Bishop Howe's Proposed Protocol for Diocese of Central Florida

From the November, 2007 Central Florida Episcopalian [emphasis as in the original]. An excerpt:

How we move forward will necessarily differ from one case to another. If an overwhelming majority of the members of a given congregation were to decide to leave, we might face a situation in which disposal of the property would eventually have to be considered.

I have shared the following proposed protocol with the clergy at our annual Clergy Conference at Canterbury, and it will be presented to the Diocesan Board and Standing Committee later this month. It has not yet been adopted, but I believe that it ”“ or something very like it ”“ must ensure that the spiritual needs of all the members of the Diocese will be protected. (This is more detail than most of you will want, but for everyone concerned we need to be as clear as possible.)

Vestry Vote and Special Meeting of the Members

The vote of a Rector (or Church Planter) and Vestry cannot control whether or not a congregation disaffiliates. This will only be considered after a vote of the members of the congregation. However, if the Rector and Vestry determine to disaffiliate from the Diocese by at least a 75% majority vote they shall immediately notify the Bishop of that fact. They are to furnish to the Bishop a plan outlining how they intend to provide for the ongoing nurture of all people, whether they are disaffiliating or not, and whether they will seek to negotiate for the real and personal property of the Parish. A copy of the plan submitted to the Bishop shall be given to every member of the congregation and the Rector and Vestry shall certify to the Bishop that this has been done.

The Bishop will call a Special Meeting of the congregation giving at least 15 days notice of that meeting and he or his designee will preside at that meeting. The Bishop and the Parish will provide a joint notice of this meeting. The Bishop may require the Parish to hold informational meetings for the congregation prior to the Special Meeting where a pastoral team appointed by the Bishop may participate and answer questions concerning disaffiliation.

Prior to the meeting the Bishop will appoint a committee of three members of the congregation who will make a recommendation to the Bishop as to the eligibility of any member to vote should a challenge arise, the Bishop being the final arbiter. This decision shall be based upon the canonical definition of a member in good standing, eligible to vote.

Congregational Vote

At the Special Meeting of the Congregation, after a suitable time for discussion as determined by the Bishop or his designee, the question shall be put before the meeting: “Do you wish to disaffiliate from the Episcopal Church or not?” The vote tally shall be reported by the Bishop or his designee and the Bishop shall render within 7 days, on a case by case basis whether in his opinion a viable Episcopal congregation remains.

The Bishop will call a meeting of those members desiring to maintain their affiliation with The Episcopal Church in order to elect a new Vestry. The Bishop, or his designee, will preside at that meeting. Until a new Vestry is elected, the Bishop will appoint at least three of the members desiring to remain in The Episcopal Church as the Vestry and an interim Warden who shall take charge of the Parish and establish a plan for the future operation of the Parish.

Possible Sale of Real and Personal Property

If, in the judgment of the Bishop with the concurrence of the Diocesan Board and Standing Committee (if consecrated property is involved), the Parish and the Diocese are willing to sell the real and personal property held by the Parish, and the members desiring to disaffiliate with The Episcopal Church have formed a non-profit corporation, the Diocese will enter into negotiations with the new corporation to consider the purchase or lease of the property. A decision to sell parochial property is one that must be made by the continuing members of a congregation, not by those who have voted to leave it. The Diocese and the new corporation will select a qualified property appraiser to determine the fair market value of the real property. The cost of the property appraisal will be borne by the new corporation. The Diocese may require an audit of the financial affairs of the Parish by an independent accountant for the current year and the prior two years.

Upon receipt of the audit reports and the property appraisal, the Bishop, with the consent of the Diocesan Board and Standing Committee, shall be empowered to sell the real and personal property on behalf of the Parish on terms agreeable to the Bishop and the Board. These terms may include a mortgage amortized over a 30 year period with low (not to exceed prime) or no interest. The starting point for any such discussion will be the fair market value of the property for use as a church.

This is a very painful time for many of us. I feel a great sense of personal loss in contemplating these departures, but I want to reassure you that the Diocese of Central Florida remains steadfastly committed to the Lordship of Jesus Christ, the authority and trustworthiness of God’s word written, and the anointing and empowering of the Holy Spirit. As your Bishop I am committed to proclaiming the Gospel, to strengthening existing churches and planting new ones, and to raising up the next generation as faithful followers of Christ. The painful loss of some of our brothers and sisters in Christ will not divert us from any of these commitments.

