Wednesday, February 25, 2015

A Rule of Law, or of One Man?

Capitol Hill is today, for better or worse, the last bulwark of this country's Rule of Law. If the Republicans -- given a majority in both Houses in order to stop the administration's lawlessness -- cannot hold the line against Obama's illegal amnesty measures, then the Rule of One Man will have triumphed over the Rule of Law. The Members of Congress might as well go home with their tails between their legs, and stop drawing their salaries, because they will not have earned them.

Fact: the Senate Democrats, mustered by the scurvy Harry Reid, insist that Congress appropriate money for Obama's administration to do something which Congress never authorized it to do.

Fact: If Congress did not authorize the administration to allow aliens here illegally to get work cards, Social Security numbers, drivers' licenses and three years' back worth of Earned Income Tax Credit, then the administration's proposal to give them all those things anyway is unconstitutional.

Fact: If the administration wants to operate outside the law, Congress has no obligation to vote it the money it needs to do so -- in fact, it is just the opposite: Congress must withhold that money, or it will become just an enabler of the Rule of One Man, and might just as well, as I say, go home in disgrace.

Fact: If the Senate Democrats and Dirty Harry Reid want to prevent the Department of Homeland Security's appropriations bill from passing unless it includes funds for One-Man Rule, I say: Let them! We know they care nothing for the Constitution or their oaths of office, so why should anyone even bother to give them the time of day?

Fact: If the DHS appropriations bill does not pass, guess what? Ninety percent of DHS will go right on operating -- just without the funds to do more illegal things than it is already doing. And those who are required to show up to to work without being paid may begin to learn what it means to work for a lawless administration.

Fact: Yes, the Department of Homeland Security is already illegally issuing work permits to those aliens who are not entitled to them under the law: since 2009, when Obama took office, it appears to have issued 7.4 million of them. So what's another paltry 9 million? We have One-Man Rule already, and have had it for six years.

Fact: Although Obama ought to be impeached over this, as well as over so many other of his acts contrary to the country's laws, Congress just will not do it. The House of Representative has the votes to pass a bill of impeachment, but the Senate has nowhere near the 67 votes needed to convict. Which is to say: there are at least 21, and potentially as many as 54, traitors to the Rule of Law now sitting in the Senate. And we elected them -- every damned one.

Where, then, does that leave the country? In the hands of a scofflaw who has Congress buffaloed. A scofflaw who vetoes the Keystone Pipeline bill because it "infringes upon his executive prerogatives", while he goes right on infringing on the prerogatives of the legislative and judicial branches with impunity.

I'm with Ann Coulter on this one:
If a Republican majority in both houses of Congress can't stop Obama from issuing illegal immigrants Social Security cards and years of back welfare payments, there is no reason to vote Republican ever again.

Monday, February 23, 2015

SC Court Makes Short Shrift of ECUSA's Motion

As reported here, the Episcopal Church (USA) and its rump group in South Carolina filed a 182-page motion for reconsideration with Circuit Court Judge Diane S. Goodstein, asking her to reverse her earlier decision in favor of Bishop Lawrence, the trustees and the parishes of his Episcopal Diocese of South Carolina. Late this afternoon, Judge Goldstein filed a response denying their motion.

Once you get past all the parties who had to be served with it, Judge Goldstein's order disposing of ECUSA's motion is just two pages in length. She first notes that the largest part of the motion was simply a regurgitation of the draft judgment ECUSA had submitted at the end of the post-trial briefing, and the arguments it had made during the trial -- all of which she had rejected in her 46-page opinion finding in Bishop Lawrence's favor:
This matter is before the Court by way of Defendants' motion for reconsideration brought forth pursuant to South Carolina Rules of Civil Procedure 59(e). The Court has studied Defendant's lengthy motion extensively and oral argument would not be of assistance to the Court. The Court finds that the motion raised no novel issues for the Court's consideration with the exception of the doctrine of judicial estoppel raised on pages 47 and 48 of Defendants' Motion. Large portions of the motion are simply the proposed orders previously submitted to the Court or reiterations of the Defendants' positions at trial. 
Next Judge Goodstein addresses the defendants' judicial estoppel argument. Her explanation of the doctrine is as good as I could give, and is further grounded in applicable South Carolina precedent:
The Court finds that the Judicial Estoppel argument is without merit. The South Carolina Supreme Court defined Judicial Estoppel as "(l) two inconsistent positions taken by the same party or parties in privity with one another; (2) the positions must be taken in the same or related proceedings involving the same party or parties in privity with each other; (3) the party taking the position must have been successful in maintaining that position and have received some benefit; ( 4) the inconsistency must be part of an intentional effort to mislead the court; and (5) the two positions must be totally inconsistent." Cothran v. Brown, 357 S.C. 210, 215-16, 592 S.E.2d 629, 632 (2004).
The ECUSA attorneys had argued that in the All Saints Waccamaw litigation, that began in 2000 under Bishop Lawrence's predecessor and had finally been decided only in 2009, the then Episcopal Diocese of South Carolina had argued that parishes could not amend their articles so as to leave the Diocese, and that the Dennis Canon prevented any parish from taking its property with it. They noted that under Bishop Lawrence, the Diocese reversed those positions -- after the South Carolina Supreme Court held that the Dennis Canon had no legal effect in South Carolina and that nothing in the governing documents prevented All Saints from amending its corporate articles, Bishop Lawrence not only had declined to petition for review of the decision by the U.S. Supreme Court, but he had even given quitclaim deeds to each of his parishes in recognition of the fact that the Diocese had no legal interest in their properties.

So, ECUSA argued, Bishop Lawrence should have been prevented, by the doctrine of "judicial estoppel," from so changing course and citing All Saints as a precedent to Judge Goodstein. Instead, they contended, he was required to stick to the same old arguments his predecessor had made before the South Carolina Supreme Court's 2009 ruling.

Except -- their argument overlooked one small but highly significant detail: as a decision by the State's highest court, All Saints Waccamaw is binding on all churches similarly situated -- including specifically, the Episcopal Church which had lost its argument to that Court -- and on all lower courts in South Carolina. Look at how Judge Goodstein disposes of ECUSA's present argument in one paragraph:
The All Saints matter is a separate and distinct matter from the current litigation. Further, the positions of the Diocese in All Saints were found to be incorrect. If the Defendants' argument in the instant action was correct, no party previously adjudicated to be wrong would be able to correct their conduct in compliance with a court's holding. Such a result would be contrary to all sense of justice and order. Further, there is no evidence that the inconsistent positions were part of an intentional effort to mislead the court. The Doctrine of Judicial Estoppel does not apply.
So much for that futile argument, ECUSA. But Judge Goldstein reserves the best for last. Here are the final three lines of her order, reproduced exactly as she wrote them, with her final punctuation:
With regards all other matters presented in Defendants' Motion for Reconsideration, they are hereby DENIED.  
In light of this order and the earlier one by the Illinois judge a few days ago, one gets the feeling that the courts these days are getting somewhat disgusted with ECUSA's inability to understand when its opponents have won.

Sunday, February 22, 2015

Annual Litigation Survey for the Episcopal Church (USA) 2015

It is a fact well known to certain Episcopalians—both those who have left the Episcopal Church (USA) and those who have remained—that ECUSA and its dioceses have followed a pattern of suing any church that chooses to leave for another Anglican jurisdiction. But the full extent of the litigation that has ensued is not well known at all, either in the wider Church, or among the provinces of the Anglican Communion. (Otherwise -- one would think -- it would never have been deemed to be conduct to be rewarded by this honorary degree, rather than this one.)

Your Curmudgeon proposes to do what he can to rectify this situation, by publishing an annual update on this site of the current status of all past and present cases in which ECUSA or any of its dioceses has been or is involved, from 2000 to date. Feel free to link to this post, to email links to it to other Episcopalians, and to send it to your Bishop -- and feel free to post any updates or corrections in the comments. In another update to be posted as General Convention approaches, I will publish a revised total for all of the money spent by ECUSA and its Dioceses to date on prosecuting all of these lawsuits (and, in the case of the second group below, defending them).

The lawsuits initiated by ECUSA and its dioceses to date are first listed below. They far outnumber, as you can see, the second list of the eight cases begun by a diocese or parish against the Episcopal Church (or a diocese). The listing endeavors to be as complete as I can make it. The first 83 cases, generally grouped by the State in which they each originated, are the legal actions filed since 2000 (of which I am aware) where the Episcopal Church (USA) and/or one of its dioceses played the role of plaintiff—the party who initiates a case in court by filing a complaint to seize the assets and real property of any church choosing to leave ECUSA. Please note that wherever possible the actual citation of any published decision in the case has been given. Also, please note the dates for the later cases, which demonstrate the acceleration of litigation by ECUSA and its dioceses in defiant rejection of the Primates’ call for a moratorium on litigation at the Dar es Salaam meeting.

Note also that in accordance with the policy of those Presiding Bishops who preceded the current one (whose term began in November 2006), the Episcopal Church (USA) did not voluntarily get involved in property disputes between parishes and their dioceses. The great majority of cases below in which ECUSA was or is a party stem from 2007 and afterwards.

1. Against Christ Anglican Church in Mobile, Alabama (plaintiff was the Diocese of the Central Gulf Coast---the suit settled in 2001 before trial, and Anglican congregation moved out; they built a brand-new church in 2005, while the historic Episcopal site became the cathedral of the Diocese that same year)

2.-4. Against St. John’s Episcopal Church in Fallbrook, California (CA); St. Anne’s, in Oceanside CA; and Holy Trinity, in Ocean Beach, CA (plaintiff in all three cases is the Diocese of San Diego -- trial court ruled against the two latter parishes following the decision by the California Supreme Court in the St. James Newport Beach case; parishes decided not to appeal)

5. New case by TEC against St. John’s Episcopal Church in Fallbrook, CA: Dale W. New, Richard L. Goodlake and the Episcopal Diocese of San Diego v. The Rev. Donald L. Kroeger, et al. (following its decision in the St. James case (No. 6 below), the California Supreme Court ordered republished the decision of the Fourth Appellate District [167 Cal.App.4th 800, 84 Cal.Rptr.3d 464 (2008)], awarding the property to the plaintiff Diocese of San Diego; the defendants did not seek further review)

6-8. Against St. James Anglican Church, Newport Beach CA and two others; Episcopal Diocese of Los Angeles and ECUSA v. St. James (Newport Beach) et al. (lead case), Episcopal Diocese of Los Angeles and ECUSA v. All Saints (Long Beach) et al., Episcopal Diocese of Los Angeles and ECUSA v. St. David's (North Hollywood) et al.; Episcopal Church Cases, S155094 (Diocese of Los Angeles is plaintiff, joined by ECUSA; following its decision overruling the defendants' demurrers and reversing the trial court's grant of a motion to strike [45 Cal.4th 467, 87 Cal.Rptr.3d 275, 198 P.3d 66, cert. denied, 130 S.Ct. 179 (2009)], the California Supreme Court subsequently reversed a judgment entered against St. James and ordered that the case go forward; trial court granted a questionable summary judgment which is now on appeal. Similar trial court rulings against the other two parishes are also on appeal.)

