This paper examines whether the Presiding Bishop is authorized to initiate and conduct recent property litigation and finds no source for such authority in the Constitution and Canons of the Episcopal Church. Arguments based on a presumed equivalence of the roles of the Presiding Bishop and Executive Council to those of a corporate CEO and board of directors are found not to be valid. The paper also examines claims that pursuit of litigation is necessitated by fiduciary duty. It concludes that no convincing case has been made that this is so. First, no person is under a fiduciary duty to undertake something that has not been authorized. Putting aside the issue of authorization, several factors relevant to a proper fiduciary duty analysis suggest refraining from litigation such as has been commenced against disaffiliating dioceses. In this connection, relevant fiduciary duties are not limited to those that may be owed to TEC as an organization, but also include duties owed to its member dioceses. Claims that a member diocese cannot disaffiliate and retain ownership of its property implicate the latter set of duties. The paper presents a case that the duties to dioceses include duties to those that have withdrawn because the claims against them are based on alleged consequences of their having been dioceses of TEC rather than the actions of an unaffiliated third party.

Read it all.

Gear up–it is 83 pages.

Read it all.

This is straight out of the litigation playbook described above, is it not? It represents steps 4 and 6 outlined earlier. But now we get to the crux of the matter. It is not sufficient to show that the persons who currently claim to be the “Trustees of The Corporation of the Episcopal Diocese of Fort Worth” hired you as their attorneys; in order to satisfy Rule 12, you must also show that those persons are who they claim to be, and indeed have the required authority to authorize you, as an attorney, to file suit in an entity’s name. Stated another way: you cannot respond to a Rule 12 motion by saying “Joe Doakes at XYZ Corp. authorized me to bring suit for it, and he’s the Vice President for Legal Affairs.” You have to show that there actually is a Joe Doakes, and he has to prove that the corporation (through its Board of Directors, or President) gave him the authority to hire attorneys to institute litigation in the corporation’s name.

Thus in order to have the requisite authority, the persons claiming to be the “Trustees of The Corporation of The Episcopal Diocese of Fort Worth” would have to show that they were duly appointed to that office in accordance with The Corporation’s Articles and bylaws. And here they encounter an obstacle. For the Diocesan Canons (Canon 17) provide for one of the Board’s Five Trustees (the Bishop is an ex officio Trustee and Chairman) to be elected at each Annual Convention to a staggered five-year term. When a Trustee does not serve out his term, and a vacancy occurs, the bylaws specify that the remaining Trustees have authority to appoint an interim Trustee to serve until the next Annual Convention, as I noted in this previous post.

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In a hearing today in the141st District Court, Judge John Chupp granted the Diocese partial relief under Rule 12 of the Texas code Rules of Civil Procedure. He ruled that attorneys Jonathan Nelson and Kathleen Wells do not represent the diocese or the corporation which have realigned under the Province of the Southern Cone. He denied a second aspect of Rule 12 relief which would have removed the plaintiffs’ diocese and corporation from the lawsuit filed April 14, 2009.

The judge also ruled that neither the Constitution and Canons of The Episcopal Church nor the Constitution and Canons of this diocese prohibit withdrawal from TEC and realignment under another province. Further, he found that the Diocese had done so at its November 2008 annual convention, saying that “they [the members] took the diocese with them.” The action of the November convention was not, he said, ultra vires and void, as the suit’s plaintiffs have argued. He declared, too, that the Diocese had taken its property with it in realignment. He said he did not consider any court ruling concerning a realigning parish to be applicable in the present case, and he said that he considered it “self-serving on [the part of TEC] to say that [Bishop Iker] abandoned his job.

Read it all.

The following is a statement just received from Bishop Iker’s office (I have added the bold for emphasis):

In a hearing this morning before Judge John Chupp in the 141st District Court in Tarrant County, our attorney filed a motion that requires the lawyers who have brought litigation against us to prove that they had the legal authority to bring the suit. They moved for a continuance, which the Judge denied.

