from Anglican Curmudgeon by A. S. Haley
Lots of legal news to cover today: I shall begin with the news from Virginia.
In a unanimous opinion filed today, five justices of the Supreme Court of Virginia (the others having recused themselves) interpreted Virginia's "division statute", § 57-9 of the Virginia Code, about which I wrote in this earlier post, in such a way as to find that its requirements had not been fully satisfied by the nine dissenting parishes which had withdrawn from the Episcopal Diocese of Virginia. Because they found the statute inapplicable to the situation on the ground in Virginia, they did not reach the arguments made by ECUSA and the Diocese of Virginia that the statute violated the Establishment and Free Exercise Clauses of the First Amendment, as well as the Due Process Clause and the Takings Clause (both applied to the States via the Fourteenth Amendment).
The justices held that the trial court's interpretation of a key term in the statute had been erroneous, and so reversed its decision in favor of the nine parishes which had voted to withdraw from the Diocese and form the Anglican District of Virginia (ADV), a branch of CANA ("Convocation of Anglicans in North America") which is affiliated with the (Anglican) Church of Nigeria and with the Anglican Church in North America (ACNA). They voted to send the case back to Fairfax County Circuit Court for further proceedings in the actions for declaratory relief filed by ECUSA and the Diocese, along with the counterclaims in those actions filed by the CANA congregations.
Here is the statute in question:
"If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth."
In their unanimous decision, the justices found that there indeed had occurred a "division" within ECUSA and the Diocese, to which the CANA congregations had been "attached" at the time. However, by voting to align with CANA, the justices held that the congregations had not joined a "branch of the church or [religious] society" from which they had split. After examining the expert testimony from both sides offered at trial, the Court concluded that CANA was a branch of the Church of Nigeria, not ECUSA. Moreover, the Court declined to hold that the statute applied to the Anglican Communion as a whole (as "a religious society"), of which both ECUSA and the Church of Nigeria were admittedly "branches", because (and this will surely come as a welcome surprise to the Archbishop of Canterbury) it found that the congregations had failed to prove that there had been any "division" within the Anglican Communion itself. (Apparently, they reached this result because there was no evidence of any provinces having yet withdrawn from the Communion. Query whether their opinion would be different if the voting on the proposed Anglican Covenant had already taken place, and the "two tiers" of signers vs. non-signers had been in evidence.)
One can quarrel with the Court's static reading of the word "branch" to mean two offshoots of the same religious tree. Under the court's interpretation, the CANA congregations would have had to declare that they remained affiliated in some way with ECUSA or the Diocese in order to avail themselves of the statute's provisions. Under the current leadership of both ECUSA and the Diocese, such a step would obviously have been impossible. The justices rejected ECUSA's narrow argument that a "division" could only occur with the consent of its General Convention (as when a new diocese is formed out of part of the territory of another diocese). They recognized that in such circumstances, there would scarcely be the occasion for such dissent as to cause a "division" with which the statute was intended to deal. However, at the same time they ignored the corollary of that view: where the dissent is such as to cause a "division", it is highly unlikely that the dissenters will choose to remain affiliated with the same polity from which they voted to split.
The practical effect of this decision -- at least, until the results of the vote on the Covenant are all in -- will be to make the provisions of the statute largely inapplicable to divisions occurring within churches with central national structures, unless the split results in two self-governing, autonomous groups. (The Court in effect penalized the departing congregations for joining a foreign-led denomination, instead of organizing on their own.)
And what will be its effect on the litigants in this case? Simply stated, to require them to spend more time and money in trying the issues of ownership. Significantly, the Virginia Supreme Court's opinion did not address the arguments which had been made about the validity, under Virginia law, of the trusts which the Dennis Canon's passage in 1979 attempted to create. At that time, Virginia law did not recognize unincorporated associations (above the level of a local congregation) as having legal standing to hold any beneficial interests in religious property. That law was not changed until 1992. Thus on remand, the Fairfax County Circuit Court will be asked to adhere to its earlier ruling that the enactment of the Dennis Canon was ineffective to create any trust in the parishes' property in favor of either the Diocese or ECUSA.
