|
Briefly...
NEW! Initial Rulings in Virginia Favor Breakaway Parishes (April 4, 2008) Read about the ruling Read the response of the Diocese of Virginia
___________
Scroll down to read the following ...
1. Rulings in SC, California, and Florida are Bad News for Secessionist Parishes (June 26, 2007); SC Court says All Saints', Pawleys Island is an Episcopal Church (May 1, 2007)
2. Statement by Katharine Jefferts Schori on Attempted Secession of Virginia Parishes
3. Bishop Lee is Authorized to Recover Diocesan Property
4. Legal Precedents Side with Virginia Episcopalians
5. House of Bishop's Task Force Names Eight "Problem Dioceses"; SC Not Among Them
6. Chancellor Beers Says US Episcopalians Will Prevail in Courts and Communion
_________________________
1. Court Rulings in California, Florida, and SC Go Against Secessionists; Church Property Stays with the Episcopal Church (June 26, 2007)
SC Decision says All Saints', Pawleys Island Belongs to the Diocese of South Carolina; Rwanda's AMiA gets the boot (May 1, 2007) Read how the Anti-Church forces are fuming over the California case
The bad news is piling up. Parishes seeking to leave the Episcopal Church are being told by state and Federal courts across the country that they can't take millions of dollars in Church property with them. An appeals court in California joined similar courts in other states in siding with the Episcopal Church on Tuesday. Read the full story
Howver, the lawsuit over All Saints, Pawleys Island has been an important test case. The Church's rebellious leadership has argued for years that its parish property should follow them to the Anglican Province of Rwanda, but a state appeals court last month lowered the boom, declaring All Saints is an Episcopal Church.
That case is working its way through more appeals, but combined with other decisons around the country, it appears to be a futile and expensive gesture.
The case of three parishes in the Diocese of Los Angeles appeared to be the next best hope for secessionists, but on Tuesday afternoon a California appeals court ruled that the parish property belonged to the Diocese and not the Anglican Province of Uganda. A case similar to those in California and South Carolina was decided last month in Florida.
This series of cases deals a critical blow to the strategy of the Anglican Communion Network and its secessionists allies. See the House of Bishops Report on Property Issues. However, the California decision is in conflict with another appeals court in the state, and undoubtedly will require some resolution before it is binding on similar cases.
Pawleys Island Church to return to loyal Episcopalians. (The following is an article by Mary Frances Schjonberg, May 01, 2007 [Episcopal News Service])
A South Carolina state judge has ruled that the minority of the members of the parish of All Saints, Waccamaw in Pawley's Island, South Carolina who remained loyal to the Episcopal Church do, in fact, constitute All Saints' Episcopal congregation.
The ruling arose from two different lawsuits, the earliest filed in 2000, over the issue of who owns the 50-acre campus that is also home to the breakaway Anglican Mission in America (AMiA).
One of the cases arose in 2000 when the Diocese of South Carolina filed a public notice that All Saints, subject to applicable canon law, holds its property in trust for the diocese and the Episcopal Church as a whole. Attorneys for the diocese said that the notice was filed "out of concern that All Saints might attempt to convey its property" to the AMiA.
The parish then sued to have the diocesan notice removed from public records, claiming that legal title belonged entirely to the parish. The parish said they simply complied with diocesan canons as a "matter of courtesy."
A majority of the All Saints' congregation voted in late 2003 to amend the parish's certificate of incorporation to omit references to the Episcopal Church and then to separate from the Episcopal Church.
In December 2003, then-diocesan Bishop Edward L. Salmon Jr. put the parish under his direct supervision, and helped it to organize a new vestry. The Episcopal vestry then filed the second lawsuit, asking the court to recognize them as the proper representatives of All Saints parish, entitled to possession of All Saints' name and property.
In his ruling, SC Circuit Judge Thomas Cooper noted that the cases involve a mixture of civil and ecclesiastical law. "Civil law issue depends on an ecclesiastical question: which of two church factions should be recognized as the 'communicants' who, under the parish's constitution, make up the voting members of the church and are therefore entitled to choose its officers?" Cooper wrote.
