San Joaquin Diocese Files for Rehearing (I)

Yesterday the attorneys for the Anglican Diocese of San Joaquin (of which your Curmudgeon is one) filed a petition with the Fifth District Court of Appeals in Fresno to grant a rehearing (and re-briefing) of the case which that Court decided on April 5, as reported in this earlier post. The link to the Court's April 5 decision is here, and you may download the petition for rehearing here (a 45-page Adobe Acrobat file; nothing about this case is short and sweet).

Based on what the Court wrote in its decision, the petition recites a number of grounds for granting a rehearing (Petition, pp. 6-7). Let me deal with them one-by-one, beginning in this initial post with:

1. This Court’s opinion does not resolve the ownership of, and the validity of Bishop Schofield’s transfers from, investment accounts interpled by defendant Merrill Lynch and held in the names of petitioner DIT [Diocesan Investment Trust] and corporation sole.... 

For those who are starting from scratch, this single, seemingly straightforward sentence conceals a good deal of complexity. In what follows, I shall do my best to unpack it so that a non-lawyer can understand. (You might want to read the "Gentle Warning" on the right first.)

The Diocese of San Joaquin, in California, was the first Episcopal member diocese to vote to withdraw from membership in the Episcopal Church (USA). It did so by passing (with well more than the minimum two-thirds majorities required) certain amendments to its Constitution and canons at two successive annual conventions of the Diocese, in 2006 and again in December 2007.

In 2007, before it made its final vote to withdraw from ECUSA, the Diocese of San Joaquin under its then bishop, the Rt. Rev. John-David Schofield, had several subsidiary trust entities used for holding title to real and personal property. The first was a "corporation sole", which is a special type of religious corporation having only a single officer/director (which is the reason for applying the adjective "sole" to it), called "the incumbent of the corporation sole."

San Joaquin first filed articles for a California corporation sole back in 1912, when it was a newly organized Missionary Diocese (i.e., not autonomous, but under the jurisdiction of ECUSA's House of Bishops), and its then missionary bishop was the first incumbent. From the time San Joaquin became autonomous (self-supporting) in 1961, the Constitution of the Diocese of San Joaquin has always provided that its current bishop, elected at convention to serve until his retirement, is the incumbent of its corporation sole.

If the diocesan bishop retires, resigns or dies in office, the office of incumbent becomes vacant until his successor is elected, confirmed and consecrated -- and the diocesan convention must under California law then authorize the successor bishop it elects to file an amendment to the articles of the corporation sole designating himself as the new incumbent. However, the corporation sole itself is defined by law as a legal entity whose existence is perpetual. That means, unlike a partnership or sole proprietorship, the corporation sole is always recognized in law as the same ongoing entity, even though it may have (for the interim) no officer or director at all, i.e., no incumbent.

The function of the corporation sole was to serve as the Diocese's trustee for the real property where its headquarters are located in Fresno, and for other properties occupied and used by its dozens of unincorporated parishes and missions. In addition, it served as trustee for certain diocesan funds invested with the brokerage firm of Merrill Lynch, Pierce, Fenner and Smith. Having the legal title in a corporation that by law had perpetual existence avoided the necessity of changing the title to that property every time there was a new rector, vestry, or diocesan bishop.

The second diocesan subsidiary corporation mentioned in the paragraph from the petition quoted above is the Diocesan Investment Trust. As its name indicates, this California non-profit corporation was a vehicle to invest all of the other money, securities and other financial instruments belonging to the Diocese and its various parishes and missions, and not held by the corporation sole. So it acted as their trustee, pooling the various individual funds in order to minimize management fees, and providing professional investment services at a lower cost.

There were forty of the Diocese's member congregations, along with their associated clergy, that voted in convention in December 2007 to adopt amendments to its Constitution that changed its religious affiliation from ECUSA to the Anglican Province of the Southern Cone. (The realignment was on a temporary basis of necessity, until the Anglican Church in North America organized as an independent province in 2009 and the Diocese joined it.)

In opposition to that final vote in 2007 were seven member parishes and their clergy, who wished to remain affiliated with ECUSA. And so they proceeded to withdraw from the Diocese, with Bishop Schofield's blessings, and took their own real and personal property with them.

In 2007, when the Diocese adopted the changes which made it no longer a member of the Episcopal Church, Bishop Schofield had been serving for some twenty years as the incumbent of its corporation sole. The official name of that entity, according to its corporate articles in 2007, was "the Protestant Episcopal Bishop of San Joaquin, a Corporation Sole."