I have said repeatedly that it is my desire to remain both an Episcopalian and an Anglican. In that regard, let me share something with you that the Archbishop of Canterbury has written to me just this past month: “Any Diocese compliant with Windsor remains clearly in communion with Canterbury and the mainstream of the Communion, whatever may be the longer-term result for others in The Episcopal Church. The organ of union with the wider Church is the Bishop and the Diocese rather than the Provincial structure as such”¦. I should feel a great deal happier, I must say, if those who are most eloquent for a traditionalist view in the United States showed a fuller understanding of the need to regard the Bishop and the Diocese as the primary locus of ecclesial identity rather than the abstract reality of the ”˜National Church.’”

We have a great and faithful Diocese, and with the help of the Lord himself, I am committed to making it even better. During this time of transition, I urge all of us to treat each other with great care and compassion. I ask your prayers for wisdom for all who will be involved in these discussions.

With warmest regards in our Lord,

+ John W. Howe, Bishop

The full article is here.


Posted in * Anglican - Episcopal, Episcopal Church (TEC), TEC Conflicts, TEC Conflicts: Central Florida, TEC Departing Parishes, TEC Polity & Canons

47 comments on “Bishop Howe's Proposed Protocol for Diocese of Central Florida

  1. episcoanglican says:

    Please check me if I am wrong but this strikes me as a protocol to secure the property for the bishop and possibly plant a new church. It hardly strikes me as “pastoral care” for those that can no longer sit under the authority of TEC in its present and decidedly un-Christian direction. A departing parish would be silly to agree to these terms.

  2. justinmartyr says:

    On consideration, this seems even worse than the standard TEC response. All property remains TEC’s. The REAL congregation is the minority who choose to remain behind, who will then choose if and how to sell it to the majority.

    How is this in ANY way generous or longsuffering? Basically the Bishop has just added to TEC’s rules by dictating how the majority are to vote themselves out of house and home!

  3. justinmartyr says:

    [i]deleted — elves[/i]

  4. The_Elves says:

    #3 – not helpful. We generally delete “one liners” as they ususally don’t add anything constructive to the discussion.

  5. justinmartyr says:

    Since my one-liner was not perjorative, and was aimed at myself and the other conservatives who foolishly hoped and believed that things would somehow be different in Florida, I don’t see how my comment was inappropriate. Care to elucidate?

    Bu elf, I guess it was not couched in the theological, but abysmally prejudiced terms with which you denigrated Joel Osteen a few short weeks ago. Pity that item was not deleted.

    In all sincerity

    [i]It was totally unclear to whom your comment was about or what your own position was. If you’d elaborated it probably would have been fine. Our policy against one-liners has been long-standing. End of discussion.[/i]

  6. Scott K says:

    I think this arrangement is pretty fair to all parties and will hopefully avoid most litigation from both sides. The departing congregation, assuming they have a sizeable majority, is given the opportunity to purchase the property at a fair price. I think many parishes who have left would have jumped at that opportunity.

    However, hasn’t 815 decreed that property cannot be sold to congregations realigning with other Anglican entities? How is TEC leadership going to react to this plan?

  7. pendennis88 says:

    Virginia had a protocol which provided for the sale of property, and then bishop Lee and the diocese reneged on it. So the proof will be in the pudding to see if the bishop will actually deal in good faith or not. I think the orthodox can be forgiven for wondering whether protocols for departure agreed to by episcopal bishops are worth the paper they are written on or not.

  8. plainsheretic says:


    Virginia had a proposed protocol. It was only recieved, never endorsed or apporved. Big difference.

  9. jamesw says:

    We all need to remember that most lawyers familiar with Florida state law largely agree that Florida is likely to be one of the friendliest states for 815’s “heirarchical church” legal theory. That means that no matter how much you wish it weren’t so, 815 is in a very strong legal position there.

    We know that KJS and 815 have vowed to go after TEC bishops who transfer property to parishes that leave. Because of Florida’s apparent obsession with the “heirarchical church” legal theory, 815 will also be in a stronger then usual position vis-a-vis the local bishop.

