The Colorado Springs Gazette decided to find out how the recent Los Angeles court case could affect pending litigation in Colorado. Here’s what the lawyers had to say.
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Attorneys on both sides of the case disagree about how the California decision dovetails with their legal arguments.
L. Martin Nussbaum, attorney for the Colorado diocese and local parish, says the ruling reinforces a similar one ”” Diocese of Colorado v. Mote ”” upheld by the Colorado Supreme Court in 1986. In that case, a breakaway parish tried to keep church property, but the court ruled the property belonged to the diocese.
“It (the California decision) is a very scholarly explanation of the law that affirms the freedom of a national church to determine its own rules and governance, and in the case of the Episcopal church, prevents a portion of a local congregation to leave the church and take the property,” Nussbaum says.
But Grace CANA’s attorney, Greg Walta, says Colorado v. Mote isn’t as clear-cut when it comes to the local case. The 1986 ruling turned on the fact that the parish had been a mission church under control of the diocese for 20 years, and its organizing document ceded control over its property to the diocese, he says. In contrast, Walta contends that Grace’s articles of incorporation do not mention the diocese, it has title to the local church property and a long history of acting independently from the diocese and at times in defiance of the diocese.
“Our case is more like Dickey v. Snodgrass, a Colorado case that ruled for a local church,” Walta said. “So the outcome will depend on the facts in the case.”
In the California case, diocese officials were pleased by the decision.
“Now we can get about the business of healing and about the business of being a church,” said the Rev. J. Jon Bruno, bishop of the diocese.But Eric Sohlgren, lead lawyer for the three parishes, said the decision ran counter to 30 years of legal precedent in California. The parishes will decide soon whether to appeal to the California Supreme Court.
We’d like to make a plea from the elves on this. We’d really prefer it if folks stick to the details of the article, and specifically the legal issues that are raised rather than commenting on personalities. Thanks.
Former vestry members of Grace found a document dated 15 November 1927 in which Grace/St. Stephen’s property was given to the Diocese. …And we do moreover hereby relinquish all claim to any right of disposing said building, without due consent…
On November 15, 1929, the Rector, Wardens and Vestry of Grace Church, Colorado Springs, dedicated Grace Church to the Bishop of Colorado relinquishing all claims in any right to the building. The Instrument of Donation may be viewed at this [url=http://docs.google.com/View?docid=dc6t4nfc_9w7m4pr]link[/url]
Really – Dickey v Snodgras !
It just has to be – there is something so decidely Anglican about that precedent!!!
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elves say, thanks for the chuckle Martin! You are so right!
M. Reynolds #4,
LOL the irony. Dickey v. Snodgrass was a suit brought against The African Methodist Episcopal Church.
Well, its a cliffhanger for sure!
What a fascinating forgery. A shame it wasn’t notarized.
When you look at that old document it makes you wonder if it was just ceremonial or if it had real teeth–like filed in the courts.
And then too, it certainly does clearly dedicate the porperty to purposes that one could no longer assume would be upheld by TEC.
It seems to me that unless the diocese actaully has clouded the title of Grace Church–the property should go to CANA to fulfill the stated and intended purposes of the signers of the document.
[i]What a fascinating forgery. [/i] How do you know it is a forgery?
[i]A shame it wasn’t notarized. [/i] Are you serious?
I saw a document like this before. It was in the parish chest at my last church.
A wealthy landowner had built a private chapel at one end of the parish close to his palatial mansion. Much later his family gave the church to the parish. It was then the diocese told us the building had never been consecrated and a similar deed of transfer was drawn up in order to satisfy the requirements and the deed of consecration was delivered.
Law suits over ownership of parish property initiated by dioceses or by ECUSA’s leadership will ultimately do more damage to the initiator of the lawsuit than to the parish.
When an orthodox parish enters into a lawsuit, it is telling its diocesan bishop and ECUSA’s leadership, “We believe in something, ‘the Faith once given and membership in that part of The Body of Christ called the Anglican Communion.”
When the diocese sues the orthodox parish, it is telling that parish and the world that ‘If your beliefs challenge ECUSA’s authority, we will hurt you in the courts.’
If the diocese/ECUSA win the lawsuit and the majority of the parish’s congregation leaves and ECUSA, then the real losers in the long run will be the diocese and ECUSA.
As has been often noted, the diocese and ECUSA will inherit the financial libilities of a financially impaired/crippled church property and the needs of a much reduced congregation that cannot afford to assume those liabilities.
There may be a whole lot of empty or struggling Episcopal churchproperties in the near future.
And ECUSA’s image in the public eye will be that of a group of control freaks who believe in property and little else.
