Texas Supreme Court Repudiates ECUSA's Sophistries

In a comprehensive and unanimous thirty-page decision filed Friday morning, May 22, the Texas Supreme Court ruled in favor of Bishop Jack L. Iker and reversed the Court of Appeals' earlier decision to the effect that ECUSA's rump diocese, and not Bishop Iker's diocese, controlled the Texas corporation which holds title to the properties of those parishes which in 2008 voted to withdraw their diocese from the unaffiliated and unincorporated association that historically has been called the (Protestant) Episcopal Church in the United States of America.

The decision is as straightforward an application of "neutral principles of law" (espoused by the U.S. Supreme Court in Jones v. Wolf) as one could find among the courts to which ECUSA has presented its "hierarchical church" sophistries. It repudiates those sophistries in a succinct passage (pp. 24-25):

In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer. But applying neutral principles to the organizational documents, the question of property ownership is not entwined with or settled by those determinations. The Fort Worth Diocese’s identity depends on what its documents say. To that end, the Diocesan Constitution and Canons provided who could make amendments and under what circumstances; none of those circumstances incorporate or rely on an ecclesiastical determination by the national church; and nothing in the diocese’s or national church’s documents precluded amendments rescinding an accession to or affiliation with TEC. Applying neutral principles of law, we hold that the majority faction is the Fort Worth Diocese and parishes and missions in union with that faction hold equitable title to the disputed property under the Diocesan Trust. 

The opinion then makes short shrift of ECUSA's remaining arguments. It demolishes ECUSA's Dennis Canon, first by holding that a beneficiary like ECUSA cannot declare a trust in its favor in Texas on property that it does not own, and second by holding that even if the Dennis Canon could be said to create a trust in ECUSA's favor, the Canon does not, as Texas law specifies, make the trust "expressly irrevocable". Thus it was well within the power of Bishop Iker's Fort Worth Diocese to revoke any such trust, which it did by a diocesan canon adopted in 1989 -- to which ECUSA never objected in the twenty years following that act.

The Texas Supreme Court affirmed the Court of Appeals' holding that ECUSA could not assert title to the parishes' properties by way of any "constructive" trust (a creation of the law to prevent a wrongdoer's "unjust enrichment"), or by the ancient doctrines of estoppel or trespass-to-try-title, or by accusing Bishop Iker and his fellow trustees of the diocesan corporation of breaches of fiduciary obligation allegedly owed to ECUSA. Each of those claims would involve the civil courts unconstitutionally in disputes over religious doctrine.

In conclusion, the Court affirmed the judgment of the Court of Appeals on the grounds last noted, reversed its principal holding that as an ecclesiastical matter, ECUSA got to say which corporation under Texas civil law was the entity which held the parishes' property in trust, and reinstated the trial court's judgment that Bishop Iker's corporation was in law the trustee of the properties of the parishes in his diocese.

Where does the matter go from here? First of all, back to the trial court, whose judgment (now made final by the Texas Supreme Court) "permanently enjoined [ECUSA]'s clergy and leaders from acting as "The Episcopal Diocese of Fort Worth" (opinion, p. 11).  That injunction may now be enforced, and so ECUSA and its rump diocese will have to come up with a different name.

(That is one of the downsides of a litigation strategy pursuant to which you pretend to be the "true" diocese that continued in the place of the one that withdrew. You argue that the vote to withdraw was "illegal" under ECUSA's Constitution and Canons, which in fact are silent on that subject [see the Court's opinion, p. 23], and so conclude that it is the withdrawing entity that has to find a new name. It is a game with all-or-nothing stakes. Now ECUSA and its followers in Fort Worth have played it and lost.)

Also facing a required change will be the ECUSA-aligned parish of All Saints in Fort Worth, which  thanks to the graciousness of Bishop Iker was allowed to stay in property which the trial court ruled belonged to Bishop Iker's corporation, pending the final outcome of the appeal. See my earlier post on that topic for details.

ECUSA's provisional bishop in Fort Worth issued a pastoral letter to his parishioners in which he stated he was joined by ECUSA's Presiding Bishop, Michael Curry -- you may read it here. The letter is remarkable for showing a lack of understanding as to what the Court held, when it says:

I remain convinced that we are right in our affirmation that we are the continuing Episcopal Diocese of Fort Worth and that I am its bishop.