The judge said "that quintessentially religious question is left up to the church authorities."
In the case of a denomination structured as a "hierarchical church," as is the Episcopal Church, Cooper ruled, membership questions are answered by higher church authorities, not the local congregation.
Noting that denominations such as the Episcopal Church "generally disapprove of their component churches being wrested away and reassigned to other ecclesiastical bodies," Cooper wrote that "to transform a group of Episcopal communicants into communicants of another church (here a parish of the Church of Rwanda) [by amending the local church's corporate charter] would be contrary to the religious doctrine of the Episcopal Church and the Diocese."
The judge said that it would constitute a fraud on the All Saints members who joined the parish and contributed to it based on the understanding that the parish was part of the Episcopal Church. "Long-standing communicants of that church would be faced with the choice either of forsaking their membership in the Diocese and the Episcopal Church and transferring elsewhere, or else be reduced to the status of visitors in a church in which they were previously entitled to vote and run for office," Cooper wrote.
He also noted that earlier South Carolina case law has recognized that "the voluntary act of joining a hierarchical denomination subjects the local church to the rules and regulations of the denomination."
Specifically Cooper ordered the former vestry members to stop holding themselves out as the officers of All Saints and using the name "All Saints Parish, Waccamaw," directed the South Carolina secretary of state to cancel the amendments made to the parish's certificate of incorporation, and agreed to eject the breakaway members from the property titled in the parish's name.
Click here to read the full Pawleys Island decision.
SC Episcopalians has learned of another similar Court case -- this one in Florida -- in which the Court ruled on April 27th that the property claimed by a rebellious parish in Jacksonville belonged to the Episcopal Church.
Click here to read the full Florida decision.
Another important property related case was rendered in April by the South Carolina Court of Appeals in a case involving a rebellious Assemblies of God congregation. The Court's rationale was similar to that of the judge in the Pawleys Island case and makes it fairly clear that further costly appeals by secessionists will likely be met with the same result.
Click here to read the full SC Assemblies of God decision.
Three parishes in the Diocese of Los Angeles have been trying for years to leap into the arms of the Primate of Uganda. In spite of early favorable decisions in lower courts, a California appeals court slammed them in June.
Click here to read the full California decision.
______________
2. Statement by the Most Rev. Katharine Jefferts Schori on Property Issues Raised by the Attempted Secession of 15 Virginia Parishes (January 18, 2007)
Presiding Bishop Katharine Jefferts Schori has made her position very clear on the question of property ownership in the instances of parishes seeking to leave the Episcopal Church. Click here to view her statement.
__________________
3. William Etherington: But . . . : Court Precedents Side With Diocese of Virginia(January 21, 2007)... posted by Canon Harmon on TitusOneNine
Up to 15 Episcopal parishes in Northern Virginia have voted or will vote to leave the Episcopal Church and its Diocese of Virginia. An agreed moratorium on litigation has now expired.
Litigation involving the secession of parishes and ownership of ecclesiastical properties will be expensive; extremely complicated, involving arcane historical, canonical, and civil law inquiries; and probably bitter.
In the Colonial era, the Church of England was the established church of the Virginia Colony. The disestablishment of the church followed the Revolution, and the new commonwealth asserted that the properties were properties of Virginia. The properties were subsequently conveyed to trustees - under the predecessor of current Virginia Code Title 57 - who held the properties for the use of the parishes and for the benefit of the newly constituted Diocese of Virginia and the Episcopal Church, which is now the rule of Canon I.7.4; the trustees are fiduciaries for the diocese and the Episcopal Church.
Recent stories have characterized the current dispute as one of property ownership. In reality, the property questions are but an adjunct to a larger question that relates to church governance. Litigation probably will result favorably for the diocese, most likely not by affirmative decision, but rather by a civil court’s refusal to accept subject matter jurisdiction over the dispute.