At 10 a.m. Judge Chupp adjourned the hearing due to the fact that a jury trial in another case was scheduled to resume in his court. The hearing on our Rule 12 motion will reconvene at 2 p.m. on Wednesday, Sept. 16.

Please continue to keep this situation in your daily prayers, and pray for Judge Chupp and attorney Shelby Sharpe by name. As you did last Sunday, please pray during worship this week. For those who are able, fasting as well as prayer will be appropriate and appreciated on the 16th.

Bishop Iker

Read it all.

Check it out.

The Episcopal Church (USA) currently is a party to some sixty lawsuits across the United States. Its litigation budget from 2006-2012 could approach $7 million, or more than $1 million per year — and that is just the official, published figures. There is another considerable amount going out to prop up its Potemkin dioceses in San Joaquin, Fort Worth, Pittsburgh and Quincy.

Those are the four dioceses which have thus far voted to leave the Church, and each departure has spawned a lawsuit. ECUSA from the beginning has adopted a high-stakes, winner-take-all strategy which depends for its success on its ability to prove in court the proposition that a diocese is not free to withdraw from the voluntary unincorporated association which ECUSA has been since its formation at common law in 1789….

The inverted logic of this argument should be apparent to any mind that loves reason. The Presiding Bishop and Chancellor first contend that ECUSA’s Constitution and Canons prohibit any Diocese from amending its Constitution so as to withdraw from the Church. They can point to no language in the national Constitution and Canons which says as much; they argue that the prohibition against leaving is implicit. Then they contend that because it is forbidden implicitly to withdraw, a vote to do so pursuant to the express power to amend spelled out in the diocesan Constitution (which, in the form approved by General Convention when the diocese in question was admitted, was an unlimited power to amend the document in any manner whatsoever) violates that implicit prohibition. So an implicit and unwritten understanding overrides the express language of amendment: the latter does not mean what it says, because despite its unrestricted language, it is to be understood that certain amendments are out of bounds. And it is further understood (although nowhere expressly written) that you are out of office the moment you choose to follow the express language in a manner that is implicitly prohibited.

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No, as you can see plainly from this chart.

I post this today because earlier I read the following:

St. Francis is one of 28 parishes of the Episcopal Diocese of Pittsburgh of the Episcopal Church in the United States.

According to the Episcopal Church Annual of 2007 (which reflects parochial reports from 2005) there were 67 parishes in the diocese of Pittsburgh that year. So the quite significant drop in active baptized membership in the domestic dioceses of TEC from 1997-2007 of -9.7% does not yet reflect the realignments in Pittsburgh, Quincy, Fort Worth and San Joaquin.

This memo is to announce a new development in the litigation brought against our diocese and to call all of you to a time of prayer and fasting in this matter.

On Wednesday, September 9, 2009, at 8:30 a.m., two motions filed by the Diocese and the Trustees of the Diocesan Corporation will be heard by the 141st District Court in Tarrant County. The first motion challenges the authority of the attorneys who have brought suit against the Diocese and the Trustees of the Diocesan Corporation to prove that they were hired by individuals who had the authority to hire them. The second motion is one brought by die Diocese asking the court for permission to bring into the suit those individuals who hired the attorneys who have brought the suit against us and our trustees. Those individuals claim to hold offices in the Diocese to which they have never been legally elected.

Read it all and follow the links to the key legal documents at the bottom.

Greetings in the wonderful name of the Lord Jesus Christ. I am writing to you celebrating the official launch of the Anglican Church in North America. You are to be congratulated for your faithfulness in the Gospel and in your cooperation with the organization of the new Province. It is likely that it will take some time before the institutional structures catch up to the realities of the present day situation in the Communion. Until that time, you can be sure of your dual status with us in the Southern Cone. This is true not only for Bishop Iker, but also all of the priests and deacons who received licenses through him under my authority when your diocese came to us.

Read it all.

Episcopal Diocese of Fort Worth provisional Bishop Edwin F. Gulick Jr. has asked 72 members of the diocesan clergy to meet with him to verify their decision to leave the Episcopal Church with former bishop Jack Iker.