After the amendments passed, however, Bishop Schofield was now bishop of the (Anglican) Diocese of San Joaquin. (I use the word "Anglican" to differentiate it from the Episcopal [minority] diocese that formed later -- but under its Constitution, its official name remained simply "the Diocese of San Joaquin." ECUSA itself began proceedings to remove Bishop Schofield from his office in that Church starting a month after the vote, and refused to accept his letter of resignation.) Thus, as he would no longer be a "Protestant Episcopal" bishop, it became necessary to change the legal name of the Diocese's corporation sole, by substituting the word "Anglican" for the words "Protestant Episcopal" in the first paragraph of its articles.

The annual convention would not meet again, however, until October 2008, and so it could not authorize any change of corporate name until then. Consequently, the Diocesan Council, which acts for the convention in the interim between annual meetings, voted in January 2008 to authorize Bishop Schofield to file papers with the California Secretary of State that changed the name of the entity from "the Protestant Episcopal Bishop of San Joaquin, a Corporation Sole," to "the Anglican Bishop of San Joaquin, a Corporation Sole."

Bishop Schofield filed the appropriate papers immediately afterward, and as far as he and his Diocese were concerned, the change in name was now official. What needed to be done next was to change the title by which its real properties were held, to match the new name. Under California law again, the change could be accomplished by Bishop Schofield signing and recording a deed to each parcel of property, from himself (reciting the old name by which the corporation sole had taken title at the outset) to himself as "the Anglican Bishop of San Joaquin, a corporation sole." And, starting in March 2008, that is just what he proceeded to do.

Meanwhile, all was not quiet on the dissenters' front.

Not content with keeping their own particular assets for themselves, they embarked, also in March 2008, on an ambitious scheme to claim the real property and funds of Bishop Schofield's Diocese for their very own.

In collaboration with, and supported financially by, ECUSA's headquarters at 815 Second Avenue in New York -- led by the new Presiding Bishop, her Chancellor and the Church's Executive Council -- the San Joaquin minority became useful pawns of the national Church as 815 launched a punitive retaliation against Bishop Schofield and his Diocese in the California civil courts. The dismal details of that Machiavellian campaign are collected in the posts linked on this page, and will not be recounted here more than is absolutely necessary for background to understand the current situation.

Suffice it to say that the Presiding Bishop, with no canonical authority to act in any Diocese but her own (the Convocation of American Churches in Europe), called in San Joaquin a "special convention" for the dissenting parishes and their clergy only (loyalty oaths to ECUSA had to be signed by those the Presiding Bishop allowed to attend), and held at one of the parishes (St. John's, in Lodi) on March 29, 2008 (see the irregular details here). That gathering chose the previously resigned (Episcopalese for "retired") Bishop of Northern California, the Rt. Rev. Jerry A. Lamb, to be its "Provisional Bishop".

That action was innocent enough. What followed, however, can only be described (in my openly biased view, based on eight years of ensuing litigation) as nefarious. The "convention" passed  resolutions which purported to rescind the earlier amendments adopted by the majority in 2007, and "authorized" Bishop Lamb to file papers with the California Secretary of State claiming to be the new incumbent of Bishop Schofield's corporation sole. Those papers also purported to be amended articles which changed the name of the corporation sole back to what it had been before January 2008, namely, "the Protestant Episcopal Bishop of San Joaquin, a Corporation Sole."

This act by Bishop Lamb created what in law is called a "cloud" on the marketable title to each of the parcels of real property in the name of the corporation sole, as trustee. With two individuals each claiming to be the incumbent of that corporation sole, no one could be certain as to who owned what until the matter was sorted out in the courts.

But Bishop Schofield's new ecclesiastical superior, Archbishop Gregory Venables of the Anglican Province of the Southern Cone, forbade him from being the first to bring a lawsuit in civil court over what was at bottom a religious dispute between Christians. In order to remove the cloud that had been placed on his corporation sole's title, Bishop Schofield formed a new California religious corporation, called "the Anglican Diocese Holding Corporation", or ADHC, to do just that -- hold the title to all of the disputed parcels in its name for the duration of the dispute, however long it took to resolve. Once its papers were filed with the Secretary of State and it became a recognized entity under California law, Bishop Schofield began signing and recording a new series of deeds. These transferred the properties from himself, as the "Anglican Bishop of San Joaquin, a corporation sole", to the ADHC, in trust for the (Anglican) Diocese.

As 815 had intended all along, however, a lawsuit to recover what it considered to be the property of the minority diocese was no obstacle for Episcopalian Christians. That lawsuit just needed a plaintiff officially recognized by the Episcopal Church who had the legal "standing" to sue (i.e., who could claim, at least in theory, that he had been "injured" or "damaged" by the withdrawal of the Anglican Diocese with all of its property).

