— Kendall Harmon (@KendallHarmon6) November 21, 2018
Category : TEC Conflicts: San Joaquin
A national church is suing its former followers in Fresno in a real estate battle launched by the church’s decision to accept [non-celbiate] gay…clergy members.
Attorneys delivered opening arguments Monday in the case pitting The Episcopal Church and the Diocese of San Joaquin against St. Columba Church and its congregants who split away from the religion.
The Episcopal Church says the administration at St. Columba and its pastor, Rev. James Snell, illegally took possession of the church on Palm and Shaw in 2008.
In the 1970s, St. Jude’s in Tehachapi formed after a small group of Episcopalians began meeting in members’ homes within Tehachapi. Eventually, and with the assignment of a full-time priest for the Diocese of San Joaquin in 1977, they began worshiping out of a mortuary on the corner of Curry and C streets. Sunday school was held in the old Spencer Lees’ clothing factory where the Tehachapi Police Department is now located.
Eventually, the congregation desired their own church, so Spencer Lees donated 1.2 acres of land on the corner of Curry and Pinon streets, and the congregation raised the needed funds for the new building. The design, general contracting and much of the construction was accomplished by church members, many of whom are still members. The building was completed around 1985, and services commenced immediately at the new church.
“Our congregation built that church,” said Father Wes Clare, a priest of 20 years who has provided spiritual guidance for St. Jude’s in Tehachapi for 15 years.
According to Father Clare, Tehachapi is home to only five remaining Episcopalians. With no Episcopalian congregation in town to use the abandoned church, the Episcopalian Diocese decided to dispose of the asset.
Said Smith, “A few weeks ago, I noticed there was a ‘for sale’ sign up, so I called up the realtor and asked them how much, and they said it was $415,000.”
What would you say of a trustee who spent $6.8 million of his trust fund’s money to recover just $1 million? Is that a healthy example of how a fiduciary should carry out his duties?
You probably already guessed before I tell you: the trustee in question is the Episcopal Church (USA); the trust fund is ECUSA’s endowment (some $366 million as of the end of 2016); the $6.8 million was loaned by ECUSA’s Executive Council to the Episcopal Diocese of San Joaquin to keep it propped up during its ten-year lawsuit to “recover church properties”; and the $1 million is all that the Diocese of San Joaquin is now able to repay after having been handed more than 25 properties by the crazy California courts.
And actually, those figures are not even half of the San Joaquin iceberg. For as I carefully estimated from all sources and after reviewing ECUSA’s budget for the current triennium, ECUSA’s litigation machine has spent a good $40 million on just legal expenses in the first six triennia of this century (it began its career of suing parishes and dioceses in 2000). Because the two longest-lasting cases to date have been in California, it would be fair to allocate, say, $8 million of that total to the legal expenses of ECUSA in connection with the San Joaquin lawsuit (recounted in considerable detail in these pages, since yours truly was a participant)….
I have held off writing about the case of the Episcopal Church (USA)’s lawsuit against the Anglican Diocese of San Joaquin as it was going through its final stages in the California courts. Today I can do so no longer, because today the California Supreme Court slammed the door shut by denying review of the abysmally egregious decision by the Fifth District Court of Appeal that I wrote about in this post, and this one. Naturally, it wrote no opinion justifying its refusal to grant review, but just issued a one-sentence order.
The result is that the Episcopal Church (USA)’s Machiavellian strategy of organizing a minority group that pretends to be the only diocese in the region after one of its former dioceses votes (by an overwhelming majority of laity and clergy) to realign with a more orthodox denomination has succeeded in California, much the same as it did in Pittsburgh. (But not — Deo gratias — in Illinois (Quincy), or [yet] in Fort Worth or in South Carolina [whose highest court has yet to issue its decision, ten months after the oral argument].) So the lawyers for 815 Second Avenue managed to hoodwink the highest judges in both Pennsylvania and California, but not everywhere.