9. Against St. Luke’s of the Mountains Anglican Church, et al, La Crescenta CA; Patricia Huber, The Right Rev. Sergio Carranza, The Protestant Episcopal Church in the Diocese of Los Angeles, The Right Rev. J. Jon Bruno, Bishop Diocesan of the Episcopal Diocese of Los Angeles v. The Rev. Dr. Ronald W. Jackson, St. Luke's of the Mountains Anglican Church, et al. (Fourth Appellate District ruled in favor of Plaintiff Diocese of Los Angeles [175 Cal.App.4th 663, 96 Cal.Rptr.3d 346]; parish decided not to appeal further)

10. Against St. John’s Anglican Church in Petaluma, CA; Episcopal Diocese of Northern California v. St. John's Anglican Church, Petaluma (Sonoma County Superior Court; parties agreed to settle following California Supreme Court decision, parish moved to another location and is now a member of ACNA); (Diocese of Northern California was plaintiff)

11. Against Bishop John David Schofield and the diocesan investment fund in the Anglican Diocese of San Joaquin, CA (ACNA); Episcopal Diocese of San Joaquin, The Rt. Rev. Jerry A. Lamb and The Episcopal Church v. Bishop John-David Schofield and The Episcopal Foundation of San Joaquin (Fresno Superior Court; case involves the Diocese of San Joaquin withdrawing from the Episcopal Church); (the TEC-established and -funded Diocese of San Joaquin is the Plaintiff); case went back to Superior Court after successful appeal by Bishop Schofield to the Fifth Appellate District [190 Cal.App.4th 154, 118 Cal.Rptr.3d 160]; trial court ruled that the Schofield decision dictated an outcome in favor of the Episcopal Diocese and ECUSA, and ordered the Anglican Diocese to turn over all its money and real property; case is once again on appeal to the Fifth Appellate District

12. Against St. Columba’s Fresno, CA and its rector and its vestry members, in Fresno County Superior Court (2010); plaintiffs are the remnant diocese of San Joaquin and its bishop; case is stayed pending the outcome of No. 11 above

13. Against St. Francis Anglican Parish of Turlock, CA, its rector and its vestry members, in Stanislaus County Superior Court (2010); plaintiffs are the remnant diocese of San Joaquin and its bishop; case settled following the Kern County decisions (##14-15 below); the parish moved out to new premises

14-16. Against St. Michael’s Anglican Parish of Ridgecrest, CA, its rector and its vestry members, in Kern County Superior Court (2010); against St. Paul’s Anglican parish in Bakersfield, CA, its rector and its vestry members, in Kern County Superior Court (2010) (this was Bishop Mark Lawrence's parish before he went to South Carolina); and against the (nonexistent) Rector, Wardens and Vestrymen of Redeemer Parish in Delano, CA, in Kern County Superior Court (2010); trial court granted summary judgment in the first two cases; the parishes decided not to appeal, and each moved to different premises (there was no effective congregation in Delano -- the property had been rented to another denomination, and it went to the plaintiffs by agreement with the Anglican Diocese)

17. Against the Rector, Wardens and Vestrymen of St. John’s Parish in Porterville, CA, in Tulare County Superior Court (2010); plaintiffs are the remnant diocese of San Joaquin and its bishop; case is stayed pending the outcome of No. 11 above

18. Against the Rector, Wardens and Vestrymen of St. Paul’s Parish in Visalia, CA, in Tulare County Superior Court (2010); plaintiffs are the remnant diocese of San Joaquin and its bishop; case is stayed pending the outcome of No. 11 above

19. Against St. James Church, Sonora, CA, its rector and its vestry members, in Tuolumne County Superior Court (2010); plaintiffs were the remnant diocese of San Joaquin and its bishop; Anglican Diocese agreed to turn over the property to the Episcopal Diocese after the church's rector and his wife were killed in an automobile collision

20. Against the Wardens and Vestry of St. John’s, Stockton, and its rector and its vestry members, in San Joaquin County Superior Court (2010); plaintiffs are the remnant diocese of San Joaquin and its bishop; trial court granted summary judgment in April 2014 against the parish, which decided to move out and not appeal; parish is now St. Francis of Assisi Anglican

21-29. Against the rectors and vestry members of the same nine parishes in Nos. 12-20 above, in the same Superior Courts in CA, respectively (2011) (these were complaints in intervention filed by the Episcopal Church)

30. Against Trinity Anglican Church in Bristol, Connecticut (CT); plaintiff is the Diocese of Connecticut; case settled in 2008; congregation left property to the Diocese

31. Against The Rector and former vestry of Bishop Seabury Church in Groton, CT; plaintiff was the Diocese of Connecticut; parish lost decision in trial court, and Connecticut Supreme Court recently affirmed that decision (302 Conn. 408, 28 A.3d 302); parish’s petition to the U.S. Supreme Court was denied in June 2012, along with a Presbyterian case from Georgia (132 Sup.Ct. 2773)

32. Against Redeemer Anglican Church in Jacksonville, FLEpiscopal Church in the Diocese of Florida v. Lebhar, Case No. 16-2006-CA-002361 (Duval Cnty. Fla. Cir Ct.); plaintiff was the Diocese of Florida; parish left property to go to other premises

33. Against St. Andrew’s in the Pines Anglican Church, Fayette County, GA, Superior Court, Civil Action No. 2007-V0272C, October 2007; plaintiff was the Episcopal Diocese of Atlanta; parish left its property behind and formed a CANA congregation

34. Against Christ Church in Savannah, Georgia, GA; Bishop of the Episcopal Diocese of Georgia, Inc., The Episcopal Church, et al. v. The Rector, Wardens and Vestrymen of Christ Church in Savannah, et al. (Civil Action No. CV07-2039KA, Superior Ct., Chatham County); plaintiffs Diocese of Georgia and ECUSA, joined subsequently by shadow congregation formed by the Diocese, won in Court of Appeal and recently in Georgia Supreme Court [290 Ga. 95, 718 S.E.2d 237]; congregation handed over keys to property on 12/12/2011, later dismissed petition to U.S. Supreme Court, has now moved into a newly renovated, 100-year-old church

35. Against Bishop Alberto Morales, of the Anglican Diocese of Quincy, IL, members of the diocesan standing committee, and the rectors of fifteen parishes in the diocese, individually; plaintiffs are ECUSA and its Diocese of Chicago, into which the rump diocese merged on September 1, 2013; case is still pending, despite the successful outcome of the appeal in the case originally brought against ECUSA by the Anglican Diocese -- see case number 5 in the second group below; it should shortly be dismissed.

36. Against All Saints Church in Attleboro, MA; plaintiff was the Diocese of Massachusetts; the case settled in 2007

37. Against Church of the Good Shepherd, Town and Country, MO; plaintiffs were Bishop Wayne Smith of the Diocese of Missouri and ECUSA (joined as a necessary party, due to its claimed interest under the Dennis Canon); trial court awarded the church property to the Diocese on summary judgment in October 2004; majority of parish left to start AMiA parish at other premises; Episcopal congregation remains in possession

38. Against St. Barnabas Anglican Church, Omaha, NE; plaintiff is the Diocese of Nebraska; trial court denied parish’s motion for summary judgment, and granted summary judgment to the Diocese; the case settled pending appeal, and the parish kept its building

39. Against the Church of the Good Shepherd in Binghamton, NY; The Diocese of Central New York v. The Rector, Church Wardens, and Vestrymen of the Church of the Good Shepherd, Index No. 2008-0980 (N.Y. Sup Ct. Broome Cnty.); plaintiff was the Diocese of Central New York, joined by TEC; trial court ruled in favor of Diocese, parish chose to move to other premises, and Diocese eventually sold church buildings to Muslim group for a mosque

40. Against St. Joseph’s Anglican Church (formerly Trinity Church of East New York) in Brooklyn, NY, which originally separated from ECUSA in 1977, before the adoption of the Dennis Canon; plaintiff was the Diocese of Long Island, in a second action brought in 2005 after it lost its first suit, filed in the early 1980's---the case settled early in 2008, and St. Joseph’s kept its property in exchange for a below-market value payment of $275,000

41. Against St. James Anglican Church in Elmhurst (Queens), NY; plaintiff was the Diocese of Long Island; summary judgment against the parish in March 2008 was not appealed

42. Against All Saints Protestant Episcopal Church in Rochester, NY; Episcopal Diocese of Rochester, et al. v. Harnish et al., Index No. 2006-2669 (N.Y. Sup Ct. Monroe Cnty.); plaintiff was the Diocese of Rochester; N.Y. Court of Appeal ruled in favor of Diocese, based on NY statute giving effect to Dennis Canon (11 N.Y.3d 340, 899 N.E.2d 920 [2008])

43. Against St. Andrew’s in Syracuse, NY; Diocese of Central New York, et al. v. St. Andrew’s Episcopal Church, Index No. 2006-4606 (Sup. Ct. N.Y. Onondaga Cnty.); plaintiff originally was the Diocese of Central New York, and TEC's Domestic and Foreign Missionary Society later intervened---Diocese refused to settle the lawsuit by leasing property to parish, so parish walked away in 2007

44. Against St. Andrew’s Anglican Church in Morehead City, NC; plaintiff was the Diocese of East Carolina and those members of the parish who had not voted to join AMiA; following a jury mistrial, plaintiffs obtained summary judgment which was affirmed on appeal in Daniel v. Wray, 580 S.E.2d 711 [N.C. App. 2003])

