Posted on 08/19/2005 8:53:39 AM PDT by sionnsar
Some of you may remember the posts I have written in the past about my defending Louisiana College over the election of their president which is being challenged by theological liberals, and how we won at the trial court level. Well, the liberals are appealing, as I also previously wrote. I was shocked when I received the notice; my buddy Shawn had to pick me up off the floor when I received the notice. Realize that in the LC case, we didn’t win on the standing issue, we didn’t win on First Amendment grounds, we just flat won on the merits - proper procedure had been followed in holding the election, and the strained interpretation the liberals wanted to put on the by-laws requiring that a candidate for President of the college HAD to come from the search committee, even if it was someone what Trustees didn’t want and wouldn’t vote for, was rejected. Our big authority that decided the case? Robert’s Rules of Order. Floor nominations for offices are generally allowed unless specifically prohibited in the by-laws. Oh well. They just don’t see it, and even though the president of the college has been in office now for eight months, and will have been in office for a year by the time we have oral argument on the appeal, they still press forward. Why? They don’t want academic freedom to be limited by Christianity - they want religion professors to teach Spong and question Jesus’ divinity and resurrection, they want pro-gay literature taught in the classroom, - say, that sounds awfully familiar. In any event, their commitment to keeping LC liberal, well, that overrides all those legal concerns like the Trustees of the College having the right to elect the President of the College. Such is life.
I’m sure the lawyers for St. James Newport Beach, considering the trial judge’s ruling, were also just as shocked when they found out Bruno was appealing, even though I’m sure they knew this was coming. Considering the Methodist Church case that recently came out of the California Court of Appeals, and an old case from 1981 on the exact same issues, Protestant Episcopal Church in the Diocese of Los Angeles v. Barker (1981) 115 Cal.App.3d 599, shouldn’t the Diocese of Los Angeles have expected to lose?
The reasons the trial judge gave for ruling for St. James leaves little room to see where an appeal might lie:
“Plaintiffs urge the court to apply the “hierarchical theory” in determining which party has the right to control parish property. Under the “hierarchical theory,” “centralized control over church property supersedes civil law disposition of church property. Under a hierarchical system of church governance the canons and rules of the general church override any disposition of local church property mandated by state law.” (Protestant Episcopal Church in the Diocese of Los Angeles v. Barker (1981) 115 Cal.App.3d 599, 606.) however, California courts are not bound by Canon law. And the hierarchical theory of resolving disputes over church property has been repudiated by California courts. (Protestant Episcopal Church in the Diocese of Los Angeles v. Barker, 115 Cal.App.3d at 615) Instead, California follows neutral principles of law in resolving church disputes. over church property by relying on (1) the deeds to church property, (2) the articles of incorporation of the local church (3) state statutes; and (4) the rules of the general church. (Protestant Episcopal Church in the Diocese of Los Angeles v Barker, supra, at 621.)
No evidence has been presented that a trust over parish property has been created under statutory law. Corporations Code :§ 9142 provides In pertinent part as follows:
(e) No assets of e religious corporation are or shall be deemed to be impressed with any trust, express or implied, statutory or at common law unless one of the following applies:
(1) Unless, and only to the extent that, the assets were received by the corporation with an express committment by resolution of its board of directors to hold those assets in trust.
(2) Unless. and only to the extent that, the articles or bylaws of the corporation, or the governing instruments of a superior religious body or general church of which the corporation is a member so expressly provide.
(3) Unless, and only to the extent that, the donor expressly imposed a trust, in writing at the time of the gift or donation.
No evidence has been presented that the parish, its board or its governing documents contain an express commitment to place parish property in trust for the benefit of the Church.”
Let that last statement sink in - “NO EVIDENCE.” No evidence of what - “an express commitment to place the parish property in trust…” In other words, the Diocese doesn’t seem to have even one document that meets the California legal test to create a trust. If they had, surely they would have presented this on the motion to dismiss. Early on in the ruling, the judge threw out a bunch of hearsay testimony and so forth. This is a contract sort of deal, and if it isn’t in writing, you generally lose. In the area of trusts and real property, however, if it isn’t in writing and in the public records, you definitely lose under California (and even Texas, Louisiana, and Florida law - can anyone guess why?)
Yet, Bishop Bruno now trots off the court of appeal to spend even more money on lawyers (horray for my profession, but bad for the church coffers.)
One might ask, why? Well, I suggest it is the same phenomenon I’m seeing in the Louisiana College case - being blinded by principle - being absolutely blind to what the law says because of a deep seeded conviction. Bishop Bruno’s statement supports this conclusion, in that he is “committed to these proceedings”:
Bishop J. Jon Bruno of Los Angeles concurred. “Along with the national Church, we have committed ourselves to these proceedings,” he said, “to ensure compliance with our canons and to preserve property rightfully belonging to the national Church and the diocese.”
Bad idea, Bishop. One should never commit oneself to proceedings. Proceedings should always be a means to an end. The bishop sounds more like a Roman soldier crying that he will come back from the war with his shield or on it, than a Bishop pleading for peace and unity within the church. But, why commit to proceedings where the law is clear, and you lost the same case back in 1981? I just don’t get it.
I even think his lawyer is hinting he will lose:
Although we are disappointed in the court’s conclusion, this is simply an initial step in a long process,” said John R. Shiner, chancellor of the diocese and its lead attorney in the property matter. “We believe the court’s order was clearly in error, and indeed takes the law to a new level not supported by precedent. We are entitled, under these unique circumstances, to an immediate appeal, which we intend to vigorously pursue.
“We are confident on appeal that the court will correct this error and instruct the parties on how to proceed with the balance of the case,” Shiner said.
They seem to be arguing about the free speech elements of the case that got the case dismissed earlier rather than later, nevermind that the judge says they don’t have any chance of winning on the merits of the property dispute! Thus the comments on the “balance” of the case are pretty revealing. Don’t they realize that, if they win on appeal, they are going to still be in front of the same trial judge with the same caselaw staring them in the face?
While I am sure there are subtle nuances of the case of which I am unaware, but when you realize the trial court relied on an old case with the Episcopal Church that the church lost on similar issues, and appellate courts really like to affirm trial courts (you basically have about a 15% chance of getting a reversal), what is there to appeal here?
The decision to appeal has to be made objectively - does the appeal raise an issue of law that hasn’t been authoritatively decided? In this case, it has under California law. So, why the appeal? Bishop Bruno must be blinded by principle, or otherwise being pushed by those that are.
Traditional Anglican ping, continued in memory of its founder Arlin Adams. Good piece, but perhaps the author would have more accurately used the term "agenda" rather than "principle". Principles are contradicted by the moral relativism and post-modernism underlying the diocesan teaching. Bruno is simply committed to an agenda.
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