Meanwhile, the breakaway orthodox congregations will remain strong and grow stronger in their witness to “The Faith once given.”
This public perception of orthodox Anglicans vis a vis ECUSA will represent a whole buch of nails being hammered into ECUSA’s coffin.
When an orthodox parish enters into a lawsuit, it is telling its diocesan bishop and ECUSA’s leadership, “We believe in something, ‘the Faith once given and membership in that part of The Body of Christ called the Anglican Communion.â€
When the diocese sues the orthodox parish, it is telling that parish and the world that ‘If your beliefs challenge ECUSA’s authority, we will hurt you in the courts.’
The moral superiority of reasserter lawsuits doesn’t really hold water. The orthodox enter into lawsuits for one reason: To keep their property/money. The reappraisers do too. To claim that you are suing for Jesus is not only disingenuous, it borders on blasphemy.
I don’t know of any of these cases where 100% of the congregation has expressed its desire to leave TEC/PECUSA and not a single person wishes to stay (except, perhaps, after a long run-up during which all the TEC-minded parishioners have transferred out, but would like to come back).
That means that these are not cases of a congregation unanimously choosing to re-affiliate, but of a congregation that has split into two factions. The most pressing dispute is not between the diocese and the congregation over ownership, but between the congregational factions over control. The question, then, is which faction will be legally regarded as the legitimate successor of the original, undivided TEC parish. Which faction may stay and which must go?
Sadly, the only way to finally resolve this question—if the parties will not compromise—is for the secular courts to apply some set of rules of decision and enforce them. There are really only two options: (1) the courts can follow the rules that the original parish had operated under, and allow the ecclesiastical authority that adopted those rules the power to definitively interpret them; or (2) the courts can substitute some other set of rules that the judges regard as better. For an argument that Option 2 involves too much church-state entanglement, I suggest reading the recent California opinion for its discussion of the principles that apply in most states (although not in the majority of recent California decisions).
If that document linked by Candice can be authenticated (and I suspect it can) then it would seem to blow Donald Armstrong and Co.’s case out of the water. Bad, bad news for them.
Dear Violent,
As I suggested above, I think that the hope that this document is of any consequence is a fantasy. It is ceremonial pure and simple. There is no indication that it was ever filed with the courts about which I bet property law in Colorado would require–property law is the most absolute about these sorts of filings being correct–and TEC is an organization based only on moral authority not really an hierarchal system like Rome (remember the English Reformation), so that argument sends it either right to the parish or to the property statutes and then to the parish.
Socrates said that when the losers realize that they have lost they always turn to slander. Clearly this is all that is going on with these statements from the small group opposing Armstrong.
The real story here isn’t some old document revealed to the world in discovery, but the revelation over a month ago that the Standing Committee of the Diocese of Colorado was apparently surprised that the bishop and his chancellor had spent $800,000 without standing committee approval.
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[i]edited. we did make our plea clear from the very beginning here that we want this thread to focus on the legal case. So we’ve ruled comments about Bp. O’Neill, David Booth Beers, Bonnie Anderson, Don Armstrong, etc. off topic for this one thread. Thanks. There will be other threads to comment on about Colorado, we assure you[/i]
State court can find a trust relationship between a church and a diocese without resort to any documents recorded in the local court. If memory serves me, the Massachusetts Supreme Court did so in the Parish of the Advent case 10 years ago. Recently, Judge Quackenbush in Washington State found a so-called “resulting trust” in favor of Catholic parishes even though the title was formally speaking in the name of the Diocese and no such documents stating the existence of a resulting trust were ever recorded with the local state court. Of course, there is no “resulting trust” in the Grace Church case, so the facts are a bit different. But to simply dismiss an instrument styled an
“Instrument of Donation” purporting to give the bishop veto power over disposition of the building and denying its use with anything “inconsistent with the terms and the true meaning of this Instrument,” including “in communion thereof with the Diocese of Colorado,” as but meaningless ceremonial inkblots is an argument that has no shred of credibility whatsoever. Unless, of course, it is a “fake” as someone above said.
Elves—
Please remind those who post here of your request that comments address legal issues rather than personalities, Socrates and accusations of slander.
Thanks.
I don’t know of any of these cases where 100% of the congregation has expressed its desire to leave TEC/PECUSA and not a single person wishes to stay
Well, there’s always one.
In 1991 or 1992, St. Mary the Virgin, Arlington, Texas disaffiliated from the Episcopal Church and began a 3 year process of corporate transfer to the Catholic Church. The vote at the parish meeting was, in fact, unanimous. As a follow-up, paper ballots were mailed to all registered parishioners. I believe came back negative, but those were from people who hadn’t actually been to Mass in a long time. The leadership of the parish hadn’t changed, nor it’s character, so it’s fair to say that a program to run them out was not factor in this case.
