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.
While it’s just a beginning, I certainly feel good about the start! Keep the prayers coming for our lawyers, for the judge, and for His will be be done!
Wow
Atty Shelby Sharpe’s responses to the Court’s questions may be found here:
http://www.fwepiscopal.org/downloads/091509AnswerstoQuestionsoftheCourt.pdf
A couple of zingers from Marie’s reference:
[blockquote] The Episcopal Church has represented to the Internal Revenue Service that all of the dioceses affiliated with it are autonomous. The representation was made by Ellen F. Cooke, treasurer of The Episcopal Church, in a written communication dated July 15, 1987, wherein in the first sentence it is stated that “The Episcopal Church is comprised of 117 autonomous dioceses, 98 of which are domestic and 19 are foreign.” Since this representation is a public record, the Court is requested to take judicial notice of it. [/blockquote]
[blockquote] Likewise, there is no constitutional provision or canon of the Diocese nor is there a constitutional provision or canon of The Episcopal Church declaring that these Diocesan officials or the Diocesan Corporation Trustees have resigne or abdicated their offices by virtue of the vote of an Annual Convention of a diocese. [/blockquote]
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This makes me think that the Mt Pleasant SC church needs to hold off on their decision. What was clear from this ruling is that parishes leaving and dioceses leaving are two different matters all together.
#6 Robroy While I hope no one disappoints blessed Bishop Lawrence,
remember that the court isn’t interested in the national court bringing suit against the local churches. It always requires the local bishop signing the lawsuit. If Bishop Lawrence refuses that, TEC’s lawsuit would be in trouble. This is, as usual, grasping at straws. I pray for unity in the Diocese of SC.
We ALL need it. The judge in the Georgia case with Christ Church questioned carefully who had the legal “right” to bring action against Christ Church.
The Dennis canon does not purport to create a trust on diocesan property in favor of 815. This is a different issue where the diocese leaves.
Good for Judge John Chupp.
In my opinion Texas courts will take a dim view of furriners trying to steal church property that belongs to Texians. The real Episcopal Diocese of Fort Worth did a good job of making sure all their legal i’s were dotted and t’s crossed. TEC and it phantom diocese didn’t.
And what exactly is Judge John Chupp’s ecclesiology?
10. eaten_by_chipmunks wrote:
[blockquote]And what exactly is Judge John Chupp’s ecclesiology?[/blockquote]
As far as I can tell, he doesn’t have an “ecclesiology” and the subject doesn’t really interest him. He appears to be making decisions on the basis of the law, which is what a judge is supposed to do.
Which, Mr. Peck, seems to be part of what Paul had in mind in telling the Body to settle its disputes [i]outside[/i] of the state’s judicial system. The state simply lacks the requisite theological and moral formation necessary to make qualified decisions of an ecclesiological nature. In short, Judge Chupp can say whatever he likes but this matter is decidedly out of his jurisdiction (and shame on the Bishops who put him in this impossible position).
12. eaten_by_chipmunks wrote:
[blockquote]The state simply lacks the requisite theological and moral formation necessary to make qualified decisions of an ecclesiological nature.[/blockquote]
The judge isn’t deciding anything of “an ecclesiological nature”.
Every indication is that he is looking at a couple of not for profit corporation’s by laws, the actions of the governing bodies of those corporations to see if the provisions of those by laws were followed and, in this instance, who has standing as representatives of said corporations in his court in accordance with the the Texas code Rules of Civil Procedure. Nothing ecclesiastical about that. It’s the same thing as if a Texas corporation holding some McDonald’s franchises in the Fort Worth area that had terminated its relationship with the national McDonald’s corporation were in a dispute with a few McDonald’s outlets that wanted to seize the assets of the departing corporation. He would look at what the charters and bylaws of the corporations involved said, what procedures were followed by the departing corporation and what procedures where followed by the dissenting franchises and the national McDonald’s corporation.
That’s the only way he can make decisions as to who is who and who represents who in this case.
Clearly we share differing eccelsiological convictions. Neither the Church nor her dioceses are translatable to “not for profit corporations”. You are certainly correct that the only way a judge of the state can adjudicate these matters is to adopt that (ecclesiologically foreign) language, but that any member of the Church would think that he can or should is one of the fundamental problems of the entire Episcopalian debacle of recent years.
And now for the truth:
1. Notice how +Iker did NOT provide us with the actual ruling? Well here it is: http://www.episcopaldiocesefortworth.org/misc pdfs/order 09.16.09.pdf (the handwritten parts are in Judge Chupp’s own hand)
2. The first paragraph of +Iker’s statement is true as far as it goes.
The second paragraph:
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.â€
[edited by Elf]. Read the ruling. Where did the judge “rule” any of what +Iker asserts above? There was certainly discussion in the court and questions asked and perhaps even statements made by the judge, but at the end of the day, this uis the ruling.
