tag:blogger.com,1999:blog-759178030677978044.post1452283015058948111..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: Arguments in the San Joaquin CaseA. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-759178030677978044.post-40011945028717615382009-05-06T00:43:00.000-07:002009-05-06T00:43:00.000-07:00Correction:
Father Woodward:
Although my wife ch...Correction:<br /><br />Father Woodward:<br /><br />Although my wife chooses to remain within TEC, I have withdrawn myself from the vile and apostate mess that calls itself The Episcopal "Church". Hopefully the US Supreme Court will bring an end to TEC tyranny. From David’s blog:<br /><br />"Does the United States Constitution, which both prohibits the establishment of religion and protects the free exercise of religion, allow certain religious denominations to disregard the normal rules of property ownership that apply to everyone else?"<br /><br />It had better not! Remember, Father Woodward, this is America!TardVenuhttps://www.blogger.com/profile/09708228615856369687noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-31736972154560538462009-05-04T22:17:00.000-07:002009-05-04T22:17:00.000-07:00Fr. Haley, there has not been an appellate decisio...Fr. Haley, there has not been an appellate decision in this country which has sided with people leaving the Episcopal Church and taking assets of the church with them. It is an enormous stretch to believe the courts will decide anything different. <br /><br />As White & Dykeman point out, the Dennis Canon merely codified what had been the church's understanding and practice for a long, long time.<br /><br />We both know the power and influence of John David Schofield, especially as bishop in that diocese for as long as he has been. He has complete control over which clergy come into the diocese and how they instruct their people. To claim that he was an innocent bystander in this does not make any sense.<br /><br />He and the clergy who left with him certainly did violate their ordination vows -- and their taking assets out of the Episcopal Church is, I and many others believe, criminal as well as sinful. People who are elected delegates to diocesan conventions and to Vestries have a fiduciary responsibility to the Episcopal Church -- not some church of their dreams or some church on foreign shores. The honorable thing for Schofield and all to have done would have been to renounce their orders in the Episcopal Church and then apply to another Province for licensing there. <br /><br />I have been quite fond of John David over the years (David back when we were classmates at General Seminary). I am well aware that he was a superb counselor for his clergy and a man of enormous spiritual depth. However, something happened and a good man ended up on a very bad path. I regret that his friends were not more honest with him or more persuasive in convincing him to do the honorable thing in leaving, as his friend, Jeffrey Steenson, did in leaving from the Diocese of the Rio Grande. Very sad.Thomas B. Woodwardhttps://www.blogger.com/profile/08742944114518979523noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-19152089432556935792009-05-04T16:46:00.000-07:002009-05-04T16:46:00.000-07:00I won't have time to do a separate post on this ca...I won't have time to do a separate post on this case until after the oral arguments tomorrow. The purpose of a tentative ruling is to let the parties know the way the judge is inclined to analyze the arguments and the evidence that has been offered thus far by each side. In that way, the parties know what points they need to address specifically at the hearing. The judge will not issue a final ruling until after he has heard the oral argument by counsel, and he can either affirm or modify his tentative ruling, or revise it completely.<br /><br />There are a number of issues on which I believe the court's initial analysis will need further justification. For example, he appears to hold that once ECUSA shows it is a "hierarchical" church, that no evidence to the contrary (as was offered in Bishop Wantland's declaration) can be even considered. But parties have to be allowed to offer evidence on disputed issues, and it certainly is a matter for dispute whether or not the Episcopal Church (USA) is hierarchical---look at all the argument that has gone on over Mark McCall's paper, and in the courts in Virginia.<br /><br />The court also relies heavily on the California Supreme Court's recent ruling which I discussed in several earlier posts. But that was a ruling on a demurrer to the complaints filed by ECUSA and the Diocese of Los Angeles. A demurrer challenges the sufficiency of just the plaintiff's allegations, without considering any of the evidence on the other side. Thus when the California Supreme Court stated that ECUSA was "hierarchical", it was doing so because that is what ECUSA and the Diocese of Los Angeles said in their complaints. There is still a trial to be held in that case, and that issue will be very much in dispute.<br /><br />By the same token, the other recent California decision cited by the court, New v. Kroeger, was a case where a parish corporation had incorporated into its articles a stipulation to be "forever bound" by the Constitution and Canons of ECUSA and of the Diocese of San Diego. There was no such provision in the Diocese's Constitution in this case.