Historically, civil courts have deferred to ecclesiastical authorities when disputes arose within hierarchical churches. The Episcopal Church, like the Roman Catholic Church and the Presbyterian Church, is a hierarchical church, as opposed to a congregational church such as a Baptist church, a Jewish synagogue, or a Muslim mosque. Hierarchical churches are governed by their own sets of laws (e.g., canons) and trial processes to resolve disputes. Congregational churches, on the other hand, self-govern, typically democratically and without superior layered institutions such as dioceses.
The Virginia Supreme Court - in its 1985 decision in Reid v. Gholson, reaffirmed in Cha v. Korean Presbyterian Church of Washington in 2001 - acknowledged the hierarchical-congregational distinction, holding that hierarchical churches are guided by a body of internally developed canon or ecclesiastical law. The decisions of such churches under their internal laws may be promulgated as matters of faith and considered entirely independent of civil authority. Persons who become members of such churches accept their internal rules and decisions of their tribunals. For that reason, the court held that civil courts must treat a decision of a governing body or internal tribunal of a hierarchical church as an ecclesiastical determination constitutionally immune from judicial review.
This is the Doctrine of Church Autonomy, derived from the First Amendment to the U.S. Constitution, which provides, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .” The second of these clauses, the Free Exercise Clause, effectively prohibits the government and its agencies - i.e., its courts - from interfering with the internal operations and decisions of a hierarchical church. It also calls into question the constitutionality of the trustee ownership scheme of Title 57 of the Virginia Code.
_________________________
4. HOB Property Task Force Names Eight "Problem Dioceses"; SC Not Among Them (November 20, 2006)
from The Living Church magazine online
The Members of the House of Bishops’ Task Force on Property Disputes have come to no conclusions as to impermissible dissent from General Convention by diocesan leadership, but the acting chair said the six official and four informal members have been asking that question.
Lexington Bishop Stacy Sauls has been asked by Presiding Bishop Katharine Jefferts Schori to serve as acting chair.
Bishop Sauls distributed an eight-page report to his colleagues on executive council Nov. 15 during a regularly scheduled meeting in Chicago. The report identified “problem dioceses” that it said “merit special observation”: Dallas, Fort Worth, Pittsburgh, Quincy, Rio Grande, San Joaquin and Springfield. An earlier report had erroneously also included San Diego on the list. T
he Task Force is “continuing to build its contacts within ‘problem dioceses’ of those wishing to remain loyal to The Episcopal Church and who are opposed to separation from TEC in any manner.”
Despite the fact that both Central Florida and South Carolina have appealed for alternative oversight, Bishop Sauls said neither diocese is under scrutiny. “Appeals for alternative primatial oversight are not in and of themselves a problematic action,” Bishop Sauls said, “It doesn’t rise to the same level. We see no evidence that the leadership in either diocese is attempting to change its name or take property held in trust for the national church.”
The task force has not solicited loyalist members from the dioceses, according to Bishop Sauls.
“People have gotten in touch with us,” he said. “We haven’t asked anyone. We have asked them to keep us informed about developments on the ground.”
Bishop Sauls said that the task force is concerned with more than just property disputes. “The name is a tad misleading,” he said. “We are also interested in polity. We are not involved in the doctrinal dispute. We are of different opinions on certain issues, but we support the polity of The Episcopal Church. “The task force would like to see The Episcopal Church be a place where people of many theological positions feel safe. We feel the polity we have is the best way to ensure that. We are also investigating ways we can reassure our ethnic and theological minorities that this Church is a safe place for them.” Steve Waring
Read full report of the Task Force (May 7, 2007)
__________________
5. Chancellor of US Episcopalians: The Church Will Prevail in Communion and Courts (November 7, 2006)
from The Living Church magazine online
Although The Episcopal Church currently finds itself in uncharted territory both legally over ownership of diocesan property and with respect to its standing within the Anglican Communion, the Presiding Bishop’s chancellor, David Booth Beers, does not anticipate that the Archbishop of Canterbury will make any formal change in the church’s membership status in the Communion nor does he expect any dioceses affiliated with the Anglican Communion Network to attempt to leave.
