Wednesday, April 18, 2012

Judge Bellows Puts Stay Hearing over to April 27

The following brief announcement appeared today on the Website of the Diocese of Virginia:
Court Declines to Rule on Stay; Will Hear Evidence April 274/18/2012  
The Fairfax Circuit Court heard today the Falls Church Anglican’s motion for a stay to suspend the court’s order until its appeal is decided. The court determined that it has jurisdiction over the matter, and that it could not impose a sharing arrangement on the parties. The court will hear evidence on the factors it must consider on whether to grant the stay at 2 p.m., Friday, April 27.
This statement is too laconic, and does not elaborate on what "impos[ing] a sharing arrangement" would mean. Presumably each side had different proposals for how the property would be used pending the outcome of the appeal, and Judge Bellows decided that he could not force any one side to accept some kind of shared use arrangement in the absence of a mutual agreement. The "evidence" which will be presented at the hearing next Friday will give us a sense of whether the Diocese of Virginia is being more reasonable, or not.

Just two weeks ago, it was complaining to the court that Truro Church had failed to be cooperative in disclosing all of the assets which the Diocese felt should be turned over under the Court's order. The Diocese was saying that Truro owed it "at least" $72,421; Truro was claiming that under the terms of the court's order, the amount was considerably less. And now those parties have announced their settlement of their differences, with Truro agreeing to hand over a round $50,000.00.

The argument which The Falls Church will be making to Judge Bellows may be seen here. From that document, it appears that the parties' current differences to be resolved by the court are as follows:

 1. The Episcopal Diocese first tried to argue that while Judge Bellows had retained jurisdiction to enforce his final judgment, Virginia law gave him no jurisdiction to suspend its operation (issue a "stay") pending an appeal. As we can see from the notice posted, Judge Bellows today resolved that issue in favor of The Falls Church, and held that he did have the jurisdiction to issue a stay.

 2. Next, the Episcopal Diocese argued that Judge Bellows could issue a stay of his judgment only if he determined that The Falls Church had a "probability of success" on its proposed appeal to the Virginia Supreme Court. This was overreaching by the Diocese. Not only does such a requirement not apply to the issuance of a stay (it is rather a requirement for the issuance of a preliminary injunction, commanding someone not to do something while the court sorts things out), but it would require Judge Bellows to engage in a surreal type of prognostication, and predict the likelihood that the current Virginia Supreme Court would exercise its discretion to hear an appeal. (In Virginia, there is no automatic right of appeal in civil cases. Such appeals are heard only by the Virginia Supreme Court, and it does not have to accept an appeal from the lower court unless it wants to hear and resolve the issue(s) involved.) I anticipate that Judge Bellows will give this argument short shrift, as well.

 3. The big argument is, of course, over the property. In the case of The Falls Church, the amount of funds on hand as of early 2007 that must be handed over pursuant to Judge Bellows' final order is very substantial -- the reply brief submitted by the Church admits to an amount of about $2,720,000.00. The Falls Church has offered to pay this amount into the registry of the Court, together with interest on it for nine months at the rate of six percent. In addition, The Falls Church has offered to pay for the mortgage and upkeep on all of the property pending the appeal, as the price of occupying it during that time period.

When the Episcopal congregation in Falls Church objected that they would have to continue to pay $750 per month to the Presbyterian Church if they could not occupy the property pending the appeal, The Falls Church offered to reimburse it for that sum as well. Not satisfied with that offer, the Episcopal Diocese wants The Falls Church to pay it "rent" on top of its paying for the mortgage and all expenses of upkeep -- even though, were the Anglican congregation to become a simple lessee of the property, it would be the Diocese that would have to pay the mortgage and similar expenses.

But the Diocese wants to have its cake and eat it, too -- it wants The Falls Church to pay it an amount in rent equivalent to all the mortgage and upkeep expenses, and then to pay for those expenses directly, as well -- thereby allowing the Diocese to pocket a tidy sum each month without having to use that money to defray the expenses of the property. (And this is the outfit which Bishop Johnston is trying to portray as being the very soul of Christian reasonableness towards its "brothers in Christ".)

Understandably, the Anglican congregation rejects that outlandish proposal in its reply papers, linked above. But what is more, The Falls Church rejects a further proposal by the Episcopal Diocese that it share the premises with the much smaller remnant congregation while it is paying all that extra rent. In answer to that proposal, The Falls Church (Anglican) wrote in its reply brief (p.11):
Second, the Diocese proposes that TFCE [the Episcopal remnant congregation] have regular use of the Historic Church and related offices. TFCA [the Anglican congregation] opposes this proposal. Throughout this litigation, it has been clear that fundamental differences in theology and the teaching of Scripture have developed between the Diocese/TEC and TFCA. These differences have led the members of TFCA to the agonizing decision to sever the affiliation with the Diocese and TEC. Both sides have recognized the importance of a complete break to avoid confusion among the public. Thus, the Diocese and TEC have insisted that TFCA not use any name, websites, signage or other media which suggests some continuing connection between TFCA and them. TFCA believes that regular, dual services at the property would lead to confusion among parishioners who would have to decide which door to enter. In addition, TFCA regularly uses the Historic Church and needs that space.
The reply brief attaches the latest annual report of the Episcopal remnant congregation as an exhibit, and it is very telling. While some 3,250 Anglicans attended Easter services at The Falls Church two weeks ago, the Episcopal parish's report shows that it has a total membership of exactly 178 as of the end of 2010, and that its total annual budget has income of $233,641, but expenses of $249,306 (i.e., it is out-of-balance by some $16,000). That is less than what has to be paid each year just to keep up the property -- let alone pay for salaries, insurance, retirement benefits and all the other expenses of operating a full-time parish.

But that reality does not stop the Episcopal Diocese from asking Judge Bellows to let it have every conceivable benefit from its victory, pending the appeal. Instead of settling simply the amount of the appeal bond, stipulating to a stay and allowing the appeal to go forward (or not, as the Virginia Supreme Court decides), Bishop Johnston and his Diocese are continuing to pay their attorneys to oppose the Anglicans in court every step of the way, by every argument imaginable, whether meritorious or not.

This church chancellor, for one, hopes that Judge Bellows is beginning to see the monster which his decision has unleashed.


  1. So if the Episcopal Church prevails. Who owns the property and gets the money? IS it (a) the new tiny and broke episcoplal congregation (b) the Diocese of Virginia with its assive legall bills to pay or (c) TEC at 815 who are also deeply in debt and scrambling for every dollar?

  2. AFiM, thanks for your question. The lawsuit against TFC was initially brought by the Diocese of Virginia and not by the remnant congregation, so it will be the Diocese which ends up with the property if TFC loses its appeal. The national Church (ECUSA) also intervened in the lawsuits, but as a common-law association of dioceses, it cannot take title to any property (particularly in Virginia) in its own name, and so it will defer to the Diocese.

  3. This is probably not a particularly Christian reaction, but a small part of me wishes that in this situation, if it is determined that the Diocese is going to prevail, the TFCA could legally use the cash at risk in the case to make "improvements" to the physical plant which would not increase the market value of same. Thereby depriving the thieves of the value of some of their takings. May God have mercy on me for wishing for poetic (human) justice.

    Pax et bonum,
    Keith Töpfer

  4. The people at Falls Church really need our prayers.