Friday, August 30, 2013

Bishop Iker and Church of the Good Shepherd Win in Texas

Today the Texas Supreme Court handed down decisions in the two ECUSA cases pending before it: No. 11-0265, Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church, et al.; and No. 11-0332, Masterson v. Diocese of Northwest Texas. In the first case, the Court sided with Bishop Iker's Diocese by a closely split vote of 5-4, reversed the summary judgment of Circuit Judge John Chupp which had awarded all of the property and assets of Bishop Iker's Diocese to the Episcopal Church and its rump diocese, and sent the case back to the trial court. The majority held that the trial court had improperly failed to apply a "neutral principles of law" analysis to the issues. The four dissenters did not disagree with that result, but instead believed that the Court lacked jurisdiction to hear a direct appeal from the trial court's judgment in the case.

In the second case, the Court by a vote of 7-2 reversed the Court of Appeals' decision requiring the Church of the Good Shepherd in San Angelo to turn over its building and all other assets to the Diocese of Northwest Texas. The Court definitively ruled that all Texas courts must follow "neutral principles of law" (rather than deferring to an ecclesiastical hierarchy), and that based on such an analysis, the Dennis Canon was not effective under Texas law (or that if it were effective to create a trust, the trust was not expressly irrevocable, and so could be revoked by the parish in question).

The two decisions establish "neutral principles of law" as the governing approach to church property disputes in Texas courts. (The Texas Supreme Court had last addressed the issue in 1909, seven decades before the U.S. Supreme Court authorized "neutral principles" in Jones v. Wolf, 443 U.S. 595 (1979).) And under that approach, as we have seen happen time and again more recently, courts are coming to realize that ECUSA's case has no neutral principles going for it.

ECUSA loses under a true "neutral principles" approach because it ignores the Statute of Frauds in its Dennis Canon, and proclaims a trust on other peoples' property of which it makes itself the beneficiary. And in the Diocese cases, where ECUSA does not even have the Dennis Canon available to it, it simply waves its hands and claims to have made an "ecclesiastical determination" that its Dioceses cannot withdraw from the denomination unilaterally, and that even if they could, the Diocese impliedly agreed to hold all of its property in trust for the denomination, and so must relinquish control of that property upon leaving.

This latter fact -- that there was a trust argument also made in Bishop Iker's case -- explains the unusual divisions among the Justices. The two dissenters in Masterson were Justice Lehrmann and Chief Justice Jefferson. They would have deferred to ECUSA's determinations even under a "neutral principles" approach, and have declined, based on the First Amendment, to let Texas corporate law overrule those determinations. For them, the Dennis Canon had "ecclesiastical" force, to which the Texas Courts had to defer. (Query: how does such "deference" square with "neutral principles", when only certain types of denominations qualify for "deference"?)

The four dissenters in Bishop Iker's case were Justices Willett, Lehrmann, Boyd and Devine. But as I noted, their dissent was to the Court's taking jurisdiction of the appeal, and not to the merits.

It is Chief Justice Jefferson who made the majority in Bishop Iker's case -- while willing to defer to ECUSA in disputes between a parish and a diocese, he did not see the basis for any such deference as between dioceses and ECUSA -- at least, on the record as developed below. Undoubtedly he joined with the majority to send the case back for further proceedings, and would withhold further judgment on the merits until after there has been a full trial and a normal appeal. (He expressly did not join in Parts IV.B and IV.C of the majority's opinion, which provides guidance for the trial court on certain issues which will be faced at the trial.)

One might think, given this split, that the "guidance" offered in those latter two sections of the majority's opinion is scarcely guidance at all, because without Chief Justice Jefferson, what is written has the backing of just four of the nine Justices. But that reasoning does not take into account the decision by seven of the Justices in the Masterson case.

In Masterson, the seven justices decided pretty much the same corporate law issues on which the four Justices provide "guidance" in the case of Bishop Iker's diocese. Thus, Texas law will control the issue of who were the trustees of the Fort Worth diocesan corporation on the relevant dates when crucial votes were taken. And that should bode very well for Bishop Iker's chances on remand.

Likewise, the issues of title are to be resolved by examining the various deeds under Texas secular law -- and that, too, should work in Bishop Iker's favor. Title to all of the parish properties is held by the diocesan corporation. Thus if Bishop Iker's trustees are the proper trustees in office, the property will follow the corporation.

