ECUSA: Hollow Gains, Pointless Losses

The end of the week brought two three pieces of news on the Church litigation front. In the first, the trial judge in the litigation over the property of the Diocese of Quincy issued an order requiring the Episcopal Church (USA) immediately to pay $18,000 to the Anglican Diocese in sanctions for the needless costs caused by ECUSA's first filing, then later withdrawing and resubmitting, its papers for summary judgment -- a motion which eventually the court denied.

One can tell, from reading Judge Ortbal's order in the Quincy action, that he was seriously displeased with the conduct of ECUSA's counsel which led to the imposition of sanctions:

5. In setting the scheduling and deadlines for the Motion for Summary Judgment Plaintiffs advised that they intended to file motions to strike directed to the affidavits filed in support ofTEC's Motion for Summary Judgment. 

6. Plaintiffs requested that their response to the Summary Judgment Motion be deferred until any hearing and ruling on their proposed motions to strike was concluded, given the number, length and volume ofTEC's supporting affidavits and based upon their intention to have their retained expert respond specifically to each statement, claim and opinion of TEC' s opinion witness affidavits. 

7. TEC objected to deferring the deadline for the Plaintiffs' response to their Summary Judgment Motion...   

8. Over the objections of Plaintiffs, the court accepted the proposed deadline of TEC and Plaintiffs were ordered to file their response to the TEC's Motion for Summary Judgment on the same date as TEC's deadline for responding to any motions to strike affidavits, that being on or before June 6, 2011. 

9. On June 1, 2011, TEC, without leave of court, sent correspondence to the court and counsel advising they were "withdrawing" certain affidavits filed in support of their Motion for Summary Judgment, a copy of which correspondence is attached to this Order as Exhibit A.

So ECUSA's (TEC's) attorneys "withdrew" their voluminous affidavits rather than respond to plaintiffs' motion to strike them -- but they had previously insisted that Quincy's attorneys had to respond to their entire motion -- including Quincy's affidavits prepared to counter the ones ECUSA had submitted. Then, having seen Quincy's affidavits in response, the ECUSA attorneys filed new affidavits (not including, this time, any affidavit by their retained expert Prof. Mullin), which required Quincy to throw out everything they had rushed to get ready, and to start over.  The judge quite properly has now ordered ECUSA to reimburse Quincy for the expert fees and attorneys' fees it incurred in responding to the motion they unilaterally withdrew at the last minute.  

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In the second piece of news, a Tennessee appeals court justice, after working on it for more than a year, issued a long, rambling and ultimately meaningless opinion affirming the equally confused opinion of a Nashville trial court chancellor, which awarded all of the real and personal property of St. Andrew's Anglican Parish to the Diocese of Tennessee and its bishop, the Rt. Rev. John C. Bauerschmidt.

The victory in Nashville is another case of the Episcopal Church playing the role of the dog in the manger. There is no "remnant parish" waiting to fill the pews at St. Andrew's, once the Anglican congregation leaves; St. Andrew's had been an orthodox, Anglo-Catholic parish in the Diocese from its formation until it transferred to the Anglican Diocese of Quincy in 2006. Bishop Bauerschmidt and his Diocese must have brought their lawsuit because of the value of the parish's real estate, estimated at around $3 million in burgeoning Nashville. At the hearing held to establish the amount of the bond to be posted for the appeal, the bishop's attorneys had claimed that they could rent the property out for as much as $12,500 per month. Well, now they will have their chance.

The opinion by Presiding Justice Patricia Cottrell of the Court of Appeals rambles on for twenty pages before finally adopting the rationale of the recent decision by the Connecticut Supreme Court in the appeal of the Bishop Seabury parish: the Dennis Canon trumps state trust law, and because the Episcopal Church is "hierarchical", it can create trusts by fiat whenever it wants to. Along the way, Justice Cottrell sweeps under the rug the fact that St. Andrew's parish had changed its corporate articles in 1978 to remove its accession to the constitutions and canons of ECUSA and the Diocese. That was a year before General Convention appears to have enacted the Dennis Canon (there is no way of conclusively proving that it did so).

The fact that the parish had withdrawn its consent to be governed by Episcopal canons a year before the Church tried to impose a trust on all parish properties everywhere made no difference to the Court of Appeal. Just the very fact of continuing to stay in the Diocese of Tennessee was enough to override the parish's attempt to keep its land free of any trust, although the opinion does not even acknowledge that attempt:

While the Trust Canon, or Dennis Canon, was adopted after the Property was transferred to St. Andrew’s, when the congregation decided to associate with The Episcopal Church and the Diocese in 1960, and when St. Andrew’s filed their Articles of Incorporation in 1966, the parish agreed to be bound by the constitution and canons of The Episcopal Church and the Diocese. St. Andrew’s remained a parish within The Episcopal Church and the Diocese long after the Dennis Cannon was adopted by the Church’s governing body. [Op. at 18.]

