Posted on 11/11/2006 8:53:58 AM PST by sionnsar
TEC's Exclusion From Communion Would Not Change Legal Picture, Beers Says
By Auburn Faber Traycik, Editor
The Christian Challenge (Washington)
www.challengeonline.org
November 9, 2006
THOUGH SOME HAVE CULTIVATED the opposite impression, there is no "epidemic" of church property lawsuits in the U.S.-based Episcopal Church (TEC), and TEC has won or is winning most of the property disputes of recent years.
Moreover, under TEC canons, dioceses are "a creature of General Convention" and "can't leave" TEC or align with another Anglican province without the convention's okay.
So contended David Booth Beers, the presiding bishop's chancellor, at the first meeting of a new moderate/progressive group, The Episcopal Majority, in Washington November 3. Beers was flanked in his comments, made during a workshop on legal issues in the church, by Sally Johnson, chancellor to the president of the House of Deputies.
Their comments rely on the 1979 "Dennis Canon" (Title I, Canon 7, Sec. 4), declaring that all parish property is held in trust for the diocese and national church, and other canons that Johnson said deal with dioceses and the church's polity. She asserted that (as church lawyers have frequently argued in court) TEC is a "hierarchical" (as opposed to congregational) church, and courts therefore generally defer to the denomination in property disputes.
Beers briefly discussed instances of litigation that have arisen in the last few years after congregations have sought to leave TEC with their church building. He noted that TEC had prevailed in all situations that have already been decided except for one in Los Angeles (involving three parishes), although there have been some unfavorable developments in cases in San Diego, South Carolina and Central New York. Beers said he expects the Los Angeles decision to be overturned on appeal and a favorable final verdict in the other cases. He added that church officials were watching four other potential church property conflicts, which he did not identify.
"That's not an epidemic; it's not a flow of victories" for conservatives, Beers said. He also noted that, of the total number of congregations that have quit TEC in recent years, more have not tried to take property with them than vice-versa.
-Uncharted territory-
Yet there is uncharted legal territory to consider. Might courts judge church property cases differently, might TEC's claim to be hierarchical take on a different legal hue, if Anglican primates - a higher hierarchy - deem TEC out of the Communion, placing it in violation of the preamble to its constitution?
"I don't think it would change anything," Beers told TCC privately. He said that "they" (presumably potentially seceding parishes) have "committed themselves to the Episcopal Church."
But Johnson did speculate during the workshop that conservatives might in future argue that the hierarchy goes up to the top of the Anglican Communion and "litigate the meaning of the preamble," which declares that TEC is a "constituent member" of the Communion. The opposite argument, Johnson said, is that "our hierarchy goes up to General Convention and stops there." She added: "I don't know how this will play out."
At least two workshop participants, Bob Smith, a Florida lawyer and former judge, and San Diego Bishop James Mathes, maintained that an advantageous approach in clashes over the property of a departing parish is for church officials to identify the remnant of the congregation that wishes to remain loyal to TEC and is therefore (they say) entitled to retain control of the property.
Smith said: "One thing all of us can do if you're anticipating any litigation over this issue: Get your bishop, assuming he or she is loyal, when confronted with a vestry, rector or wardens who leave the church, to appoint new wardens and vestry [members] and...have them standing by ready to be named as plaintiffs. That's essential in order to exploit...the principle that it's the hierarchy that identifies the church and the congregation." Even if only three parishioners are named, it is easier for the court to say that the bishop has identified the congregation, he said.
Bishop Mathes echoed that, saying that when the seceding congregation attempts to hang on to parish assets, the bishop and standing committee decide which group of parishioners are the Episcopalians. Those people have the primary claim on the assets of that corporation, he said. In San Diego, Mathes and his diocese are suing one of three congregations that have attempted to remain in their buildings after leaving TEC.
Mathes and others stressed that the primary responsibility for upholding the property trust lies with the bishop of an affected diocese, and not with the national church, which evaluates whether or not to become involved in property litigation on a case-by-case basis, according to Johnson.