I may have more to say after I finish a full review of the opinions, and may change some points noted above, but on the whole, these two decisions score a great victory for neutral principles in general, and for ECUSA dissenters in particular.


  1. The house of cards is falling. Terror in the hearts of those at the top of TEc as many are beginning to see a HUGE waste of money unchecked. David Booth Beers could care less. He's made his money at the expense of the hapless power hungry Schori.

  2. This does not bode well for Episcopalians in Fort Worth. I am getting tired of being in limbo, though. A decision needs to be made so we can get on with our lives.

  3. Terror in the hearts of Episcopalians in Fort Worth as well, Milton Finch.

  4. Can we get a copy of the Texas decisions online?

  5. Yosemite Vicar, there are a total of five opinions online, and you can download them from the first link in my article. After a week or so, that link may no longer work, but you can always click on the individual Case No. links for each case. Those links will take you to the Court's docket sheets for each case, from which you can download anything filed in the case, including the opinions.

  6. Good news, but the Left never, ever, stops until they have what they want. Then, and only then, is the decision final and it becomes immoral/unconstitutional/unconscionable to suggest it be changed.

  7. For those of us who are not attorneys, thank you for your clear and well laid out explanation.

    The skirmish may continue but Christ has already won the battle on the cross. May we continue to keep our eyes on Him and follow where His Spirit leads us under the pastoral direction of Bishop Iker.

  8. From your comments on Masterson, it appears to me that Masterson may be a very important decision in the long run based on what it may indicate with regard to whether the structure of TEC, at all levels of the denomination, is truly hierarchical. If the structure of a denomination isn't hierarchical at all levels of the denomination,(e.g., above the diocesan level), should the law accord the denomination itself treatment as as an "hierarchical" denomination? If "no", should neutral principles of law apply in cases at any level involving a denomination where the structure of the denomination at all levels isn't hierarchical? I believe the answer to this (ultimate) question is "yes".

  9. Mike Alsobrook - back at the very beginning of all this, Bishop Iker offered any parish that wished to remain with ECUSA to depart with their property, as long as they did not leave any debt with the Diocese. So you could have gotten on with your lives back in 2008.
    Instead,you took the position of "what's mine is mine, and what's yours is also mine!". And so here we are. I'm not sure how you can possibly justify that. But I agree that we should all go forth to love and serve the Lord.

  10. Isn't Masterson an important decision concerening litigation in which a diocese of ECUSA or ECUSA itself is a party, with regard to the application of neutral principles of law? Thus, shouldn't the law reflect the fact that neutral principles of law should apply in cases only where the structure of a denomination is hierarchical in nature at all levels of the denomination (which I submit doesn't appear to be the ECUSA's situation). If a denomination isn't truly hierarchical above a diocesan level, for example, then the denomination isn't truly hierarchical in nature and Masterson appears to stand for the principle that neutral principles of law should apply in property cases in which a diocese, parish, etc., of such denomination is a party.

  11. Carolyn Peet ~ That is simply not the case but I understand that those who chose schism believe it. Personally, I would have preferred that route (were it true) but I suppose there were Episcopalians who were not so willing to give up their church to a land grab without a fight.

  12. Great news! Why wouldn't any state -- e.g., California -- use neutral principles of law in cases like this?

  13. Randy Muller, California does follow "neutral principles", but it also has a special statute on church trusts which the CA Supreme Court has interpreted to give effect to the Dennis Canon, despite the Statute of Frauds. There is no such statute in Texas.

    williamp, you are correct that this is a big decision for neutral principles in the State of Texas, but from a nationwide standpoint, there are only less than a dozen States who do not give at least lip service to "neutral principles." The proof is in how you choose to apply them.

    The Anglican Communion Institute and I have both argued that ECUSA is "hierarchical" only as between bishops and their clergy, and not as between bishops and the Church itself. However, under a true neutral principles approach, the concept of "hierarchy" should never even be considered. If the principles being applied are truly neutral, then "hierarchies" should be subject to those principles the same as everyone else is.

