Bishop Bruno Tries to Serve Two Masters

Under California law, a religious body or organization may create a unique form of corporation, called a corporation sole, whose principal purpose is to allow the parent organization (which may or may not itself be incorporated) to hold title to real property. A corporation sole is different from the usual variety of that entity: it has a single officer, director and shareholder, who are all one and the same person, called "the incumbent of the corp sole." The governing body makes the rules for who can be the incumbent. Typically it is that body's bishop or other spiritual leader.

Bishops may come and go, but corporations sole do not. Under law, their existence is perpetual -- and that is why they are a good vehicle for maintaining ownership of real property. And like any religious organization, they are not-for-profit, and pay no income taxes.

So it comes as a bit of a surprise to learn that Bishop J. Jon Bruno of the Episcopal Diocese of Los Angeles is at odds with his own Diocese over the disclosure of financial information concerning the corporation sole of which he is the incumbent. (In order to avoid a vote on an outside audit of his corp sole at the diocesan convention last December, Bishop Bruno promised to disclose its financial statements.)

Readers will remember that +Bruno and his corp sole became embroiled in litigation last summer over the bishop's plans to sell the valuable, near-oceanfront real estate of the congregation of St. James the Great, in Newport Beach, California -- after he won a lawsuit to recover that property from the ACNA congregation that voted to leave his Diocese. The original developer who gave the property to the Episcopal Diocese for the building of a local church had placed a restrictive covenant on it, which specified that if the property ever ceased to be used for church purposes, it would revert to the developer.

Bishop Bruno did not take kindly to that position, and brought suit against the developer (in a fine example of how not to treat a wealthy donor). He claimed that the restriction had been waived when the developer had agreed to allow a portion of the property to be used as a parking lot. The developer pointed out in response that it had specifically not waived the restriction as to the very parcel on which most of the church building proper is located.

While that lawsuit was waging, the parish of St. James and its popular vicar, the Rev. Canon Cindy Voorhees, brought suit themselves against the bishop, after earlier lodging a disciplinary complaint against him for misrepresenting his intentions in his dealings with them. The lawsuit sought to enforce the restrictive covenant against the bishop on behalf of the congregation. Lately, the disciplinary proceedings have bogged down after Bishop Bruno spurned any effort at conciliation.

So do you have the picture now? Bishop Bruno and his corp sole are prosecuting one lawsuit and defending another. His goal is the same in both suits: to be able to move forward with his planned sale of the St. James real estate to a friend who is a developer, and who reportedly has agreed to pay $15 million for the property if it is free and clear. (The parish contends the property is worth even more.)

But now the bishop tells his Diocese that despite his December promise to the convention, his lawyers have advised him that to release the requested financial information could harm his ability to conduct the lawsuits. And with that announcement, Bishop Bruno has all but admitted that he is embroiled in a rank conflict of interest with his own Diocese.

For if the disclosure of information to which the Diocese, as the governing body of the corp sole, is fully and legally entitled would harm the Bishop's own lawsuits, then for what diocesan purpose is he maintaining (and defending) the lawsuits? His own stake in the litigation should parallel that of his Diocese, since Bishop Bruno is a fiduciary with respect to that diocese. A fiduciary is one on whom the law places a duty of the highest faithfulness and care toward his beneficiary (in this case, the Diocese).

A fiduciary, among other things, is positively prohibited from engaging in transactions which conflict with his fiduciary duties. Nor can a fiduciary try to profit at his beneficiary's expense.

Thus if Bishop Bruno's legal pursuits prevent him from performing his fiduciary duties toward his Diocese, he should resign rather than continue to act in his own interest at their expense. Barring criminal behavior, breaches of ecclesiastical fiduciary duties are generally not cognizable in the civil courts. Such breaches (in the case of a bishop of the Church) must be handled by ECUSA's Disciplinary Board for Bishops -- which is already looking into similar charges against Bishop Bruno, as noted earlier.

