Thursday, May 22, 2014

Questions for a Judge Who Ruled in ECUSA's Favor

Previously, I wrote about the tentative decision issued by Judge Donald Black of Fresno Superior Court in the case involving the withdrawal of the Anglican Diocese of San Joaquin. His decision awards all of the diocesan monies, property and other assets to the remnant Episcopal Diocese on the theory that the Court of Appeals had already tied his hands, and left him with nothing to decide. Nevertheless, he went on to adopt ECUSA's theory of the case: that dioceses may not leave the Church, and that all property -- even of a diocese (notwithstanding the limited language of the Dennis Canon) -- is held in trust for the Church.

Once a judge issues a proposed tentative decision, California law allows any party to request a formal Statement of Decision which addresses matters not covered by the tentative decision. In this way, the parties help to ensure that the judge covers all the bases, and that there is a full articulation of the issues which is readily reviewable on appeal.

Yesterday, the attorneys for the Anglican parties submitted their Request for a Statement of Decision to Judge Black. The Request poses twelve questions to him which the Anglican parties contend he did not address adequately in his tentative decision. The questions in and of themselves probe the very underpinnings of his decision, and ask him to give his reasons for deciding as he did.

Following is the text of the first part of the Request.
Pursuant to Code of Civil Procedure section 632 and California Rules of Court, rule 3.1590, et seq., defendants respectfully request that the Court issue a statement of decision explaining the factual and legal basis for its decision as to each of the following principal controverted issues at trial:
1. Whether the Diocese of San Joaquin that voted on December 8, 2007, to amend its constitution was a California unincorporated association under the provisions of Corporations Code section 18000, et seq.?
2. What textual analysis of the Constitution and Canons of the Episcopal Church , and of the Diocese of San Joaquin, compels the legal conclusion that a diocese has no power to amend its own governing documents to unilaterally withdraw from its religious association with the Episcopal Church?
3. What is the legal definition of a “hierarchical church” the trial court is using for purposes of giving deference to the internal decisions of the Episcopal Church in this case?
4. What is the authoritative ecclesiastical and adjudicatory entity or office within the Episcopal Church whose decisions in this matter are being given deference by the trial court?
5. Where is the authority of that ecclesiastical adjudicatory entity or office found in the governing documents of the Episcopal Church?
6. Which party bears the burden of proving the authority of the entity or office within the Episcopal Church claiming the power to resolve the dispute over diocesan disaffiliation?
7. Is there any body or office within the Episcopal Church with juridical authority over a member diocese and, if so, where is that juridical authority found in the governing documents?
8. Whether any bishop, including the Presiding Bishop, can act within a diocese outside of their own, without the consent of the Ecclesiastical Authority, i.e., the diocesan bishop or diocesan Standing Committee, and, if so, where in the governing documents such authority can be found?
9. Apart from General Convention, is there any body or office within the Episcopal Church with authority to enact legislation affecting all of its dioceses? And, if so, what is that body or office and where is its authority found in the governing documents?
10. When and how was the term “unqualified accession” added to Article V of the Episcopal Church Constitution, and what is the legal basis and evidence for concluding that the amendment applied to any diocese other than a “new Diocese” admitted after the effective date of that amendment to Article V [in 1982]?
11. Whether the Dennis Canon (Can. I.7.4) applies to the property of a diocese and, if so, the textual analysis, legal basis and evidence supporting the conclusion.
12. Whether this court’s enforcement of the unilateral denominational trust rule embodied by the Dennis Canon violates the separation of powers, and results in an unconstitutional entanglement with religion, by allowing a church body to dictate to the courts, contrary to the rules prescribed by California’s legislature (e.g., Probate Code sections 15200 et seq.), the elements necessary to create a trust binding on California residents?

The second part of the Request contains the Anglican parties' objections to misstatements and errors in the proposed tentative decision. You may read it at the link; the objections speak for themselves.

[UPDATE 05/28/2014: Judge Black has ordered the Plaintiffs to file their responses to Defendants' requests and objections by June 15, after which he will decide whether or not to hold a hearing before finalizing his decision.]

Thursday, May 15, 2014

Just How Much Is 'Two Undecillion Dollars'?

It is the amount that plaintiff Anton Purisima is demanding he be paid in compensation for sundry insults he allegedly received at the hands of the defendants Au Bon Pain Store, Carepoint Health, Hoboken University Medical Center, Kmart Store 7749, St. Luke's Emergency Dept., New York City Transit Authority, City of New York, NYC MTA, LaGuardia Airport Administration, Amy Caggiula -- oh yes, and the obligatory "John Does 1-1000."