45-49. Against St. Luke's Church in Akron, OH and four other northeast Ohio parishes; The Episcopal Diocese of Ohio, et al.v. Anglican Church of the Transfiguration, et al., Civil Action No CV 08 654973 (Cuyahoga County, Ohio Court of Common Pleas); plaintiff is the Diocese of Ohio; trial court granted summary judgment in its favor, and parishes have left their properties

50. Against the Church of St. James the Less, Philadelphia, PA; In re Church of St. James the Less, 585 Pa. 428; 888 A.2d 795 (2005); (Plaintiff was the Diocese of Pennsylvania, and ultimately prevailed in the Pennsylvania Supreme Court in 2005; other than its use for a middle school, this historic church building remains still without a rector and a supporting local congregation as of 2015)

51-53. and ?? Against the 50+ churches of the Episcopal Diocese of Pittsburgh (Anglican- Southern Cone), PA. Plaintiff is the TEC replacement Diocese of Pittsburgh, arising out of an earlier lawsuit initiated by Calvary Church, Pittsburgh against Bishop Duncan and the Diocese of Pittsburgh to prevent them from leaving TEC. The judgment by the trial court required the Anglican Diocese to turn over all of its property to the remnant Episcopal Diocese, was affirmed by the Commonwealth Court in early 2011, and review was later denied by the Pennsylvania Supreme Court. Two parishes have since settled with the remnant diocese, which demanded that the first (St. Philip's) disaffiliate from the Anglican Diocese, and that the second (Somerset Anglican Fellowship, which did not own any real property) return all of its personal property, and not support any litigation against the replacement diocese; a third parish (St. David's) moved out rather than agree to have to "repurchase" its property. Negotiations are ongoing to settle the claims of the remnant diocese against the properties of the other parishes.

54.  Against Bishop Mark Lawrence personally, in Federal District Court in SC, on claims of trademark infringement; plaintiff was Provisional Bishop Charles G. vonRosenberg of the rump group established by ECUSA after the Diocese of SC withdrew; district judge's dismissal of the lawsuit on abstention grounds was appealed to the Fourth Circuit, and argued a few weeks ago; see also No. 7 in cases brought against ECUSA below

55. Against St. Andrew's Anglican Church, Nashville, TN; Plaintiffs were the Episcopal Diocese of Tennessee and Bishop Bauerschmidt; plaintiffs prevailed on summary judgment in the trial court, which was affirmed on appeal in an unreported decision in 2011; Tennessee Supreme Court recently denied review -- parish has vacated its prime property and associated nursery school, and Bishop Bauerschmidt has moved his diocesan headquarters there

56. Against Church of the Good Shepherd, San Angelo, TX; plaintiff is the Diocese of NW Texas; parish lost below and in the Court of Appeal, and after arguments in 2012, Texas Supreme Court reversed the Court of Appeal and remanded for proceedings using "neutral principles" without reference to the Dennis Canon, which the Court held was ineffective in Texas to create a trust (422 S.W.3d 594 [2013]); Diocese and ECUSA's motions for rehearing and petitions for review in the U.S. Supreme Court were both denied, and case is back in trial court, awaiting summary judgment

57. Against the Rt. Rev. Jack Leo Iker and the other trustees of the Corporation of the Episcopal Diocese of Fort Worth, in the 141st District Court of Tarrant County, TX; plaintiffs, the remnant diocese and its appointed bishop, were later joined by the Episcopal Church, and the lawsuit was subsequently broadened to include all individual parishes of the remnant diocese as cross-complainants, and all individual parishes of +Iker’s Episcopal Diocese as cross-defendants; the trial court’s grant of summary judgment in favor of the remnant diocese and its bishop in early 2011 was appealed directly to the Texas Supreme Court, which reversed the summary judgment and remanded the case for trial under "neutral principles" (422 S.W.3d 646 [2013]); Diocese and ECUSA's motions for rehearing and petitions for review in the U.S. Supreme Court were both denied, and case is back in trial court; hearing on cross-motions for summary judgment held Feb. 20, and decision expected soon

58. Against St. Andrew’s Episcopal Church of Ft. Worth, in Hood County District Court, TX; plaintiff is the remnant diocese of Ft. Worth and Bishop Ohl, its provisional bishop; plaintiff seeks to have the proceeds of a trust fund left to St. Andrew’s, which remains with Bishoip Iker and his Diocese, turned over to the remnant group; the trial court stayed the proceedings pending the outcome in the case described in the previous paragraph

59. Against the Rt. Rev. Jack Leo Iker individually, for alleged trademark infringement, in federal district court in Ft. Worth, TX; plaintiffs are the remnant diocese and its bishop; court dismissed the case after the ruling by the TX Supreme Court in No. 57 above

60. Against The Rt. Rev. Jack Iker, individually, and unnamed agents and representatives acting with him as part of the Episcopal Diocese of Ft. Worth, in federal district court in Ft. Worth, TX; plaintiffs are privately supported members of the vestry of All Saints Episcopal Church, Ft. Worth, carrying through on their threat made in a letter of January 21, 2009 published by Stand Firm; the grounds alleged were very similar to those alleged in the suit described in the previous paragraph; the federal court dismissed the case following the ruling by the Texas Supreme Court; now, however, in the State court action (No. 57 above), Judge Chupp has severed the case of All Saints for a separate trial in March 2015 -- probably due to the fact that All Saints is a corporation with some parcels of property in its own name

61. Against Church of the Epiphany Herndon, VA; The Protestant Episcopal Church in the Diocese of Virginia v. Church of the Epiphany, Herndon, CL 2007-1235 (Circuit Court for Fairfax County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

62. Against Truro Church Fairfax, VA; The Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, CL 2007-1236 (Circuit Court for Fairfax County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

63. Against Christ the Redeemer Church, Chantilly VA; The Protestant Episcopal Church in the Diocese of Virginia v. Christ the Redeemer Church, CL 2007-1237 (Circuit Court for Fairfax County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

64. Against Church of the Apostles, Fairfax VA; The Protestant Episcopal Church in the Diocese of Virginia v. Church of the Apostles, CL 2007-1238 (Circuit Court for Fairfax County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

65. Against The Falls Church, Falls Church VA; The Protestant Episcopal Church in the Diocese of Virginia v. The Church at The Falls – The Falls Church, CL 2007-5250 (Circuit Court for Fairfax County, Va.)(formerly Case No. 07-125, Circuit Court for Arlington County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

66. Against Potomac Falls Church, Potomac Falls VA; The Protestant Episcopal Church in the Dioceses of Virginia v. Potomac Falls Church, CL 2007-5362 (Circuit Court for Fairfax County, Va.)(formerly Case No. 44149, Circuit Court for Loudoun County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

67. Against Church of Our Saviour, Oatlands, VA; The Protestant Episcopal Church in the Diocese of Virginia v. Church of Our Saviour at Oatlands, CL 2007-5364 (Circuit Court for Fairfax County, Va.) (formerly Case No. 44148, Circuit Court for Loudoun County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – parish agreed to settle with Diocese in 2011 for a five-year leaseback of its property, in exchange for its disaffiliation from CANA and agreement not to affiliate with any other Anglican entity so long as they occupy the premises

68. Against St. Margaret’s Church, Woodbridge, VA; The Protestant Episcopal Church in the Diocese of Virginia v. St. Margaret’s Church, CL 2007-5682 (Circuit Court for Fairfax County, Va.) (formerly Case No. CL 73465, Circuit Court for Prince William Cnty., VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

69. Against St. Paul’s Church, Haymarket, VA; The Protestant Episcopal Church in the Diocese of Virginia v. St. Paul’s Church, Haymarket, Case No. CL 73466 (Circuit Court for Fairfax County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

70. Against Church of the Word, Gainesville, VA: The Protestant Episcopal Church in the Diocese of Virginia v. Church of the Word, CL 2007-5684 (Circuit Court for Fairfax County, Va. )(formerly Case No. CL 73464, Circuit Court for Prince William County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit; parish agreed to settle with the Diocese in early 2011 on terms similar to those with the Church of Our Savior, Oatlands, but retained possession of its (reduced) property by assigning to the Diocese the lion's share of a condemnation award from the State of Virginia

71. Against St. Stephen’s Church, Heathsville, VA; The Protestant Episcopal Church in the Diocese of Virginia v. St. Stephen’s Church, CL 2007-5902 (Circuit Court for Fairfax County, Va.)(formerly Case No. CL 07-16, Circuit Court for Northumberland County, VA); plaintiff is the Diocese of Virginia; note that parish filed initial petition to confirm its vote to affiliate with CANA pursuant to a "standstill" agreement with the Diocese, in order to allow negotiations over purchase price for property, that Diocese shortly afterward revoked that agreement on instructions from the new Presiding Bishop Jefferts Schori and filed this lawsuit – for its resolution, see news for cases 72-82 below

72-82. Against Truro Church and all of the Virginia Anglican churches affiliating with CANA above, Plaintiff is the Episcopal Church (USA); The Episcopal Church v. Truro Church, et al., CL 2007-1625 (Circuit Court for Fairfax County, VA; case was tried again in Circuit Court in 2011 following reversal by Virginia Supreme Court in 2010 of trial court’s earlier decision in favor of parishes; trial court ruled this time in favor of Diocese; all but one defendant have surrendered their property to the Diocese, with Truro leasing theirs back for a limited time; only The Falls Church appealed to the Va. Supreme Court, which ruled against it on a strange "implied trust" theory in 2013; petition for certiorari to the U.S. Supreme Court was denied after being held over to four different conferences)

83. Against St. Edmunds Anglican Church, Elm Grove, WI; plaintiff is the Diocese of Milwaukee; trial court granted summary judgment against parish in 2011; parish later vacated the property, which remains vacant

As a matter of fairness, I also list the number of cases where the Episcopal Church (USA) or one of its dioceses is the defendant and not the plaintiff. There are only eight instances, as shown below. But in all but the first, it was the diocese (or ECUSA) which triggered the filing of a lawsuit by moving to take control of the individual church's assets, and the legal actions that followed were essentially a defensive response against those moves.