Part of the information the St. James group has discovered from inspecting the public records is that in August 2015, the corp sole formed in Delaware a limited liability company called "Katella Howell LLC", which then purchased a one-half interest in a $6.3 million-dollar commercial property in Anaheim (in the Diocese of Los Angeles). More recently, however, public records show that Katella Howell (the names of two streets in Anaheim that are presumably near the property) LLC is now the owner of all of that property, which is subject to a $5.3 million mortgage. The timing of the transactions suggest that it was Bishop Bruno's intent to use part of the proceeds from the sale of the St. James parcels to fund his corp sole's subsidiary's commercial venture in Anaheim.

One would have to go back to the Borgias to find a church prelate who was so enamored of temporal things as to place his own business interests ahead of his religious duties. While the corp sole may be a non-profit, the LLC most certainly is not. And what business does a non-profit corp sole -- the legal holding entity of a religious organization -- have with a corporation organized for commercial profit that is unrelated to any church or charitable purpose? (If there is any such purpose to his investment, Bishop Bruno should have disclosed it to his Diocese by now.)

The proceeds from such an investment are generally characterized under tax law as "unrelated business income", which is taxable at regular corporate rates. A charitable organization that has too much "unrelated business income" in its mix runs the risk of having its charitable status reviewed, or even revoked, by the IRS.

If Bishop Bruno could jeopardize his Diocese's tax-exempt status through his corp sole activities, then he most certainly has a conflict of interest, even if matters have not progressed quite that far. He has a fiduciary obligation to make full and open disclosure of all those activities -- to all beneficiaries who could be affected by them. Both the Standing Committee and the vestry of St. James should see to it that Bishop Bruno does not have the last word in this matter.

Three Sobering Reads

Convergence? You decide.

From Patrick Deneen, Professor of Political Science at Notre Dame, writing at Front Porch Republic ("Res Idiotica"):

My students are know-nothings. They are exceedingly nice, pleasant, trustworthy, mostly honest, well-intentioned, and utterly decent. But their minds are largely empty, devoid of any substantial knowledge that might be the fruits of an education in an inheritance and a gift of a previous generation. They are the culmination of western civilization, a civilization that has forgotten its origins and aims, and as a result, has achieved near-perfect indifference about itself....

We have fallen into the bad and unquestioned habit of thinking that our educational system is broken, but it is working on all cylinders. What our educational system aims to produce is cultural amnesia, a wholesale lack of curiosity, historyless free agents, and educational goals composed of contentless processes and unexamined buzz-words like “critical thinking,” “diversity,” “ways of knowing,” “social justice,” and “cultural competence.” Our students are the achievement of a systemic commitment to producing individuals without a past for whom the future is a foreign country, cultureless ciphers who can live anywhere and perform any kind of work without inquiring about its purposes or ends, perfected tools for an economic system that prizes “flexibility” (geographic, interpersonal, ethical). In such a world, possessing a culture, a history, an inheritance, a commitment to a place and particular people, specific forms of gratitude and indebtedness (rather than a generalized and deracinated commitment to “social justice”), a strong set of ethical and moral norms that assert definite limits to what one ought and ought not to do (aside from being “judgmental”) are hindrances and handicaps. Regardless of major or course of study, the main object of modern education is to sand off remnants of any cultural or historical specificity and identity that might still stick to our students, to make them perfect company men and women for a modern polity and economy that penalizes deep commitments. Efforts first to foster appreciation for “multi-culturalism” signaled a dedication to eviscerate any particular cultural inheritance, while the current fad of “diversity” signals thoroughgoing commitment to de-cultured and relentless homogenization.

Above all, the one overarching lesson that students receive is to understand themselves to be radically autonomous selves within a comprehensive global system with a common commitment to mutual indifference. Our commitment to mutual indifference is what binds us together as a global people. Any remnant of a common culture would interfere with this prime directive: a common culture would imply that we share something thicker, an inheritance that we did not create, and a set of commitments that imply limits and particular devotions. Ancient philosophy and practice heaped praise upon res publica – a devotion to public things, things we share together. We have instead created the world’s first res idiotica – from the Greek word idiotes, meaning “private individual.” Our education system excels at producing solipsistic, self-contained selves whose only public commitment is an absence of commitment to a public, a common culture, a shared history. They are perfectly hollowed vessels, receptive and obedient, without any real obligations or devotions. They have been taught to care passionately about their indifference, and to denounce the presence of actual diversity that threatens the security of their cocoon. They are living in a perpetual Truman Show, a world constructed yesterday that is nothing more than a set for their solipsism, without any history or trajectory.