    With both of these FACTS in mind, the following conclusions seem reasonable:

    1) Fighting Bp. Howe’s plan may make you feel good, but it will almost certainly result in the total loss of the buildings;
    2) For Bp. Howe to just hand over the property may make you feel good, but it will almost certainly result in Bp. Howe being successfully sued by 815, thus resulting in the loss of the building and the loss of a faithful, friendly bishop;
    3) Bp. Howe is most likely taking the ONLY path available to him to allow parishes to retain the use of their buildings in an orderly fashion.

    So let’s stop the thoughtless, ill informed critique of Bp. Howe. Criticize him for other things, maybe, but on this, I am in sympathy with him.

  10. The_Elves says:

    Scott K wrote: [i]However, hasn’t 815 decreed that property cannot be sold to congregations realigning with other Anglican entities? How is TEC leadership going to react to this plan?[/i]

    I was wondering about that too. Note the emphasis in the protocol above that any property will only be sold to a recognized non-profit corporation. I wonder if that’s somehow meant to avoid the whole affiliation issue?? Can anyone in Central FL provide more info on this question?

  11. Athanasius Returns says:

    [blockquote] It has not yet been adopted, but I believe that it – or something very like it – must ensure that the spiritual needs of all the members of the Diocese will be protected. [/blockquote]

    This is a curious statement, given that the vast bulk of the proposal deals with disaffiliation and property disposal. Where in the proposal or the article on the diocesan web site does Bishop Howe address the spiritual needs of all the members of the Diocese? Am I blind?

    I also want to know how any bishop could accomplish this:
    “commitment to provide pastoral care both to those who leave and to those who wish to remain”.

    [blockquote] The Diocese will do everything in its power to make their departure from the Diocese of Central Florida and The Episcopal Church a peaceful one without rancor or recrimination. [/blockquote]

    Lastly, I really want to know how “recrimination” enters the picture. There is serious theological merit to the position that TEC as currently constituted has abandoned historic and apostolic Christianity. If a parish disaffiliates on this principle, “recrimination” would indicate the issuance of a counter-charge. Of course, there could be no recrimination, as no substantive and real counter-charge is available to the diocese to prosecute against the departing parish. Oh, wait, the diocese can recriminate; it can make use of the abusive Dennis Canon to claim/take by non-Christian force property that in some cases pre-existed the diocese that was paid for and deeded to the now “disaffiliating” parish. This is a wildly distorted logic. No rancor? No recrimination? “Oh, by the way. Don’t let the door hit yer backside on the way out, ya hear? We don’t want any marks on OUR property.” This is an example of being a chief pastor? This proposed protocol from Bishop Howe makes my brain hurt!

  12. evan miller says:

    # 9 makes some very good points. However, I don’t agree with his decision to let the TEC faithful remnant make the decision whether to sell or not. When my parish left, the 25% who sided with TEC would have rather burned our lovely church to the ground than see us purchase it. They now have it and we’re still worshiping in a school gym. Otherwise, this appears about the best that any diocese will be able to do for it’s departing parishes. Give +Howe a break. This isn’t a bad plan.

  13. Jeffersonian says:

    This is marginally better than the smashmouth approach taken by 815 and its sockpuppet bishops, but the presumptions are all in TEC’s favor. If those choosing to remain in TEC (likely embittered by and defiant in their electoral defeat) decide not to sell, the vast majority of the members are completely out of luck.

    This is a bone thrown to reasserters, and not one with much meat on it.

  14. alfonso says:

    Most prominent to me is that this approach inserts Howe between the Parish leadership and parishioners. They not only get “free speach” to be heard, but get to control official meetings of the parish and receive the unconditional surrender of all orthodox. Howe has and will be promising that any minority of ten adults will be able to take control of the parish propoerty of 500 parishioners. It will be up to the ten ecclesial scabs whether or not they want to sell, and on what terms. This is the least favorable approach of any nationwide. Even Bennison would jump at these terms; for it is a concession of total control to the diocese.