This is just one blatant example of how Justice Cottrell simply ignores inconvenient facts, and proceeds as if they were not there. (She notes the fact of the amendment at page 7 of her opinion, but does not discuss its significance after that.) She also brushes off the contrary views of St. Andrew's experts who testified that the Episcopal Church does not have a hierarchical structure:

St. Andrew’s contends that it created a genuine issue of material fact concerning whether The Episcopal Church is hierarchical for temporal matters, including property disputes. St. Andrew’s submitted an affidavit by a former bishop of a diocese in Illinois, an affidavit by a board member of a diocese in Florida, and a document entitled Bishops’ Statement on the Polity of The Episcopal Church (the “Bishops’ Statement”). The former bishop stated that The Episcopal Church is not hierarchical for any purpose. The board member opined that The Episcopal Church is not hierarchical for “the issues in this dispute.” The Bishops’ Statement is dated April 18, 2009, and appears to be authored by fifteen or so bishops and former bishops, but does not appear to be sanctioned by The Episcopal Church or the General Convention. The Bishops’ Statement suggests, inter alia, that The Episcopal Church is a voluntary association of equal dioceses.  

The affidavits St. Andrew’s offered do not create a disputed issue of material fact because the affiants were simply offering their opinions and interpretations of the constitutions and canons, not facts....

Ultimately, her opinion is so self-contradictory as to render it meaningless for anyone to use as a precedent. Justice Cottrell spends half of her opinion explaining the precedents which hold that while civil courts may not decide religious questions, they may decide religious property disputes if they can do so without making an extensive inquiry into religious doctrine or polity. (The same point was made at some length at pp. 3-14 in the amicus brief filed last week in the Fort Worth case by the Communion Partner bishops and the Anglican Communion Institute.) But then, having established that point with page after page of citation to precedent, look at how she flatly contradicts herself on the question of ECUSA's hierarchical structure:

The constitutions and canons, as well as St. Andrew’s filings and Articles of Association, speak for themselves and are determinative of the issue. As discussed earlier in this opinion, when resolving disputes involving hierarchical churches, the courts will defer to the highest church authority on questions of church governance. In such situations, the courts “are bound to look at the fact that the local congregation is itself but a member of a much larger and more important religious organization, and is under its government and control, and is bound by its orders and judgments.” Watson v. Jones, 80 U.S. at 726-27. We think that includes interpretation of church governing documents and interpretation of the basic organization of the church. Consequently, we cannot conclude that there is a factual question regarding the organization and governance of The Episcopal Church and will not inquire into it.

Well, which is it, Justice Cottrell? Are you precluded from making a factual inquiry into the hierarchical nature of ECUSA because to do so would involve you to an impermissible degree with the "interpretation of church governing documents and interpretation of the basic organization of the church"?

Or do the constitution and canons of the church "speak for themselves" -- even though, as pointed out in the ACI's Fort Worth brief,

. . . there is no explicit language in The Episcopal Church’s governing constitution identifying in express legal terms of hierarchy or supremacy any central body or office allegedly superior to the diocesan bishop [footnote omitted]. Indeed, none of the following terms routinely used in legal documents to indicate hierarchical priority is found at all in The Episcopal Church constitution: “supreme”; “supremacy”; “highest”; “hierarchical”; “subordinate”; “sole”; “preempt”; and “final.”

If you are ruling out all factual inquiry into the structure of the Episcopal Church (USA), Justice Cottrell, then you are saying that the First Amendment prohibits your court from doing what ECUSA itself has asked the Texas Supreme Court to do, by submitting "a 70-page affidavit by an expert witness on TEC history accompanied by an affidavit from a church archivist sponsoring 700 pages of historical documents spanning over 200 years."

But at the same time, if you have concluded that the Church's governing documents "speak for themselves" and say that the Church is "hierarchical," because that is how they have been interpreted by "the highest church authority on questions of church governance", then of what "highest authority" are you speaking, Justice Cottrell? And how can you determine just what the "highest authority" in ECUSA actually is without first examining its structure to see whether it really is hierarchical?

Perhaps the reason it took so long for Justice Cottrell to write her opinion is that she was so confused by the issues she tries to address. If that is the case, however, it is manifest that she remains as confused as ever -- and her two silent partners on the bench have done nothing to help her. All they did was join their names to her successful essay at self-refutation.


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Finally, the third piece of Episcopal litigation news is that late Friday evening, Judge Bellows signed an order denying the motion for a stay from his earlier judgment requested by The Falls Church, to take effect pending its appeal of that decision.Had it been granted, the stay would have prevented TFC from having to turn over to the Episcopal Diocese of Virginia all of its property by next Tuesday, and to vacate its premises completely by May 15. Apparently Judge Bellows stayed at the courthouse late while the two sides tried to negotiate an arrangement which would have allowed TFC Anglican congregation to remain on the property pending the appeal. (In an earlier ruling, Judge Bellows had signaled that he lacked the power to force any such arrangement on the parties; they would have to reach one voluntarily, if at all.)

This development will entail a massive disruption in the operations of TFC Anglican. It is not known what back-up plans they have in readiness; they could perhaps ask the Virginia Supreme Court for an emergency stay. If they do move out next week, it is equally unclear how the Diocese of Virginia plans to use the extensive facilities. The Episcopal congregation which is waiting to occupy the property is a fraction of the size of the Anglican congregation, and will most likely require a sizeable subsidy from the Diocese to be able to pay for its upkeep in addition to their own expenses.

Thus, whether or not another chapter of "The Dog in the Manger" is about to play itself out will shortly  be seen. This development will put the credibility of Bishop Johnston and his Diocese on the line. He has made several public statements to the effect that his Diocese is prepared to take charge of all of the former parishes' properties -- and now it will be assuming responsibility for the last and largest of them. If the properties end up being sold to strangers, whether in other denominations or in different lines of business entirely, then all of the talk about "keeping the property for future Episcopalians" will ring as hollow as the dog's barking in the manger.