At issue in the proceedings on remand will be the language in the church deeds, their articles of association, and the provisions in the diocesan and national canons -- some of which evidence the court has already examined in connection with certain issues in the case. ECUSA and the Diocese will be trying once again to prove that the properties were held in trusts whose existence could be implied from the circumstances under which they were acquired and subsequently held. The CANA congregations, on the other hand, will offer evidence to prove that no such implied trusts ever arose.
Thus the Court's decision today holds little precedential value for the wider issues at stake in litigation in other states between ECUSA, its dioceses, and their parishes. The proceedings in Virginia will drag on for another two years or so, after which there will inevitably be a further request to the Supreme Court to review any decision by the trial court. (In Virginia, review of a trial court's civil decision is discretionary with the Supreme Court, and not a matter of right.)
[UPDATE 06/10/2010: On the left, the reaction that this represents an unqualified victory for the Diocese is both uniform and predictable -- after all, they need to keep those pledges and contributions coming in. But as explained above, it is no such thing: it merely allows the Diocese and ECUSA to have the privilege of spending more millions on their attorneys in order to stay in the running.
Some people on this blog and elsewhere have speculated that the CANA congregations might try filing new petitions after taking a new vote to join ACNA, since ACNA would more easily fit the Court's understanding of what a "branch" of ECUSA would be. In that case, however, ECUSA and the Diocese would have the easy rejoinder that the congregations had voted to leave CANA, not ECUSA, to join ACNA. They cannot unmake the historical fact of their first votes. And so the statute would likely once more be found inapplicable.
That point notwithstanding, it should be observed that what the Court's decision unquestionably does is open the door wide for any Virginia parishes who now wish to leave ECUSA to hold votes to join ACNA. And that would be quite a development -- if ECUSA and the Diocese wanted to sue, they would have to spend the same money all over again to make the same constitutional arguments to the Virginia courts about the statute as they did in this case.]
And now, to events in California.
Late yesterday, it was announced that the California Supreme Court agreed to accept review of the 2-1 decision by the Court of Appeals, about which I wrote in this earlier post (and see also this one). That decision interpreted the Supreme Court's earlier decision on a preliminary phase of the case as also deciding the case itself on the merits, without the need of any trial (and indeed, before the St. James parish had even answered the complaints filed by ECUSA and the Diocese of Los Angeles).
The California Supreme Court has only itself to blame for the procedural mess in which the litigation finds itself at this point, by using inappropriate and foolish language to describe what it was doing, and by then being extraordinarily stingy in issuing a "clarification" of what it meant. Of course, sharing equally in the blame are the two plaintiffs, and the two justices of the Court of Appeal whose original opinion initiated the confusion, and who then voted that "the Supreme Court can do anything it wants to do with a case before it". Both the Diocese and ECUSA have shamefully, in violation of every norm of due process, attempted to exploit the Supreme Court's unwise articulations, and to claim that it really did decide that they won the case simply by filing their complaints, without the defendants ever having so much as a day in court. That claim was particularly galling in light of the argument those same two plaintiffs made to the United States Supreme Court when St. James parish asked it to review the earlier decision by the California Supreme Court: they argued that the U. S. Supreme Court should not accept review of the case, because the decision by the California Supreme Court was not yet final!
Now they will have to justify this embarrassing contradiction in their briefs filed with the Supreme Court. They will have to argue with a straight face that a decision which they contended could not yet be reviewed, because it had not decided the whole case, was nonetheless a final and complete resolution of the entire case. And they will also have to show the Court how it does not violate traditional notions of due process and fair play to deprive a defendant of its property without ever so much as giving him an opportunity to prove his case in court.
I will not even wish them luck -- they are going to need a lot more than that, because they want to change how cases are heard and decided, presumably just because they are The Episcopal Church. All that one can conclude from these two court actions is that ECUSA will have to spend even more millions of dollars trying to prove its outlandish claims under its sneakily adopted Dennis Canon. There could not be a better fate for that organization, given its un-Christian attitude toward litigating over property which it never owned, supported or maintained (in the vast majority of cases). As ECUSA construes and seeks to apply it, the Dennis Canon is purely an instrument of oppression, to force conformity to its divisive and heretical innovations injected into the life of the church catholic. May it never prosper until it ceases oppressing those who genuinely and in good faith disagree with it!
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