Big News in Fort Worth

Today the Supreme Court of Texas noted probable jurisdiction over the direct appeal filed by Bishop Jack L. Iker and his diocesan corporation from the summary judgment granted in favor of ECUSA and the rump diocese of Fort Worth a year ago.  (The Texas Supreme Court accepts very few direct appeals from the judgments of trial courts, and there are strict standards which such requests must satisfy.  The Court's  acknowledgment that there is "probable jurisdiction" means that, at this stage of the case, it appears that all of the jurisdictional requirements for a direct appeal are satisfied. By doing so, the Court signals that it will postpone any final decision on whether it in fact does have jurisdiction under the applicable standards to its  eventual disposition of the case. Meanwhile, it will hold oral arguments and deliberate on the case as though it had been an appeal accepted from one of the Courts of Appeal.)

No definite date for oral argument appears to have been set yet. The arguments in the San Angelo case (Church of the Good Shepherd), currently set for February 29, 2012, are the last dates for arguments which the Court currently has scheduled.  Its calendar of arguments for March and April should be published shortly.

Of course, this is huge news for Bishop Iker and his Diocese. First, the Texas Supreme Court accepts the petition for review in the Good Shepherd case, in which it notes that the issues to be decided are as follows:

The principal issues in this property dispute between the diocese and a breakaway congregation are (1) whether in Texas the dispute should be decided by “neutral principles” – using established trust and property law and taking account of deeds, the governing language employed by a local church and the larger denomination – or by “compulsory deference” – determining where church members place ultimate authority over property use and (2) whether the trial court erred by deciding the diocese owns the property.

Now that same Court signals that it will decide also the issue of whether, under "neutral principles," the national Church can impose any kind of trust on the property and assets of one of its member dioceses. Along the way, it will also address the question of whether there is any impediment to the decision of a religious corporation, organized under Texas law, and reached democratically in accordance with its governing documents, to amend those documents so as to dissolve that religious corporation's affiliation with the national Church.

The Court's eventual decision could have ramifications for the similar cases at issue in San Joaquin and Quincy. As soon as I learn more about the date for oral arguments, I will update this post.

[UPDATE 01/06/2012: I have now learned the briefing schedule for addressing the merits of the appeal from Judge Chupp's decision. (The previous briefs addressed only the grounds for taking jurisdiction of the appeal directly, without going through the Court of Appeal.) Bishop Iker's opening brief on the merits is due February 6, 2012. The response by ECUSA and the "Local Episcopal Parties" is due February 27, 2012, and the reply by Bishop Iker is due by March 13, 2012. This schedule means that oral arguments will probably not be held before May or June 2012, and by then we should know what the Court decided in the San Angelo case.

The rump diocese has published its view of the Supreme Court's action at this link; the statement from Bishop Iker and his diocese may be read here. It is most interesting to see how the former group now tries to spin this news in a positive direction -- from its point of view, of course. Thus, the Local Episcopal Parties say:

While the Local Episcopal Parties believe that this case does not fit within the "very limited," "strictly construed" requirements for a direct appeal, we welcome the chance to reach an expedited resolution of this matter.

Is that so -- that they truly welcome the chance to reach an expedited resolution of this matter? Does that now explain, perhaps, why they hired four separate law firms, brought no less than four individual lawsuits in Texas state and federal courts against Bishop Iker, repeatedly filed, withdrew and then amended their motions for summary judgment in the trial court, added in as parties every single one of their parishes and Bishop Iker's parishes, and generally did everything in their power to make the lower court proceedings as complicated and as expensive for everyone as possible? (Please see this page for individual posts chronicling all the gory details.) And is that why they spent so much in legal resources in opposing at every step the direct appeal to the Supreme Court? Such maneuvering seems to this attorney a very strange way to signal your "welcom[ing] the chance to reach an expedited resolution of this matter."