    Mike Alsobrook, you are most welcome to come here and comment, but please do not throw around terms like "land grab" until you are more knowledgeable about such things as the Statute of Frauds, the Dennis Canon being inapplicable to dioceses, and the first two hundred years of history of the Episcopal Church (USA). (Use the "Guide to This Site" link to explore those and similar topics in depth.) When you are up on those subjects, I think you will see the futility of trying to apply that term to what happened in Texas (or San Joaquin, or Quincy, or Pittsburgh.

  14. Alan,

    Might I suggest that Mike's point might be that, regardless of the strict reading of the law, the principle asserted by conservatives in Fort Worth (and elsewhere) is one that emphasizes who actually contributed to building up that property in the first place.

    On that basis, the liberal minority in realigned dioceses also has a moral claim to a portion of the diocesan endowment not just to the assets of parishes that did not realign. How one determines what a just proportion would be is a nice point (ASA or baptized membership would seem to be the default), but it seems inappropriate to ignore years of diocesan assessments paid by liberal parishes to conservative dioceses in any fundamental accounting.

    Incidentally, are we STILL awaiting a ruling in Quincy?

  15. Mr. Haley,
    Having read many of your posts over the last several years, I know that you have frequently been surprised by other court cases in which it was ignored by the judge. In the Good Shepard case, it appears to be front and center.
    Given that the Statute of Frauds is essentially the cornerstone of property law (remove it and "in fee simple" and deeds in general have little meaning), how is it that judges seem to have ignored it in so many of the earlier church cases?

  16. Thank you, A.S., for your understandable explanation of the rulings. As a member of the Diocese of FTW, I am grateful to the SCTX for their ruling. Yes, we won, for now.

    Since the ruling sends the case back to Judge Chupp, can he rewrite his original order based on neutral principles, would essentially mean we keep our property as rightfully so; or, will he have to retry the case again, ruling using neutral principles, then causing TEC to appeal to the 2d Court of Appeals and possibly (if they were to loose there) to the SCTX? Could this process take yet another 2, 3, or 5 more years?


  17. Jeremy, thank you for your reasonable voice, as always. I believe that while many parishioners on both sides would have preferred that their leaders work things out, 815 has never offered that option in any of these matters. (See, for example, the response to such an overture by David Booth Beers, which I quote and discuss in this post.)

    As I noted in this post, 815 is (with only rare exceptions) the first to go to court. In diocesan cases, 815's haste in reorganizing the remnant groups, in violation of ECUSA's own Constitution and Canons, is primarily so that they can authorize a proper plaintiff to bring suit -- they are never interested in the financial viability of the remnant itself (as the Quincy case demonstrates).

    And yes -- we are still waiting on a decision from Judge Ortbal in that case.

  18. TJ McMahon, as I noted earlier, in some cases (such as in CA and NY) the courts have a specific statute which they read in such a way so as to excuse ECUSA from having to comply with the Statute of Frauds. In other cases, such as the Gauss case in Connecticut, the court takes Justice Blackmun's obiter dictum in Jones v. Wolf to be literally laying down a special federal common law applicable to certain special churches, in defiance of all logic (and Erie R.R. Co. v. Tompkins).

    Three years ago, I began a series of posts on the law of church property, in which I am trying to cover all of the Dennis Canon cases, and show how they vary in (among other things) their treatment of the Statute of Frauds. With the two Texas decisions, I think I have more than enough material for another installment of the series (links to the earlier articles may be found here).

  19. David Johnson -- no, Judge Chupp will not "rewrite his order" based on neutral principles. The Supreme Court has reversed his order and judgment, which means he is to proceed now as if they never existed. The parties will engage in discovery, and eventually Judge Chupp will schedule a trial, at the end of which he will issue a decision. And yes, the losing party will then appeal to the Court of Appeals, and then there may be a further petition for review by the Texas Supreme Court, and possibly even a petition to the U.S. Supreme Court.

    So, barring a change at 815 in its sentiments about compromise in these cases, I am afraid you are in for a long haul -- at least three years, and possibly more.

