Fresno Judge Denies ECUSA's Motion for Summary Judgment

There is very good news for the Anglican Diocese of San Joaquin, now under the leadership of Bishop Eric Menees. Last Thursday, the Fresno Superior Court (Jeffrey Hamilton, J.) filed his decision adopting his tentative ruling of March 6 as his final ruling with respect to the Motion for Summary Judgment / Summary Adjudication filed by the plaintiff rump diocese and its bishop, Bishop Talton, and joined in by ECUSA itself.

The ruling denies ECUSA and its totem plaintiffs any summary judgment, because it finds that there are disputed issues of fact still to be resolved in connection with the Diocese's right to withdraw from ECUSA, as it voted to do in December 2007. In so doing, it adopts the "neutral principles of law" approach prescribed by the Court of Appeals, and it correctly applies that approach to find that the plaintiffs failed to show, as a matter of law, that anything in ECUSA's Constitution or canons, or anything in its long history with the Diocese, restricts the right of a Diocese to disaffiliate.

Now ECUSA will have to go to trial against Bishop Schofield on its claims that he was not authorized to lead his Diocese out of the Church. Since there was no canonical or constitutional provision which Bishop Schofield's Diocese could be said to have violated when it voted to disaffiliate, the present ruling will make it that much more difficult for ECUSA to prove its claims at trial.

However, ECUSA is not out of arrows in its quiver yet. It has filed reply papers in the federal court litigation in South Carolina which attempt to make a wholly new argument for its priority in being able to decide, as a matter of federal law under the First Amendment, that Dioceses are not free to leave the Church without the consent of General Convention. But as you might well imagine, that is a very far-fetched and tenuous argument which will require the Curmudgeon to devote an entirely new post to its refutation. So, stay tuned!

The "Big Bang Theory" and What It Tells Us about Man's Capabilities

This piece, by Ken Masugi, on the popular TV show "The Big Bang Theory," at The Library of Law and Liberty, goes far to explain why our post-modern/modernist culture (it doesn't matter what term you apply to it) has nothing to offer for mankind but the fragile and built-in frailties of man himself. Please do take the time to read it in its entirety, even if you are not a regular of The Big Bang Theory,  because it tells you all you need to know about the self-imposed inadequacies of science, per se, either to explain or to accommodate the primary aspects of our God-given reality.

Science excludes the hypothesis that there could be a God a priori [from the very outset], because it has no means by which to test such an hypothesis, given its assumed and agreed [i.e., a priori] methods of observation and experiment. The situation is precisely as though a group of scientists were to announce: "We shall base our entire observations and conclusions about the universe on what we can derive from the infrared spectrum, because our instruments do not allow us to detect any phenomena outside of that spectrum."

In fact, of course, scientists base their observations and conclusions about the universe on what they can derive from the entire electromagnetic spectrum, including the ultraviolet as well as the infrared -- and beyond. Since God, however, has not made any manifestations of His existence obvious within the complete span of the electromagnetic spectrum since the Resurrection (and its record preserved on the Turin Shroud), the scientists who have objectively examined the evidence of the Shroud are divided. Some say it embodies phenomena which science currently cannot explain. Others reject its evidence entirely, on the ground of its (faulty, but only) radio-carbon dating [NB: another scientific "hypothesis" masquerading as the "only admissible" evidence under the rules of science].

But as Ken Masugi so eloquently lays out, the sphere in which science offers us its data and conclusions is severely limited, by its own materialist hypotheses. And our society's mistake in accepting science's (within its realm) well-established conclusions is to assume (along with the scientists) that it must cover the entire realm of observable experience, because (by hypothesis) "if it is not 'observable' to us, then it cannot form the basis for science."

And please note (in the article linked above) how (on The Big Bang Theory) Sheldon Cooper's evangelical mother makes short shrift of that contention.

Indeed, to ask a question that Sheldon's mother might well ask: what is this "science" that demands we observe only what it can observe?

Answer: It is a construction of man himself.

That should be the end of the inquiry. "Science" is, in our day, no more and no less than the Tower of Babel was in its day -- an attempt by man to occupy the known universe, including the very heavens themselves, by dint of only his own efforts. God had no role to play in the erection of the Tower of Babel, and God has no role to play in today's "science." Let's see: from ca. 2000 BC to 2000 AD, there has been no change in man's evaluation of the role which God has to play in man's world -- yep, that is sure evidence of man's "progress", under his own head of steam.

Has the root contradiction of such a view escaped the reader thus far, due to the impersonal language employed? Let's begin again:

If God exists, then God is supreme in all respects of our human existence -- and God, as such, is the repository and source of all "knowledge" about this world and its existence to which humans could possibly attain (as well as with respect to many other possible things -- but we do not need to go there just now).