Can the man not read English? Look at what the Court says in the first sentence of the paragraph that I first quoted above: "In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer" (my emphasis added). The Court says it again on page 20: "No one disputes that TEC’s determinations as to its denominational leaders and “good standing” with the church are ecclesiastical questions." (The Court also said the same thing in its earlier opinion in the 2013 case of Masterson v. Diocese of Northwest Texas, as it shows by quoting a passage from it in its current opinion at page 23.)

This Texas case is not about whether ECUSA needs to follow its own Constitution and Canons when it fashions an ersatz diocese out of the remnant clergy and parishioners who elect to remain in ECUSA when one of its member dioceses votes to cancel its affiliation with General Convention. Those are ecclesiastical matters which cannot be determined in the civil courts, as ECUSA's own canons recognize.

By the same token, however, ECUSA's ecclesiastical powers do not extend to overriding the laws of the various States in which it operates. The very essence of "neutral principles" is that a church is treated just as any other citizen of that State would be when it comes to complying with the laws and regulations dealing with entities like corporations and unincorporated associations. To hold otherwise -- as the high courts in New York, California, Connecticut, Georgia and several other States have done -- is not only to misread Jones v. Wolf, but also to violate the First Amendment by favoring one religious denomination at the expense of others.

ECUSA and its rump diocese may be speaking softly for now, but true to their form, they most likely will petition the United States Supreme Court to review this decision in an effort to get that Court to explain just what it really meant in Jones. Given that Court's reluctance, in each of the dozen or so instances it has been asked to do so in the forty-odd years since 1979, I would not take any bets on ECUSA's chances of success. But when you have over $350 million in trust funds at your disposal, and have had no qualms about spending well over $60 million on attorneys and church property litigation since 2000, one's chances of success would not appear to be a factor under consideration.

In other words, keep your powder dry, and stay tuned for more.

South Carolina Supreme Court Rebuffs ECUSA Again

On Tuesday, March 31, the South Carolina Supreme Court entered an order that denied without comment the petition filed the previous month by ECUSA and its ersatz diocese in South Carolina seeking a "writ of prohibition" (that is, an order to halt proceedings) directed to the Circuit Court of Dorchester County (Hon. Edgar Dickson, Judge) in an effort to prevent him from interpreting or clarifying the August 2, 2017 splintered decision of that same Supreme Court.

This was the second attempt by ECUSA's attorneys to derail the proceedings on remand before Judge Dickson, who was assigned to the case by the Court after three of the Justices (one of whom belatedly recognized she was disqualified) voted to reverse the judgment of Circuit Judge Diane Goodstein. That judgment had declared that the real and personal property of each individual Anglican parish belonged to that particular parish, and the diocesan property was owned by the diocese and trustees headed by the Rt. Rev. Mark Lawrence. Last March, ECUSA and its diocese filed with the Supreme Court a petition for a writ of mandamus (an order directing a lower court to do a specific act) seeking to have the Court command Judge Dickson to "enforce" the rulings contained in its August 2017 decision. The Court denied that petition without comment, as well.

This time, the order dismissing the request for a writ of prohibition was signed by all four Justices currently qualified to act on the case (with Justice Hearn having disqualified herself). That can be interpreted as a fairly strong statement that the majority of the Court is not persuaded that Circuit Judge Dickson is doing anything improper on remand. As Bishop Lawrence's attorneys pointed out in their opposition to the petition (see p. 6), and as their own attorneys conceded in argument before the Circuit Court, ECUSA and its diocese can always take an appeal from any final order that Judge Dickson sees fit to enter. That admission alone was sufficient ground for the Court to deny ECUSA's petition.

How do ECUSA and its attorneys manage to contend that there are any "rulings" in the August 2017 decision capable of being enforced? By vastly oversimplifying the jumble of five separate Justices' opinions, that's how.

I have demonstrated in earlier posts just how divided and disunited were the individual Justices (including especially Justice Hearn, who had not yet seen fit to disqualify herself -- on the ground that she was an active member of one of the parishes whose property was at stake in the case, and had earlier underwritten the effort by dissident Episcopalians to remove Bishop Lawrence from his position). It is logically impossible to derive any legal result from the five opinions other than that three of the Justices (including the one now disqualified) voted to reverse the trial court's judgment.

So Judge Goodstein's judgment awarding the property is now reversed. What comes next? Ah, that is the question -- and one looks in vain for a mandate (direction) from any three of opinions as got what the Circuit Court should do on remand towards entering a new judgment. As Judge Dickson said at the outset of the arguments on the motions before him:

The Court: The first motion that I have today, going through the list that y'all gave me the last time y'all were here, and I think the one I am most interested in is the motion to decide what I am supposed to decide. The clarification motion, okay.