In Pennsylvania, the appellate decisions were unpublished, so no lasting precedent was (thankfully) created….
..The most important thing for us is not what happens but how we respond to what happens. If our legal case is not heard, do we respond with righteous indignation or like our Lord from the cross? Forgive them for they know not what they do. And if they get the property, what will come of it? I sometimes smile when I think about what happened when the Philistines captured the Ark Of The Covenant. The property has been a blessing to us like the Ark was a blessing to Israel. Like the Ark, the property could become a curse to those who may capture it.
The author of the spirit of the ages is Satan who is the ruler of this world and this age. As a church our marching orders remain the same against the spirit of this age. Preach the Good News of Jesus Christ. “O God, from whom all good proceeds: Grant that by your inspiration we may think those things that are right, and by your merciful guiding may do them”. Lord, with Your inspiration, may we help others come into the light of Your Truth. Amen
Now that the case will return to Adams County (assuming the Church litigators do not waste everyone’s time and money with a request for leave to appeal again to the Illinois Supreme Court), the stay against those actions will be lifted, and they can proceed. However, like the claim to the moneys in the bank, the claims in these suits will not be proceeding in a vacuum. Twice now the Illinois Court of Appeals has held that ECUSA had no enforceable trust interest in property held for parishes. The first of those decisions also dealt with the ineffectiveness of the Dennis Canon to create any such trust under Illinois law. It is likely, therefore, but not certain, that these last few isolated claims will fare the same fate as the others. (No one ever made anything by trying to predict what a particular court will decide to do.)
It is nonetheless deplorable that the new Presiding Bishop of ECUSA sees fit to allow his litigators to continue to waste the Church’s trust funds and pledge income on litigation for purely punitive purposes. One has to wonder, when it comes to going after realigning dioceses and parishes, just who is in charge of ECUSA after all these years. The irony is that a person who acts as his own attorney (or lets his attorney make all the decisions, which comes to the same thing) has, as those of us in the profession happily admit, “a fool for a client.”
Yesterday the attorneys for the Anglican Diocese of San Joaquin (of which your Curmudgeon is one) filed a petition with the Fifth District Court of Appeals in Fresno to grant a rehearing (and re-briefing) of the case which that Court decided on April 5, as reported in this earlier post. The link to the Court’s April 5 decision is here, and you may download the petition for rehearing here (a 45-page Adobe Acrobat file; nothing about this case is short and sweet).
Based on what the Court wrote in its decision, the petition recites a number of grounds for granting a rehearing (Petition, pp. 6-7). Let me deal with them one-by-one…
..The key question in the California case is: which diocese — the Anglican one that withdrew from ECUSA in December 2007, or the newbie Episcopal one that started up on March 29, 2008 — has the legal control of the corporation sole under California law?
The decision by the Court of Appeal does not address this key question. Indeed, it barely mentions the Anglican Diocese, and does not acknowledge its separate existence under California law, let alone its connection to the corporation sole. (The Episcopal plaintiffs made a strategic decision not to name the Anglican Diocese in their lawsuit, and to make the corp sole a plaintiff as though they already controlled it, because they wanted to pretend that they were the “only” diocese in San Joaquin. It looks as though the strategy confused the civil courts — as it was doubtlessly intended to do.)
The case is not over yet — the Anglican parties can ask the Court for a rehearing based on the factual mistakes it made in its opinion, and if the Court refuses to grant that request, they can ask the California Supreme Court to review the decision, which the Court of Appeal ordered be published in the official reports. (The California Supreme Court tends not to review unpublished opinions.) If such a request is filed, the parties will not know the disposition of the case for another 60 to 120 days.