  15. David+ says:

    Apparently Bishop Howe has not been told what the Presiding Bishop has said regarding a departing parish and its property. As best as I can recall, she said that 815 will not allow a departing parish to buy, under any condition, its property as long as it remains identified as an Anglican church. This being the case, Bishop Howe can not sell, even at fair market value, the property to a parish that votes to leave even by 100% as long as it intends to affiliate with another Anglican province.

  16. VaAnglican says:

    There is great opportunity for the departing parishes:
    1. A protocol that if 815 contests it will make them look very bad. This is so reasonable from the institutional perspective, that this is not where they would want to fight.

    2. A real sale–not a sham–so the deal couldn’t be assailed by 815 as a subterfuge.

    3. Valuation as it should be: not as a future shopping mall, but as a church. For 815 to contest this “use” valuation is to concede that what they really want is the money–not a continuing Episcopal parish.

    4. Low- or no-interest loans. This isn’t a matter for 815 (since it doesn’t pertain to the property itself but to financing): it’s wholly within diocesan disgression.

    5. An incentive for departing parishes to work toward near unanimity in their decision: that can only help in every way.

    6. If the continuing Episcopal parish is small, and is faced with an inability to pay for the property, a rational basis for they and the diocese to sell the property.

    7. Dealing with a bishop who, though weak in many ways, is at least likely to be fair in this process. (Someone from Central Florida might wish to comment on whether he has been so far with property matters with departing parishes–I’m just assuming he’d be fair.)

  17. Br. Michael says:

    It’s probably best to simply walk out the door and start over. Why should those departing pay twice for property they already paid for? Better to let the remnant and diocese pay to keep up the existing property while those departing can start with a clean slate.
    Emotions can run high as 12 points out.

  18. Diezba says:

    I have to agree with No. 9, JamesW. Speaking as a third-year law student (and thus with all the fabulous legal knowledge and experience that such an exalted position implies), I believe the Rt. Rev. Howe is jumping through the legal hoops necessary to (1) let orthodox folks leave and keep their buildings without (2) giving the Potentates at 815 a loophole with which to regain control over the property in the Florida courts [i]despite[/i] efforts by Bp. Howe.

  19. jamesw says:

    A few other points of interest:

    1. 815’s edict about forbidding property to be used by another Anglican church is not legally enforceable. Howe is making it very clear that any disposal of property would be done with the FMV of the property as the basis. This basically protects him from any lawsuit 815 might launch.

    2. Letting the remnant congregation vote is more of a paper tiger then anything. For two reasons: a) the bishop can make it very clear to a remnant that they can’t hope to support the building on their own; and b) the orthodox are forewarned. Be sure to keep a critical mass in the remnant until the property deals are worked out. Simple.

  20. alfonso says:

    Diezba, Va Anglican, et al., it’s all good and well to give Howe the benefit of the doubt that he is trying to let the orthodox keep the buildings, but, wait. Check that. It is not good. It is not well. Howe has and will insert himself and divide parishes where there is no significant division right now.

    The truth will come out when you read the live-blogs of the parish meetings where Howe is officially presiding. But then it will have already been too late.

  21. Diezba says:

    JamesW: whoa! I didn’t even see that, but it’s now glaringly obvious. All the orthodox have to do to “win” under the Rt. Rev. Howe’s plan — assuming, of course, that they have numerical superiority in the parishes in question — is maintain, as you say, a “critical mass” of reasserters among the remnant in order that the “remnant” may then vote to sell the property. Once that has been accomplished, many in the remnant can “see the light” and leave the continuing congregation for the orthodox one.


  22. alfonso says:

    jamesw, to you it is “simple” that Howe would (likely) “make it very clear to a remnant that they can’t hope to support the building on their own.” I don’t know you, but those are the words of a fool. Howe will not discourage the minority, but on the contrary, encourage them to take control–making it very clear that even three parishioners (preferably ten, but three will do), with a couple diocesan ringers, can readily keep the building and thumb the nose at the faithful. Only in circumstances of substantial debt liabilities would Howe not forcefully advocate for a minority to take control. In fact, these “rules” would already give them complete control.

  23. Frances Scott says:

    Very perspicacious, no 19! Amen to you point #2. That thought crossed my mind almost immediately.

  24. Widening Gyre says:

    When bishops in the past have sold diocesan property, have they had to get the consent of some other party such as GC or the PB? or are they “free” to sell without any oversight?