1. The earliest instance of a parish starting a lawsuit was in 2000, after a dispute arose between All Saints Parish, Pawley's Island, South Carolina (SC), the Diocese of South Carolina, and TEC in connection with the formation of the Anglican Mission in America. The suit eventually found its way to the South Carolina Supreme Court, which in September 2009 issued a decision finding that the Dennis Canon did not create any kind of a trust interest in parish property under South Carolina law, and ruling that the property remained with the parish despite its disaffiliation from the Episcopal Church (385 S.C. 428, 685 S.E.2d 163).

2. An action was brought in 2005 in federal district court by six parishes and their rectors (the “Connecticut Six”) against the Diocese of Connecticut, whose bishop had suspended the priests in question and taken over some of the church properties. The court dismissed the lawsuit the next year, and the diocese has since brought the actions listed as Nos. 30 and 31 above.

3. Grace Church & St. Stephens, Colorado Springs, CO, sought declaratory judgment against the Bishop and the Diocese of Colorado. However, in that suit, the plaintiff church sought a simple declaration that the diocese had no right, title or interest in its property, in response to an attempt by the diocese to freeze the church's bank accounts. The response of the diocese was to file a counterclaim against the church, its rector and 17 of its vestry and leading parishioners seeking millions of dollars in damages. The trial court granted judgment for the Diocese following a trial in 2009, and the parish chose not to appeal, but to move from the property to a new location.

4. The Diocese of the Rio Grande and St. Francis on the Hill (El Paso, TX): St. Francis began the suit with a claim for declaratory relief in response to the threat of suit by the diocese to take their property. Eventually the trial court granted summary judgment to the Diocese, and the parish left its property.

5. The Diocese of Quincy (IL) sued the Episcopal Church in 2009 for declaratory relief after the latter had asked the diocese’s bank to freeze its accounts. The trial court rendered a decision in the Diocese's favor in September 2013, finding that there was no provision in ECUSA's governing documents that kept a diocese from amending its constitution to remove the accession clause; ECUSA filed an appeal, in which its request was denied to join the Diocese of Chicago, into which the rump diocese of Quincy merged in September 2013; appellate court affirmed the trial court's decision in all respects in July 2014 (14 N.E.3d 1245 [2014]), and ECUSA's bid to have the Illinois Supreme Court review the case was denied in November 2014; ECUSA continued to try to freeze some of the Diocese's funds even after losing, and was severely chastised and sanctioned by the trial court in February 2015.

6. The parish of St. Paul's in Darien, CT filed in 2013 a petition with a local court for a declaration that its property was free and clear of any trust interest under the Dennis Canon. The parish remains in the Diocese of Connecticut - the action was dismissed after the Connecticut Supreme Court upheld the Dennis Canon in Case No. 31 above.

7. The Diocese of South Carolina sued the Episcopal Church in January 2013 in the Court of Common Pleas for Dorchester County after the Church began “abandonment of Communion” proceedings against the Rt. Rev. Mark Lawrence, which action triggered the Diocese’s immediate withdrawal. The suit was filed before TEC could fulfill its announced intention to sue the Bishop and the Diocesan trustees for the Diocese’s property and bank accounts, once it reorganized a new Episcopal diocese at a special convention in January 2013. The court entered a restraining order against anyone but Bishop Lawrence and his agents using the name and marks of the Episcopal Diocese of South Carolina, which ECUSA and later the rump diocese agreed could become a preliminary injunction pending the trial or further notice. Then the rump diocese removed the case to Federal District Court, which after eight months remanded the case to the Court of Common Pleas. That court denied the rump diocese's motion to compel production of all emails and correspondence between Bishop Lawrence and his Chancellor, which order the rump diocese immediately appealed, without success. The case went to a fourteen-day trial in July 2014. On February 3, 2015 the trial court filed a 46-page decision ruling in favor of Bishop Lawrence and his parishes; ECUSA and the rump group filed a motion for reconsideration as a prerequisite to appealing the decision later this year, which the court denied on Feb. 23, 2015. The defendants have 30 days within which to appeal, at which time the plaintiffs will most likely file a motion to transfer the appeal directly to the Supreme Court.

8. The small parish of the Church of the Ascension in Middle River, MD filed suit against the Diocese of Maryland in April 2013 after it had declared the parish "imperiled", conducted a final service there, and then locked the congregation out. Although the parish could not support a full-time rector, it had $27,000 in the bank and income from a rental on the church property when the Diocese closed it down. The suit seeks a return of the property to the incorporated parish, which it says  Bishop Sutton signed over to the Diocese without any authority. The Diocese's defense is based on the Dennis Canon--which ironically states that it shall "shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons." To your Curmudgeon's knowledge, this is the first time that the Dennis Canon has been used in reverse: to take over the property of a parish that remains in the Diocese, instead of trying to leave it, by first declaring it "imperiled" and then by closing it down.

Saturday, February 21, 2015

Judge Chupp to Decide Ft. Worth Case

Yesterday morning the Hon. John Chupp, District Judge for the 141st District Court in Tarrant County, heard oral arguments in the case that the Texas Supreme Court last September remanded to him for trial. Both sides had filed motions for summary judgment, as there is scarcely any dispute over the facts. The disagreement instead is all about application of Texas law to those facts.

The Episcopal Diocese of Fort Worth (Bishop Iker’s Diocese) and the Diocesan Trustees are the defendants in the case. They issued a press release describing the course of the oral arguments:
Oral arguments on each side’s motion for partial summary judgement were heard this morning in a two-hour hearing before the Hon. John Chupp, and a ruling is expected from him soon. The judge asked for each side to submit proposed orders to him on Monday, Feb. 23. He will likely select one of them to sign, subject to any alterations he may wish to make.
In the course of the hearing before several dozen clergy and lay people, Judge Chupp asked each side, “What are you asking me for today?” The Plaintiffs argued for a “simple solution” acknowledging that the property is held in trust for the Diocese and Congregations by those individuals recognized by The Episcopal Church.

The Diocese and Corporation countered that, under neutral principles of law as mandated for the trial court to follow, the Dennis Canon has been found by the Texas Supreme Court to have been revoked, leaving the property in trust for the parishes and missions in fellowship with the Diocese, and only those individual defendants before the court are the duly-elected officers of the Diocese and the Corporation.

Judge Chupp posed a number of questions to the Plaintiffs during their presentation, and the discussion was frequently animated. Near the conclusion of the hearing he indicated a philosophical preference for local self-determination, asking, “Why do we need to have a ‘big government’ solution to this where a New York church says [what is best]?”
While the ruling on the motions for partial summary judgment is yet to be issued, one section of the dispute will go forward separately. During oral argument by attorney Frank Hill, who represented the plaintiff parishes, Judge Chupp decided to sever out the claims of All Saints’, Fort Worth, for a separate jury trial this spring. As an alternative, the judge urged Mr. Hill several times to opt instead for a settlement under diocesan Canon 32, which sets out a procedure to follow in cases where a parish wishes to separate from the Diocese. Though Mr. Hill expressed his belief that the Diocese would not have given the parish a favorable settlement at any time from 2008 to the present, the judge chided him, saying, “But you didn't even try.”
Following the hearing, Bishop Iker commented, "I am grateful to everyone who observed a time of prayer and fasting for this key hearing. While we were very encouraged by several comments and questions posed by Judge Chupp to attorneys on both sides, we have learned that you cannot rely on impressions to try to predict what his ruling might be.
“Continue to pray for clarity and right understanding for him as he considers how to decide this case in the days ahead. We hope to have a decision sometime next week. We continue to trust in the Lord for the outcome in this case.”
Look for Judge Chupp to issue his decision in a week or so.

Friday, February 13, 2015

ECUSA to Judge Goodstein: "We, not You, Get to Say What Is Ours"

As predicted in this space, the Episcopal Church (USA) and its rump group have, precisely on the last possible day to do so, filed a motion asking Judge Goodstein to "reconsider" (actually, replace wholesale) her decision and order of ten days ago. The motion and its statement of reasons are 182 pages long.

From the outset, ECUSA's attorneys attempt to define the playing field according to their understanding of how the church litigation game is played. They state their very first objection to the ruling as follows (with my bold added for emphasis):
On page 2, the Order fails to consider the true nature of this dispute and the real parties in interest. In the Complaint, the parties appearing as the Plaintiff Diocese and Plaintiff Trustees specifically sought declaratory judgments that they are the corporate identities they allege to be.
Well, no -- as a matter of record, the Plaintiff Diocese and Trustees did not seek any such "declaratory judgment [as to their] corporate identities." You can download the original complaint from this link, and see for yourself just what kind of declaratory relief those Plaintiffs sought. Here is the complaint's opening paragraph, with again my bold added for emphasis:
Plaintiffs, through their respective undersigned counsel, bring this action against the Defendant [Episcopal Church (USA)] seeking a declaratory judgment pursuant to §§ 15-53-10 et seq. of the South Carolina Code of Laws (1976) that they are the sole owners of their respective real and personal property in which the Defendant has no legal, beneficial or equitable interest. The Plaintiffs also seek a declaratory judgment that the Defendant and those under its control have improperly used and may not continue to use any of the names, styles, seals and emblems of any of the Plaintiffs or any imitations or substantially similar names, styles, seals and emblems and that the Court enter injunctions prohibiting the Defendant and those under its control from such uses pursuant to §§ 39-15-1105 et seq. and §§ 16-17-310 and 320 of the South Carolina Code of Laws (1976).
It is only in the fertile imaginations of ECUSA's legal counsel that the Diocese of South Carolina and its Trustees sought to have the court declare just "who" they are -- because had they done so, the door would have opened for ECUSA to play its identity games. ("You are not 'the Diocese of South Carolina'; the entity that we say is the 'Diocese' is the true 'Diocese of South Carolina', and no court anywhere can ever question what we say.")

That is not a very effective way to get Judge Goodstein's sympathy or attention. And indeed, the entire document proceeds in that same vein. Take this rewriting of Church history at the start of page 5 of the motion (my bold, again):
On page 3, the Order incorrectly states that the Diocese is older than TEC. The evidence introduced at trial shows that an early convention of the Protestant Episcopal Church in the United States of America, held in 1784, predated and in fact recommended the earliest organizational meeting of former Anglican parishes in this State in 1785.
This howler stands history on its head. According to ECUSA's motion, the meeting of the South Carolina parishes in 1785 was just "organizational" in nature, even though the parishes adopted their very first governing document at that meeting. But was the meeting held in New York in October 1784 really a full-blown "convention" of an already-formed "Protestant Episcopal Church in the United States of America"?