April 5th, 2016
Dear Brothers and Sisters of the Anglican Diocese of San Joaquin:
I am disappointed to announce that today the Fifth District Court of Appeal issued its written opinion affirming the judgment of the Fresno Superior Court. The appellate court summed up its opinion as follows: “Appelants (ADSJ) are correct that the trial court made certain errors. Nevertheless, applying neutral principles of law, the property belongs to respondents (TEC). Therefore, the judgment will be affirmed.” (Contents in parenthesis added for clarification)
I am going to the Lord in prayer, seeking legal advice from our chancellors, and soliciting opinions from clergy and lay leaders with regards to possible avenues forward. I will communicate with you as soon as practicable when our lawyers have finished analysing the decision and a path forward is settled on.
Whatever decisions are made, we should have some time, 90-120 days, for things to work through the system.
Continue to pray and remember that God is in control.
Almighty God, creator of heaven and earth, we come before you with open hearts and minds, seeking your wisdom and discernment. We pray you to grant us the peace that passes all understanding in the midst of uncertain times. Guide and direct our Bishop, clergy, and lay leaders as we seek a path forward that glorifies you and honors the men and women of the Anglican Diocese of San Joaquin past, present and future. This we ask in the mighty name of your Son, our Lord, Jesus Christ. Amen
Bishop Eric Menees
The Rt. Rev. Dr. Eric Vawter Menees, Bishop
After being without a sanctuary of their own for 2 1/2 years, Trinity Anglican Church members will break ground in December on a new $9 million, 27,000-square-foot complex in the southwest that includes worship space and a preschool.
The ceremony, planned for 1 p.m. Dec. 5 at the northwest corner of Buena Vista Road and Campus Park Drive, will feature a brief prayer service and dedication by Father Karl Dietze, rector at Trinity Anglican Church, and Bishop Eric Menees of Fresno.
It’s just the latest milestone for the congregation, which split from St. Paul’s Episcopal Church in a microcosm of the nationwide philosophical schism of the mid-2000s that saw congregations in the valley and around the country leave the Episcopal Church and align themselves with the Anglican Church.
Late yesterday the South Carolina Supreme Court issued a brief order transferring to itself the jurisdiction over the appeal filed by ECUSA and its rump group (ECSC) from the February 3, 2015 judgment and order against them entered by Circuit Court Judge Diane Goodstein. ECUSA and ECSC had themselves requested the transfer of the case in order to expedite a final decision in the case by the State’s highest court, without having to wait for any intermediate decision from the Court of Appeals.
The Court’s order declined further to expedite the case’s briefing schedule, set oral argument in the case for September 23, 2015, and then added: “No further extensions of time will be granted.” In view of the great number of parties to the case (Bishop Lawrence’s Episcopal Diocese and thirty-six of its member parishes are all respondents in the appeal, represented each by their own attorneys), the Court’s order relaxes some of the filing and service requirements, and urges the attorneys to compress the multi-volume record on appeal to just the documents necessary for meaningful review of the decision below.
This order will enable a written, final decision in the case to be rendered before the end of the current calendar year, and should be welcome news to those on both sides who want to put this litigation behind them, and get on with the real work of the Church.
Read it all and do follow the links.
By my count, 40 of the 91 cases listed resulted in legal victories at the trial or appellate level for ECUSA; just two parish cases (All Saints and the Good Shepherd San Angelo case in Texas) went the other way, but three of the five cases involving Dioceses resulted in rulings against ECUSA. A fourth diocese case (San Joaquin) is on appeal; the fifth one (Pittsburgh) gave a victory to ECUSA on the basis of a very strained reading of the effect of a stipulation between the parties.
It is a legitimate query to ask why the results of the parish cases are so lopsided in favor of ECUSA, while the results of the diocese cases go just the other way.
For the parishes, most of the decisions turned upon explicit language in their own bylaws that made them “perpetually” subject to their Diocese and ECUSA. No such language exists in any of the Dioceses’ governing documents, however. For the cases involving them, the explanation lies in the well-established freedom of association, which is a fundamental right enshrined in the First and Fourteenth Amendments to the United States Constitution. It holds that just as no one can be prevented by the government from joining a group, so also the group may not go to court to prevent a member from leaving it. “Freedom of association therefore plainly presupposes a freedom not to associate,” as the Supreme Court put it in Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984).