If God is supreme, as He must necessarily be if He exists, then man must be inferior to Him.

Therefore, man can never know all that God knows, or man would be capable of being omniscient as God is already omniscient.

What man knows to this date in the world is called by him "science."

But what God knows must necessarily be greater -- otherwise, man would be equal to God, which makes "God" superfluous, because then man can do it all himself.

Accordingly, what man's science knows cannot supply the entire picture of what is -- if God exists.

Thus, your entire world-view depends on how you regard God's existence: if you regard it as a given, then you acknowledge that you by definition are incapable of attaining to all His knowledge (including knowledge of whether He exists). But if you deny His existence from a priori (i.e., man-assumed) grounds, then you preclude yourself, equally a priori, from any knowledge of Him, or His existence.

It really is that simple. (Go back over the logic if you are not yet convinced.)

And for those who still deny God's existence on the evidence they have assessed to date, I have a simple proposition for you.

Please accept an invitation to what I assure you will be an excellent, multi-course dinner, with fine wines accompanying each course, at a place of the Curmudgeon's choosing. You will have no role to play, other than to show up at the agreed time and place.

But if you do accept the invitation, you must agree to come on the condition that the dinner will be at your expense if you cannot supply a rationally satisfactory answer to the following question:

"You have enjoyed this marvelous dinner and these wines with me here tonight. And I am grateful that you could share them with me. But as you see, I remained in your company the entire time, while the dinner and wines were brought to the table. Now, please explain: if you believe that you indeed consumed and enjoyed this food and this wine here tonight, do you believe that there was a cook? And do you believe that there was a winemaker?"

I rest my case -- Q.E.D.

P.S.: Please, in light of these remarks, do read the Masugi article in its entirety. If you are a regular fan of The Big Bang Theory, you will enjoy it even more. But even if you have never heard of the show, you will be able to relate what has been said above to what you will read in his post.

Problems with the Virginia Supreme Court's Decision

For a judge, there is nothing so safe as subscribing to precedent, particularly if you do not have to re-examine it. You simply pronounce that you are following precedent, and add an entire string of case citations to "prove" you know what you are doing.

So it is with Justice Cleo E. Powell of the Virginia Supreme Court, the author of the decision in The Falls Church v. Protestant Episcopal Church (USA), which awards all of the real and personal property of what was once the largest parish in the Diocese of Virginia to that entity. (The Diocese is unable to put the property to the full use of which it is capable -- the remnant parish cannot even fill the main chapel -- and so the multi-million-dollar property comes to it as a wholly unearned windfall. No doubt the Diocese will eventually sell the property --to any entity except the congregation from whom it seized it -- in order to recoup some of the costs incurred in fighting for it.)

In one of her first major opinions since joining the Court in 2011, Justice Powell takes refuge in a coppice of previously planted judicial underbrush to justify her quixotic result. That underbrush can conceal a multitude of judicial sins, consisting chiefly of abdications of judicial responsibility. It serves at best as a trap for the unwary, into which the tyro all too easily falls. But at its worst, as we see Justice Powell deploy her precedents in the Court's opinion, it simply grows and expands, without order or restraint.

For the congregants of The Falls Church, in Virginia, a post mortem of the decision can offer scant relief. What does it matter that the Court got it wrong, since it has the final word in that State? Like Pilate, the Court says "What I have written, I have written" -- and passes to the next case on its docket.

The Court says that Virginia is a State that follows and applies "neutral principles of law," but don't let that fool you. What exactly is so "neutral" about (a) judges creating a trust out of whole cloth that the parties themselves never formalized, so that (b) a church like ECUSA can secure a windfall for the unjust enrichment of one of its dioceses?

Justice Powell's result rests entirely upon her finding that a "fiduciary relationship" existed between The Falls Church and the national Church. But she spends no time whatsoever in examining the particulars of such a relationship, or deciding just when and how it actually came into being.

Fiduciary relationships are very special in the eyes of the law. A fiduciary is a person or entity in whom one confides (such as a client with his attorney, a patient with his psychiatrist, or a penitent with his priest) -- or it can also be a person or entity to whom one entrusts money or property, such as a client with his stockbroker or banker. Or it can simply be the trustee who holds certain property in trust for what the law calls the beneficiary of that trust -- the person for whose benefit the trust was established.

The law holds fiduciaries to the highest standards of duty of care, and of loyalty to the beneficiary (no self-dealing with the property at the beneficiary's expense). As Justice Powell cites one case authority (opinion, pp. 18-19):

It is well settled that where one person sustains a fiduciary relation to another he cannot acquire an interest in the subject matter of the relationship adverse to such other party. If he does so equity will regard him as a constructive trustee and compel him to convey to his associate a proper interest in the property or to account to him for the profits derived therefrom.