Hardly. Read the remarks of Bishop William White, generally recognized as the leading founder of PECUSA, as I reported them in this earlier post (with my bold, again):
. . . And there appeared [at that more general meeting in October 1784] Deputies, not only from the said three States, but also from others, with the view of consulting on the exigency of the Church. The greater number of these Deputies were not vested with powers for the binding of their constituents; and therefore, although they called themselves a Convention . . . yet they were not an organized body. They did not consider themselves as such; and their only act was, the issuing of a recommendation to the churches in the several States, to unite under a few articles to be considered as fundamental.
Moreover, at pages 6-7 the motion again reverses temporal order: "The Diocese [of South Carolina] came into existence as the Diocese when TEC's Constitution was adopted in 1789." This claim is  metaphysical, not legal -- if the Diocese did not have any legal existence before its authorized representatives signed ECUSA's Constitution in 1789, then how could their signatures on the Constitution have been authorized? And why did they sign as "Lay Deputies from the State of South Carolina" if the Diocese (i.e., "State") did not yet exist? (The "State of South Carolina" [in the political sense] was not the entity forming PECUSA. The word "State" was also used in an ecclesiastical sense, as the predecessor to the later word "Diocese" -- which began to be used after the State of New York split into two "Dioceses" in 1839.)

The motion goes right on inventing new facts and claiming them to be true. In this passage, it not only tries to minimize the role of the national headquarters in providing the wherewithal to finance Bishop vonRosenberg's multiple lawsuits, but it claims that the Diocese that withdrew is only "slightly" larger than the dissidents who chose to stay in the Episcopal Church (p. 17; my bold):
This dispute cannot fairly be characterized as being between unified South Carolinians and a far off organization headquartered in New York. It is very much a dispute between and among South Carolinians. Plaintiffs only enjoy a slight majority in their total number of supporters ...
Forty-nine parishes, comprising nearly 80% of the nearly 30,000 people who made up the laity of the Episcopal Diocese in 2012, affirmed its decision to withdraw from ECUSA, and have remained with Bishop Lawrence. But for ECUSA and the 20% who chose to stay with that body, 24,000 is only a "slight majority" more than 6,000 (hint: try 400% greater).

Again and again, the motion for reconsideration is full of similar distortions and misstatements, whose cumulative effect makes for very desultory reading. I cannot commend it to anyone who values honesty, plain statement, and truth over obfuscation and prevarication. So exercise caution in how much of a dose you take at any one sitting.

The purpose of the motion is not so much to persuade Judge Goodstein to reverse her decision, as it is to make a record of points the attorneys plan to raise on appeal. By itemizing every asserted mistake or shortcoming in painstaking detail, it gives Judge Goodstein a last chance to clear up any ambiguities, or to shore up any of the findings, in her decision that she may discover as a result of going through the motion.

Nevertheless, the position of ECUSA with regard to the courts of South Carolina, as it emerges from this document, is stark. Take this passage from page 20, for example:
The Order’s Finding of Fact No. 68 also fails to address that the Plaintiff parishes were all a part of TEC and now claim to have withdrawn from TEC. Whether parishes are “members” of TEC in a typical common law association or corporate sense is a misguided legal question that infringes upon the TEC’s First Amendment rights and disregards the true organizational nature of TEC: TEC’s dioceses and parishes are part of TEC, as a hierarchical religious organization. The First Amendment requires that TEC is the only body that can declare who are its dioceses and parishes.
So, South Carolina courts -- you are indulging a "misguided legal question" and "infring[ing] upon TEC's First Amendment rights" when you try to analyze "membership" in that august body in terms of "a typical common law association." Only TEC gets to say what it is, in both an ecclesiastical and a legal sense, because otherwise it is somehow prevented from being a Church. ECUSA, in other words, is claiming to be above the law.

Message to ECUSA and its attorneys: Judge Goodstein's decision has not prevented you from declaring "who are your dioceses and parishes." She has accepted that you recognize ECSC as one of your "dioceses", and that its parishes are the ones who today remain with it.

But if it takes you 182 pages to explain to a court why you are entitled not only to have ECSC and its parishes in your organization, but also the Diocese that voted to leave along with its parishes, don't you think that there might have been a clearer way to structure your organization under the law? Your General Convention, for example, rejected overwhelmingly a proposal to add a "Supremacy Clause" to your Constitution: does not that fact say a great deal about how your dioceses viewed who was actually in charge?

And the courts in Illinois could not find any "highest judicatory" in your structure -- because you never created one. You claim that "General Convention" (which is a legislature, not a court of ecclesiastical law) somehow "delegated its authority to other bodies, including the Disciplinary Board for Bishops and the House of Bishops" (motion, at p. 21). But "delegation" is not the word to describe what happened: the Church's Constitution (Art. IX) provides that only bishops may sit in judgment of other bishops, much like the U.S. Constitution provides in Article III that the judicial power "of the United States" [n.b.: not Congress] shall be vested in a Supreme Court ...".

ECUSA's case, in other words, is made up out of whole cloth. Indeed, I daresay that the reason Judge Goodstein could not find in its favor was precisely because ECUSA's arguments were so lacking in candor, and so divorced from history, reality, and what its governing documents actually say. I thus have no difficulty in predicting that she will deny the motion.

Monday, February 9, 2015

How to Make the Church Even Less Relevant

It is that time of the triennium again, as ECUSA starts to build up to its 78th General Convention this summer. Long since having lost its mooring and drifted out to sea, General Convention continues to be populated by those whose object is to move the Church in their desired direction, and who think they can do so by getting General Convention to take some particular action. In the process they do not care how they bend the rules -- even when it means driving the cart before the horse.

Take the subject of Christian marriage, for example. It should be obvious that the term "Christian marriage," also known (in the Book of Common Prayer) as "Holy Matrimony," has a meaning that is different from "civil marriage," right? The Church derives the former from Scripture, and has been handed it down from generation to generation, to preserve, protect and defend -- correct? While the State defines the latter term in accordance with its statutes from time to time?

And that has been the status for nearly two thousand years in various branches of the Church. As ECUSA received that tradition from the Church of England, which received it from the Church of Rome, "Holy Matrimony" is a union conferred by God (as Jesus explained) upon a man and a woman, sealed by their lifetime vows, acting through the divine authority conferred upon Peter by Jesus Christ, and by Peter upon the priesthood whom he and his apostolic successors ordained.

Civil marriage, on the other hand, is a status conferred upon two people (not necessarily, in this day and age, a man and a woman) by the State in which they reside, and whose jurisdiction over them they recognize. Virtually anyone authorized by statute can act as the State's agent in conferring such a status, provided the couple has obtained a "license" in accordance with the State's own requirements. Specifically, the agent does not have to be anyone ordained to the priesthood.

One would have thought until now that the Episcopal Church (USA) had managed to keep the two separate. One would have been wrong.

Once the several States began to authorize civil unions between two people of the same sex, the Church began to seek for ways to incorporate those unions into its authorized rites, as well. At first, it was recognized that the ceremony of Holy Matrimony was unique to the Church -- meaning that its unique, God-given state ("that no man may put asunder") could be conferred only by the Church through its priests, and only by following the rubrics of the Book of Common Prayer.

General Convention 2009 began to undermine the authority of the BCP when it authorized its Standing Commission on Liturgy and Music to develop "theological and liturgical resources for the blessing of same gender relationships" (Res. 2009C056; emphasis added) -- all the while pretending that no changes were being made to traditional marriage as celebrated in the BCP. In response to its work, General Convention 2012 commended . . . for study and use in congregations and dioceses" certain rites for the "Witnessing and Blessing of a Lifelong Covenant in a same-sex relationship" (Res. 2012A049; emphasis added).

Do you see the subtle word games going on to this point? God forfend that General Convention should be doing anything to alter marriage as such; all it is purporting to do is to develop some experimental liturgical rites to celebrate "same-sex relationships".

But now look at what has happened. The General Convention's Task Force on the Study of Marriage has proposed to revise Canon I.18 ("On Marriage"). I'm not going to reproduce all of the proposed changes here; you can see them for yourself, at pp. 4-6 of the document at the link just given. Just notice, if you will, that as the title goes, so goes the Canon -- the title is changed from "Of the Solemnization of Holy Matrimony" to "Of the Celebration and Blessing of Marriage." The words "Holy Matrimony" are removed from Sections 1, 2 and 3, so that the Canon (if amended) will speak only to something called "marriage" as such; it will no longer speak to what is defined by (and in) the Book of Common Prayer as "the union of a man and a woman".

And what is the significance of that change? Seemingly it is rather subtle on the surface, but beneath the surface it runs very deep, into the heart of the Church.

To see just how, consider who reads the canons: practically no one, until a matter of clergy discipline surfaces. Lay people, and even many clergy, are ignorant of the Canons. (For example, no less than the Standing Committee of the Diocese of Maryland recently called for Suffragan Bishop Heather Cook to submit her resignation -- but she couldn't ask to resign, even if she wanted to. She is the subject of a Title IV disciplinary proceeding, and Canon III.12.8 (b) prohibits the Presiding Bishop from considering or acting upon any such request to resign until "the disciplinary matter shall have been resolved ...".)

People who sit in the pews, however, are familiar with the Book of Common Prayer, and use it at least every Sunday. The proposed change in Canon I.18 would remove, as far as marriage is concerned, the last remaining link between the BCP that every Episcopalian knows and uses and the governing documents of the Church. The rites which General Convention 2012 purported to "commend" (not, please note, "authorize" -- only the BCP and the Ecclesiastical Authority may authorize rites in a diocese) to the Church are not part of the BCP, and cannot become so until the procedures have been duly followed to amend the BCP.

As provided in Article X of the Church's Constitution, it takes the vote of two successive General Conventions to change anything in the Book of Common Prayer -- plus, each of the Church's dioceses must consider the proposed change at one of its diocesan conventions in the three years between General Conventions.

The rubrics of the BCP are thus superior to Canons of the General Convention, because the latter can be amended by the vote of just a single Convention, while the former require the vote of two, plus consideration by each and every Diocese in between.