In response to the contention by ECUSA's attorney, Mary Kostel, that the Court's ruling as to who owned the property was "clear", Judge Dickson responded: "We would not be here if it was clear."

And indeed, as pointed out in Bishop Lawrence's response to the petition for mandamus, just one day before filing its motion for enforcement with Judge Dickson, ECUSA had filed a brief in opposition to Bishop Lawrence's petition to the United States Supreme Court for a writ to review the August 2017 decision of the South Carolina Supreme Court (p. 4):

On May 7, 2018, Petitioners [in the Circuit Court, i.e., ECUSA and its diocese] argued to the United States Supreme Court that it should not grant Plaintiffs' Petition for Certiorari because the Collective Opinions were "a poor vehicle for review." Brief of Respondents in Opposition to Petition for Writ of Certiorari, 2018 WL 2129786 at 23-26. Petitioners [ECUSA and its diocese] contended this was so because the Collective Opinions are based on an "incomplete record", which "contains significant ambiguities." Id at 2, 23. The Collective Opinions are "fractured not only in rationale but even on facts." Id at 2, 9. The absence "of a majority opinion on the standard of review" creates "ambiguities" making it "difficult to discern which of the trial court findings stand." Id. at 23-24.

This is just another example of ECUSA's unabashed hypocrisy in making diametrically opposed arguments to different courts, depending on the occasion. (For another egregious example, see this post.) For the US Supreme Court, the jumbled South Carolina opinions were "ambiguous" and "difficult to discern", but in the South Carolina Circuit Court, just one day later, all was suddenly "clear." lol

Unfortunately, many lay members of ECUSA's South Carolina diocese are swayed by their attorneys' oversimplification of the South Carolina Supreme Court decision, as shown in various of their blogs and comments. (I will not link to them; they are in their own bubble, and do not wish to be disturbed by the truth.)

For them, this case should have been over long ago, thanks to the boost that Justice Hearn gave to their case (and of course, they see nothing wrong with her conduct). They feel they won in the Supreme Court, fair and square, and now all that's left is for them to take over the Anglicans' properties and bank accounts.

But such people misread the purported "summaries" by two individual Justices (Hearn for the majority voting to reverse, and Toal for the dissent) as speaking for the whole Court, when the fact is that there was no one opinion joined in by any three justices of the five. There were three votes only for a single result: reverse Judge Goodstein’s judgment. Once reversed, the task returns to the Circuit Court to apply the law as decided by the Supreme Court to the evidence in the case.

Judge Dickson is obviously not persuaded by ECUSA's slick arguments; otherwise he could have entered an order granting their "enforcement" petition long ago.  Instead, he called for each side to submit page and line references to the case transcript showing exactly where each and every individual parish "acceded in writing" to the Dennis Canon. In doing so, he is simply taking Chief Justice Beatty at his word, since it was his vote to reverse the trial court's decision that determined the 3-2 outcome on that point. In his opinion, the Chief Justice wrote (with my emphases added):

These parishes that did not expressly accede to the Dennis Canon should retain ownership of the disputed real and personal property. (421 S.C. at 249, 806 S.E.2d at 102.)  

TEC argues that the parishes' accession to the Dennis Canon created the trust. Assuming that each parish acceded in writing, I would agree. (Id. at 250-51, 806 S.E.2d at 103.)  

In my view, the Dennis Canon had no effect until acceded to in writing by the individual parishes. (Id. at 250, 806 S.E.2d at 103.) 

. . . the parishes that did not accede to the Dennis Canon cannot be divested of their property. (Id.)

Could he have been more clear? He was simply assuming that twenty-nine of the thirty-six plaintiff parishes (per Justice Hearn's count; according to Acting Justice Toal, there were only twenty-eight claimed by ECUSA) "acceded in writing" to the Dennis Canon, because that is what ECUSA's attorneys represented to the trial court in an undocumented and unreferenced statement in a post-trial brief.

Statements by attorneys can never count as actual evidence; they only represent what they believe the evidence shows. (ECUSA never bothered to put the actual evidence of "accession" into the trial record, so there was nothing for the Supreme Court to review on that point, and nothing on which any of the Supreme Court's justices could have based a definitive conclusion.) And as Judge Dixon is now finding out, that representation by ECUSA's attorneys was wrong.