To his consternation, Mr. Beers feels a badly behaved and vocal minority has left some Episcopalians with the mistaken idea that their church is under siege. He made an exception to his long-standing policy against being quoted by journalists in order to lead a public workshop titled “Legal Issues Confronting Parishes and Dioceses” at an event sponsored by the organization Episcopal Majority. The Nov. 3-4 gathering was held at St. Columba's, Washington, D.C. and attracted about 200 attendees.
“You hear a lot about our being swamped by litigation,” Mr. Beers said. “It has been [former Presiding] Bishop [Frank] Griswold’s belief that this is not an epidemic. We’ll have some troubles. I think he’s been proven right.”
Mr. Beers went on to list and discuss briefly 10 cases that have been filed over property since 2000. The Episcopal Church has prevailed in all situations that have already been decided except for one in Los Angeles, although some pre-trial decisions have been unfavorable in San Diego, South Carolina and Central New York. Mr. Beers said he expects the Los Angeles decision to be overturned on appeal and a favorable final verdict in the other cases. “That’s it,” he concluded. “It’s not an epidemic and it’s not a wave of victories for what I would call the ‘arch conservatives’.
” The cases he discussed have all involved a congregation seeking to leave The Episcopal Church with its property.
A number of conference participants asked Mr. Beers what would happen if a diocese voted to cut its ties with the constitution and canons of the General Convention.
Last week The Living Church reported that Mr. Beers had written to the chancellors of two Network dioceses – Fort Worth and Quincy – on Oct. 19 inquiring whether the dioceses they provide legal counsel to had qualified the supremacy of General Convention bylaws over their diocesan ones. The letters also threatened possible “action” by the Presiding Bishop if the diocese failed to make satisfactory changes. Mr. Beers said he had written a similar letter to the chancellor of the Diocese of San Joaquin last summer and expressed annoyance that details concerning “private correspondence” had been published.
He did not share a draft with either Bishop Griswold or Presiding Bishop Katharine Jefferts Schori, who assumed office Nov. 1, prior to sending the letters, but they “didn’t come as a surprise to either one of them.”
The letters, he said, were not meant to be taken as threats, merely a reminder that according to Episcopal Church polity, the diocese “is a creature of General Convention” and cannot change its status with respect to The Episcopal Church without General Convention approval.
Under the canons, Mr. Beers said the Presiding Bishop can declare a diocese “vacant” of leadership. A decision as to when legal action against a diocese would become necessary is nominally up to the Presiding Bishop, although presumably she could be overruled by General Convention, a precedent Mr. Beers cautioned against.
“What I urge you to think about is what ‘cross the line’ means,” he said. “What they say is that we’ll accede to the constitution and canons, but only in those things we 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.”
While concerned about legislative events in many Network dioceses, particularly San Joaquin, Mr. Beers does not anticipate that any diocese would actually attempt to leave. “These conditional things don’t particularly trouble me, although the language used in San Joaquin is very blunt,” he said. “Where are they going to go? They seem to be positioning themselves for what?"
"They seem to be preparing themselves for the day when the Archbishop of 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.”
Mr. Beers said there might be some symbolic gestures by Archbishop of Canterbury Rowan Williams to distance The Episcopal Church from the rest of the Anglican Communion. But he does not expect any formal break in part because too much of the Communion’s funding comes from the United States, both directly from The Episcopal Church and also through the Compass Rose Society. Even if formal action to recognize the Network dioceses as the legitimate Anglican Communion partner in the United States did come, Mr. Beers said it was unlikely that would change the outcome of a property dispute in U.S. court.
Despite language in the preamble to the General Convention constitution which defines it as a constituent member of the Anglican Communion, the highest legislative body to which The Episcopal Church owes allegiance is General Convention. Communion ties are merely historical and symbolic, he said.
|
|
|