From Myron Magnet, writing at City Journal ("Liberty -- If You Can Keep It"):

Worse still is the mindless orthodoxy that passes for intellectual life on today’s campus. Do colleges offer illimitable freedom to explore whether there might be differences in the minds of men and women that make them excel at different academic subjects, or that there may be no out-of-the-ordinary global warming caused by human activity, or that mankind’s fate might require that marriage be defined as between a man and a woman, or that affirmative action and welfare might harm and degrade their supposed beneficiaries, or that Islam may not be a religion of peace, or that environmental cleanliness may not be man’s highest value, or that money ought to speak in politics, or even that all lives—not just black ones—matter? Here the fountain of Truth has indeed sickened into a muddy pool of conformity and tradition, as Milton knew such unthinking dogma as political correctness ensures....

... As for what college students know of every subject susceptible of contemplation, a hilarious film, Politically Challenged, that Texas Tech students produced does not reassure. To the question of “Who won the Civil War?” 11 students had no idea, though two thought it might have been the South, one suggested “America,” two didn’t know who fought it, and one wondered if the questioner meant the one that occurred in 1967. Only one answered, “The North; the Union.” Only one of nine students could name the current U.S. vice president. None of five students knew from whom America gained its independence, though one thought it might have happened in the 1970s—or else the 1670s. But all of them knew the names of actor Brad Pitt’s current and former wives and that “Snooki” was a character on the TV show Jersey Shore.

Finally, from Victor Davis Hanson -- one of his best columns ever, over at Pajamas Media -- "Weimar America":

No one can figure out how and why America’s youth have borrowed a collective $1 trillion for college tuition, and yet received so little education and skills in the bargain. Today’s campuses have become as foreign to American traditions of tolerance and free expression as what followed the Weimar Republic. To appreciate cry-bully censorship, visit a campus “free-speech” area. To witness segregation, walk into a college “safe space.” To hear unapologetic anti-Semitism, attend a university lecture. To learn of the absence of due process, read of a campus hearing on alleged sexual assault. To see a brown shirt in action, watch faculty call for muscle at a campus demonstration. To relearn the mentality of a Chamberlain or Daladier, listen to the contextualizations of a college president. And to talk to an uneducated person, approach a recent college graduate.

If all that is confusing, factor in the Trimalchio banquet of campus rock-climbing walls, students glued to their iPhone 6s, $200 sneakers, latte bars, late-model foreign cars in the parking lot, and yoga classes. Affluence, arrogance, and ignorance are quite a trifecta.

The authors also reach remarkably similar conclusions. First, Patrick Deneen again:

I care deeply about and for my students – like any human being, each has enormous potential and great gifts to bestow upon the world. But I weep for them, for what is rightfully theirs but hasn’t been given. On our best days together, I discern their longing and anguish and I know that their innate human desire to know who they are, where they have come from, where they ought to go, and how they ought to live will always reassert itself. But even on those better days, I can’t help but hold the hopeful thought that the world they have inherited – a world without inheritance, without past, future, or deepest cares – is about to come tumbling down, and that this collapse would be the true beginning of a real education.

Next, Myron Magnet:

Western civilization arose on why. We had better keep asking it, draining every fetid pool of political correctness that lies in the way of an answer.

And the final word goes to Victor Davis Hansen:

I wish all this could end well. But history’s corrective to 1930s chaos was a different—and deadlier—sort of chaos. And so ours may well be too.

Antonin Scalia, RIP

Justice Scalia's past law clerks provide an honor guard as his coffin comes to the Court.

(Click to enlarge.)

In today's highly polarized political atmosphere, the death of a sitting Supreme Court Justice is a guaranteed flash point. To have a sitting conservative Justice like Antonin Scalia die in an election year, however, in which different parties control the White House and Congress, is a true test of our political system.

Justice Scalia's was one of the most articulate and penetrating intellects ever to grace the Court. His colleagues could disagree with him, but that was because he always made it perfectly clear where he stood. He never knuckled under to public pressure or opinion polls, and for nearly 30 years he applied his originalist jurisprudence consistently to the cases that came before him.