And the rubrics of the BCP currently define "Christian marriage" as "a solemn and public covenant between a man and a woman in the presence of God" (p. 422). Not only that, but the entire ceremony of Holy Matrimony in the BCP is filled with references to "the man" doing and saying this, and "the woman" doing and saying that. The same is true for the "Blessing of a Civil Marriage Cermony" that begins on page 433 of the BCP and for the "Order for Marriage" beginning on page 435.

With this proposed change to the Canon on Marriage, therefore, there will no longer be any canonical link to "marriage" as regulated by the Canon and "Holy Matrimony" as regulated by the BCP. The Canon, if revised as proposed, will simply govern those cases where people already considered civilly married by the State may have their union blessed by a priest, as well as those who, for whatever reason, want to be married civilly by a priest in ECUSA. (As both the current and proposed version make clear in their last sections, any priest may in his discretion refuse to perform any blessing or solemnization of marriage.)

The Canon will no longer make any reference to the BCP, because the words "Holy Matrimony" will have been deleted from it. And the ceremonies provided in the BCP, of course, make no reference to the Canons -- they don't have to, because the BCP ranks higher than the Canons. So the Canon will apply only to those locally authorized ceremonies not in the BCP, and the BCP will continue to regulate traditional ceremonies, which will (after GC 2015) no longer be covered by the Canon.

The undermining of traditional marriage will, if this proposed change passes, be just about complete. The pewsters will think that nothing has changed, because their BCPs haven't changed. But for those who want to transform ECUSA into a secular adjunct of today's society,  nothing more will remain to be done. They won't have to amend the BCP, because they have their special rites which individual bishops are already allowing to be celebrated.

Nevertheless, the disconnect between Holy Matrimony as celebrated in the BCP and civil marriage as soon to be authorized by the Canons means that the Church itself will have become schizophrenic on the subject. Clergy can continue (for the present, at least) to celebrate traditional marriages in the forms provided in the BCP, even without any canonical authority, because the BCP furnishes its own authority for them to do so.  (After the BCP ceremony, they can still sign the State's required certificate, but that act just serves to make the Church's ceremony also a State-recognized one.) At the same time, they can function purely as agents of the State to solemnize and bless civil unions as their bishops may allow -- because the BCP has nothing to say about it, the canons will (shortly) allow it, and the State doesn't care.

But no one can say that the two forms of "marriage" are the same. The State may recognize both, but the Church has many more requirements for its Holy Matrimony. Which raises the question: why is the Church even bothering to have anything to do with civil marriages? What does the Church bring to such a union, if it is not solemnized according to the BCP? What is the point of having a minister recite the required words, and sign the required paperwork? It still cannot be Holy Matrimony -- unless and until General Convention gets around to rewriting the BCP wholesale, proposes its changes to the dioceses to approve, and then gets a final vote passed by a majority in each order.

I submit the Church, by cheapening itself in the meantime to do civil marriages, is simply providing window dressing for those who would like to be seen as having the Church blessing their union. And a church that exists to provide window dressing is not a church, but a secular wedding chapel.

So go ahead, General Convention 2015: make the Church even more irrelevant than it is already. (You've done such a fine job of it thus far.) It's all part of the process of decay.

Wednesday, February 4, 2015

South Carolina Decision a Full Vindication for Victims of ECUSA's Oppression

Circuit Judge Diane S. Goodstein's carefully crafted 46-page decision in the case brought by Bishop Mark Lawrence's Episcopal Diocese of South Carolina (along with 35 of its parishes, plus St. Andrew's, Mt. Pleasant) against the Episcopal Church (USA) and its rump group (ECSC, or "Episcopal Church in South Carolina") is a complete vindication of the positions taken and arguments advanced for so long, by so many, inside and outside the Church.

It is a vindication first, for the Right Reverend Mark Lawrence and his legal team, who conceived the winning strategy, assembled and put on all the evidence, wrote all the briefs, argued all the appeals, fought back in the federal courts, and at last brought ECUSA to its day of reckoning.

It is a vindication, as well, of Bishop Lawrence's pastoral strategies, by which he showed how spiritual leaders can follow and submit themselves to the civil law, while in doing so remain faithful and Biblical counselors and guides for those in their spiritual care. It was Bishop Lawrence who decided on behalf of his Diocese not to appeal the All Saints Waccamaw decision to the U.S. Supreme Court and run the risk of dividing his parishes still further. It was Bishop Lawrence who accepted responsibility for giving each parish in his Diocese a quitclaim deed in compliance with the holding in All Saints Waccamaw that the Dennis Canon could on its own not create a trust in any property in South Carolina. These decisions led to the accusations of "abandonment" brought against Bishop Lawrence by his detractors, but they were pastorally the right decisions to make under the circumstances. Had ECUSA's leaders shown a comparable willingness to submit to the everyday requirements of the civil law, the Church would not be where it is today: millions and millions of dollars poorer, with absolutely nothing to show from the squandering of all its trust funds.

It is a vindication of all of the faithful parishioners and clergy in the Episcopal Diocese of South Carolina who remained by their Bishop, and provided much-needed financial support, as ECUSA and its minions sought to bring him down by the sheer weight of all the forces they could bring to bear against him and his Diocese.

It is a vindication for this country's honest and hard-working judiciary. Judge Goodstein has set a sterling example (in contrast to that set in the parallel San Joaquin case by Judge Donald Black, of the Fresno Superior Court) of how to write a thoroughly reasoned, well-organized opinion that deals with the historical facts and expert testimony in a manner that is true to what that evidence showed. (Judge Black brushed off the questions put to him in the link above, and never deigned to answer them.) Judge Goodstein not only answered each and every one of them (but with reference to the Diocese of South Carolina, not San Joaquin), but she did so in spades, and constructed an opinion so solidly grounded in the testimony, evidence and applicable South Carolina law that it should stand up intact on any appeal.

It is a vindication of the Fort Worth seven and the Quincy three, whose advocacy of the same positions adopted yesterday by Judge Goodstein caused ECUSA mindlessly to discipline them, without good cause, a year ago.

It is a vindication of the Bishops' Statement on the Polity of the Episcopal Church, which the majority of ECUSA's House of Bishops, led by their chosen Presiding Bishop,  belittled and rejected. (Maybe now they will reconsider their views.)

It is a vindication of Mark McCall, the Rev. Dr. Ephraim Radner, the Very Rev. Dr. Philip Turner, and the Rev. Dr. Christopher Seitz, all of the Anglican Communion Institute, which has for so long fully documented and advocated the positions adopted by Judge Goodstein in her opinion. (To be accurate, the Institute has never advocated that any Diocese should withdraw from ECUSA, and has instead argued that they should fight the good fight from within the Church.)

And lastly, while the decision cannot be viewed as a vindication for Episcopalians such as myself and others who disagree strongly with the legal strategies of ECUSA's current bishops and attorneys -- because it does nothing to rectify what is wrong with ECUSA today -- it is at the very least a justification for our continuing to sound the alarm over those ill-conceived strategies, which contradict, undermine and betray the very foundations of this Church (see, e.g., factual findings 1 through 7 on page 6 of Judge Goldstein's decision).

One of the key factual findings by the Court is this:
39. Mark Lawrence was not elected Bishop of the Diocese with the intent on either his part or on that of the Diocese to lead the Diocese out of TEC. From 2009 until October 2012, his intent was to remain "intact and in TEC."
Based on this finding alone, Judge Goodstein dismissed "with prejudice" (meaning that they cannot be raised again, in any forum) ECUSA's and ECSC's counterclaims against Bishop Lawrence. Those had accused him of "conspiring" to lead his Diocese out of ECUSA, of fraud and breaches of fiduciary duty, etc., and generally of conduct unbecoming a member of the clergy -- claims that his accusers had to bring twice before the Disciplinary Board before the Presiding Bishop could get what she wanted (once she changed its membership slightly).

Needless to say, Judge Goodstein made such a finding because ECUSA and ECSC never had any evidence to substantiate their charges. (Note to hostile readers, such as those from the Episcopal Forum in South Carolina, or the followers of Steve Skardon: "evidence" in a court of law is something far more than just accusations and innuendo. What you can say on your blogs is not "evidence." Until you learn this difference, you have no basis upon which to claim victory in any court.)

On the legal side, the decision is chock full of useful conclusions that can be cited and used in the Fort Worth case, and in the ongoing appeal in the San Joaquin case. For example, this is one of the best judicial discussions to date of the First Amendment rights of a diocese-member of an unincorporated church such as ECUSA:
Freedom of association is a fundamental constitutional right: "it is beyond debate that freedom to engage in associations for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment .... " NAACP v. Alabama, 351 U.S. 449, 460 (1958). "[I]t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, any state action which may have the affect of curtailing the freedom to associate is subject to the closest scrutiny." Id. Freedom of association is a constitutional right of both incorporated and unincorporated associations. Id.

With the freedom to associate goes its corollary, the freedom to disassociate. Robert v. United States Jaycees, 468 U.S. 609, 623 (1984) ("Freedom of association ... plainly presupposes a freedom not to associate."); Disabato v. South Carolina Association of School Administrators, 404 S.C. 433, 445, 746 S.E.2d 329, 335 (2013) ("Among the protections afforded by the freedom of association are the rights to not associate .... "); accord Harris v. Quinn, 134 S. Ct. 2618, 2629 (2014) (citations omitted) (A law is not justified "that forces men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought" or that "forces a person to "conform to [an entity's] ideology."
As has long been argued on this blog, any restriction which ECUSA tried to put upon the ability of its member dioceses to withdraw would be in violation of the First Amendment, and unenforceable in any civil court in the land.

Another key finding (again, as long argued here, and as found by the highest courts in Illinois and Texas as well):
76. TEC does not have an ultimate judicatory.
Seven simple words -- but they mean that the "deference to its ecclesiastical determinations" approach urged for so long by ECUSA is ill-founded. There is no church judicatory to whose decisions a court might defer -- ECUSA has never created one. (Perhaps because its dioceses like their autonomy? -- perish the thought.)

And still another finding, that is fraught with consequences for the Episcopal Diocese of Upper South Carolina, in its relation to its own member parishes:
64. Where applicable, the Plaintiff parish churches amended their corporate governance documents to remove references to TEC; such amendments complied with the notice quorum and voting requirements of the Act and the requirements of their corporate governing documents.
Under South Carolina law, which holds that the Dennis Canon is ineffective to create any enforceable trust, any parish in the State may so amend its governing documents at any time, and so disaffiliate from a diocese to which it belongs. In other words, parishes have First Amendment rights of association, too.