3. Bishop Iker said, “We are pleased that Judge Chupp has recognized the legitimacy of the vote of our Diocesan Convention in November 2008 to withdraw from the General Convention of The Episcopal Church and has ruled that we had the legal right to amend our Constitution in order to do so. This a positive step in support of the position we have taken. We will continue to keep our concerns before the Lord in prayer.â€
Again, the only part here that is true is the prayer request at the end. Read the ruling. That is what happened.
For those unaware of the legal issue resolved here, [edited] here is exactly what the ruling says. The court ruled that the attorneys for the TEC Diocese of Fort Worth do not represent the +Iker Diocese of Fort Worth. That is it. Nothing more was ruled on.
[Edited by Elf – please be careful how you phrase your posts]
As far as I can tell from this order, the judge refused to decide the substance of the dispute at the Rule 12 proceeding. As a Texas lawyer, I would not expect him to settle the case this early in the suit. Going with either party’s position on this motion would have done that.
So, he refused to rule that the plaintiffs’ attorneys represent [i][b]the[/b][/i] Episcopal Diocese of Fort Worth or its Church Corporation (as the plaintiffs had asked) and also refused to rule that they cannot represent [i][b]the[/b][/i] diocese and corporation (as the defendants had asked). Instead, the judge ruled that the plaintiffs’ lawyers do not represent the diocese and corporation headed by Bishop Iker (which seems pretty obvious). Whether that diocese and corporation are [i][b]the[/b][/i] diocese and corporation that controls the property of the formerly undivided diocese is still an open question.
Texas law historically has followed the older “principles of governance” rule in settling church disputes, rather than the newer “neutral principles” rule. If the trial court follows that rule (which it is supposed to do unless the Texas Supreme Court or Legislature change the law), the disposition of the property would be governed by whether TEC is a hierarchical or congregational denomination. If hierarchical, the highest competent church court within the denomination (in this case, General Convention) would be entitled to deference by the secular courts in resolving disputes. If congregational (or whatever we might wish to call a polity of completely independent dioceses), then the local decision is entitled to similar deference. The litigation is thus going to hinge on determining the governing ecclesiology of Anglicanism. Does it not strike the rest of you that this is a peculiar question to ask of a secular court?
Applying the “neutral principles” rule doesn’t help, since that just creates a presumption that all denominations are congregational unless they go considerably out of their way to provide otherwise. Again, the creation of a presumption that one ecclesiology is normative and another (historically much more common) should be legally disfavored seems a peculiar act by the state. All three branches of government are supposed to be bound by the religion clauses of the First Amendment to avoid establishing one doctrine over another (such as congregationalism over both episcopalianism and presbyterianism) and to avoid an establishment of religion (such as favoring churches with a congregational polity over those with an episcopalian or presbyterian polity).
To repeat my refrain: this dispute needs to be settled before it not only drains the resources of TEC, both dioceses of Ft. Worth, and all the local congregations, but also creates a legal precedent of state interference in church disputes that many of us will live to regret.
#16 Dale Rye says:
In this case I’m going to break ranks and suggest: perhaps it will create a precedent that churches should make sure that their legal arrangements appropriately reflect their ecclesiology. There is no reason that I am aware of that the national church could not be the title holder of record on all parish and diocesan property; they chose not to set it up that way. Well, the cost of that decision is that now we’re in court.
As long as churches own real property, and as long as the ownership of real property is governed by secular law, then the church cannot help but be bound by secular law in that particular area — and that is as it should be. But secular law provides any number of mechanisms which allow people to arrange ownership of real property according to their needs, so there is no reason the church shouldn’t be able to legally organize its property in any manner it could plausibly wish to. And if the church errs in the manner in which it reflects its ecclesiology in its secular legal arrangements, the secular courts are hardly in a position to second-guess it.
To add to Ross’s comments (#17) —
Those who are interested in how a real hierarchical church handles its property might wish to consider the LDS or the Roman Catholic Church. In the case of the RC’s the assets are held by the local bishop as a corporation sole. I believe (but am open to correction) that local buildings in the LDS are held directly by the central church in Salt Lake City.
RE: “Neither the Church nor her dioceses are translatable to “not for profit corporationsâ€.”
Right — which is why the judge made no decisions about “the Church” but rather merely for the not for profit corporations. “The Church” will need to decide what to do now based on the private property ownership rules of the State, which they are bound to follow as they happen to live in the State.
“The Church” also can’t make a decision, say, to burn a parishioner at the stake because that parishioner may be heretical, even if it is within their doctrine and discipline to do so. Why? Because the State will frown upon such actions.