The plaintiff wants this total sum for various "civil rights violations, personal injury, discrimination [based] on national origin, retaliation, harassment, fraud, attempted murder, intentional infliction of emotional distress, and conspiracy to defraud." And did I mention it? He filed his complaint in the Southern District of New York acting as his own attorney ("pro se").

According to the article I linked above, Mr. Purisima now goes to the head of the line as being responsible for the largest amount ever demanded as damages in a civil lawsuit. (And he doesn't stop there -- he demands punitive damages, as well. Normally, punitive damages can be a two- to three-times multiple of general damages.)

So just how much money would, say, Au Bon Pain have to pay out if it were held jointly liable for causing the plaintiff such stupendous injuries? It is very difficult to envision -- for example, here is what a trillion dollars would like like, if gathered all in one place. And that info graphic actually continues on to depict the current total unfunded United States debt, of $122 trillion.

But $122 trillion is simply 122 followed by 12 zeroes: 122,000,000,000,000.

$2 undeciliion, however, is 2 followed by 36 zeroes, or three times as many:


In exponential terms, the amount Mr. Purisima wants to be paid is 1024 of the total U.S. unfunded debt. How to envision that?

Indeed -- there is just one person who could make that number real: Randall Munroe, author of the great Webcomic strip xkcd, and the mathematically-based "what if" series. And in the latest of that series, he takes the world's highest-billing lawyer (Ted Olson, at a reported $1,800 per hour -- that's $30 per minute, or fifty cents a second), and calculates that even if Au Bon Pan were to hire an entire universe of Ted Olsons to defend it, and have to pay them each to work for a thousand years at $1,800 per hour round the clock, it still would come out ahead by defeating Mr. Purisima's lawsuit. (And that, of course, would be the point of hiring so many Ted Olson clones.)

For an entertaining treat, check out the latest "what if" from Randall Munroe.

Sunday, May 11, 2014

The False Conflict Between Reason and Faith

There is supposedly today a great debate between reason and faith. The two are irreconcilable, it is said, and one must ultimately choose which one will decide to follow.

Those who champion reason do everything possible to denigrate the grounds for faith. They call faith "irrational", "delusional", and -- yes, even "mad", or "blind".

But just who are the ones making these charges most vociferously?

You guessed it: they are the self-anointed atheists -- the ones, like Richard Dawkins or Sam Harris, who proudly proclaim themselves immune to the non-rational bases for what they term as "blind faith."

To be an atheist, by definition, is to reject faith. So what is so momentous about atheists disparaging faith? It is like the Flat Earthers rejecting the hypothesis that the Earth might be round -- to accept the hypothesis would spell the end of the Flat Earthers. Just as to accept the validity of faith would completely undermine the grounds for atheism.

But what if faith and reason were not opposed, but instead were fully reconcilable?

Ah, then we would be talking -- except we would leave Dawkins, Harris and company back in the dust of their self-righteous atheism. Well, that is no loss, so let us proceed.

For those people of faith, reason is a God-given attribute of man. It is, indeed, what the Bible means when it says that God made man "in his image." Reason is part of the imago Dei, because God is the ultimate Logos, the Truth Absolute, and hence the Infallible Reasoner.

I believe it is a standing principle of French culture -- the country, after all, that gave us Descartes, Fermat, Pascal, Lavoisier and Legendre -- that "ce qui n'est pas logique n'est pas français" -- "that which is not logical is not French."  Well, I happen to think it is also a hallmark of Christianity -- even though there are those Christians who would submit, for example, that the three-in-one concept of the Trinity defies all logic.

No, the Trinity does not defy all logic -- we humans simply cannot say that. The most we can say is that the Trinity is a puzzle for human logic.

And thus the Trinity provides the perfect foil for my thesis that there can be no conflict between logic (reason) and faith. Faith asks us to accept that God is Three Persons in one Godhead: Father, Son, and Holy Ghost. (Human) reason tells us that three identifiably separate things cannot be one and the same.

If we accept the dictate of faith on this question, however, there is no longer any conflict with reason.

Why? Because if faith is true in this matter, then the Father, the Son and the Holy Ghost obviously have no logical problem with their co-existence, because that is how they manifested the Trinity to us.  The genius of St. Gregory's resolution of the "problem" of the Trinity was to recognize that for the triune God it was no problem at all.

So just as faith operates beyond reason's abilities to grasp truth in some matters, so there must be a higher reason toward which we humans may only aspire.

Stop and reflect for a moment: why should God, the Universe and Everything be limited to just what puny Man's "reason" can perceive of them?

There is no reason for that to be true -- and it is our God-given reason that enables us to know that fact. So thanks be to God, who has given us His divine faculty which, even though it be corrupted by man's original sin, may yet show us the path to Truth.