The liberals in ECUSA have a very difficult time trying to understand why their Church should be subject to such a doctrine. For them, the union between a Diocese and General Convention is an ecclesiastical one, and as such, they claim, civil courts should be precluded (by that same First Amendment!) from examining or questioning it in any way.
A moment’s reflection will expose the flaws in that argument (not that ecclesiastical liberals ever pay any attention to logic or reason). ECUSA is, ecclesiastically speaking, a denomination — but that says nothing about what it is in the eyes of the law. In order to sue or be sued in a civil court, for instance, ECUSA has to be a juridical person, not just an ecclesiastical one.
Allan Haley is Kevin Kallson’s guest on the latest episode of Anglican Unscripted. Allan and Kevin discuss the legal situations in the Anglican Diocese of San Joaquin and the Diocese of South Carolina.
Wellspring Anglican Church was birthed during the pangs of dissension between the theologically liberal Episcopal Church and its dioceses and parishes whose members held more conservative views. The first and only local congregation to voluntarily leave its former property at the beginning of the conflict, the Wellspring group walked away from a multimillion-dollar campus at St. Paul’s on Oakdale Road in 2009 and has spent the past five years meeting in rented space in downtown Modesto.
Parking has been tight, trains rumbling next to the sanctuary have disrupted worship services, and having people in the area who were vagrants or addicted to drugs posed challenges, but the congregation persevered.
Members finally will have their own home again. The congregation bought a building near the Modesto Junior College West Campus in 2013 and is remodeling the former food-testing laboratory space to make it suitable for a church. Work is expected to be complete in early 2015.
7. Is there any body or office within the Episcopal Church with juridical authority over a member diocese and, if so, where is that juridical authority found in the governing documents?
8. Whether any bishop, including the Presiding Bishop, can act within a diocese outside of their own, without the consent of the Ecclesiastical Authority, i.e., the diocesan bishop or diocesan Standing Committee, and, if so, where in the governing documents such authority can be found?
9. Apart from General Convention, is there any body or office within the Episcopal Church with authority to enact legislation affecting all of its dioceses? And, if so, what is that body or office and where is its authority found in the governing documents?
10. When and how was the term “unqualified accession” added to Article V of the Episcopal Church Constitution, and what is the legal basis and evidence for concluding that the amendment applied to any diocese other than a “new Diocese” admitted after the effective date of that amendment to Article V [in 1982]?
The litigation agenda of the Episcopal Church (USA) continues to garner victories in California (where a single federal district court was allowed to overturn a constitutional initiative passed by a clear majority of voters). At the same time, ECUSA’s agenda in South Carolina suffered another defeat. Nonetheless, neither decision resolves any of the questions at issue once and for all. Thus, neither side may yet claim “victory”, but only to have reached one more stage in the interminable torture of litigation.
A property rights battle over the historic St. John’s Parish has ended years after a schism erupted within the Episcopal Church when part of the congregation opposed the church’s acceptance of gay pastors.
Superior Court Judge Roger Ross on April 4 awarded the parish in downtown Stockton to the Episcopal Diocese of San Joaquin.
The group that had broken away from the diocese – most of them with a history of multiple past generations in the Episcopal Church – and became aligned with the more conservative Anglican Church of North America was ordered out of the building in the ruling.