Despite virtual unanimity, it’s fair to say that they were given the property by Bishop Pope for two reasons and two reasons only: he was sympathetic to their cause, and became Catholic himself some time later (though he revert to TEC), and also because they took the $250,000 mortgage with them.
Words,
And in a similar way to Arlington, Texas, the only reason there is a Mote case in Colorado is that Bishop Frey himself was threatened with a law suit for not fulfilling his fiduciary responsibility if he didn’t file against the departing congregation, even though he was in sympathy with them–it seems that the law courts are a major vehicle for the tyranny of the minority as they attempt to impose their will against the majority.
Perhaps this has long been the strategy of the minority revisionist against the majority orthodox, but certainly it is playing out in our church–the above article about Bonnie Anderson a case in point…
Attempts at censorship and restrictions in freedom of speech, no evaluative statements for example, are also a tactic we will see more and more.
“And in a similar way to Arlington, Texas, the only reason there is a Mote case in Colorado is that Bishop Frey himself was threatened with a law suit for not fulfilling his fiduciary responsibility if he didn’t file against the departing congregation, even though he was in sympathy with them–it seems that the law courts are a major vehicle for the tyranny of the minority as they attempt to impose their will against the majority.”
Please back up this claim. I was active in the continuing movement years ago and never once heard that Frey’s hands were forced by anyone – either against St. Mary’s Church or St. Mark’s Church later. In fact, unlike today, the entire ECUSA House of Bishops, save for Chambers and a couple of others, circled the wagons and decided to protect the institution of ECUSA together, including virtually all of the opponent’s of women’s ordination. That is why the Evangelical and Catholic Mission – now Forward in Faith, was formed. Frey was not even a part of ECM in their beginning days.
A supplement to a brief filed on June 29, in support of a motion for summary judgment by the Diocese of Colorado and Grace Episcopal identifies the Instrument of Donation has having been provided by Grace CANA in the due course of discovery.
As I have listened to comments regarding ECUSA and the ‘present troubles’ over the last several months, I am in greater and greater agreement with Schori’s statement at GC2007 that (imperfectly cited), “we are two churches.”
If we are “two churches,” then why are we in canaonical/legal and Scriptural/theological combat with each other.
ECUSA should pursue it’s highly individualistic interpretation of Scripture and tradition and the orthodox within ECUSA should pursue their acceptance of Scripture and the creeds and tradition of the Church Catholic.
Since we are “two churches,” we had better recognize that schism has already occurred within ECUSA and that both sides have passed a ‘point of no return.’
What is happening today regarding ECUSA’s compulsive and unseemly scramble to litigate property disputes in an almost total vacuum of ECUSA’s leadership preaching the Gospel of Salvation is confirmation of the perjoritives of many of those who are ‘unchurched’ regarding Christianity.
By pursuing very public behavior that damages Christianity in the public eye, ECUSA is doing the work of the anti-Chrisitians in our society.
Just popping in to post a link here. For those trying to follow what’s happening in Colorado, [url=http://frjakestopstheworld.blogspot.com/2007/07/facts-in-case-of-grace-church-colorado.html]Fr. Jake has a helpful roundup post.[/url]
I’m not making any assumptions about the pros or cons of anything specific which Jake+ writes, but the post looks well organized with some useful links.
Do any of you Colorado legal eagles know if state property law has dealt with the issue of trusts, whether implied or expressed?
California law does address trust issues. The appeals court in the St. Lukes United Methodist case in Fresno (2004) determined that a trust is a two-party arrangement, and that the property owner (of the title deed) has the right to revoke the trust. St. Luke’s church drew up the papers to revoke any trust claimed by the denomination =after= litigation had already started, and the court saw no problem with that. The California Supreme Court let that decision stand, and St. Luke’s congregation was able to keep its property. (If the three Los Angeles churches that saw a trial court’s decision in their favor recently overturned by an appeals panel in Santa Ana do appeal to the state high court, and if that court is consistent with its own precedent, we may see an end to hierarchical trust claims in California.)
I expect to see much more attention given by legislatures and courts across the country to trusts and whether and how they can be revoked by the parties that bought and maintained the properties.
w.w.
Another question for you legal sharks as a follow-up to the one above:
The 1929 document was drawn up by the “corporation” that held title to the parish property — “the rector, wardens, and vestry.”
Can the current corporation not revise or replace the provisions of that document? Surely, there have been many cases where Colorado corporations have changed their articles of incorporation and other corporate documents to reflect changes….
w.w.