  25. Athanasius Returns says:

    #20 – There is some evidence of Bishop Howe’s “insertion” of late as his canon to the ordinary is spending a lot of time in one of the diocese’s “cardinal” parishes. Curious…

  26. pendennis88 says:

    [blockquote] Virginia had a proposed protocol. It was only recieved, never endorsed or apporved. Big difference.[/blockquote]

    I think you are revising and editing the history. The bishop appointed a committee, including his chancellor, which agreed upon the protocol. There was nothing in the protocol that required standing committee approval, not surprising since drafted by the chancellor familiar with the canons. (Final approval for the terms of any sale of real property was left with the standing committee, which is what the canons provide for.) The bishop had the ability to enter into the agreement under the canons, and did so. He told the parishes to proceed under it. (Do you not think that constitutes “endorsement”?) It was subsequently presented to the standing committee, which tried to amend it, and the amendments were rejected. Which, since it was a protocol the committee “offers” to “departing members” and not a report to the standing committee (the word “report” appears nowhere in it), was appropriate. There was a unanimous vote of the standing committee, which was either to “receive” it or “accept” it – it seems unclear. The only truth in your statement is that the standing committee did not vote to “approve” it. Though accepting it can constitute an approval, which is undoubtedly why it is now characterized as “received” by the standing committee. Receiving it (or not) would not have been the proper action however, and that whatever the action was, it was done after defeating amendments and without any final objection, suggesting that in fact what was done was that it was accepted. The lawyers can argue that. Only after the parishes had begun acting in reliance on the protocol did the standing committee object that the manner in which it was received meant that it was not “approved”. Since the approval of the standing committee was not required for the protocol – it was within the power of the bishop under the canons, the standing committee was only to vote on any real property transactions, such approval would not be necessary in any event. And just to show that the bishop thought so, too, the bishop then appointed another diocesan committee to negotiate the property transfers. I seem to recall reading that the bishop then terminated that committee after one meeting or so with the parishes, after which he commenced the litigation.

    You can read for yourself here:

    In any event, the Diocese of Virginia and 815 want to argue that the protocol was never agreed to. The facts indicate otherwise, I think. If someone has some other facts, let us know.

  27. Oldman says:

    When you elevate that which has long been understood as sin, comes reactions like we are seeing with Bishop Howe, a Godly man, trying to get himself and his Diocese out of the mud hole of sin created and applauded by +KJS now and +Griswold before her.

    Pray hard for +Howe to have the wisdom he will need in these trying times.

    To me, as either an Episcopalian here or an Anglican overseas, the progressive descent into property suits against everybody in sight and general mayhem in the PECUSA is so disgusting and unholy. The PCUSA is now so deep in the mudhole of sin, that almost every action taken by 815 and the PB of the moment since the consecration of Bishop Robinson has dragged the PECUSA deeper into that mud hole.

    Will the PECUSA survive? It won’t unless the time comes when God purges the PECUSA of politicians masquerading as holy men and women.

  28. Randy Muller says:

    “No one can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve both God and Money.”

    I pity anyone (myself included) who is more devoted to their money or their property than to their God. If your devotion to property causes you to sin, let it go.

  29. jamesw says:

    Alfonso: An intelligent bishop in TEC would not want to keep the buildings if the choice is to sell them at FMV. Howe undoubtedly will use his utmost persuasive power to convince parishes NOT to leave. That much is more then obvious. I have little doubt that he will use whatever power he has to convince parishes not to leave, and that may even include propaganda and manipulation of meetings.

    But – and this is important – if a big majority of the parish does vote to leave, Howe is left with the choice of selling the property (he would then insure the financial solvency of his diocese for awhile) or trying to prop up a nonfeasible parish with property which would inevitably become a financial drain on the diocese.

    If Howe was determined to keep the property at all costs, he could have simply declared that property was that of TEC and there would be no negotiations.

    The battle will be BEFORE the vote, not after it.

