciliation. Recognizing that a handful of churches dissented, the Diocese adopted procedures for an amicable separation. In February 2009, the Corporation transferred property to three parishes who withdrew from affiliation with the Diocese. These transfers were granted not as a matter of right, but to avoid litigation and reach a peaceful settlement.  

TEC Files Suit. TEC soon put an end to conciliation. On April 14, 2009, this suit was filed by TEC and 36 individuals drawn from the minority who lost the 2007 and 2008 Convention votes and had withdrawn from the Diocese. The Plaintiffs demanded turnover of more than 60 churches in the Diocese, including 49 churches in which not a single member was willing to appear as a representative Plaintiff. All told, the contested properties have an insured value in excess of $100 million dollars.

And here is the summary of the argument, in its entirety:

If Texas follows the Neutral Principles approach in church property disputes (like almost every other state), the trial court granted the wrong motion. Neutral Principles have been used by Texas appellate courts for some years with no problem. The approach has numerous advantages over the Deference approach urged by the Plaintiffs, including disentanglement from issues about church government in favor of the same laws that apply to all other cases. The Deference approach may also create problems with the Texas Constitution, which bars any preferences in the treatment of one form of religion over another. 

All the property at issue here is owned by the Corporation. Texas corporate law provides that the election and removal of corporate officers must be governed by the entity’s articles of incorporation and by-laws. The Defendant Trustees were elected according to the Corporation’s charter provisions; the Plaintiffs’ ersatz replacements were not. 

Similarly, Texas law provides that the election and removal of officers in unincorporated associations must be governed by the association’s own rules. The Diocese elected Bishop Iker according to diocese rules; the Plaintiffs did not. Under Jones v. Maples, Texas courts cannot decide which bishop can baptize or preach, but must decide which one sits on the Corporation’s board that controls its property. 

Texas law requires that any trust concerning realty must be written and signed by the settlor. TEC has no trust interest in this property because it contributed nothing to create it, and has no trust instrument signed by anyone who did. Texas law also makes all trusts revocable unless they expressly state otherwise, which no trust alleged by the Plaintiffs does. So even assuming a trust for TEC ever existed, it was revoked in 1989 by express act of the Diocese. 

Finally, the corporate amendments of which the Plaintiffs complain are irrelevant to the property issues involved here. The Corporation had the right to amend its charters under Texas law, and none of the amendments challenged by the Plaintiffs deprived the Plaintiffs of anything. 

The trial court disregarded all these statutes on the ground that this Court’s 1909 opinion in Brown v. Clark required that Texas courts must enforce whatever TEC commands. This Court should correct that error.

The brief thus frames a classic case under State law, and asks the Court to apply that law under the doctrine of "neutral principles" to reverse the summary judgment granted by Judge Chupp to the Episcopal Church (USA) and its rump diocese, and to enter judgment instead in favor of the Iker parties.

The ECUSA parties are due to file their respondents' brief by February 27. What will they argue? They first will contend that the Texas Supreme Court should follow its 1909 holding in Brown v. Clark, and defer to its demands because it is "hierarchical." The only problem is that the national Church is no more hierarchical with respect to its member dioceses than the United Nations is "hierarchical" with respect to its member nations. All of the case law thus far about the "hierarchical" character of the Episcopal Church (USA) developed out of disputes between dioceses and their parishes, or between bishops and their clergy. What is characteristic of those relationships is not characteristic of the relations among dioceses themselves.

If, instead, ECUSA tries to argue "neutral principles," it will be a non-starter. Long ago, in oral argument before Judge Chupp at the outset of the case, ECUSA's attorney made (as he had to) a huge concession (bold emphasis added):

THE COURT [Judge Chupp]: Yeah, but, I mean, you're still talking about a body that voted to do something, and they voted something that you didn't like. And what I've got to figure out is, I guess, did they have the -- obviously, they have the authority to do that. They can vote and do what they want to do, that group of people. I -- well, I say that, I don't see where it says they can't.  

MR. NELSON: . . . And you're absolutely right, there isn't anything in there that says that specifically, nevertheless, the Courts have held that they cannot leave.

That last bit about the courts' rulings "that they cannot leave" was referring, as noted, to parishes, not dioceses. There is not a single adjudicated case on the books yet which reads ECUSA's Constitution to provide that member Dioceses may not withdraw from the Church -- just as the southern Dioceses did after the start of the Civil War. ECUSA's Constitution is utterly silent on the point, and it would contradict the nature of a voluntary association to read it otherwise.

Once ECUSA files its brief, Bishop Iker's diocese will file its reply by March 13, and then -- probably in the fall, but perhaps earlier, the Court will hear oral arguments from the parties. Look for a final and definitive decision from the Court by the end of this year.