Elves,
Come on, you can do better than that: Father Jake’s post reads like the drive by media making a quick and inaccurate report that misses the mark and is hardly identifiable with the events that have taken place…I’m going to tell Kendall on you.
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You could be right. Honestly, I ignored the commentary, and thought I said so in my comment. From a quick glance it looked like a helpful roundup of links in one place. That was all I was trying to say. And a comment is different than a top-level post.
Richard-Hooker—
Come on, you can do better than that. Rather than sound an alarm of censorship and restriction of speech won’t you please send Kendall a top post that identifies the events that have taken place in the last year from your perspective? Then you, not the Elves, would define the scope of the commentary.
Candy,
It is a long story that looks like it goes back years in reality and has had more press than the car bombings in London–doubt that I have a full enough picture to rehearse the ins and outs of the case from distance of 400 years–but it is certainly less about property and more about personality and theology and jealousy from all that I have read, but isn’t that always hte case when these things blow up to this level?
Re. #25 above:
Sorry, it should have said…”have [b]revised[/b] their articles of incorporation…to reflect changes”
w.w.
I don’t see a great deal of comment on the fact that it was the CANA group that filed the first lawsuit claiming the property in this case, not the diocese. Richard-Hooker is right in his view of this as a personality-based conflict. The differences between the two congregations are not theological–I know very few people in the Grace Episcopal congregation who are even slightly left of the middle on any issue and quite a few who are very much to the right. Counted among them are board members and workers at some of the most conservative evangelical parachurch organizations in town. I am amazed that the CANA group would pursue the lawsuit for the property after the April 20 “vote”–with only 370 of 822 eligible voters casting a ballot and only 344 wanting to go with CANA. It was not apathy that kept us away–it was “personality conflict.”
I think your numbers are distorted Chappy–I recall on this very blog reading that the 800+ number was the number of families on the books of Grace Church, but that after this list was culled through for pledges and attendance the number of actual voters was considerably less. I heard more like 500.
Given the way TEC counts people, a parish with 700 people in church on any given Sunday morning could easily be 2,500 on TEC’s book keeping system which includes children, but with far fewer actual voting members when all the requirements of attendance and contribution are taken into account.
Then what you have are 370 voting out of 500 possible voters–and when people chose not to vote, you don’t consider they all went the other way, you consider they would have voted in equal proportion–so elections are never based on the percentage of votes cast vs. total number of eligible voters, but simply the percentage of votes cast, which went each way.
So 93% voted to go to CANA by any normal standards of counting votes.
Then the CANA group only filed for relief from persecution from the diocese–it was the diocese that filed for a summary judgement against them for the property, and it was the diocese who froze their trust funds, and it was the diocese who published all those slanderous things against the Grace Church rector, and it was the bishop who organized a group to split off–nearly ruining his largest parish.
But the word now from the Standing Committee is that the bishop is closing in on a million dollars spent trying to destroy his largest parish and the home of ACI, Grace Church, and that the tables are turning as it is the bishop who is now under scrutiny, Grace CANA begins again to flourish, and the new Grace Episcopal begins to wilt in the Sunday afternoon heat.
The one thing that is certain is that the current situation is now static–it will take a couple of years at least to resolve the building issue–and in that time we will see which congregation God will bless by adding to their numbers those who by their ministry are being saved. Time will be the judge here…
I agree totally with Richard-Hooker. As one of the new CANAites, I have never seen the congregation (3 services on Sunday) as upbeat and positive as they are today. And it is growing despite the summer doldrums and vacations. Bible study on Tuesdays is moving along quite nicely with a womens group and mans group participating, followed by a luncheon in the Great Hall. The choir now has a new director although it was doing nicely without one for a time. The organist is a multi-talented young (age 16) genius who plays the grand instrument like E. Power Biggs. The choir even has choir robes again (the old ones were “removed” by the exiting group).
All in all, the Holy Spirit is working overtime. Praise God.
This morning the New York Times published an article that reflected on how the Episcopal Church Cases decision of the California Court of Appeal might affect Trinity Church, a CANA parish in Bristol, Connecticut. The Diocese of Connecticut was said to have stated that it will work in canonical ways to seize its property now occupied by the CANA congregation. Trinity CANA recently abandoned appeal of a civil rights case it and other dissident parishes had filed against the Diocese, after the case had been dismissed by the federal district court. Perhaps Father Don, Grace CANA, can explain to Father Don, Trinity CANA, the advantages to congregation building of filing a preemptive declaratory lawsuit against the Diocese in state court to prevent property from being taken back by the Diocese.