  30. Br_er Rabbit says:

    A swift toss into the briar patch for Wilfred. 😉

  31. saj says:

    Property laws what they are in Florida and with most deeds in favor of the Diocese, this is the best that can be hoped for. Please note also that FMV is the “starting” place for negotiations. It sounds like to me Bishop Howe is clearly stating that the diocese owns the property not TEC and the diocese will decide who to sell to. I applaud this clear statement and do not believe for a moment that he has not been “told” about the TEC edict that no property is to be sold to any “Anglican” congregation.

  32. VaAnglican says:

    The 815 edict is sound and fury, nothing more: it’s not enforceable, and as DBB well knows, courts would find huge public policy concerns about any covenants and restrictions that discriminate on religious grounds like that. Bp. Howe can ignore it. The bishop will if he is to exercise the much-heralded “fiduciary duty” 815 asserts, will HAVE to sell the properties, as retaining them will financially destroy his diocese (just ask John Howard up the road what it costs to maintain a bunch of near-empty churches that out of spite you refused to sell). If 15 or 20 churches leave with the bulk of their parishioners, there is no way the diocese could support 5-10 person remnants in expensive-to-maintain buildings. As for ensuring those remaining with the Episcopal remnant include some orthodox voters, that is critically important and valuable, so long as the critical mass is there for separation.

  33. robroy says:

    “The 815 edict is sound and fury, nothing more.” Absolutely. I don’t recall a General Convention resolution. When Spong sold of all the properties, did the national church have any input. No. Dioceses dispose of property as they see fit.

  34. Rocks says:

    This “protocol” is anything but good and a recipe for complete disaster.

    A parish would be better off to simply walk away from the property without negotiating at all and let the diocese try to maintain it.
    Only a fool would acknowledge that the remnant controls the property before entering into negotiations for a sale. They might as well hand a quit claim deed and a letter stating they are no longer the vestry for the church to the Bishop at the start of the meeting to discuss selling the building. Sounds like a sound move me to…not.

    I will say again that the Bishop is plain flat out wrong in his interpretation of Florida law. Decisions clearly rested with the authority of the “highest authority in the hierarchal” church. Since any property case would be a state case this can only be the Bishop . 815 has no more grounds to sue a parish for it’s property than the Vatican does. In his prior letters Bishop Howe seemed to pass the buck onto 815 and the Canons for tying his hands and now he wants to pass it onto the remnant of a departing congregation.

    My take, man up Bishop, either you agree with the reasons for those departing and let them have their properties or sue and stop being disingenuous about what you can and cannot do as a Bishop legally.

  35. jamesw says:

    Rocks – 815 could sue Howe for breach of fiduciary duty and bring him up on canonical charges for the same. You can be very sure that 815 could streamline the canonical trial to warp speed if it suited their purposes. If the state courts look to the “highest authority in TEC”, they would look to whatever body tried Howe and deposed him.

    The “heirarchical church” theory to deciding these cases is simply a recipe for absolute tyranny in heirarchical churches. This is a matter of simple fact. It’s not Howe’s doing. He MUST appear to be engaging in a fair business deal when alienating the properties – it’s his only protection against a fiduciary duty lawsuit.

    Under these conditions, Howe is being as generous as he possibly can.

  36. alfonso says:

    Rocks is right, jamesw is sincerely wrong. The choice is to do the right thing, or not. This argument reveals a shallow morality: “815 could sue Howe!” Therefore we should simply accept that “Howe is being as generous as he possibly can…since we accept as a given: his right and calling to stay in the good graces of 815.”

    In other words, let’s get out of the box that thinks it’s just fine to excuse bishops who live out of fear that they may fall off their sacrosanct fence. Just because our “leaders” think certain fences should be elevated like a god, doesn’t mean I have to yield and submit to such a “truth” in my analysis and action.

    No. Just because it helps keep Howe on some idolatrous fence, it does not obligate anyone to quit their vestry and give up all legal standing all to gain, what? Nothing, not even empty promises, but merely empty innuendoes. Inherit the wind.

    (not the movie, the verse: He that troubleth his own house shall inherit the wind: and the fool shall be servant to the wise of heart. Pr. 11:29)

  37. alfonso says:

    Last month I met a woman who was intimidated by her abusive husband and recently separated. He demanded, “sign over the house to me now or I’ll take the children and take your green card…I don’t really want the house, but my business loan needs me to own it legally…and if I don’t get the loan I can’t pay any of the bills. You must do this, I have no choice….” Sadly, she agreed to this and more, and regrets it greatly.