Think of each of these well-crafted findings and conclusions as individual nails in ECUSA's coffin that will keep any appellate court from wanting to open it. Sloppy decisions make for an appellate court's breakfast, but finely wrought ones such as this are framed and put over the mantel.

That said, look for ECUSA to continue to deploy its delaying tactics to the maximum in the South Carolina courts. First it will file a motion with Judge Goodstein asking her to "reconsider" her carefully considered decision. When she enters an order denying that, ECUSA could try motions for a new trial and/or to vacate the findings made, as well as for a stay of her injunction pending appeal. Only when all of their post-trial options are exhausted will ECUSA and ECSC then file a notice of appeal to the South Carolina Court of Appeals.

At that point, however, the schedule could be taken out of ECUSA's hands. As they did with their opponents' earlier attempts to tie things up in the Court of Appeals, Bishop Lawrence and his attorneys could file a pre-emptive motion with the South Carolina Supreme Court, asking that Court to take the appeal and decide it directly without waiting for any decision from the Court of Appeals.

Once the case reaches the South Carolina Supreme Court, look for a decision from that body which roundly affirms Judge Goodstein's opinion in all respects. Then ECUSA may try to get the United States Supreme Court interested in reviewing the decision -- although by that time ECUSA should have a new Presiding Bishop who hopefully will see further litigation as the waste of trust funds that it is. Even so, based on its track record with such requests to date (there have been half a dozen so far, each denied), the Supreme Court will in all likelihood refuse to grant any petition for review.

Bishop Lawrence will have his post-judgment remedies, as well: under the statute cited by Judge Goodstein at the top of page 38 of her decision, and given the extensive findings she makes at pages 39 to 44 of her decision (especially in the last paragraph, before the "It Is Therefore Ordered" section), he will be entitled to an award of his reasonable attorneys' fees in the lawsuit. Watch for his motion for fees to be filed in the coming weeks: because of ECUSA's countless delaying tactics which multiplied the time required to be spent, it will ask for many, many hundreds of thousands of dollars (and I would not be at all surprised if the total came to over a million -- or two).

So with this decision, the end is in sight -- not close yet, but at least in sight. But what about the case argued last week before the federal Fourth Circuit Court of Appeals, in Richmond? Could that case still go forward?

I listened to the recording of the oral arguments in that case (mp3 file available for download using this link). Based on the questions asked of both sides, I think the Court of Appeals will most likely return the case to Senior District Judge Houck and direct him to use a different technical standard in deciding whether or not to abstain from exercising jurisdiction over the case (which was brought by Bishop vonRosenberg to address charges of federal trademark infringement by Bishop Lawrence and his Diocese).

Judge Houck will have the benefit (which the Court of Appeals may not) of reading Judge Goodstein's well-written opinion -- which decides the trademark issues under State law. Moreover, the injunction against Bishop vonRosenberg claiming to be the "Bishop of the Diocese of South Carolina" is now made final against him, and he cannot disobey it while the case is on appeal without getting the injunction first stayed (see Rule 62 [c], which you may read here). So he can no longer argue to the federal courts that he has the rights to that title unless he can get a South Carolina Appeals Court justice to stay the injunction, and I personally doubt he will be able to do so.

If this analysis correct, the federal case is dead unless and until ECUSA and ECSC manage to get a court to reverse Judge Goodstein's decision. And this Curmudgeon, at this point, just does not see how that could ever happen.

ECUSA will not have to pay costs to its opponents, alas, until the appeal(s) have come to a conclusion. But when that happens, the cost bill should be substantial -- think of all those individual rectors and vestry members whom ECUSA/ECSC felt they just had to name as defendants on their counterclaims.

With the costs and attorneys' fees certain to be awarded, then, ECUSA's South Carolina strategy has suddenly become very much more expensive. The totals it will have to pay will make mincemeat of this year's legal budget, and will require that the full Executive Council adjust that line item.

It would be an excellent time for the Council to request a full justification for her strategy from the Presiding Bishop -- and maybe General Convention 2015 will be moved to do so, as well.

Strategies have consequences, and poor strategies have even greater consequences. ECUSA, 815, its General Convention and Executive Council -- but first and foremost, ECUSA's Treasurer, who will have to find the money somewhere, in one of ECUSA's long-ago trust funds donated for its mission --will soon enough learn what those are.

Monday, February 2, 2015

Thanks to Obamacare, America Will Soon Implode (UPDATED)

For a long time now, I have maintained that there is a very simple solution to the Gordian complexities of our tax code -- it is to pass a law like this:
It shall be unlawful for any person or entity whatsoever to furnish any aid, assistance, or input of any kind to the preparation of any income tax return by any member of Congress, by any staff (who work in the District of Columbia) of any member of Congress, or by anyone who works in the White House. All such persons must prepare their own returns each year on their own, by hand, on original forms obtained from the IRS, and not using any computers, software or other artificial intelligence of any kind. The IRS shall audit every such return so filed every year; provided, that once a person subject to this law has filed a return for three successive years with no errors, the IRS may use its normal discretion as to whether to audit said person's subsequent returns.
And then watch Congress pass bills to simplify the tax code! But until there is such a law, we are doomed to suffer. And in that connection, now we learn that the monstrosity known as Obamacare just keeps on giving off toxic byproducts. The purpose of this post will be to acquaint readers with just a smidgen of its latest injection of toxicity into the lives of middle-class Americans.

A brief recap of how we got here: the legislation known now as "Obamacare" passed Congress in 2010 with nary a Republican vote, thanks to the questionable procedures employed by Harry Reid in the Senate to get it through with less than 60 votes. And as House Speaker Nancy Pelosi infamously remarked, "We had to pass the bill to know what was in it."

The scheme of Obamacare was diabolically simple: mandate that everyone purchase health care coverage, and let the premiums paid by the young and healthy subsidize the cost of coverage for the older and chronically sick. To enforce the mandate, impose a penalty on anyone who does not purchase the minimum mandated coverage. And to sweeten the pot, offer federal subsidies to those of lower income who could not afford even the minimum premiums.

(To keep this exposition uncluttered, I pass over the complexities of the statute that provided subsidies only for those states creating an insurance exchange -- complexities brushed aside by the Obama administration in its rush to get the statutory scheme implemented despite massive incompetence, and which will be addressed by the Supreme Court later this year.)

Now comes the day of reckoning for all those whom the statute has affected: April 15, 2015. Individual tax returns are due on that day, and those who decided to pay the penalty rather than purchase insurance must send it in with their taxes.

Those paying a penalty will have a simple calculation: you can follow this link, plug in the numbers and see how much it is. (Notice also how much it increases in the next few years.)

But the real surprise will hit those who did purchase insurance, and received a subsidy to help cover the cost of their premiums. The law requires them to justify what they received in light of their (and their dependents' ) actual 2014 reported earnings. If they received too much subsidy, they will have to pay it back. If, on the other hand, they did not receive all the subsidy to which they were entitled, they get to deduct that amount from the taxes they otherwise owe, in order to lower the end cost of the insurance.

To calculate what the law calls their "Premium Tax Credit" (PTC), those lucky souls will encounter a brand-new IRS form -- Form 8962. It is two pages long. But that is deceptive, because its instructions are fifteen pages long. And though I will do my level best to explain them for you, I make no claim to correctness in what follows. As you will see, the sheer complexity of getting through a Form 8962 for all of the differently situated taxpayers and their different policies is a monumental challenge even for seasoned professionals (which I am not).

I simply happen to be of the belief that every citizen ought to be able to do his own taxes. And if the day comes when that is no longer possible, then the country's fate will truly be out of its own hands.

The initial difficulty you will have with Form 8962 is in figuring out whether you are required (or eligible) to file it. You may have to struggle with filling it out first before you can answer that question.

First: all those persons filing singly, and eligible married couples filing jointly, who purchased Obamacare and want to claim a PTC against their tax liability for 2014 must file the form -- that much is simple. (If you were not married during part of 2014, or are married filing separately, good luck with following the instructions, and may God help you, because the IRS won't be able to. That still doesn't excuse your not filing the form if you are required to file it.)

Your PTC (as calculated on the Form) will equal (based on your individual and family circumstances -- just wait!), roughly speaking, the amount you paid (or what the Obama administration thinks you should have paid, if that is less) for Obamacare premiums for yourself and your family, minus the amount that the Obama administration deems you were able to pay for those premiums, using the tables provided and following the instructions.

How much you ought to have been able to pay depends in part on how your income compares to the poverty line level for your State. (If you moved from one State to another during 2014, not to worry: unless you moved from or to Alaska or Hawaii, which have their own poverty tables.) If you earned more than four times your State's poverty line for your given size family (that is, for example, $23,550 x 4 = $94,200 for the contiguous U.S. States for a family of four -- see Table 1-1 on page 4 of the instructions), you were not eligible to receive any subsidy, and married or not, you will have to file Form 8962 to pay back any subsidy you are reported as having received.

If you earned less than the poverty line, you still have to file the Form to prove you can keep the subsidy you received. And if you fall between 100% and 399% of the poverty line -- well, take a stiff drink and get out your calculator, because you are one of those middle-class chumps for whom life just got infinitely more difficult, thanks to the intricacies of Obamacare.

Second: if you (or any member of your insured family) received, for any month in 2014, a subsidy toward payment of your Obamacare premiums (and that subsidy is called "Advance Premium Tax Credit", or APTC -- understand?) then you must file Form 8962 to reconcile the amount of APTC you actually received with the PTC that you are entitled to take on your return.

If you purchased your Obamacare policy through an official exchange (which the instructions call a "Marketplace"), then when you enrolled, you told the exchange (Marketplace) certain information about your anticipated 2014 income and family circumstances as part of the enrollment process. Based on what you told them, the Marketplace then quoted to you the premiums for the different levels of plans available from that exchange: for a "Bronze" policy, or a "Silver", "Gold", or "Platinum" policy, and calculated any estimated subsidy, or APTC, to which you would be entitled.