“It is not my intention in writing you this letter to trespass upon your conscience in this matter or to offer any new arguments or words of persuasion,” wrote Gulick, who is also bishop of the Diocese of Kentucky, in a May 26 letter. “However, before I begin to exercise certain canonical responsibilities regarding the status of those who have left the Episcopal Church, I feel compelled to offer to meet with you, if you wish, for a conversation related to your own discernment and decision.”

The clergy and Iker aligned themselves with the Anglican Province of the Southern Cone by way of a series of votes at a November 15 diocesan convention. Six days later Presiding Bishop Katharine Jefferts Schori inhibited Iker from exercising his ordained ministry and on December 5 announced that she had accepted what she said was Iker’s renunciation of his Episcopal Church ordination. Iker has denied that he renounced his orders.

Read it all.

The case has been settled by the progressive U.S. leadership and, apparently, that settles it for the News. There is no attempt to use language that describes the two clashing camps and their claims. There is no attempt to note the previous legal precedents ”” backing centuries of church tradition ”” that actually support the diocese.

What language could the newspaper have used if it wanted to be accurate, yet fair to the beliefs and traditions on both sides? That would have taken another paragraph or so, me thinks. But if you want to know how NOT to frame this local, regional, national and global issue ”” look no further. You have your template.

Read it all.

Hoping to reclaim several pieces of church property and millions of dollars in endowed funds, the national Episcopal Church has sued a local group that split from the church in November.

The lawsuit, filed late Tuesday in Tarrant County court, follows months of negotiations after a bitter split between the two groups over what the local group, led by Bishop Jack Iker, considers the national church’s abandonment of orthodox principles.

The Iker-led group has opposed the Episcopal Church for accepting a gay bishop and same-sex unions and for its ordination of women as priests.

Read it all.

To the clergy and convention delegates,

We are neither surprised nor alarmed by the lawsuit brought against the diocese on Tuesday. Our attorneys are reviewing the allegations and will be advising me on how to respond.

We are confident that we followed the proper legislative process in amending our Constitution and Canons and are prepared to make our case in court if necessary.

Your patience and prayers will be much appreciated as this process unfolds.

A blessed and joyous Eastertide to all of you.

–(The Rt. Rev.) Jack Iker

The Episcopal Church filed suit Tuesday to regain control of Fort Worth-area church buildings and other property held by a breakaway contingent led by Bishop Jack Iker.

“We’re stewards of property that has been given for generations to the Episcopal Church. We can’t just let people walk off with it,” said Kathleen Wells, chancellor for the reorganized Episcopal Diocese of Fort Worth.

The suit was filed in Tarrant County district court and names Iker as a defendant, among others.

Read it all.

Back in 2003, the Episcopal Diocese of Central New York consecrated a gay bishop and allowed others to perform same-sex blessings.

The Church of the Good Shepherd in Binghamton, an Episcopal parish at the time, disagreed with this move and severed ties. Last year, the Diocese sued for Good Shepherd to leave the church building on Conklin Avenue, and in December, a state Supreme Court judge ruled in their favor.

On Friday, both sides were back in court.

“We’ve kind of moved on as a congregation and this is almost looking backwards now. So we were dreading it but here it is,” said Father Matthew Kennedy, Good Shepherd’s head pastor.

This time, the feud centers around a will by former Good Shepherd member Robert Brannan. He died in 1986 and left behind money in a trust fund for his parish.

Read it all.

I really do not know anymore what is coming next. How things are done and not done are as haphazard as people’s ideas; or so it seems.

Now I read that the “New” Diocese of Fort Worth passed a $632,466 dollar budget for a part-time bishop, a little over 19 priests and 62 delegates who represent way less than a thousand people, and $200,000 is from the General Convention budget!

First, I did not see that in the GC budget that was passed in 2006. Where did it come from?

Read it all.

Episcopalians loyal to the national Church in New York have formed a second Episcopal Diocese of Fort Worth at a special convention held Feb 7.

The new diocese, formed around five congregations and individual Episcopalians who declined to follow the majority out of the Episcopal Church into the Province of the Southern Cone, invited the Bishop of Kentucky, the Rt Rev Edwin Gulick to serve as its provisional bishop for the next six months, and elected diocesan officers.

