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.]


  1. You'll never give up, will you brother? Let's just see how it all turns out. If nothing changes, will you then accede to the learned judge's decision?

  2. No, Father Ron -- as they said of the Italian tenor who was asked to encore an aria for a record eight times: "We'll keep after him until he gets it right."

  3. Mr. Haley,

    It seems to me, as a non-lawyer, that the 12 points detailed in your post succinctly identify and focus the various points of law at issue, which presumably have been evaded by the judge's tentative decision.

    I have a question. Is the judge now required to address all of those issues, and give a point by point response to each one? Or can be continue to argue that his hands are tied by the Court of Appeals?

  4. Topper, there is no set time limit for him to respond, but usually it would be within a few weeks. He may rewrite his tentative decision to include a discussion of some or all of our points, or he may say: “I’ve already covered that in what I’ve written.” At that point, the decision will become final, but there can be no appeal until a final judgment is entered—and that could take a while, since his decision requires an accounting.

    When there is an appeal, the appellate court will look to see whether he actually did address all of our questions in his final decision -- so that is his incentive not to ignore them.

  5. This entry of Our Vicar upon his letters to us was kind to our offenders. He left it up to us to study, as though it were a rubic's cube with one piece missing, how to respond in favour of Her Highness, the Royal Bishopess of America and Hillary's equal in at least every way....

    There is no way to respond in her favour. So, and this is a serious question: Is there any hope or way that you see...and we must see with your eyes....that our position can prevail to the point that this judge or some appellate bench might pull this matter back from the abyss?

    I have done my requisite three readings, so I am prepared for your answer, good or bad. We had a particularly bad day at St. John;'s in McAllen. Various of the old-timers, and some youngers ones declared that it was a dull, efficient guessed soul. Are we to be relegated to the back pews of Roman Churches when there is no North American Anglican parish within two-day's drive?
    Thanks, as always for the kind patience of all.
    El Gringo Viejo