<br /><br />So there will be a lot to argue about tomorrow, and then we will probably have to wait some more before there is a final decision. Whether a court reverses its tentative ruling depends entirely on that individual court and on how well it believes it analyzed the case in the first place, or whether oral argument brings out points which the court may not have considered. I think there are a number of such points, and so remain hopeful that the court will modify its tentative thinking.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-41334836823224650802009-05-04T16:13:00.000-07:002009-05-04T16:13:00.000-07:00Mr. Haley, having read the tentative rulings in fa...Mr. Haley, having read the tentative rulings in favor of TEC, I hope you'll provide some California lawyer procedural expertise, either in comments to this post or in your post analyzing the ruling. Specifically: How often do trial courts change their mind after argument? What's the conventional wisdom about whether to request argument and try to change a trial court's mind or just accept the tentative ruling and plan to make your case at the next level? (And perhaps some history: where did this process of "tentative rulings" come from in California? It certainly is an interesting legal quirk.)DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-91423050586496053422009-05-04T16:06:00.000-07:002009-05-04T16:06:00.000-07:00Dear A.S. Haley:
I read the ruling on the court w...Dear A.S. Haley:<br /><br />I read the ruling on the court website, but as a mere deacon and not an attorney I find it very confusing. Can you clarify?<br /><br />Deacon FrancieDeacon Franciehttps://www.blogger.com/profile/12077013167843233337noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-37317868531467561342009-05-03T22:10:00.000-07:002009-05-03T22:10:00.000-07:00Father Woodward, thank you for coming here and giv...Father Woodward, thank you for coming here and giving us the benefit of how minds like yours in ECUSA at this moment perceive the current situation. You may not have taken the time to read the entire post, so let me just make a few responses to your questions:<br /><br /><I>"John David Schofield succeeds in getting the diocese to believe it can unilaterally disavow its accession clause . . ."</I> <br /><br />You surely are attributing hypnotic powers to Bishop Schofield that are beyond the reach of ordinary mortals. As the memorandum quoted in the post recites, "The amendments were approved by overwhelming majorities of almost 9-1, which were counted twice." If the 9-1 majority was the result of Bishop Schofield's persuasive powers, then you will have to admit that he surpasses even President Obama in that regard.<br /><br /><I>"The courts have already decided that cannot be done, but who cares? Right?"</I>No, Father Woodward, I would respectfully ask that you reread what I stated at the outset of my second paragraph: ". . . this could become the first case to consider the power of a diocese within ECUSA to amend its governing documents so as to disaffiliate from the national Church." No court has yet ruled as to whether a Diocese may amend its Constitution to remove the accession clause, when that Constitution itself (as approved by ECUSA upon admission) places no limitations on how it may be amended.<br /><br /><I>"Then JDS believes he can steal assets held in trust for TEC. The courts have decided that, too, against JDS's zany theories."</I>No, again, Father Woodward. There are (and were) <B>no</B> "assets held in trust for TEC", because the <B>Dennis Canon applies only to property held by parishes, not by Dioceses.</B> Moreover, had you read the Memorandum again, you would have learned that <I>from its admission to ECUSA in 1961, the Diocese of San Joaquin acceded only to ECUSA's Constitution, <B>and never once to its canons.</B></I> So even if the Dennis Canon were to apply to diocesan property, it never has been operative within the Diocese of San Joaquin, and so cannot be the basis of any claim that the Diocese's property "was held in trust for ECUSA." <br /><br /><I>"Then, because those loyal to the Constitution of the Diocese of San Joaquin and unwilling to misappropriate assets not belonging to them do not join JDS and others who fancifully believe the diocese is now part of the Southern Cone -- they can't sue to recover property stolen from them?"</I>I have to respond once more with a "no", Father Woodward. Those "loyal to the Constitution of the Diocese of San Joaquin" chose to use its amendment clause to amend it in accordance with its terms. And then they allowed those who voted against the amendments to <B>keep the property that belonged to them</B>, while they asked only in return to keep theirs. But those who <I>have filed suit</I> are not content with keeping their own property---they also want the court to award them (I do not say "let them steal", please note) <I>all the rest of the property belonging to the 90% who voted <B>for</B> the amendments.</I> And what can they do with that property, pray tell? They cannot fill the churches with their parishioners, because they were only at most 25-30% of the total diocese, and they were allowed to keep (and thus fill) their own churches---something they are now unwilling to let the <B>majority</B> do. So just who is being more Christian here?<br /><br /><I>"[Bishop Schofield] broke his ordination and consecration vows and then, instead of quietly resigning his orders, is going to make the church which educated and nurtured him and ordained and consecrated him spend millions of dollars to pry their own assets out of JD's hands."