In November, the Synod of the Diocese of Fort Worth voted by a margin of 80 per cent to 20 per cent to quit the Episcopal Church for the temporary oversight of Presiding Bishop Gregory Venables and the Province of the Southern Cone. US Presiding Bishop Katharine Jefferts Schori responded by removing Bishop Jack Iker from the ordained ministry, saying she had accepted his voluntary renunciation of orders. However, Bishop Iker denied having given such a renunciation.

Read it all.

As I watch the sad saga of our bishops’ legalistic and punitive response to “traditionalist” bishops, dioceses, and parishes who are attempting to leave the Episcopal Church in order to form a new North American Anglican province, I am reminded of the defensive and dismissive response of the Church of England bishops to the Methodist Movement in the eighteenth century. The result of course was the founding and development of a separate Methodist Church, which is now much larger than the “Anglican” Church (at least as we are now constituted) on this continent. Imagine the strength and witness of Anglicanism today if the Methodists were welcomed as a preaching order within the Church of England. Surely, they would be more “orthodox” and we would be more “vibrant,” and together we would be much larger and much more effective for the Gospel in the world than we are divided. This, by the way, is exactly what Innocent III achieved when he embraced St. Francis and welcomed his friars into the ministry of the Catholic Church at the beginning of the thirteenth century, despite the fact that they were preaching such a dangerous “new” doctrine.

Now what I wonder is this: what would happen if the Presiding Bishop with the support of the House of Bishops were to welcome the formation of a new province for “traditionalists” within the Episcopal Church, allowing every diocese, parish, and church institution to join this province with a two-thirds vote by the appropriate parish meeting, convention, or governing body? She could even stipulate an acceptable window of a year during which this vote would be required to happen.

In this way, both “sides” of our church could continue in dialogue from protected positions of mutual respect without the present feelings of distrust and fear. Both would also be encouraged to grow by teaching the doctrines and practicing the liturgies they believe in, which they could proceed to do with conviction and enthusiasm. We could, for instance, continue to share the Church Pension Fund and Episcopal Relief and Development, and our primates and bishops could continue to meet on an annual basis to look for areas of agreement, common witness, shared costs and joint projects, but in a way which is more representative, more conducive to collegiality, and more focused on results than our present General Convention. I also wonder if it would not be appropriate for the Archbishop of Canterbury and the Anglican Consultative Consul to ask us to do this in one final attempt at unity and civility before they are forced by our actions to actively establish or passively recognize a permanent state of schism between us.

I would hope that the traditionalists would find such an arrangement better than what is now proposed as it would allow clergy, parishes and dioceses to reorganize without the loss of their properties and the cost of legal action. The risk for the Presiding Bishop, of course, is that too many will want to leave, but at least they will not be completely leaving and no one will remain because they have been bullied and threatened into submission. There is also the obvious advantage pointed out by others who have written to this magazine before me that such an action on her part and on the part of the rest of the House of Bishops would show true Christian humility and a more genuine openness to the power of the Holy Spirit to build the Church and thus to lead the Church in His, if not necessarily our own, direction.

–The Revd. Dr. D. Stuart Dunnan is Headmaster of Saint James School in Maryland; this article appears as a Guest Column in the February 8, 2009 Living Church on page 10 and is used with the author’s kind permission

[Tim] Carson reveals an astounding ignorance of facts in his commentary, which is largely an attack on the Rt. Rev. Jack L. Iker, bishop of the Episcopal Diocese of Fort Worth.

First, he alleges that Iker “has withdrawn from the established Diocese of the Episcopal Church in the U.S.A.,” and he challenges the legitimacy of the body of which Iker is chief pastor.

But Carson ignores the fact that at the November 2008 convention of the Episcopal Diocese of Fort Worth, a resolution to realign with the Anglican Province of the Southern Cone was adopted by a 78 percent majority of the clergy voting and 80 percent of lay delegates. This was the second such vote in two years, as any amendment to the constitution of the Diocese requires a concurrent majority of the vote of both orders, clergy and lay, in two consecutive conventions.