  20. Re the issue discussed in posts of Mike Alsobrook and Jerermy Bonner. Where there is a factional situation involved in a property dispute concerning a religious denomination, it appears to me that there can't really be any practical way to consider factors relating to conservative/liberal contributions, etc., any more than there would be to consider factors relating to worship style, demographics, etc.. It does seems equitable to give consideration to denominational structure--i.e., hierarchy, in a exceptional situations only. The general legal rule for the above property disputes would be that a court of law would decide such disputes by applying neutral principles of law with an important and limited exception. In the case of hierarchical denominations whose structure is clearly hierarchical at all levels of the denomination, then a court would not be REQUIRED to apply neutral principles of law in deciding property dispute cases but could defer to hierarchical determination(s). I'd submit that ECUSA would not meet the above test for classification as an hierarchical religious denomination. Give the historical and continuing structure of ECUSA, it seems reasonable that in a legal dispute involving property of a parish or diocese of ECUSA, a member of such parish should expect (or have expected) such dispute to be decided (or have been decided) by a court of law by the court's application of neutral principles of law and not under an exception to those principles.

  21. Thanks, A.S. I think Obamacare has a better chance of going by the wayside that TEC pulling back on suing Christians for property not belonging to them.

    How does this effect the order in place that the property was awarded to TEC by Chupp? Does it remain in effect even though the SCTX ruled that decision was arrived at incorrectly?


  22. As I said earlier, DavidJ, Judge Chupp's previous order has been reversed, as though it had never been entered. There will be no turning over of any property, and the bond that was required to take the appeal will be dissolved. The slate has been wiped clean of Judge Chupp's rulings, and the parties have to start over, with neutral principles as their ruler.

  23. Just to be clear, I was not opining on the legal arguments pertaining to neutral principles, but about how the ACNA dioceses should broadly apply their present rationale for claiming diocesan property in the first place.

    As Alan pointed out, TEC does not seem to be interested in such a division of assets, but that does not preclude the ACNA dioceses - if they are ultimately succesful - from reflecting upon how diocesan assets were created in the first place, even in situations where the primacy of diocesan hierarchy has been asserted.

    I don't honestly imagine that any such division of assets is likely to occur (not least because there may well little left by the time all this is over), but I think it would be a better legacy for realignment, even if the sums distributed were nominal.

  24. Jeremy Bonner--I appreciate your comments re diocesan property and division of diocesan assets, especially given the relationship that might have with realignment. What I would like to see, which I hope can come to pass sooner rather than later, is for the impact of some very important court decisions concerning the application of neutral principles of law, to become an incentive for ECUSA to change from a policy of institution of adversarial proceedings to a policy of attempting to reach accommodation with dioceses and parishes desiring to stand apart from ECUSA.

    The above policy change on the part of ECUSA should result in ECUSA and dioceses and parishes desiring to stand apart from ECUSA engaging in serious, good-faith negotiations. And even though assets/financial payments were to be included in ultimate arrangements between parishes and/or dioceses desiring to stand apart from ECUSA, it seems probable that in the end ECUSA and parishes and dioceses desiring to stand apart from ECUSA would recognize that the route taken was preferable to an alternative, adversarial route.

  25. "... ECUSA would recognize that the route taken was preferable to an alternative, adversarial route."

    When, if ever, has ECUSA shown the slightest interest in what is good for the Church as a whole? That would be an entirely new wrinkle!

    I currently worship at St. Timothy's Church, Fort Worth. This is the third parish I have been a part of that has been under siege from ECUSA. The two previous one, St. Edmund's, Elm Grove, WI, and St. James the Less, Philadelphia, PA, were both lost to ECUSA after long and bitter fights. In each case, ECUSA got real estate only; not a single soul remained behind. It seems clear to me that Schori is intent on becoming a real estate magnate, rather than a church leader. Empty buildings do not build up the Church of Jesus Christ in any recognizable manner.

    Fr. D+
    Anglican Priest

  26. Dr D--I agree that there's no sign yet that the day has arrived when ECUSA shows it recognizes that the adversarial route isn't in its interest. But, as I attempted to indicate, what should decidedly hasten to bring in that day will be important decisions(perhaps including a SCOTUS decision) by courts of law that recognize the necessity of the application of neutral principles of law in cases concerning property disputes involving religious bodies, as well as recognizing that the Dennis Canon is a self-serving device that's fundamentally incompatible with principles of the law of trusts.

  27. williamp,

    I wouldn't expect any such sign until at least such time as the current Presiding Bishop's term expires and she is replaced.

    The incumbent has shown no sign of intellectual, theological, or ordinary honesty, and not many of comprehension of the English language as it is used in the Constitution and Canons of her Church since at least the week preceding the last Lambeth Conference.

