More Hollow Gains, Apparently

This story just broke in the Los Angeles Times: "Episcopal Church is rightful owner of properties, court rules". At this point, I have no more information than what the story conveys -- that an Orange County judge has granted summary judgment in favor of the Diocese of Los Angeles and ECUSA against St. David's Anglican parish, in North Hollywood, and against All Saints Anglican parish in Long Beach.

My previous understanding had been that the trials in these cases were trailing the resolution of the principal case of Diocese of Los Angeles vs. St. James Parish [of Newport Beach], but apparently no longer. The latter case has still to be resolved, while now summary judgments have been entered in the two other Diocese of Los Angeles lawsuits over church properties.

There is a complicating issue involved in the St. James case -- one that doubtless prevented it, too, from falling to a judge's gavel on summary judgment. And that is the issue of waiver. For when St. James planned to add to its facilities, and had secured a substantial donation to enable purchase of the property and construction on it, the donor insisted that St. James first obtain from the Diocese a waiver of the Dennis Canon. That waiver, signed by then-Canon to the Ordinary (and "Attorney-in-Fact" for the Bishop) D. Bruce MacPherson, was duly delivered (see Exhibit A, at p. 11), and the donor made good on his promise.

I am troubled by these paragraphs in the article:

In filing its motion for summary judgment in the cases involving St. David's and All Saints, the Episcopal Church contended that a ruling should be issued based on the 2009 Supreme Court decision, said John Shiner, lead counsel for the diocese.  

"I was very pleased with the ruling today," Shiner said. "The court followed the precedent set by the California Supreme Court and other appellate decisions, which we have always felt are relevant to our current disputes."

The ruling by the California Supreme Court was a ruling on St. James' demurrer to ECUSA's complaint against that parish. The courts are required on a demurrer (a defendant's challenge to the legal adequacy of a complaint) to regard all allegations in the complaint as literally true -- but only for purposes of determining if the complaint states a claim which a court may redress. If the complaint is found adequate, the defendant then answers it by denying its key allegations, and the parties are left to their proofs, according to their respective evidence. The one who carries the burden of proof as to conflicting evidence is the one who wins -- in a civil case.

Thus the California Supreme Court's ruling in 2009 was not a ruling based on facts found after a contested trial. It was a ruling which took the allegations of ECUSA's complaint (including its Dennis Canon) as having been established, for purposes only of the demurrer. Thus its holding said, in effect, "If the plaintiff ECUSA can prove that all its allegations are true, then California law would say that it becomes the owner of the parish property when the latter leaves its jurisdiction."

For ECUSA and the Diocese of Los Angeles to have been granted summary judgment against St. David's and All Saints, it must have established to the court's satisfaction that there were no disputed facts which required a trial. The court instead could decide the case right now, based only on the undisputed facts.

And doubtless, those "undisputed facts" included the so-called "hierarchical" nature of ECUSA, as a matter of law, etc., etc.  Once ECUSA is deemed "hierarchical" as a matter of law (i.e., no factual proof to the contrary will be allowed), then its ability, as such a church, to impose trusts unilaterally on all of its parishes' individual properties follows. All it has to do is enact a canon declaring that such a trust exists forthwith (the Dennis Canon).

In other words, if summary judgment was granted based on such a determination as I have described, then we have presented, for purposes of an appeal from the decision, exactly the same grounds raised in the current petitions pending before the United States Supreme Court. That Court is expected to indicate by the end of June whether or not it will grant those petitions -- in order to decide whether state courts may extend to a national church such as ECUSA, without violating the First Amendment, the ability to bypass, and be exempt from, state-law requirements for the establishment of a trust when it does not itself own the property being "placed" in a trust.

I may have more to say after I secure a copy of the court's decision. But for now, the affected parishes should be praying that the Supreme Court will finally see good reason to halt this madness of allowing a single type of arbitrarily abusive church to confiscate -- just because the courts say it can, solely for purposes of punishment, and for no other purpose that it factually demonstrates -- a property which a local parish has acquired, paid for, developed and maintained all on its own.

[UPDATE 05/12/2012: Apparently the court's understanding of these cases was even worse than the bare newspaper account reflects. The arguments before Judge Kim Dunning, assigned to the cases from the Complex Civil Panel in Orange County, carried over from Wednesday afternoon to Thursday morning. Judge Dunning apparently announced at the start of the arguments that she regarded the nature of the Episcopal Church (USA) not open to question in her court, because it had already been decided (but on demurrer!) by the California Supreme Court, and any further inquiry would involve the court in questions of ecclesiastical governance and polity to a degree that was impermissible under the First Amendment. And with that announcement, all the rest of her conclusions were foregone conclusions, and the cases were over. She held that the passage of the Dennis Canon could not be questioned, or raise any disputed issue of fact; and she regarded the Episcopal Church (USA) -- even though she refused to allow  evidence as to its nature -- as "a superior religious body or general church" for purposes of applying Corp. Code section 9142 (c), which allows such churches, but no others, to impose trusts on parish properties by including such a provision in their governing documents.

Thus her ruling granting the motions for summary judgment by the Diocese of Los Angeles was verbal, at the end of the arguments; it will be reduced to writing by counsel, and if all agree on its form, then it will be submitted to the judge for her signature. At that point, the losing parishes may file their notices of appeal.

It will be almost mandatory to appeal such a one-sided ruling that so ignores the law of "neutral principles" to decide disputes over church property. It is anything but neutral to foreclose all inquiry into just how a church might be regarded as "hierarchical" or not. And it is error, plain and simple, to read a higher court's ruling on a demurrer as foreclosing all factual inquiries into matters which were simply alleged in a complaint, and which the higher court was required to deem as proved.

Chalk up Judge Dunning as yet one more judge who is unqualified to preside over a church property case, because she does not, or deliberately will not, understand how the law applies to such a case. But as I have observed elsewhere, such judicial obtuseness over religious questions is becoming more and more par for the course. The unfortunate result is to make the road easy for religious bullies like the Diocese of Los Angeles and the Episcopal Church (USA).]