Notably, Kim Byham, a former leader of the gay group, Integrity, said that if a bishop does not do anything to keep the property (e.g. if he is conservative sympathetic to a congregation's wish to secede), there is nothing the national church can do. In that case,he said,the loyalist remnant in the diocese should be prepared to bring action against the diocesan for breach of fiduciary responsibilities. Mathes suggested that other bishops might need to step in, in such a case.
What would happen if an entire diocese acted to withdraw from TEC, a type of scenario that has not yet been litigated? That was on the minds of several conference participants, in light of reports that a few dioceses aligned with the conservative Anglican Communion Network had formally stipulated that they accede to TEC's constitution and canons except where they do not comport with scripture or historic faith. Recently The Living Church reported that Beers had raised this issue in October 19 letters to the chancellors of two Network dioceses - Fort Worth and Quincy. The letters warned of possible "action" by new Presiding Bishop Katharine Jefferts Schori if the dioceses did not restore their "unqualified accession" to TEC's governing regulations. Beers said he wrote the letters on his own initiative but with the knowledge of Jefferts Schori and now-former Presiding Bishop Frank Griswold. He told the Episcopal Majority workshop that he had written a similar letter to the chancellor of the Diocese of San Joaquin, another Network diocese, last summer, and expressed annoyance that details of "private correspondence" had been published.
The letters, he maintained, were not meant as threats, but as a reminder that an Episcopal diocese is "a creature of General Convention" and cannot change its status with respect to TEC without the convention's permission.
(This idea has been challenged as historically untrue by retired Eau Claire (WI) Bishop William Wantland, a lawyer and canonist. Wantland pointed out that General Convention was organized by pre-existing dioceses, and still treats new dioceses seeking admission as pre-existing entities. "General Convention does not create dioceses - it simply admits into union with itself those dioceses which ask to be admitted," he said.)
Beers said he could not say how Jefferts Schori would respond if a diocese did pull out without convention permission. However, he said at a different point that, in the case of a vacancy in a see, he assumed that TEC's leader would "obey the canon calling for her to consult," provide the diocese in question with "episcopal care," facilitate the selection of a new diocesan standing committee and council, and help the diocesan leadership bring a lawsuit to recover the property, signs and symbols of the diocese.
Interestingly, however, Beers told workshop participants wondering why nothing further had been done about dioceses that are starting to distance themselves from TEC, that none of the dioceses in question had at that point acted on their regulation changes in a way that provided a sufficient basis for court action.
"What I urge you to think about is what 'cross the line' means," Beers said. Does it mean to adopt a canon inconsistent with the national church, or to give no more money to TEC, or to no longer send deputies to General Convention? "These are uncharted waters. What [the dioceses in question] say is that [they will] accede to the constitution and canons, but only in those things [they] think are consistent with the gospel. But they haven't really acted. Are they going to pull out of the pension fund? I've got to have something to explain to a judge who already thinks we're crazy."
He also said another Network diocese, Dallas, appeared to have bypassed a proposal to leave TEC now, agreeing instead that a change could be made if the national church ceased to be part of the Anglican Communion. However, he indicated that San Joaquin may be poised to push the envelope; resolutions to come before its December convention are clear that that diocese does not want to be part of TEC, Beers said, though even then such a change must be approved at two diocesan conventions to be effective.
And, asked Beers: "Where are they going to go? They seem to be preparing for a day when Canterbury recognizes them as a separate province, but I don't see evidence of that happening...and I don't see [Bishop Jefferts Schori] suing bishops and diocesan leaders without a lot more evidence that they're doing something to take property away from the national church or violating their ordination vows."
Beers also discounted the appeal that seven Network dioceses have made to the Archbishop of Canterbury for a substitute for Jefferts Schori. "There's not going to be any alternate primatial oversight," he said.
Sources include The Living Church
Traditional Anglican ping, continued in memory of its founder Arlin Adams.
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