    I happen to think there’s a valid parallel somewhere in this mess, even though Howe has been more “co-dependent” than “abuser” until now.

  38. Mike Watson says:

    #s 9 and 36: Jamesw, you seem to be assuming that a challenge to application of a strict hierarchical deference approach in Florida would not be successful and even that Bp. Howe would be in breach of a fiduciary duty were he even to assert such a challenge so that it could be adjudicated. In 1998 Professor Kent Greenawalt wrote in the Columbia Law Review that a rigid hierarchical deference approach should be declared unconstitutional. If one looks at the development of First Amendment jurisprudence outside the arena of church property cases, and the current composition of the Supreme Court, it seems plausible to think this may happen. (You yourself say the hierarchical deference approach is a recipe for absolute tyranny; there ought to be a constitutional remedy for that!) It also seems reasonably likely that such a case will at some point come before the Court.

    Bishop Howe also has issued communications which appear gratuitously to concede that the Dennis canon is legally effective to create a trust over parish property in favor of the national church. There is very little reason to think this is right; even the supporters of the Dennis canon have largely retreated to claiming (inaccurately in most cases) the canon merely reflects a preexisting state. In any case, one might question whether this is his concession to make.

    Perhaps there are features of Florida law or the way ownership is structured in Florida that make 815’s case stronger than has been explained. But if so, Bishop Howe should give the explanation, and expose the legal reasoning rather than just assert conclusions.

    (The statement also raises issues relating to the position of the diocese vis-à-vis the congregations seeking to depart. I am speaking here only of matters relating to possible claims by 815.)

  39. wrangler5 says:

    For most legal purposes, “fair market value” means the most that a property would fetch subject only to any LEGAL restraints (like zoning or other usage laws) on its use. If a piece of land would be worth more as a shopping center than as a church and zoning would allow it, then the FMV is its value as a shopping center. Unless the protocol as finally adopted includes a restriction on the definition of fair market value that would restrict the appraiser’s consideration to use of the property as a church, the general definition of FMV is likely to be the one applied.

  40. jamesw says:

    Mike and alfonso: For the record, I would agree that the “heirarchical church” theory should be declared unconstitutional. I think it involves the courts taking sides in a theological dispute (i.e. if the church heirarchy violates its fiduciary duty to safeguard the faith, is it still to be obeyed?). But that being said, enough people have reported (and recent Florida state court decisions have upheld) that Florida has adopted willynilly the church heirarchy position.

    I am looking at this practically, objectively and realistically. I would, of course, recommend that any parish looking to disaffliate speak with a good lawyer to get a frank legal assessment. If it seems that the experts are wrong, praise be. But if Florida law is what it appears to be, then the REAL LIFE choice is threefold:

    1) You can decide to make a “point” and spend a lot of money making your point and engaging in litigation that will result in your losing your buildings and costing you a lot of legal fees;
    2) You can just decide to walk away from the buildings; or
    3) You can work with Howe under his proposal.

    Similarly if you are Bishop Howe, and Florida law is what most experts agree that it is, you have three choices:
    1) You can say “no way will we consider allowing any parish to take its property”, or
    2) You can say “okay, the law says I need to get FMV for the property, so let’s try to set up as fair a proposal as possible”, or
    3) You can say “legal ramifications and my diocese be damned, I want to make a point here, and who cares if I am defrocked and sued, and 815 puts in a hack to completely destroy this diocese”.

    Posturing and making wonderful declarations is all well and good, but it does no one any good to approach legal decisions with rose-colored glasses on.

  41. Occasional Reader says:

    [blockquote]Last month I met a woman who was intimidated by her abusive husband and recently separated. He demanded, “sign over the house to me now or I’ll take the children and take your green card…I don’t really want the house, but my business loan needs me to own it legally…and if I don’t get the loan I can’t pay any of the bills. You must do this, I have no choice….” Sadly, she agreed to this and more, and regrets it greatly.

    I happen to think there’s a valid parallel somewhere in this mess, even though Howe has been more “co-dependent” than “abuser” until now. [/blockquote]
    Alfonso, it must be extraordinary — and a great burden — to have this gift of yours which allows you to know the hearts of people exhaustively this way. Surely you only use these powers only for good.