Here are some samples of his pointed observations -- from his opinions, speeches and interviews:

Dissenting last June in Obergefell v. Hodges (the same-sex marriage case) -- one of the worst decisions ever to come from a 5-4 divided Court:

This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Calling an interviewer's attention, in 2011, to the dangers flowing from trying to "keep the Constitution current" -- which is what the majority did in Obergefell:

Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Upholding the Second Amendment's limitation on government's power to  restrict the right to own guns, in District of Columbia v. Heller (2008):

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.

Dissenting in 2001 in the case of PGA Tour v. Martin, where the majority decided that a disabled professional golfer had a constitutional right to use a golf cart in the PGA Tour:

I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Dissenting again in Lee v. Weisman (1992), where the majority held that prayer led by a priest at a public school graduation ceremony was unconstitutional:

The Court presumably would separate graduation invocations and benedictions from other instances of public "preservation and transmission of religious beliefs" on the ground that they involve "psychological coercion." I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, has come to "requir[e] scrutiny more commonly associated with interior decorators than with the judiciary." But interior decorating is a rock hard science compared to psychology practiced by amateurs. A few citations of "[r]esearch in psychology" that have no particular bearing upon the precise issue here cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court's argument that state officials have "coerced" students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

And dissenting in the 5-4 decision upholding Roe v. Wade -- Planned Parenthood v. Casey (1991):

By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

Justice Scalia was known for his dire predictions of the consequences of poorly-reasoned majority decisions, and he has more than often been proved right. As far back as 1988 he warned in Morrison v. Olson that the majority was ignoring the Framers' carefully designed balance of powers by upholding the right of Congress to take away the President's power to appoint a special counsel:

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

He concluded by pointing out the utter lack of standard in allowing a simple majority to decide just "how much" of the executive power could be taken away:

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States."

He was again prescient in his dissent in Lawrence v. Texas (2003), which overruled a decision upholding sodomy laws that had been handed down just 17 years earlier. He predicted that the decision would lead to the Court's eventual sanctioning of gay marriage, precisely as it did last summer:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... 

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. ... 

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else... What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. 

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts -- and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage ...  At the end of its opinion -- after having laid waste the foundations of our rational-basis jurisprudence -- the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,"and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added).  

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.... I dissent.

Of all his writings and interviews, however, this one in October 2013, given to New York Magazine, has to count as his most candid and personal: follow the link and read the whole thing (it's eight pages) for a true insight into what motivated him. Note that he denigrated his potential legacy:

50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: “He was on the losing side of everything, an old fogey, the old view.” And I don’t care.

Justice Scalia's sudden demise leaves a vacancy on the Court that will become the football of politics. Senate Majority Leader Mitch McConnell has already thrown down the gauntlet, saying that his place "should not be filled until we have a new president," while President Obama has taken up the gauntlet by declaring that he plans to make an appointment "soon" -- and that he expects a fair hearing and a timely vote. Count on Obama to play the politics of the situation to the hilt. Partisans are already rushing to take sides in what promises to be a major confrontation between the Senate and a lame-duck President.

The history of nominations and confirmations of Supreme Court Justices in an election year does not bode well for the Democrats, since they are in a minority in the Senate. The most notable recent instance was the failure in 1968 to get a vote on Lyndon Johnson's nomination of Abe Fortas. Even though the Democrats also controlled both houses of Congress, they could not muster the votes in the Senate to stop the Republicans' filibuster of the nomination. And as related in this article, the last time a President was successful in having his nomination in an election year confirmed by a Senate controlled by the opposition party was in 1880.

Justice Scalia was a strong and capable figure on the Court, and will be extremely difficult to replace. For what it is worth, I agree with this summation of what made Antonin Scalia such an iconic figure:

Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.

Prayers of consolation go out to Justice Scalia's family, especially his wife Maureen. Both devout Roman Catholics, they met on a blind date in 1960 when he was at Harvard Law School and she was at Radcliffe. They married that fall, and eventually raised five sons and four daughters.

Requiescat in pace, Antonin Scalia.