But there is more. The statement by the Local Episcopal Parties goes on to assert:

Judge Chupp’s Order is well-reasoned, correct on the facts and the law, and consistent with the vast majority of cases around the nation – including, in the last months alone, those of the Austin Court of Appeals (Mar. 16, 2011), the Georgia Supreme Court (Nov. 21, 2011), the Pennsylvania Supreme Court (Oct. 17, 2011), and the Connecticut Supreme Court (Oct. 11, 2011). All of these cases stand for the simple proposition that individuals may leave a Church, but they cannot take the Church's property when they leave.

Who writes these things? Don't they realize that there was no decision by Judge Chupp himself, but that he simply threw up his hands and signed the version of the summary judgment order presented to him by ECUSA's and the rump diocese's attorneys -- rather than independently analyze the law and the facts on his own, and without anyone's putting words into his mouth? "Well-reasoned, [and] correct on the facts and the law," indeed. No doubt that is why the Supreme Court of Texas feels that this is one of the very rare cases in which they should grant a direct appeal from the trial court's decision.

And please -- Judge Chupp's "decision" (such as it wasn't) was "consistent with the vast majority of cases around the nation? Including the March 2011 decision by the Austin Court of Appeals which the Texas Supreme Court also recently saw fit to decide to review (the "San Angelo case")? And including the refusal by the Pennsylvania Supreme Court to review the decision from the lower Commonwealth Court -- which was no decision at all by that Supreme Court, but simply an order denying review?

There go two of the four decisions listed as being part of the "vast majority" of decisions "around the nation" which were decided "correct[ly] on the facts and the law." And what about the decisions reported on this blog from Indiana, Louisiana, Missouri, South Carolina, and -- most recently -- Illinois? How do they figure in calculating what the Local Episcopal Parties are pleased to describe as the "vast" majority of cases from around the nation? And why should the independent Texas Supreme Court jump onto an imaginary and selectively constituted bandwagon, that is constructed uniformly out of other state courts' failures to comprehend just what "neutral principles" really means? Is that how you would like a court judging your case to behave?

Notably, of course, it does not bear mentioning that every single one of the cases so cited involved suits between parishes and their dioceses, and not suits between a diocese and the national Church (which is not a separate legal entity in its own right, but is simply the agglomeration of its individual members, acting only when those members gather in a general convention).

But that, of course, is a topic for a separate post. Enough for now -- I hope that even the most jaded of Jefferts-Schorians can see the rose-colored spin being adduced here by those who should most be leery of any notice of their case taken by Texas' highest court.]

The 2011 Highlights in Church Legal News

This blog's principal focus is tracking the vicissitudes and adventures of the Episcopal Church (USA) in the secular courts, as it engages in an unprecedented campaign of "intimidation by lawsuit" against the dioceses and parishes who have reached the limits of their tolerance with the national Church's leadership in general, and with its individual bishops in particular. For -- make no mistake -- it is the collected bishops of the Episcopal Church who are enabling the Presiding Bishop and her personal Chancellor to bring more than seventy-five separate lawsuits across the country, each of which seeks to seize real and personal property from dissenting congregations and dioceses who have dared to disaffiliate from the national Church. The latest figures available online run only through July, but after just those seven months, the Church's budget item for litigation was already more than two-thirds spent, and once again seems certain to be exceeded significantly by the time year-end figures are released.

Because ECUSA's House of Bishops chooses not to rein in its presiding officer, and because not even General Convention will place real or effective limits on her budget for lawsuits, the guiding words for the denomination have been replaced sub silentio: it is no longer "the Episcopal Church welcomes you," but rather "the Episcopal Church sues you" -- if you dare to disagree with its Presiding Bishop.

She takes it as her personal mission to fight over every Episcopal altar cloth, chalice, prayer book, hymnal, and pulpit, as well as every square inch of real estate and every penny contributed by faithful parishioners. She does so on the theory that as the Church's main "fiduciary", she owes it to Episcopalians everywhere to see that no dastardly dissenter keeps one scrap of "Episcopal Church property" without a court decision allowing them to do so.