  42. alfonso says:

    jamesw, thanks for your thoughtful input on #40. I am being idealistic, but I think the rose-colored glasses are being worn by those who would surrender all rights (and accept the most pejorative definitions) before any negotiations even begin and then hope for the “good will” of the one who forced your surrender to champion (or even comply with) your cause.

    Occasional Reader, I won’t argue with your not-so-subtle jab that I’m being judmental. Howe is infuriating to me because he acts way too much in a “co-dependent” manner regarding 815. Perhaps I’m wrong and it has nothing to do with faulty character that Howe has chosen his route, but I quit giving him the benefit of the doubt some time ago. Right you are. But while you seemingly exonerate Howe because detractors like me no longer buy what he’s selling and we come across as too judgmental; are you even willing to consider that Howe may be in the wrong? Or does my strong criticism give him a free pass in your eyes?

    [i] This thread is to be a discussion of the proposed protocol, not a discussion of Bishop Howe. [/i]

    -Elf Lady

  43. Mike Watson says:

    Re # 40 (Jamesw):

    My comment # 38 was not directed to how any parish should realistically weigh the costs and benefits of litigation, which obviously would require weighing a lot of considerations and should be done with the advice of competent counsel, but instead was a criticism of your omitting mention of, or at least understating, factors bearing on the possibility of success, including success based on a reexamination of First Amendment issues in the federal courts, and a criticism of Bp Howe for conceding issues he shouldn’t have. You now say that you believe the proper result would be that the hierarchical deference approach should be declared unconstitutional. Good. But why isn’t that possibility (properly handicapped) useful information for parishes, even if they plan on negotiating rather than litigating. It’s also a possibility you have neglected even now to factor into the three choices you have assigned to Bp Howe. I’d give him the choice of being candid, and mentioning what you yourself in fact now say you believe to be the proper result.

    Although I am not a Florida lawyer, it also seems to me that you may be overstating the extent to which Florida courts’ views are solidified on this issue (“apparent obsession” (#9); “adopted willynilly” (#40)). But you don’t cite cases but refer to consensus views of unidentified lawyers.

  44. Mike Watson says:

    Jamesw, perhaps it would be helpful if you could identify the recent court decisions you refer to in the first paragraph of #40. I know there are some decisions (including a 1979 decision of the Florida Supreme Court), but I’m not as confident as to how many and how recent.

  45. alfonso says:

    Sorry to have offended anyone here.

    “are you even willing to consider that [strike]Howe[/strike] Howe’s protocol may be in the wrong? Or does my strong criticism give [strike]him[/strike] his protocol a free pass in your eyes?

  46. Occasional Reader says:

    [blockquote]But while you seemingly exonerate Howe because detractors like me no longer buy what he’s selling and we come across as too judgmental; are you even willing to consider that Howe may be in the wrong? Or does my strong criticism give him a free pass in your eyes?[/blockquote]
    The Elves have (rightly, I think) asked us not to make this a forum regarding Bp Howe, so I will leave it at this. My not-so-subtle point — for which your post was merely the impetus — was that I simply don’t understand how so many on SF are sure that they have access to enough facts, all of the contingencies, all of the relational dynamics, etc. to feel confident in pronouncing re someone’s motives, intentions, and character, sometimes with respect to people we have never even met. When I do that sort of thing with my spouse of several decades, I find after the fact that I was often badly wrong. To do the same with respect to strangers, acquaintances, or public figures seems even more precarious.
    Now to your question: No, your criticism of Howe does not give him a free pass in my eyes. I wish, given my limited information, that he would be choosing a somewhat different course of action. I also believe he is choosing to act honorably toward all given his commitments and his read on the big picture.

  47. pendennis88 says:

    I’m not a Florida lawyer, nor am I saying that Florida courts would not find the diocese to be the owner of parish property. Howe may be right that they probably would.

    However, anyone who believes that they can predict with 100% accuracy how a case will wind up just by reading prior decisions and applying them to a new situation is ignoring one of the main reasons we have so many lawyers here in America. The courts are rewriting the laws all the time.

    That is one of the things that makes our business climate so … interesting.