Monday, November 3, 2014

SCOTUS Denies ECUSA's Bid for Review of Ft. Worth and San Angelo Decisions

Today the Supreme Court of the United States issued its order denying (without opinion) review ("certiorari") of the decisions rendered last September by the Supreme Court of Texas in the Fort Worth and San Angelo cases.

The order was expected, because neither decision by the Texas Supreme Court was final. The U. S. Supreme Court almost never agrees to review lower court decisions until they are final. In these two cases, the Fort Worth matter was sent back to Judge Chupp's court for a trial, and the Church of the Good Shepherd case was likewise sent back to the trial court in San Angelo for further proceedings.

The action by SCOTUS now frees both of those cases to move ahead.

In Fort Worth, Bishop Iker's attorneys have filed a motion for summary judgment which is scheduled for a hearing in December. Given the decision by the Texas Supreme Court, the only question remaining for the trial court to decide is whether or not ECUSA managed to create a valid trust in the Diocese's property which the Diocese did not revoke when it decided to withdraw in 2008. In Texas all trusts are deemed to be fully revocable at any time, unless the language creating the trust states otherwise.

ECUSA earlier claimed that its Dennis Canon imposed a trust upon each parish property whose title was held by Bishop Iker's corporate Diocese of Fort Worth, as well as on the Diocese's own property. But the Texas Supreme Court ruled that any Dennis Canon trust was not expressly irrevocable, and so the withdrawal of the Diocese and its associated parishes from the Episcopal Church (USA) effectively revoked any such trust.

Given that ruling, therefore, the outcome of Bishop Iker's summary judgment motion should be a foregone conclusion: there are simply no disputed facts requiring a trial. ECUSA did not ever try to impose an irrevocable trust in so many words, and its arguments that irrevocability was implied in its Dennis Canon, or alternatively in its long-standing relationships with its dioceses, will not meet the requirements of Texas' trust statute.

Once the Texas District Court grants summary judgment, the rump Diocese and ECUSA will of course be able to appeal, and could try again to raise the same grounds they urged before SCOTUS -- only now with a final judgment behind them. But the odds of succeeding with any such appeal will be long indeed, given that the U.S. Supreme Court has now rejected petitions for review in four recent cases (Connecticut, Georgia, Virginia, and Texas).

The same result should obtain in the Good Shepherd case from San Angelo, involving the Diocese of Northwest Texas. That parish effectively revoked any trust established by ECUSA's Dennis Canon when it decided to withdraw from the Diocese, and there is no evidence of any other irrevocable trust ever imposed on its property.

In front of SCOTUS, ECUSA and the Diocese of Northwest Texas tried to argue that the Texas Supreme Court's decisions, which adopted the "neutral principles" approach endorsed in the 1979 decision of Jones v. Wolf, caught them by surprise. However, it has been 35 years since Jones v. Wolf was decided, and the overwhelming majority of State courts now follow that case in deciding religious property disputes.

ECUSA's petition also mounted a frontal attack on the (5-4) Jones decision and its endorsement of the "neutral principles" approach. The national Church contended that the sanctioning of that approach, by which the courts do not simply defer to its authority, but actually dig down and examine deeds, chains of title, and governing documents and rules, interfered with its "free exercise" of its religion under the First Amendment. (As though, one notes, the holding of property and wealth could ever be a religion -- nevertheless, if there were ever any American church to profess such a religion, it would certainly be ECUSA.)

Neither argument -- the attack on Jones, or the one from surprise -- carries much weight, and neither  persuaded the justices of SCOTUS (even though ECUSA had seen fit to hire a former U.S. Solicitor General, Neal Katyal, to write its petition to the Court). Intermediate Texas courts -- if not the Texas Supreme Court itself -- had been applying "neutral principles" for quite some time. Moreover, ECUSA itself admittedly tried to implement the Jones v. Wolf scheme by hurriedly enacting its Dennis Canon within just a month or so of the decision. So its claim to have been taken by surprise rang rather hollow. And in passing its Dennis Canon, it neglected to include the language which Texas law requires about irrevocability (as well as ignoring certain other points in the Jones majority opinion -- see this post for details).

While we await the decision of the Illinois Supreme Court as to whether it will agree to review the Diocese of Quincy decision, it could happen, therefore, that Texas will become the first State after South Carolina to make the Dennis Canon absolutely a dead letter there. The trial judge in South Carolina is also due to render a decision in a few weeks -- which will not turn upon the Dennis Canon as much as it will involve issues of religious corporation law.

I will, as always, provide you with commentary and analysis as soon as any of these other proceedings are decided. On a side note: this Wednesday the Justices of SCOTUS will hear oral arguments in this unusual fish tale of a case. Stay tuned.


  1. Quite apart from the substance of your analysis, I am flummoxed by your use of the acrostic "ECUSA." There is not nor has there ever been an entity named the Episcopal Church in the United States of America." Add "Protestant," and that's actually a thing, although the official name of the entity can be shortened to "the Episcopal Church." So ... PECUSA or TEC, but not ECUSA.

  2. Bishop Martins, I have consistently used "ECUSA" on this blog for the reasons explained on this page. It is my own idiosyncrasy, I confess, in response to the mega-implications of TEC, and the fact that the Church dropped the "Protestant" from its name. ECUSA is what is left, and ECUSA it shall be here.

  3. By using a strategy of endless litigation, the Episcopal church hopes to intimidate any possible future "defectors". Any church that pursues its people in the secular courts like this deserves to have some letters taken away. I use the lower case "c" in referring to T.E.c.

  4. The thing I fail to understand in many of the recent property disputes that have been decided involving parishes and dioceses that have had disputes with ECUSA involves the issue of the purported establishment under state law of a trust of church property in favor of a denomination. You've probably addressed this issue previously, however, I'd appreciate some help. Even if there is a canon or similar provision of a denomination considered as hierarchical (that status assumed here for the sake of argument), Jones v. Wolf wouldn't seem to excuse a court from the necessity to find that a canon or similar provision purporting to establish a trust of church property in favor of a hierarchical denomination actually comports in all respects with pertinent state law. From my recollection of the effects of some property litigation involving ECUSA, I wonder if the courts involved may have in effect given undue weight to the existence of a canon, etc., purportedly establishing a trust--something that seems to me to be contra to the Supreme Court's holding in Jones v. Wolf, with the result that clearly short-changes a litigant given applicable state law re establishment of a trust. And, I also wonder if the non-prevailing parties in some of these prior cases involving ECUSSA essentially simply threw in the legal towel rather than litigate this issue.

  5. Is it just me, or does it strike strangely at reason to appeal a case that has not been adjudicated? I tend to agree with the observation by the Underground Pewster.
    Also, as one who long ago adopted an aggravating habit of using British English spelling, words, and Old Book literary form to the extent possible....I vote approval for the owner of this blogsite to use whatever form, format, and formula he chooses in the administration of his site. His literary ability is well into the upper one per cent of what is found normally "in the cloud".
    El Gringo Viejo