</I>Again, Father Woodward, I ask that you take the time to read the post. They are <B>not</B> ECUSA's assets---the Dennis Canon does not apply to the property of dioceses, and it <B>never</B> took effect within the Diocese of San Joaquin anyway, because General Convention in 1961 approved the Diocese's accession clause without requiring it to acceded to the canons. (In fact, when the <I>Missionary</I> Diocese of San Joaquin was formed with GC's approval in 1910, it did not accede to ECUSA's canons then, either. So the ECUSA canons have never applied in San Joaquin since it was first formed.)<br /><br />As to the "breaking of his ordination and consecration vows", I would refer you to <A HREF="http://accurmudgeon.blogspot.com/2009/01/problem-in-nutshell.html" REL="nofollow">this post</A> which discusses the catch-22 that all Episcopal clergy have been placed into as a result of ECUSA's unilateral decisions to plunge ahead with major changes in doctrine which it then expects all of its clergy to follow as a matter of "discipline", regardless of what the state of the doctrine was at their ordination. Changes in doctrine of such a nature are not a matter to be decided simply by majority vote of just one church in the Anglican Communion.<br /><br /><br /><I>"Do you guys read the legal opinions coming out of California, Upstate New York and around the country? Is there any justification for Schofield's shenanigans?"</I>Once more, Father Woodward, if you had been following this blog, you might have read <A HREF="http://accurmudgeon.blogspot.com/2009/04/san-joaquin-further-update.html" REL="nofollow">this post</A>, which would have told you that:<br /><br />"The recent decisions by the California Supreme Court in <I>The Episcopal Church Cases</I>, and in deciding to republish the Court of Appeal's opinion in <I>New v. Kroeger</I>, are in my view of limited usefulness in predicting what will happen in the Fresno court. The reason is that those decisions each involve individual parishes leaving a diocese, and not the question of a diocese leaving the national church. Parishes are generally bound to dioceses much more stringently than dioceses are to the national church of which they are members. Moreover, different rules apply (the Dennis Canon, for instance, applies only to property held by or for parishes, and not to any property held by or for a diocese). So it is simply not true to say that everything is over and decided in California. There is much, much more still to come."<br /><br />I do not want to seem dismissive of your views, Father Woodward. I genuinely want to encourage the kind of discussion between both sides that I believe is necessary if these destructive lawsuits are ever to be halted. I ask only that you read carefully what is posted here, and then make your comments accordingly. (You and I share a common educational background that ought to facilitate, rather than obstruct, such a dialogue---we both graduated from the same college in the same year.)<br /><br />Let us see what the court rules tomorrow, and then perhaps revisit this subject.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-84165143225737822942009-05-03T19:09:00.000-07:002009-05-03T19:09:00.000-07:00Let me get this straight. John David Schofield suc...Let me get this straight. John David Schofield succeeds in getting the diocese to believe it can unilaterally disavow its accession clause (without which in its Constitution it would not have been admitted into TEC as a diocese). The courts have already decided that cannot be done, but who cares? Right?<br /><br />Then JDS believes he can steal assets held in trust for TEC. The courts have decided that, too, against JDS's zany theories.<br /><br />Then, because those loyal to the Constitution of the Diocese of San Jaoquin and unwilling to misappropriate assets not belonging to them do not join JDS and others who fancifully believe the diocese is now part of the Southern Cone -- they can't sue to recover property stolen from them? <br /><br />What Schofield and others have done out of their own vanity is disgraceful. He broke his ordination and consecration vows and then, instead of quietly resigning his orders, is going to make the church which educated and nurtured him and ordained and consecrated him spend millions of dollars to pry their own assets out of JD's hands.<br /><br />Do you guys read the legal opinions coming out of California, Upstate New York and around the country? Is there any justification for Schofield's shenanigans?Thomas B. Woodwardhttps://www.blogger.com/profile/08742944114518979523noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-35843467341572708532009-05-03T15:15:00.000-07:002009-05-03T15:15:00.000-07:00As always, UP, thank you for cutting right to the ...As always, UP, thank you for cutting right to the heart of the matter (your skill betrays you). In the future, after I put up a long post like this, people should just go to your comment on it to learn its essence without having to read the whole thing.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-23736440901853096252009-05-03T11:42:00.000-07:002009-05-03T11:42:00.000-07:00Undeniable truth:
"The primary barrier to plainti...Undeniable truth:<br /><br />"The primary barrier to plaintiffs' present motion for summary adjudication is that they cannot show that they constitute, in law, the persons they claim to be---a duly admitted diocese of the Episcopal Church, with a duly installed bishop at its head." <br /><br />I have always been amazed at what happens to truth once it gets consumed by the court. <br /><br />I look forward to studying the products of digestion.Undergroundpewsterhttps://www.blogger.com/profile/10182191422663119484noreply@blogger.com