Those premiums they quoted you, and which you subsequently paid, may or may not have reflected a government subsidy, based on your reported income, your family and your other circumstances. The good news is that each Marketplace, or insurer, will have to send you another new form, called "Form 1095-A", which will tell you just how much APTC you received for each month you were insured and paid the premiums under your chosen policy (think of it like a Form 1099 in that regard -- it tells the government that you received some income which otherwise might go unreported).

[UPDATE 02/20/2015: Right on time comes the news that the Government can't even get its own Forms 1095-A right -- the main Website,, sent out 800,000 of them to taxpayers who purchased insurance there, but the numbers reported on the Forms were wrong! So all of those taxpayers have been told they will have to wait to get the correct information before they can proceed to figure out their taxes.

Oh, yes -- the same story reports the California insurance exchange site sent out another 100,000 erroneous forms to its customers, too. We don't have any data from the other exchange sites, but you can bet that the same errors crept in for them, as well. Mix garbage in from the consumer or the Website with garbage in from the Government, and what comes out should surprise no one.]

But as we all know now, the enrollment process was severely flawed. So the bad news is that not all of the information you gave to the Marketplace was still correct as of the end of 2014, or was correctly conveyed by the Website to the insurer, or by the insurer back to the insured. As a result, it is anybody's guess at this point whether you will have to pay some subsidy back, or will be entitled to deduct some of it from your taxes. You will have no choice but to try to fill out Form 8962 to find out, because Form 1095-A alone can't tell you what you owe in further taxes, or are owed as a refund. Isn't life under Obamacare marvelous?

Let's try to get a handle on this Form 8962. Take a look at line 1 of the Form: it asks for the size of your family, based on the number of exemptions you claim. So far, so good -- you can take the number directly off line 6d of your Form 1040 or 1040A. (If you're filing Form 1040EZ, something's wrong. People who have to file Form 8962 cannot file a Form 1040EZ. Go back to square one and start again.)

The trouble starts on Line 2. You are told to enter your "modified AGI (see instructions)" on line 2a, and the total of your dependents' modified AGI (see instructions again) on line 2b. "AGI" stands for Adjusted Gross Income, which is a modification to your gross income calculated in a section of your 1040 form. But for Obamacare, they want you to modify that modification still further (thus they call it "MAGI").

The hoary details are on page 4 -- essentially, you have to add back in any foreign earned income, any tax-exempt interest received, and the portion of any Social Security benefits received which were not otherwise taxable. All clear? Did you complete Worksheet 1-1 on page 4 of the instructions?

Good -- because now you have to perform the same add-back calculations for your spouse and each of your dependents who were covered by your Obamacare policy. Good luck on getting your kids to tell you accurately what their AGI for 2014 was, let alone their MAGI.

If you successfully complete line 2, add the amounts to make line 3, the total MAGI for your Form 8962 "coverage family" (which can change from month to month, based on eligibility, and which is not the same as your "tax family" -- see those Instructions, at p. 2). Now you have to enter on line 4 the applicable poverty line number for your State and for the size of your "tax family" from the tables in the instructions. Then divide your total income on line 3 by the poverty line amount on line 4, and convert the decimal answer to a whole number, being careful to follow the special rounding rules for line 5 on page 5 of the instructions.

Now the fun really starts, based on the two- (or three-) digit number you calculated for line 5. Take a look at the instructions for line 6 -- they fill out the rest of page 5 -- and be sure to follow them exactly for your given situation, just so you can answer "Yes" or "No" on that line. If your answer to line 6 is "Yes", you will now generate another percentage amount based on the number you calculated in line 5, by looking up the appropriate percentage in Table 2, which takes up all of page 6 of the instructions, and entering that percentage on line 7. The percentage so found will be somewhere between 2.00% and 9.50%.

Think you're almost done? No way. Now you have to apply the percentage you determined for line 7 to the total income you reported on line 3, and then enter that amount (or its monthly equivalent, divided by 12) into the appropriate boxes in line 8, and also in Column C of Part 2 of Form 8962. This is the portion of your reported total family MAGI which the Obama administration deems you should have been able to pay toward the cost of your insurance (as I said, it will be somewhere between 2% and 9.5% of that MAGI, with the percentage growing as MAGI gets larger than the poverty line figure for your State).

And here the going gets tough, especially if you (like most Americans) had not signed up for Obamacare as of January 2014. Because then you have to calculate your APTC month by month for each of the months in 2014 for which you purchased coverage. See pages 9 through 11 of the instructions for details, and Columns A through F in Part 2 of Form 8962.

And if your marital status changed during 2014, then you have to fill out Tables 3 and 4 and Worksheet 2 on pages 7 and 8 of the instructions in order to know what you have to pay, or what you might receive as a refund. Again, good luck with that -- you might need a "Pub. 974" to help you (see the note about "Pub. 974" below).

We're still nowhere near done with Form 8962. Once you have recorded in the appropriate spaces the monthly premium amounts you paid for Obamacare during 2014, then you need to know the premiums charged for the "Second Least Costly Silver Plan" (SLCSP) that was offered by your exchange, or Marketplace.

Why? Because the Obama administration in its infinite wisdom has determined that the "Second Least Costly Silver Plan" was the plan you should have purchased, all other things being equal. If you bought a more expensive plan, then you probably didn't deserve to receive any subsidies, and will have to pay something back. But if you bought a Bronze Plan, you just might get a tax credit -- stay tuned. You will get the cost of the applicable SLCSP from the information given on your Form 1095-A, and transfer the amount to Form 8962.

Remember that amount you calculated in line 8 of Form 8962? That was the amount that the Obama administration (again, in its infinite wisdom) determined you should have been able to contribute for insurance, given your income and circumstances. So now, in Part 2 of Form 8962, you deduct that amount from the cost of the SLCSP offered by your exchange, and the difference is the maximum PTC to which you are entitled. (If the answer is zero or less, then you should not have received any APTC, and will have to pay it back.)

And the lesser of what you actually paid for premiums, or the maximum PTC thus determined, is the actual PTC you can use for your return. If the PTC so calculated is greater than the APTC you received according to Form 1095-A, then hurrah! You will have a net PTC credit to apply to your income tax due. But if the APTC reported is greater than the PTC you calculated, you owe the difference back to the government, and will have to add that amount to the taxes you otherwise owe (subject to a possible repayment cap, as discussed below).

At this point, I have to ask the ones who purchased Obamacare last year: do you understand how arbitrary the Obama administration is being with Form 8962? First, they introduce a wholly arbitrary concept of your "income", and call it "MAGI". Then they use that number to calculate a wholly arbitrary percentage, which is your arbitrarily determined MAGI divided by an equally arbitrarily determined "poverty line" for a family of your size in your given State (and note how they lump all the 48 continuous states into one single category, while singling out only Alaska and Hawaii).

Finally, they use that arbitrarily found number to determine still another arbitrary number -- namely, the "percent" of your "MAGI" which they consider you should have been able to pay for your insurance. And based on that number, they "decide" whether or not you have been over- or under-subsidized, and penalize / reward you accordingly. All based on their arbitrarily chosen numbers -- and all requiring you to spend a major amount of your time on their required tax calculations.

Shall we see how all this will work out in practice? Here is an actual example from the IRS, taken word-for-word from the Form 8962 Instructions (pp. 10-11):
Melissa and Ryan were married at the beginning of 2014. They have no dependents. They were enrolled under the same qualified health plan through a Marketplace from January through April. Monthly APTC of $1,000 was paid for them, for a total of $4,000. They divorced April 10. Melissa enrolled in single coverage from May through December. Monthly APTC of $100 was paid for her, for a total of $800. Ryan did not enroll in coverage. At the end of the year, Melissa or Ryan will receive a Form 1095-A reporting their coverage for January through April. The recipient of the Form 1095-A should provide a copy to the non-recipient. Melissa will receive a Form 1095-A reporting her coverage for May through December. 
For 2014, Melissa's family size is one and her household income is 450% of the Federal poverty line. Ryan’s family size is one and his household income is 410% of the Federal poverty line. Melissa and Ryan agree to allocate the APTC 60% to Melissa and 40% to Ryan. The allocation is only for the period of time Melissa and Ryan were married. The sum of the APTC allocated to Melissa is $2,400 ($1,000 x .6 x 4 months). Melissa must add this sum to her APTC of $800 for her single coverage. She enters the monthly amounts on lines 12–23, column F, and the total of $3,200 on Form 8962, lines 25, 27, and 29. Melissa enters the amount from line 29 on the applicable line of her tax return. The sum of the APTC allocated to Ryan is $1,600 ($1,000 x .4 x 4 months). Ryan enters the monthly amounts on Form 8962, lines 12–23, column F, and the total of $1,600 on lines 25, 27, and 29. Ryan enters the $1,600 from line 29 on the applicable line of his tax return.
And now we come to the ultimate arbitrariness: the repayment "cap" they tout as so humane and beneficial. For those whose magic three-digit number calculated for line 5 of Form 8962 is less than 200, the maximum you will have to repay is $300 filing singly, or $600 filing jointly. If your magic number was between 200 and 299, the cap is $750 / $1,500; and if the number was between 300 and 399, the maximum repayment is $1,250 / $2,500. If, like Melissa and Ryan in the example, your number is 400 or greater, there is no limit on your repayment: Melissa has to pay back the entire $3,200 she calculated, and Ryan has to pay back the $1,600 he calculated, for a total of $4,800 in added taxes between them -- all because they signed up for Obamacare.

Isn't government marvelous? First they determine that you need something; then they cram it down your throat, whether you want or need it or not; then they make you pay more for it than they told you it would cost; next they make you spend hours more calculating your taxes so they can be absolutely certain that you got just the amount they determined you needed, and not a penny more; and finally, they sock you with having to pay back any "excess" they say you received (as they make it emerge out of their complex instructions and calculations).

Oh, and one more typical government ploy here: the Instructions for Form 8962 refer many times to a publication that you will need to have to compute your PTC if your marital status changed in 2014. That document is "Pub. 974". Well, good luck finding a copy. As of my writing this post, "Pub. 974" is not listed as an available publication on the IRS Website.

Maybe I should call them? Oh, wait -- I forgot.

If, as more and more of the middle class discover the diabolical complexities of Form 8962, there is not a tax revolt in this country, and a huge groundswell to repeal Obamacare and all of its complex and sulfurous emanations, then there is truly no hope for America. We are just a bunch of sheeple, and fully deserve to be shorn.