This was not the unilateral action of the bishop. Nor was it the creation of a “newly founded” diocese, as Carson claims. It was, in fact, the constitutionally legitimate action of the diocese “that has been here all along” (to use, ironically, the words Carson intended as sarcasm).

Carson then alleges that “it only seems right to the good bishop [Iker] that all of the assets and congregations should stay with him, even if he cashes in his chips, leaves the mother ship and affiliates with an African one.”

Here again, Carson ignores facts.

Read it all.

The good bishop has it wrong. Or so I think. Which bishop, you ask? That’s the point. Which bishop indeed?

As one who is not a part of the Episcopal side of the Christian family, I look on as a concerned outsider. But perhaps that is the best vantage point to hold in the midst of a family squabble (See: “Reorganized diocese elects new bishop,” Feb. 8).

There is no doubt that the unity of the whole church includes both sides of this unhappy family, because our unity ”” not uniformity based on sameness ”” is based on God’s love manifested in our common life in Christ.

But after making this most basic of Christian affirmations, we must say that this dispute, as so many others, is not new to Christian history. In fact, it is not new to any other of the living religious traditions, either.

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I wish that those who are so adamant to pull away from TEC and align with the Southern Cone would realize the damage they do to people who simply want a place to worship God without controversy or involving themselves in any fight. The actions of the previous councils of the Episcopal Diocese of Fort Worth affect us all, especially as we try to prepare people for membership in our parishes. Lay people struggle with whether to believe in a church of bishops, if bishops lead only to schism. People reject church experiences where there is fighting over anything, and rightfully so.

What I cannot agree with is the pretense that there are two Episcopal dioceses of Fort Worth. Bishop Iker needs to come to terms with the fact that his argument is an emperor without clothes. The historical position of all our bishops for centuries is that there cannot be two different ecclesiastical authorities over one geographical area. Bishop Iker knows that if an Episcopal priest failed to show up for services or at any diocesan function he would be compelled to remove that priest. Likewise it is the duty of the Presiding Bishop to remove any bishop who is not participating in the life of the Episcopal Church. There are priests in Texas who claim to be Anglican but not part of the Episcopal Church (TEC). I guess I could pretend to be Roman Catholic but it would not make it so. At the very best these congregations are “faux Anglican.” The Archbishop of Canterbury has never approved a separate Province inside the US. He cannot without violating all historical precedents and furthering schism. I do not doubt that Bishop Iker is a good man who has done wonderful things in his ministry. How sad, it is most likely that history will record him now solely as a schismatic bishop.

Read it all.

My first reading of the Communiqué left me rather disappointed. I wanted to ask, “Is that all there is?” After hearing some of the comments made about the Alexandria meeting by GAFCON Primates, I have come to the conclusion that reading the Communiqué is not sufficient for understanding what actually transpired during the course of the meeting itself. Evidently the document released by the Primates does not tell the whole story. If Archbishops Greg Venables and Henry Orombi are encouraged and hopeful about what will come of all this, then so am I. Time will tell.

My second and third readings of the Communiqué reinforced my initial impression that we had heard all of this before and that there was not much new in what was being proposed. The idea of mediated conversations has been tried before, but I suppose there is no harm in trying again. Yes, we know there are “difficulties” and “concerns” about the possibility of parallel jurisdictions, but new challenges call for new solutions, and it can be done. There are precedents. So let the “professionally mediated conversation” begin at the earliest opportunity. But let there also be a halt to the litigation and law suits against all parties at the same time. How can we expect to resolve the impasse we are in when TEC still seeks to use the civil courts to eliminate all opposition?

Read it all.

The newly elected provisional bishop of the reorganized Episcopal Diocese of Fort Worth said Saturday that he will work to “make the wide embrace of Christ’s love available” in the wake of a bitter split between two factions of the diocese.

The Rt. Rev. Edwin F. “Ted” Gulick Jr. made his remarks during a news conference at Trinity Episcopal Church after his nearly unanimous election, with 80 of 81 delegates voting for him and one delegate abstaining.