According to the papers filed by Mark Lawrence's attorneys with Judge Dixon, not a single plaintiff parish ever signed a document stating that they expressly agreed to the trust which the Dennis Canon attempted to impose.  And remember that Chief Justice Beatty, in contrast to Justices Hearn and Pleicones, agreed with Justice Toal in dissent that under South Carolina law as defined in the (2009) All Saints Waccamaw case, only an express written agreement by a parish to place its property into a trust for ECUSA's benefit could create an enforceable trust in that State. Again, to quote from the Chief Justice's opinion:

Further, in my view, the Dennis Canon, by itself, does not have the force and effect to transfer ownership of property as it is not the "legally cognizable form" required by Jones. See Jones, 443 U.S. at 606 (recognizing that courts must give effect to churches' intent when deeds and trust documents executed by the general church "provided [the documents] are embodied in some legally cognizable form"). While the Dennis Canon may use the term "trust," this word alone does not unequivocally convey an intention to transfer ownership of property to the national church or create an express or constructive trust. See Lollis v. Lollis, 291 S.C. 525, 530, 354 S.E.2d 559, 561 (1987) ("In order to establish a constructive trust, the evidence must be clear, definite, and unequivocal.").

That is the only position that is consistent with the Court's earlier holding in All Saints Waccamaw. Once again, I remind those uninformed bloggers sympathetic to ECUSA that only two Justices voted to overrule Waccamaw and reinstate a rule of deference to ecclesiastical authority, but they were in the minority on that point. The other three Justices -- a majority -- voted to uphold the doctrine of neutral principles as enunciated in Waccamaw. 

And that means that the Circuit Court is bound by Waccamaw as well. Absent a writing signed by the individual parish's authority, that Court is not free simply to hand over the properties to ECUSA's minions. Following the Supreme Court's majority, Judge Dickson is bound to rule in accordance with the actual evidence of consent -- or lack thereof. If ECUSA's attorneys cannot produce any such evidence (and to date they have not; only blanket, generalized affirmations of the Constitution and Canons, which will not suffice under Waccamaw), the properties will stay as they now are.

ECUSA Attempts an End Run in South Carolina

Last week, in a brazen maneuver to cut matters short in the South Carolina litigation, the Episcopal Church (USA) and its ersatz diocese filed a request, invoking the original jurisdiction of the South Carolina Supreme Court, for that court to issue its writ of prohibition to prevent the lower court from conducting any further proceedings on remand in the matter.

Some non-legal commentators on the ECUSA side have used the word "appeal" to describe what the church did, but that term assumes there was an order from which to take an appeal -- and there wasn't, at least not yet.  The lower court judge assigned to the case on remand, Judge Edgar Dickson, had scheduled a hearing in the case for this Thursday to consider the motion and petitions filed by ECUSA and its diocese to appoint a special master, order an accounting and issue writs of execution to force the parishes to hand over their properties.

Given that ECUSA and its diocese have constantly complained that Judge Dickson has steadfastly ignored their motions and petitions, it is curious indeed to puzzle out just why they chose last week to try to cut matters short in the trial court, after the judge had notified all the parties that he would take up ECUSA's requests.  Perhaps they were afraid that he might actually deny them on their merits -- thereby creating an order that they would have to appeal.

By invoking the Supreme Court's original jurisdiction over its inferior courts, the ECUSA parties at this point are demonstrating outright that they no longer have any confidence in Judge Dickson's integrity to reach an impartial resolution of the puzzle presented to him by the five scattered opinions that came from the Court. Just as they requested the Court last June, ECUSA's attorneys want to have the Court step in now and put an end to further delay in implementing what they claim was the Court's "clear mandate."

The problem is, the Supreme Court's membership has changed since it rendered its fractured decision.  Two of the then Justices (Toal and Pleicones) have retired from the Court, while a third (Hearn) belatedly recused herself from taking any further part in the case.  That leaves only Chief Justice Donald Beatty and Justice John Kittredge out of the original panel, and those two were at odds with each other: the Chief Justice supported the official ECUSA line about the Dennis Canon, while Justice Kittredge was having nothing to do with any sort of remote trust that could be imposed on a parish's property without its written consent.

Under those circumstances, the success of the petition filed by ECUSA will at the outset turn upon the view of it by the two new appointees to the Supreme Court: Justice John Cannon Few and Justice George C. James, Jr.  If they agree between themselves on how to deal with the petition, their votes will carry the day by making the tally 3-1 (whether to deny the petition or to grant it). And if they disagree? The result (presuming that the C.J. and Kittredge are still at odds) would be a 2-2 tie, with the result that the writ could not issue.