In another recent but unpublished decision, the same [South Carolina] Court of Appeals disposed in one paragraph of an appeal by a Baptist Church Conference from a judgment finding it had no ownership or trust interest in the property of one of its churches (Haselden v. New Hope Church, No. 2012-213355, March 19, 2014) (h/t: commenter “Joe”). The per curiam opinion is self-explanatory:
The General Conference of the Free Will Baptist Church of the Pentecostal Faith (“the Conference”) appeals the circuit court’s order granting summary judgment in favor of New Hope Church (“New Hope”) on the grounds that New Hope owned the property on which it was situated free and clear of any legal interest claimed by the Conference. We affirm pursuant to Rule 220(b), SCACR, and the following authorities: Rule 56(c), SCRCP (stating that summary judgment is proper when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law); Jones v. Wolf, 443 U.S. 595, 603 (1979) (stating that when resolving disputes over the ownership of church property, courts must rely “exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges.”); S.C. Code Ann. Â§ 62-7401(a)(2) (Supp. 2013) (“To be valid, a trust of real property, created by transfer in trust or by declaration of trust, must be proved by some writing signed by the party creating the trust.”); All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of S.C., 385 S.C. 428, 449, 685 S.E.2d 163, 174 (2009) (“It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another.”).
Since it is unpublished, the opinion has no precedential value (i.e., it cannot be cited to any other South Carolina court), but its summary disposition is still a strong indicator of the way the wind blows in South Carolina. The Court found applicable Jones v. Wolf’s holding that state courts may apply traditional concepts of trust and property law in resolving church property cases; a South Carolina statute setting out the legal requirements for a valid trust in the State; and the Supreme Court’s opinion in the All Saints Waccamaw case, which ruled against a similar argument made by ECUSA and the then-EDSC. Taken together, those three authorities are all a court needs to cite in order to find a Dennis-Canon type of claim invalid and of no consequence under South Carolina law.
In a Fresno courtroom Monday, Anglican Bishop John-David Schofield’s presence loomed large in the long, legal battle between the U.S. Episcopal Church and the breakaway Anglican Diocese of San Joaquin.
Schofield, who died in October, is a key witness in a Fresno County Superior Court civil trial that will determine who owns dozens of pieces of property — the Anglican diocese or the national Episcopal Church?
The bishop gave his videotaped deposition in late 2011, long after he led 40 of 47 parishes in the Episcopal Diocese of San Joaquin away from the national Episcopal Church to form the Anglican Diocese of the San Joaquin.
Retired Anglican bishop John-David Schofield, who in 2007 as bishop of the Episcopal Diocese of San Joaquin led a movement out of the U.S. Episcopal Church over debate about same-sex marriages and the consecration of a partnered gay priest, died early Tuesday. He was 75.
Current Anglican Bishop Eric Menees said on the diocese’s website that Schofield died peacefully at home sitting in his favorite green chair and was found Tuesday morning by friends.
The change at St. James Church in Sonora is in some ways a microcosm of messy Anglican realignment and both the stark theological differences and litigation that usually accompany it.
The historic “red church” of St. James in the Anglican Diocese of San Joaquin was turned over to the Episcopal Diocese of San Joaquin in July. Known for bold color and architecture, St. James is also the oldest standing Episcopal Church building in California, constructed in 1859.
The congregation of St. James’ joined the majority of the Episcopal (Now Anglican) Diocese of San Joaquin in departing the Episcopal Church in 2007 over theological differences and the direction of the U.S.-based Episcopal Church. After temporarily coming under the oversight of the Anglican Church of the Southern Cone (South America), San Joaquin Anglicans later helped establish the Anglican Church in North America in 2009.
The Presiding Bishop’s job — and future reputation — is, in effect, on the line. She and her personal Chancellor have been so identified with the litigation agenda of ECUSA (because they run that agenda without interference from anyone else in the entire Church) that they are taking a hit, so to speak, on account of the reversals which that agenda has recently suffered in Texas (Fort Worth), Illinois (Quincy), South Carolina, and yes – let it be said — in San Joaquin (even though there is as yet no final judgment there, ECUSA faces a decidedly uphill battle to convince the California court that its canons allow it to take the property of the withdrawing diocese).
In a (rather desperate, and, some would say) clumsy attempt to protect her prerogatives on the litigation front, the Presiding Bishop (and, as always, her personal Chancellor, whose law firm earns millions each year from the Presiding Bishop’s continuing patronage) asked the “Ecclesiology Committee” to deliver a counter to the “Bishops’ Statement on Polity” promulgated by the Anglican Communion Institute and the Communion Partner Bishops within ECUSA….