Reason is unquestionably the God-given tool by which we may come to understand and appreciate the unbounded magnitude of our Creator.

But faith is the obverse of the God-given coin: it is the "ring of truth written on our hearts" when we encounter -- not through the efforts of logic and reason -- truth that is beyond the power of reason to grasp but dimly. Faith is that higher vision -- the heavenly gift to humans that enables them inwardly to see that their reason is right and true when it points to God.

Faith has been compared to instinct in animals, but I am not so certain that it functions in humans as  does instinct in animals, or in humans. Instinct tells an animal (or human) how to act without reason being involved. But instinct may err -- as in the lemming (or in the human crowd).

Instinct is the trait we share with (and have inherited from) the animals. Reason is the God-given faculty of divination that sets man apart from the animals.

And faith is the divine key to solving the mystery of why we exist. It unlocks the door to which instinct is wholly blind, and which reason can but partly glimpse.

God asks that we accept Him on faith, that is to say, without rational evidence that compels but one conclusion. The rational evidence fully supports and justifies one's faith. But it cannot, in and of itself (pace, Bertrand Russell), supply the proof.

For that, we have faith -- the conviction of a proof that we are too fallen to grasp in its ineffable beauty and greatness.

Deo gratias agimus tibi.

Wednesday, May 7, 2014

ECUSA Prevails Again in California; Loses in South Carolina

The litigation agenda of the Episcopal Church (USA) continues to garner victories in California (where a single federal district court was allowed to overturn a constitutional initiative passed by a clear majority of voters). At the same time, ECUSA's agenda in South Carolina suffered another  defeat. Nonetheless, neither decision resolves any of the questions at issue once and for all. Thus, neither side may yet claim "victory", but only to have reached one more stage in the interminable torture of litigation.

As for California, there is now one more court decision (albeit a tentative one) that proceeds along the lines previously discussed in my previous posts here, here and here. The difference is that those previous decisions involved parishes leaving their dioceses without the consent of the diocesan bishop or the standing committee; the present decision uses those same precedents to hold that a diocese of the Church (in this case, the former Diocese of San Joaquin) is in no better a position to withdraw than is a single parish.

Thus Superior Court Judge Donald S. Black writes in his tentative decision, filed yesterday:
At its highest level, the Church is governed by and acts through its General Convention, which is composed of a House of Bishops and a House of Deputies. Under the Church's Constitution, "all acts of the Convention shall be adopted and be authenticated by both Houses." With the exception of the Presiding Bishop, currently The Most Reverend Katherine Jefferts-Schori, no single bishop or deputy is authorized to speak for, act on behalf of, or bind the Church....
The fact that the diocesan Bishop may be the ecclesiastical authority of the diocese does not mean that the bishop speaks for, acts on behalf of, or is authorized to bind the Church itself. As set forth above, only the General Convention as a whole, or the Executive Council can speak for, act on behalf of, or is authorized to bind the Church. Nor does the diocesan Bishop have "plenary" authority within his or her diocese, but rather must perform his or her duties subject to the Church's Constitution and Canons, and often in conjunction or consultation with other diocesan bodies, such as the diocese's standing committee.

Diocesan bishops are at all times subject to and bound by the Church's Constitution, Canons and Book of Common Prayer. None of these documents authorizes a diocesan Bishop to waive, to declare null and void, or modify or amend any of the Church's Constitution and Canons.
This opinion by Judge Black may come as news to certain bishops of ECUSA who have not hesitated to waive the Church Canons in their dioceses, as they saw fit. For example, there was San Joaquin's own Bishop Jerry Lamb, who routinely permitted all to receive communion, whether baptized or not, and also Bishop Tom Shaw of Massachusetts, who personally performed a same-sex marriage ceremony in violation of the Book of Common Prayer. But it is typical of the kind of arguments made by ECUSA's attorneys on its behalf, and which are accepted without question by secular judges far and wide across the land.

Since I am currently representing the Anglican Diocese of San Joaquin in this California litigation, I can present only what Judge Black says in his opinion, and have to reserve my criticism of his decision for the papers that will be filed in the weeks to come. This is, as I stated, only the judge's tentative decision; he could alter it in response to objections and arguments offered by counsel to show where they think he erred. Nevertheless, one has to accept that most tentative decisions become final, despite any objections made to them.

No appeal may be taken until a final judgment (as opposed to a decision) is entered. Since the judge has called for a full accounting of all diocesan property and bank accounts, it may be a while before any such final judgment is entered. I will post further updates about this situation as I am able, and as may be appropriate.