Long and short of it: The Court will issue the petition restraining Judge Dickson only if the two new appointees both vote with the Chief Justice to grant the writ.

After all, there is nothing compelling the Court to be as impatient as ECUSA is to get a result; the Justices will each still collect their paychecks regardless of how they rule.  And after all the time and effort Judge Dickson has expended to get to the point where he is now ready to take up ECUSA's motions, one would think that the Court will be in no great hurry to take the case away from him, either.

Could it be that there is so little merit to the ECUSA side of the matter that they have grown desperate to avoid any actual ruling on just how weak their arguments are?

For instance: in their petition, ECUSA's attorneys bluster and say (p. 4):

This Court already reviewed the evidence from the trial record, considered the issues preserved for appeal, reached a final decision, and remitted this case to the Circuit Court for enforcement purposes. Petitioners (the prevailing parties before this Court) cannot be forced to re-litigate these issues nor can the Circuit Court re-adjudicate them. 

There is a good deal that these assertions simply gloss over, or take for granted. Because I have already commented extensively, in earlier posts, on the faults and discrepancies in the various individual opinions, I will not repeat that analysis here. Suffice it simply to point out one of the grossest exaggerations of all made by ECUSA and its attorneys, namely that Chief Justice Beatty's opinion showed that he agreed with Justices Pleicones and Hearn that the trial court's findings as to the ineffectiveness of the Dennis Canon to create any trust could be ignored. As I explained earlier:

From what the separate Justices state in their opinions, it has to be concluded that only two of them (Pleicones and Hearn) were in favor of disregarding the findings of the trial court, and of starting anew from scratch. The other three apparently believed that the trial court's findings of fact were binding upon them, subject only to a substantial evidence requirement in support.

. . . In other words, there were three votes out of five (a majority) to regard the trial court's findings of fact as binding upon the Supreme Court, rather than subject to de novo review. This analysis alone should give pause to those who triumphed in announcing that they had prevailed by a 3-2 vote.

In his separate opinion concurring partly in those of Justices Hearn and Pleicones, Chief Justice Beatty voted in favor of reversing the trial court's legal conclusion (following the rule handed down in the Waccamaw case -- see the previous post) that the Dennis Canon could not create an effective trust in South Carolina. Instead, C.J. Beatty concluded that the Canon, in combination with the individual parishes' supposed "accessions" through their corporate articles and bylaws, operated to create a binding and irrevocable trust on their properties in favor of the national Church and its diocese, as a matter of law.

This conclusion, as just noted, was one of law, not of fact. So the adjudicatory effect of Chief Justice Beatty's opinion depends upon his application of the law to the trial court's factual findings (which were binding upon the three members of the appellate court who rejected the "equity" standard of review). The problem that underlies Chief Justice Beatty's legal conclusion is that it rests upon certain assumptions of fact that were contrary to those found by the trial court (e.g., that the various "accessions" signed by the individual parishes were informed enough to operate as a consent to the creation of a trust that was legally recognizable ["cognizable"] under South Carolina law).

A good part of the petition for rehearing (pp. 18-22, and 24-31) is devoted to a detailed showing that there was never any express consent by the various parishes, under the specific wording of their so-called "accessions" to the national Church's canons (including its Dennis Canon after 1979), that would be sufficient under South Carolina trust law to create any kind of trust in favor of ECUSA and its local diocese in those parish properties.

Justice Beatty does not address these discrepancies -- he was unaware of them, since the documents were not made part of the record on appeal (because ECUSA never raised any appellate issue involving them). Justice Beatty apparently relied for his conclusion on the unsupported assertions of ECUSA's attorneys, made in a post-trial motion for reconsideration, that all the subject parishes had "acceded" to the Dennis Canon. He simply delivers an omnibus ruling that the standards for trust creation were met in the case of parishes who "acceded" to the national canons (i.e., according to the representations of ECUSA's attorneys -- which were not evidence in the case). 

Thus there is good reason to fear, once Judge Dickson cuts through the thickets of argument and reads what the Justices' individual opinions actually said and decided, that the trial court on remand will need to finish the job that the Supreme Court avoided: evaluate the actual evidence as to just which of the 29 parishes actually acceded to be bound by the terms of the Dennis Canon.

And that observation, I submit, goes a long way towards explaining just why ECUSA, its diocese and their attorneys all thought it time to prod the hibernating bear in its cave: better to face a sleepy bear than a judge who is actually taking the trouble to inform himself as to what happened. Stay tuned for more.