Let's unpack that quotation a bit. As Justice Powell applies it, it is saying that The Falls Church, acting as a fiduciary towards the national Church, could not "acquire" an interest in its own property that was adverse to the national Church. Supposedly, that happened when The Falls Church voted in 2006 to disaffiliate from the Diocese of Virginia -- but what did The Falls Church "do" at that point to acquire the property? It already owned it. 

Assume for a moment that in 2006 the property was held by The Falls Church as a trustee for the Diocese. Then presumably by declaring itself free of the Diocese, it attempted to make its property free of that trust. And Justice Powell concludes it could not accomplish that step without betraying its fiduciary duty to keep the property available for the use of Diocese, and those loyal to the Diocese.

All right, but what about the relationship of the Diocese to The Falls Church all the time the latter was a member of the former? Was not the Diocese a fiduciary as well, in relation to The Falls Church? Did not The Falls Church rely upon the Diocese and its bishops to uphold the "doctrine, discipline and worship of [the national] Church" as that Church received them from the mother Church of England?

And what happened to that trust? The national Church and its Dioceses breached it in 2003, and breached it further in 2006 -- well before The Falls Church ever took its vote to disaffiliate in response to those breaches of trust.

When a trustee breaches the terms of a trust, the law does not award him the property held in trust as his reward. Yes, we may assume for the purposes of argument that The Falls Church held its own property in trust for the national Church and the Diocese -- but the only reason for the creation of that trust was the undertaking, by the national Church and its Diocese, to guard and preserve the faith. So the second trust was entirely dependent on the pre-existence of the first.

And when the national Church and the Diocese breached that first trust in 2003, the reason for the  second trust ceased to exist. Justice Powell takes absolutely no notice of that crucial fact (other than to observe that there was "a long-standing conflict within TEC that arose in 2003"). For her, the second trust is the only one the law can actually enforce, since the courts cannot make a church hold true in matters of doctrine, discipline and worship. But she utterly ignores the consideration for the second trust, which was the establishment of the first trust when The Falls Church joined the denomination in 1836.

Thus even though the first trust is not civilly enforceable in the courts, it nonetheless furnished the quid pro quo for the creation of the second. And when that first trust ceased to exist, the Virginia Supreme Court had no justification for continuing to enforce the second trust. The Court should have shied away from any use of the term "trust" altogether, and told the parties that it could not enforce the property trust without assessing the failure of the consideration that had been given for its creation. That would have left the parties where the court found them.

Thus the trust analysis in Justice Powell's opinion is highly problematic, and ignores more issues than it resolves. But even how she manages to get to the second trust is an exercise in contradictory logic. Consider her chain of reasoning, which is as follows:

1. In Virginia, from its earliest times until 1993, a "hierarchical" church was prohibited from creating any trusts, express or implied, in its favor.

2. Thus the Dennis Canon, enacted in 1979, had no force or effect in Virginia at the time.

3. But in 1993, the Virginia legislature abolished that rule in part, and enacted a statute which allowed such a trust, in these words:

Every conveyance or transfer of real or personal property, whether inter vivos or by will, which is made to or for the benefit of any church, church diocese, religious congregation or religious society, whether by purchase or gift, shall be valid.

4. Even though the Dennis Canon could have no operative effect to create a trust in Virginia, it nevertheless described the relationship that had always existed between the national Church and the properties of its parishes.

5. Therefore, from and after 1993, that relationship suddenly became enforceable, and so we (the Court) will enforce it now, even if we must use a constructive trust (one created entirely by judicial decision) to do so.

Do you see the problems with that reasoning?

Look at the words of the statute that changed Virginia law, quoted above. It begins: "Every conveyance or transfer of real or personal property ...". If trusts in Virginia stand or fall by the law in effect when they were created (opinion, p. 17), then what conveyance or transfer of The Falls Church property took place after 1993 to give rise to the existence of any trust as described by the Dennis Canon?

The Court cannot have it both ways (but Justice Powell tries to do just that). Either the trust in question arose at a time when it was invalid under Virginia law, or it arose at a time when it was valid, i.e., after 1993. And to arise and be effective as declared by the statute, it had to be part of a conveyance of transfer upon terms of trust executed after that date. If it "arose" out of a course of conduct or dealing, then it does not come within the language of the statute -- and so it would remain invalid under Virginia law.

I see no way out of the corner into which the Court's faulty reasoning has painted itself. It should never have purported to try to resolve the case upon principles of trust law, because they simply do not apply to the facts. As a result of its attempt, the principles applied by the Court are anything but "neutral."

Would the Court even listen to a petition for rehearing along these lines? That is for the plaintiff's  attorneys to judge, but since it got things so wrong the first time, I doubt it will have the capacity to see its error.

"Quod scripsi, scripsi" -- to quote Pontius Pilate again. Right or wrong, the Court has spoken.