    In charity, it wouldn't be wrong to pray that that is changed, but she has a considerable, and consistent, history of mendacity and willfulness which does not contribute to a great deal of hopefulness to those praying for such a change.

    Pax and bonum,
    Keith Töpfer

  28. The Martial Artist's post above brings up a question. I can't, on a quick read of the constitution and canons of TEC (aka ECUSA, aka PECUSA), find anything that would prohibit the re-election of the current PB. Is this a possibility? Of course, I recognize that it has never happened in the past, but in the modern TEC, revising polity and tradition (and occasionally history) seem to be the main drivers of most GCs.

  29. TJM, you are correct. No provision in the C & C prohibits renomination of the incumbent, and she could even be nominated from the floor. The only limitation on candidacy is age (not 72 or older).

  30. The more I ponder Mike Alsobrook’s post at 2:31 pm on August 30, the more I am disturbed by what it reveals. Bishop Iker did indeed offer up a protocol to allow those parishes that wished to leave the Diocese and remain affiliated with TEC to keep their property, based on an informed parish vote. There was at least one church that either did that, or came real close before 815 ordered the leaders of the remnant group not to avail themselves of that protocol. The fear was that this would weaken their litigation position if it were acknowledged that Bishop Iker had this authority.
    It is clear from Mike’s post that they have been told a whole different story, such that litigation was their only recourse to keep their property. In other words, they have been supporting this nasty, vindictive litigation for all these years based on a lie. And we know who is the Father of Lies.
    Makes the heart sad, indeed.

  31. Keith Topfer, I've never been a believer in placing any confidence in the goodwill or intentions of the current PB or any successor with regard to the matters I discussed in my post, and I certainly had no intention to suggest any such confidence.

    I do think that it's a reasonable view to believe that legal developments in matters in which ECUSA and dioceses and parishes desiring to stand apart from it are involved may now be approaching a corner of sorts. As future legal matters proceed, ECUSA's position may cease to be buttressed by the device of the Dennis Canon and, in my view, buttressed by being treated erroneously in some courts as a hierarchical denomination. There's reasonable grounds for believing that, in time, it may become very clear to ECUSA that ECUSA and its dioceses will be subject in legal proceedings to application of neutral principles of law. That would be a major change in the situation which will be beyond the control of any PB.

  32. These are the finest moments, perhaps of this blog. The questions and the analysis are wondrous things.

    To Dr. D, who wrote:

    "When, if ever, has ECUSA shown the slightest interest in what is good for the Church as a whole? That would be an entirely new wrinkle!"
    The answer is, since 1970 or so - Never! And, yes we know that Dr. D knew the answer, and he knew that we knew the answer.
    The extension of that realisation is to assume at all times that we are dealing with people of blackened hearts and deep motives that bode ill for Orthodox, fundamentalist, faith-based, Holy Eucharist dependent, glue that binds all the denominations in all Christendom, that being the Episcopal Church of old and the Anglican Church of old.

    Dr. D's question is one we must ask of ourselves daily. And answer daily.

    It is so refreshing to read over all these entries and marvel at the dedication and understanding and intelligence of the writers.

    To our host: You are probably already aware, but to be sure, allow me to state that Chief Justice Jefferson of the Supreme Court of the Republic of Texas resigned to-day, effective at the beginning of October, I believe.
    He is a relatively young man, about 52 I believe, and plans to catch up with the family (wife and three sons) and, it is rumoured that he may be going to establish a new powerhouse legal firm. Rumours in Texas are frequently wrong.

    May the Saints keep watch over this noble site.
    El Gringo Viejo

  33. Carolyn,
    You are correct in that after the 2008 vote to separate from TEC, the Diocese offered any parish who wanted to remain with TEC to be able to do so and keep their property so as long as the parish had a proper vote by ALL members and did not owe money to the Corporation. Two parishes completed the process and today own their property. Six others started the process but were stopped by TEC when the lawsuits began. I know this all for a fact and so do others. It is indeed sad that so many in the rump diocese may have been told otherwise.

  34. I stand corrected. The number of churches in which their property was transferred to them, prior to TEC blocking any further transfers, was indeed three.

  35. Thank you for your explanation. Will this have any bearing upon the judgments already rendered in other states against the Anglicans?