Today it was also learned (via a statement released from the office of Bishop J. Jon Bruno) that the Diocese of Los Angeles had finally settled all outstanding litigation over property matters involving three of its parishes: All Saints in Long Beach, Saint David's Church, in North Hollywood, and the Church of St. James the Great in Newport Beach. (Earlier the congregation of St. Luke's of the Mountains, in La Crescenta, had moved out of its property after losing a bid to have its case reviewed by the United States Supreme Court.)

All Saints will continue to operate outside the Diocese, while renting back its property; St. David's, with no congregation capable of using it, will be taken over by an Episcopal school; and the Anglican congregation of St. James, which already has vacated the buildings, will abandon its appeal of the decision awarding its property to the Diocese, in exchange for an undisclosed consideration.

What is significant in the statement from Bishop Bruno is that we have yet another figure to plug into the total litigation costs expended by ECUSA and its dioceses to date: the statement acknowledges that the Bishop, as a corporation sole, has incurred a total of Eight Million Dollars to date in the litigation in Los Angeles and Orange County courts on behalf of the Diocese and ECUSA. (Obviously that total does not include amounts incurred by ECUSA itself, for its own joinder in those lawsuits.)

The statement indicates that congregations will continue to meet in the Newport Beach and La Crescenta parishes, so it is unclear just how much money the Diocese of Los Angeles will be able to recoup in revenues from All Saints and the school that takes over St. David's. But it seems certain to be a long time before the corporation sole can replace the $8 million it spent in pursuing these properties.

Finally, in South Carolina, the Supreme Court of that State issued an order denying the appeals transferred to it from the Court of Appeal, and which had been prosecuted by Bishop von Rosenberg and his Episcopal Church in South Carolina. This decision now clears the way for the main case, brought by Bishop Lawrence and his parishes, to go to trial before Judge Goodstein, starting this July.

So as always in litigation, we have a mixed bag, and nothing is quite final. Stay tuned to this blog for more developments in San Joaquin and South Carolina, as they happen.

Tuesday, May 6, 2014

An Ugly Thought -- but Someone Has to Express It

Even as a curmudgeon, I take no pleasure in the stories illustrating the decline in America's greatness, that parallel the stories of the declines in all aspects of our society. For a long time, I was with the other dissidents in figuring that as bad as Obama could make things, there still would come an opportunity for the electorate to acknowledge its monumental mistake (repeated, as all tragedy must, in order to become farce). But no more: the current "Republican" leadership is showing zero capability of leading the electorate down a new and different path.

So we have to accept certain facts on the ground. Obamacare is here for at least another three years, and in that time, it will do incalculable damage to our once great healthcare system -- to say nothing of our economy at large. The only way we can pay for the depredations introduced by Obamacare is by seizing more and more revenues from the private sector (or -- what comes to the same thing -- increasing that sector's costs).

At the same time, the Social Security coffers are burgeoning with payments to the recently retired Baby Boomers, which are forecast to burgeon still further in the years to come.

But Social Security is supposed to be different, and yet we all (by now) must know that it is not. The money that goes to pay Social Security retirees comes from current taxes on those who are employed -- the fictional "trust funds" were long ago spent by our profligate Congress, and no longer exist except as a paper entry on the nation's books of account. In short, the "trust funds" have long since been replaced by "IOUs" -- which can be repaid only out of the money taken from those currently working for a paycheck.

So let us put two and two together here.

Obamacare will take more and more revenues from the private sector. But Social Security will require that same sector to contribute more and more to fund elderly retirement benefits.

And the same entity -- the United States Government -- backs both with its "full faith and credit."

Does anyone else see the conflict of interest here?

The more the elderly age and do not die, the more the Government will have to take from the private sector to pay Social Security benefits.

But the more that Obamacare pays to keep people alive who are dependent on government "health insurance" for their care, the more the Government will have to rob the same source -- the hapless ones who still work for a paycheck.

At some point, the light is bound to click on: if the Government stops paying to keep elderly people alive, the less the Government will have to pay in Social Security benefits.

This double whammy is possible only because with the advent of Obamacare, the same entity has become responsible both for health insurance and for Social Security benefits.

Before Obamacare, the two systems were separate. You arranged for your own health insurance, out of your own (or your employer's) resources, and the Government provided Social Security benefits.

But no longer.

There can be no other result, so long as both bills (for Obamacare and for Social Security) increase, as everyone agrees they will over the coming decades.

So the control mechanism will come through what Sarah Palin and others first identified as the "death panels" of Obamacare -- the bureaucrats who refuse to approve treatments for the terminally ill or the marginally sustainable among us.

And when that conflict becomes inevitable, as it certainly must, God help us.