That Committee (with membership as noted above) obediently came forth with just such a “Statement”, and presented it to the assembled bishops in Nashville. Wonder of wonders, however — what seemed likely as a rubber stamp of 815’s current litigation claims devolved into a rejection of the Committee’s paper. That rejection was based chiefly on the bishops’ reluctance to submit themselves or their dioceses, by a simple resolution, to any claim of metropolitan authority — but it was also based on their own personal knowledge of the Church’s historical polity.
Archbishop Philip Richardson, who is the senior bishop of the seven New Zealand dioceses, says the three Primates here have accepted Bishop David’s resignation with regret.
“For the last five and half years, Bishop David has thrown himself, body and soul, into serving the Diocese of Waiapu.
“His people here will miss him. Equally, they will understand, as we do, the responsibilities we all have to care for our extended whanau. He and Tracy will return to the US with our blessing and prayers.”
Bishop David is to become the Provisional Bishop of the Episcopal Diocese of San Joaquin, in eastern California, and will take up that role in February next year.
It is not enough to claim “We say the Nicene Creed every Sunday” as evidence of Christian belief. One must ask the deeper question, “What exactly do you mean by the words you are reciting?” Episcopalians have embraced the postmodern spirit of the age in an attempt to be relevant to the culture. In doing so they have changed the core beliefs of Christian faith at the very roots. This revision then becomes a pseudo Christianity, which is radically opposed to the original. The two cannot be reconciled by simply saying, “Let’s all be friends.” We no longer worship the same God.
As Anglicans, we are unwilling to compromise the traditional expression of Christian faith. When we separated from the Episcopal Church, Bishop Schofield freely gave deeds to the properties of all churches which wished to remain Episcopal. Four months later those same churches joined together in a lawsuit to take all the Anglican properties as well. All attempts to find an amicable settlement have been rebuffed by the Episcopal Church.
What does it mean to be a Christian?
Per the Prayer Book and personally, I accept the Holy Scriptures as the “inerrant Word of God” which “contains all things necessary for salvation,” and I also accept (as does The Episcopal Church USA, or ECUSA) the historic Creeds (Apostle’s, Nicene and Athanasian) as “a sufficient statement of the faith.” All that in turn means I and ECUSA believe in the Virgin Birth, that Christ was the only Son of God and so on, period.
For a non-Episcopalian to state that I believe otherwise is the result of ignorance, arrogance or something worse.
In its passion to pursue a progressive theological paradigm embracing cultural sensitivity (inclusiveness) and intellectual freedom, TEC cast aside fundamental Christian doctrines, professing, among other things:
* Jesus was not born of a virgin, was not God incarnate, and his resurrection is questionable at best;
* Man needs enlightenment, not salvation; we are to reconcile ourselves with one another, not with God;
* Scripture is not authoritative nor the revealed word of God, but rather metaphorical.
Simply put, Anglicans left TEC because of their faithfulness to the fundamental and historical Christian foundation that the Holy Scriptures are the final authority of its faith.
The tragic fallout of this split is multifaceted. A lady I have known and worshipped with for 30 years approached me, saying homosexuals were not welcome at St. Paul’s. I was taken aback by her misconception. I reminded her that on every Sunday, the priest who is celebrating Holy Communion invites “all baptized Christians as being welcome here at the Lord’s table.” Not blessing same sex unions is an unrelated issue.
Standing at the entrance to St. Paul’s Episcopal Church on 17th Street, the Rt. Rev. Chet Talton raised up the blunt end of a 6-foot-tall staff and pounded it against the door.
Again he pounded with his crosier, and again, each time the knock resounding through the 160-strong gathering. From inside, the church warden greeted him, and after a brief exchange, Talton entered.
So began a new era at St. Paul’s, itself the subject of a prolonged battle that, though settled at this congregation, continues to ripple through courtrooms across the country.