He will lead a group that chose to remain with the Episcopal Church after a majority of delegates in the 24-county diocese voted in November to leave the church.

Read it all.

Fort Worth-area congregations remaining loyal to the Episcopal Church officially reorganized as a diocese Saturday, electing a provisional bishop and other leaders.

Present for the packed special meeting was the Rev. Katharine Jefferts Schori, presiding bishop of the 2 million-member Episcopal Church.

She declared that the diocese “is again a full part of the Episcopal Church.”

In November, a large majority of clergy and lay delegates ”“ led by Bishop Jack Iker ”“ voted to withdraw the diocese from the Episcopal Church and realign with a more conservative, Argentina-based province of the Anglican Communion.

Read it all.

About 400 delegates and overflow visitors who filled the 116-year-old Trinity Church and its parish hall on Fort Worth’s south side for a February 7 special organizing convention celebrated being “called to life” anew and getting back to the business of being the Episcopal Diocese of Fort Worth.

About 19 clergy and 62 lay delegates representing 31 congregations unanimously elected the Rt. Rev. Edwin “Ted” Gulick, bishop of Kentucky, as provisional bishop by a voice vote in clergy and lay orders. Gulick, who will serve as provisional bishop until at least mid-year while continuing to serve the Diocese of Kentucky, received a standing ovation and sustained applause.

“I cannot tell you how moved I am by your trust and how awed I am by this responsibility,” Gulick told the gathering. He offered thanks to Presiding Bishop Katharine Jefferts Schori, as well as to the people of the Diocese of Kentucky.

Read it all.

In a hearing Monday, Feb. 2, the Bishop and Standing Committee of the Episcopal Diocese of Fort Worth took action under diocesan Canon 32 to release the property and assets of four parishes from the Corporation of the diocese. The rectors and elected wardens of the four parishes were notified of the hearing and invited to attend. The property of Trinity Episcopal Church, Fort Worth, and St. Martin-in-the-Fields Episcopal Church, Southlake, has been transferred into the name of the Rectors and Wardens of those parishes, respectively. The property of St. Christopher’s Episcopal Church, Fort Worth, and St. Luke’s Episcopal Church, Stephenville, will be transferred upon removal of financial encumberances in the form of building loans currently in the name of the Corporation.

Read it all.

Breaking up is hard to do. Just ask the Episcopal Diocese of Fort Worth ”“ both of them.

There was one diocese until November, when a large majority of clergy and lay delegates voted to withdraw from the Episcopal Church. They left over what they saw as the denomination’s departure from orthodox faith, including such issues as ordaining women as priests and accepting an openly gay bishop.

The withdrawing group ”“ led by Bishop Jack Iker ”“ still calls itself the Episcopal Diocese of Fort Worth, though it has realigned with a conservative, Argentina-based province of the Anglican Communion.

On the other side, a handful of Fort Worth-area churches and contingents of several more are sticking with the Episcopal Church. They, too, are calling themselves the Episcopal Diocese of Fort Worth.

The groups are contesting not only the name but ownership of church buildings and other assets across the 24-county diocese.

Read it all.

Episcopal Church Presiding Bishop Katharine Jefferts Schori and her staff have attempted to aid the four dioceses in which the leadership and a majority of members have left the church with a combination of “guidance, support and pastoral care.”

So says an eight-and-a-half page memo Jefferts Schori gave the Executive Council during its winter meeting here. The memo was written by Mary Kostel, the recently appointed special counsel to the Presiding Bishop for property litigation and discipline. Kostel has worked closely with David Beers, who is chancellor to the Presiding Bishop.

While the situations in San Joaquin, Fort Worth, Pittsburgh and Quincy are all different, there are similarities in their experiences and in the way Jefferts Schori has worked with them, Kostel wrote. Those efforts usually begin with the Presiding Bishop encouraging the formation of a steering committee of Episcopalians from across the diocese who are committed to remaining in the church “and who represent a broad spectrum of views in the diocese on issues such as human sexuality and the ordination of women.”

Read it all.