This officially pugnacious policy, pursued relentlessly at the highest level as long as the House of Bishops continues to stand by and do nothing to curb it, has led to an unholy, and decidedly un-Christian, collection of legal precedents in various state and federal courts. If anything may be concluded from their pitiful attempts to wrestle with (or, more frequently, studiously to ignore) the canonical infelicities of the Dennis Canon, and similarly ill-conceived and crudely expressed attempts by the national Church to keep dissenters in line, it is that the secular courts are largely unsuited to the tasks which ECUSA's litigation program has put before them.

First of all, having mistakenly convinced themselves during "the Enlightenment" that civil courts have absolutely no ties to their predecessors in the medieval Church, their modern counterparts have proved themselves spectacularly ill-equipped to decide church property cases in accordance with actual "neutral principles of law." The paradox is that the approach using "neutral principles" is based wholly in the secular reasoning of the Enlightenment, but in church cases those same "enlightened" courts largely decline to honor such principles, and choose instead to defer to phony notions of religious authority and hierarchy. There are some notable exceptions now and then, but those exceptions largely serve to prove the wisdom of St. Paul's admonition to Christians to settle their disputes outside of the secular courts.

Herewith, then, from a specifically canonical point of view, follows a chronological summary of the ups and downs of the Episcopal Church (USA) in 2011, with links to the posts that discuss the desultory details:

January - Judge Chupp grants summary judgment to ECUSA in the Ft. Worth litigation. He essentially punts the thorny issues to the higher courts, by adopting holus bolus ECUSA's ancient view of Texas law in the nineteenth century favoring so-called "hierarchical" churches, and by avoiding any analysis of the case under truly neutral principles of property law applicable to all other Texas landowners.

February - In Pennsylvania's Commonwealth Court, the Anglican Diocese of Pittsburgh loses its appeal of Judge James's nonsensical decision below, due to the appellate judges' studied refusal to let the disturbing facts perturb them in the slightest. One of the Diocese's parishes, St. Philip's in Moon Township, settles separately with the victors by agreeing to stay away from ACNA for five years.

March - The new Episcopal Bishop of San Joaquin, the Rt. Rev. Chester Talton, freely admits in an interview that the object of all the lawsuits recently filed by his predecessor is to get properties to sell so loans from ECUSA to pay for litigation expenses can be repaid. Never mind that the properties in all likelihood will fetch far less than what has to be spent to win them; it's the principle of the thing, don't you see?

April - the Episcopal Diocese of Rio Grande, having evicted the congregation of St. Francis-on-the-Hill (El Paso) from its property, now sues their rector and vestry for all moneys they collected from their parishioners while the earlier litigation was going on. The Diocese also seeks punitive damages against the defendants for their outrageous effrontery in spending the parish pledges for non-Episcopal purposes, such as utilities, church bulletins, soup kitchens, and the like.

May - the California Supreme Court reverses the judgment against St. James, Newport Beach which the Court of Appeal, in an unpublished decision, had given to ECUSA and the Diocese of Los Angeles at their request, because they read the Supreme Court's earlier decision to say that churches which try to leave ECUSA's clutches should not be given even one day in court to plead their case, and deserve to have their property taken from them on the spot. The Supreme Court in effect said: "We were just kidding -- can't you Episcopalians tell the difference between a joke and a legal opinion?"

June - News emerges that when Katharine Jefferts Schori was the Bishop of Nevada, she received a former Catholic monk, an admitted molester of young males, as an Episcopal priest. Of course, she placed him under restrictions meant to ensure that he could not be alone with young men, but apparently she forgot to tell anyone about them, including the rector of the church which hired him to direct its choir.

July - The new Title IV Disciplinary Canons, which were not closely examined or debated until after General Convention approved them, become effective in all church Dioceses except South Carolina, which refuses to recognize them. The Diocese points out numerous ways in which they violate the Church's Constitution -- not least because they confer metropolitical powers upon the Presiding Bishop -- but all the rest of the frogs in the Episcopal soup just lie back, relax, and bask in the steadily increasing warmth that surrounds them.

August - At the request of the Diocese of Pennsylvania, a trial court judge orders the removal of the pastor of the Church of the Good Shepherd in Rosemont, outside of Philadephia. The rector, David Moyer, had in the meantime become a bishop in the Traditional Anglican Communion, and now appears to be headed for the new Roman Catholic ordinariate in America.