Thus the chief resolution in its scheme to seek retribution against the upstart group that had voted to leave without 815's permission, dutifully passed by the "special convention" in Lodi of the seven congregations and their clergy that remained fully loyal to 815, authorized Bishop Lamb to file on their behalf a lawsuit in Fresno Superior Court against Bishop Schofield personally. This lawsuit sought to recover title to and possession of all of the funds and real property held in trust for the members of Bishop Schofield's Diocese. The chief reason asserted in the complaint for Bishop Lamb's entitlement to these assets was that as far as 815 and its attorneys were concerned, no member diocese of the Episcopal Church could ever unilaterally choose to leave it, after once joining it.

Thus (according to Bishop Lamb's lawsuit) the Diocese of San Joaquin had never really left ECUSA; the House of Bishops had now deposed Bishop Schofield from his office; the special convention had properly filled that vacancy; and Bishop Lamb, as the new Bishop of San Joaquin and self-declared incumbent of its corporation sole, was entitled to take possession of all of the Diocese's assets. These included the corporation sole with all of its real property held in trust, and all of the trust accounts which that entity and the Diocesan Investment Trust held with Merrill Lynch, Pierce, Fenner and Smith as custodian.

The latter firm had, in April 2008, obligingly "frozen" all of those trust accounts at 815's personal request, so that Bishop Schofield and his Diocese no longer had access to them pending final judgment in the just-filed lawsuit. Later, when it saw that the suit would be a long-term one, Merrill Lynch joined the case as a non-aligned party by "interpleading" the accounts with the Fresno Superior Court.

To "interplead" (the past tense of which is "interpled", the strange word you saw in Paragraph #1 of the petition quoted above) an asset means that its custodian says to the court: "We cannot adjudicate who is legally entitled to this money as between the plaintiff and the defendant in the pending lawsuit -- only you can. We therefore, in order to avoid having to take a position with regard to the respective claims, surrender our ultimate control of the money to the court, to abide its judgment in favor of one party or the other, and to be turned over to such party when that judgment becomes final."

With this explanation of what is admittedly a complicated background, the reader should now be able to appreciate the first identified problem with the appellate court's April 5 decision, a problem that requires a rehearing. Namely, the decision analyzes only the deeds transferring real property from Bishop Schofield's corporation sole to the ADHC. It concludes those deeds were null and void when he signed them -- because at that time there was, in the court's analysis, no California legal entity in existence which had the name of "the Anglican Bishop of San Joaquin, a corporation sole." And the reason it recognized no such entity in California law was that, again according to the court's tortuous analysis (under supposedly neutral principles of law), Bishop Schofield had not yet been authorized by his diocesan Convention to make the change of name in the articles he filed with the Secretary of State in January 2008.

I shall address the defects in that analysis in a later post -- this one is already long enough. (But its length will hopefully enable the later installments to be shorter.) Here I want to focus on just the first point in the petition for rehearing: that the court's April 5 opinion analyzes and deals with only the disputed real property. It says nothing at all about the investment accounts "interpled" by Merrill Lynch, and thus leaves the fate of all those funds undetermined.

This, then, should be reason enough for the Court of Appeals to grant the petition and order a rehearing. An opinion which does not dispose of all the claims raised by a case cannot really claim to be a "final judgment." Here the parties are left with no directions from the Court of Appeals about who is entitled to the investment accounts (as opposed to the real property). And the Court left the matter hanging -- it did not reverse the judgment below and remand the case for further proceedings in the Superior Court. Instead it decided the case "de novo" ("anew"), by rejecting the reasoning of the trial court and providing its own, brand-new analysis.

But that analysis, as just explained, does not include any analysis as to ownership, under neutral principles of law, of the moneys held in the name of the Diocesan Investment Trust (which Bishop Lamb's group never once mentioned in their March 2008 resolutions, or in their re-adopted Constitution and canons of that date). And the Court's opinion squarely holds that ECUSA itself had no interest in these trust funds, because its Dennis Canon applies only to property held by parishes. The funds are held by religious corporations who have neither buildings, nor rectors, nor congregations, and who unquestionably are not "parishes" for purposes of the Dennis Canon.

Thus, under the Court's opinion, which group is legally entitled to the Merrill Lynch trust funds, and why? It just does not say.

And that is only the first ground on which the Anglican parties request the Court to grant a rehearing of the case. As I have the time, I will put up additional posts to explain some of the additional grounds stated in the petition, which you are free to read on your own in the meantime.