The facts presented in the Conger affidavit, based upon a personal examination of the original records, are sufficient to raise a classic issue of disputed fact as to whether or not the Canon properly passed both Houses at General Convention 1979.
Therefore, even with my pre-announced bias, I have no difficulty in opining that the motions brought by the plaintiffs (the Diocese and ECUSA) should be denied on that basis. The plaintiffs should be required to present their evidence of passage at a trial, and let the trier of fact decide whether it is good enough in light of all the evidence.
But what about the motion to dismiss, and the cross-motion for summary judgment on all claims brought by the defendant parish? Here I am afraid I must be consistent, and say that what is sauce for the goose is sauce for the gander. If there is a disputed issue of fact sufficient to defeat the motions of the Diocese and of ECUSA, then there is a disputed issue of fact preventing resolution as a matter of law of the cross-motions as well.
Is there a presumption that the published canons were properly enacted? If so, then I don’t think the absence of archival material would be sufficient to overcome the presumption.
This was my favorite part of Raymond Dague’s motion.
[blockquote]It matters not whether those asserting the existence of the Dennis Canon are bishops, chancellors, or seminary professors of the Episcopal Church. Absent facts, such assertions from supposed experts are mere puffery, and will not defeat summary judgement.[/blockquote]
I’ll be praying for a victory for truth based on clear facts. So far that seems to be what we’ve been seeing in Virginia. I hope and pray Good Shepherd is as fortunate in C. NY. May the Lord give you an impartial and fair judge who will not be bullied.
Whether the Dennis canon was legal or not, will not solve the hierarchial church problem in states which recognize this as controling. But it may show that TEC did not consider itself a hierarchial church with regard to property and thought it necessary to enact a canon, which could not have retroactrive application. Just a thought.
I do enjoy reading clear legal writing – this is a good analysis and I am in full agreement.
Nevertheless, as one who has been in the shoes of the Diocese attorneys, I cringe at the obstacle they face. I have been involved in similar cases many years ago – once with a Corporation and once with the government (where you can usually rely on judicial or administrative notice) and having to prove this case will be difficult, even if it did validly pass.
In any event, Haley is correct, the motions for summary judgment should all be denied.
#3… I agree, Karen B. I loved the phrase “mere puffery.” This is a true saying, and worthy of all men to be received.
If memory serves, questions of legislative history, even though ‘factual’ in nature, are reserved for decision by the judge, not the jury. Consequently, if the facts of the particular litigation are not in dispute, there would seem to be no reason for the judge not to render judgment without a trial.
There’s a Gordian-knot approach to deciding this issue that the court could easily adopt:
     • For years, the Dennis Canon has been included in successive triennial official publications of the canons.
     • Quite a few successive General Conventions have at least been aware of the Dennis Canon’s ‘official’ publication (and, I would imagine, various GCs have approved other amendments to the canons). Indeed, the cover page of the 2006 version explicitly says, “Adopted and Revised in General Convention, 1789-2006.” (Emphasis added.)
     • At no time, so far as I know, has any GC deputy ever tried to challenge the propriety of including the Dennis Canon in the publication.
Why do these facts matter? Here’s an analogy from secular cases: Suppose that: • certain language in a given Act of Congress is susceptible to different interpretations; • for years, the courts have adopted Interpretation X of the language; and • during that time, Congress has otherwise amended the statute, but has never changed the language in question. In cases like that, the courts will very often reason thusly: If Congress had disapproved of Interpretation X, it would have overruled that interpretation legislatively while they were enacting other amendments. Congress hasn’t done so; it follows, therefore, that Congress implicitly approved Interpretation X.
So here’s the analogy: Successive General Conventions have not tried to amend the canons to exclude the Dennis Canon from the official publication. This suggests that the Dennis Canon was indeed properly included in the official publication, and is indeed part of the canons of the church.
That would be a very easy way for the judge to rule in favor of the diocese on the question whether the Dennis Canon was properly adopted.
This reminds me of a court case where the judge calls both attornies into his chambers:
“Counsel for the plaintant has attempted to bribe me with $5,000.”
“Counsel for the defendant has attemped to bribe me wiht $10,000”
“So, I will return $5000 to the counsel for the defendant and this case will be decided on its merits.”
YBIC,
Phil Snyder
I don’t have any problem with the Dennis Canon because it isn’t going to be recognized at our church. In Virginia the trustees hold the property for the “religious congregation of…”. That was put on the deed back in 1938. No mention of PECUSA or the Diocese as having claim. No plans to give the store away now. Let 815 and the Schori-istas come on ahead. We’ll send them packing. Multiply that across the denomination. What a mess.
O.K., I can’t resist this one (with apologies to Lord Tennyson); it seems so appropriate under the circumstances. 🙂
“Canon to the right of them,
Canon to the left of them,
Canon in front of them
Volleyed and thunder’d;
Storm’d at with shot and shell,
Boldly they rode and well,
Into the jaws of Death,
Into the mouth of Hell,…”
[i] If Congress had disapproved of Interpretation X, it would have overruled that interpretation legislatively while they were enacting other amendments. Congress hasn’t done so; it follows, therefore, that Congress implicitly approved Interpretation X [/i]
—D.C. [#7]
But the Dennis Canon is not an interpretation. It is itself legislation—but only if were actually adopted.
The passage of time does not turn an unenacted bill into a law. Nor does an editor’s decision to include an unenacted bill in a compilation of laws. There is no statute of limitations on editorial usurpation.