September - The Connecticut Supreme Court graces the legal world with another poorly written opinion blindly upholding the Dennis Canon's unilaterally created trust under so-called "neutral principles of law." This time, the victim of such misguided reasoning is Bishop Seabury Church, in Groton, but it may appeal to the U. S. Supreme Court if the churches in Georgia do so also (see December entry, below).

October - The new Disciplinary Board for Bishops (under the new Title IV Canons -- see the entry for July above) makes a big splash, and provokes a Church constitutional crisis, when they inform Bishop Mark Lawrence of South Carolina that they are investigating charges made against him by anonymous dissidents in his Diocese for not being sufficiently submissive to the Presiding Bishop's new regime, and for otherwise "abandoning the communion of [ECUSA]." Bishop Lawrence and his Diocese do not recognize either the Board or the new Title IV Canons under which it is operating. After some initially clumsy fumbles in the public relations department, the Board finally announces that it could not muster a majority in favor of certifying the charges, and the crisis evaporates (for now).

November - On the same day, the Georgia Supreme Court decides two major church property cases. In the first, it awards to the Episcopal Diocese of Georgia the property of Christ Church in Savannah, Georgia's oldest Anglican church, which predates the founding of ECUSA itself. In the second decision,  the Court awards the property of Timberridge Presbytery, near Atlanta, to PCUSA. The same Justice -- a prominent member of a large ECUSA parish in Atlanta -- writes the opinions in both cases, without recusing himself from the first one on account of his affiliation. He justifies his upholding of the Dennis Canon against Christ Church by repeatedly citing his tortured decision that rejects Timberridge's attempt to remove itself from the shackles of a similar provision in PCUSA's Book of Order.

December - The Supreme Court of Texas agrees to hear the appeal of the Church of the Good Shepherd in San Angelo from a lower court decision which made mincemeat of "neutral principles of law." This bodes well for Bishop Iker and his Diocese of Fort Worth, which has a similar request for review of Judge Chupp's decision (see January entry above) pending before Texas' highest court. Meanwhile, in Georgia, Timberridge Presbytery announces it will petition the U. S. Supreme Court to review the Georgia Supreme Court's November decision against it (see entry above). There is a possibility that Christ Church in Savannah, whose congregation holds its last service there, will also request review; and that may encourage a third request from Bishop Seabury parish, in Connecticut (see September entry above). Finally, the year closes with an intelligent trial court decision from Illinois which refuses to rule, as a matter of law, that ECUSA is "hierarchical" with respect to its member dioceses.

Happy New Year to one and all! Your Curmudgeon is praying that 2012 will bring good news for all but Jefferts-Schorians on the legal fronts in Fort Worth, San Joaquin and Quincy, and with regard to any petitions filed with the United States Supreme Court.

The Marvel and Mystery of Christmas

Ach, Herr, du Schöpfer aller Ding

Ach Herr, du Schöpfer aller Ding,

Oh Lord, Creator of us all,

Wie bist du worden so gering,

How art Thou now become so small,

Dass du da liegst auf dürrem Gras,

That there Thou liest on hard straw bed,

Davon ein Rind und Esel ass?

From which both cow and donkey fed?

(Music: Heinrich Schütz, 1585-1672 [SWV 450]; Text: Martin Luther, 1483-1546 [Stanza 9 of Vom Himmel hoch da komm' ich her, 1536]; Performance: Hendricks Chapel Choir, December 1978; Art: Fra Angelico, The Nativity, 1439-1443.)

His Holiness Pope Benedict XVI reminds us of a possible answer to Martin Luther's question:

The medieval theologian William of Saint Thierry once said that God – from the time of Adam – saw that his grandeur provoked resistance in man, that we felt limited in our own being and threatened in our freedom. Therefore God chose a new way. He became a child. He made himself dependent and weak, in need of our love. Now – this God who has become a child says to us – you can no longer fear me, you can only love me.

(H/T: the Rev. Canon Kendall Harmon, Titus19)