ECUSA Beaten Back in Hood County

from Anglican Curmudgeon by A. S. Haley

Today was not a banner day for ECUSA's "hierarchical" theories in the District Court of Hood County, Texas. As described in this earlier post, ECUSA and its ersatz-diocese have been trying every way they could conceive of to get Judge Walton of that Court to recognize them as the only genuine articles in the case, and to date, the Judge has not accommodated them. Today, more of their court papers were struck as the Judge kept his eye on the main issue, and refused to be distracted by all their argument and hand-waving.

The story begins with the success of Cynthia Brants, an artist who worked in many different media for over sixty years until her death in Fort Worth in January 2006. Four years earlier, she had created a charitable remainder unitrust as part of her estate plan. Such a trust requires the designation of one or more tax-exempt entities to receive the remainder of the trust assets after the death of the person(s) designated to receive income from those assets for life. Cynthia Brants evidently felt she had been blessed by her association with St. Andrew's Episcopal Church in Fort Worth, because the language of the trust she created spelled out that one of the three charitable beneficiaries would be "St. Andrew's Episcopal Church, or its successor, of Fort Worth." (The other two were organizations with which Cynthia Brants had been closely identified all of her life: the Amon Carter Museum of Western Art in Fort Worth, and the Old Jail Art Center in Albany, Texas.)

St. Andrew's is not incorporated; it is a religious association of parishioners under Texas law. Under the diocesan canons, legal title to its real property is held in the name of the Corporation of the Episcopal Diocese of Fort Worth, a religious corporation created under Texas law in 1983 to hold title to all of the property in the Diocese. By those same canons, the bishop of the diocese is the chairman of its board of trustees, the other members of which are elected annually to staggered terms of five years each by each annual convention.

St. Andrew's sent delegates to the diocesan convention which voted in November 2008 to change its constitution and canons so as to remove the diocese's affiliation with the Episcopal Church (USA). The rector and vestry of St. Andrew's agreed with that vote, but nothing changed for them afterwards -- they were still in the Episcopal Diocese of Fort Worth, another unincorporated association under Texas law with the Rt. Rev. Jack L. Iker as its bishop, and with the same Corporation still holding title to its property.

Nothing changed, that is, until the Presiding Bishop swooped into Fort Worth and convened, completely in violation of diocesan canons and with no legal quorum of resident clergy, a "special convention" consisting solely of the minority of those in the association (the Episcopal Diocese of Fort Worth) who dissented from the November 2008 vote. This "convention" was nothing more than a charade under canon law, designed to fool the courts and the public (including the disgruntled minority) into thinking that there still was a diocese of ECUSA where there had been one before, and with the capacity to appoint a provisional bishop. In reality, its true purpose was to create some pawns who could act as plaintiffs to bring suit against Bishop Iker, his trustees and his Corporation in Texas courts.

Readers of this blog will see through the charade: the unincorporated association which was the Episcopal Diocese of Fort Worth, founded and organized in January 1983, had now split into two smaller unincorporated associations. The larger, consisting of all those parishes and clergy who supported the vote to realign, continued their legal existence as the association formed in 1983, but without the minority as members any longer. The minority was free to organize as a new association on its own, which it evidently did, but that new association was not, and could not, in the eyes of the law of Texas, be the same legal association as the one formed in 1983.

In other words, if a minority of the members of your local book club, or bowling association, or whatever other unincorporated group you wish to envision, dissented from a decision by the majority and broke off to start their own book club, or whatever, they might try to call themselves by the same name as the majority, but they would not be in law the same group. How could they? They have different members, who agreed on the rules they wanted to follow only after they reorganized, and those rules are now different from the ones the majority follows.

Note that this legal reality is the same regardless of whether the local club is affiliated with some national umbrella organization which purports to bestow its "recognition" upon it (in this instance, the Episcopal Church [USA], which isanother unincorporated association [of dioceses]). The national association cannot, under State law, prevent, or forbid, or hinder, the members of associations from exercising their freedom of association under the First Amendment, and from coming and going, and realigning with other associations, as they see fit. All it can do under the law is to bring suit against the members of the formerly affiliated organization -- if it believes it can establish a superior claim to their assets and property.

And that is what happened in Hood County. The attorney for the new (minority) association, Ms. Kathleen Wells, sent a letter to Ronald Wenner, the Trustee of the Cynthia Brants Trust, demanding that any further distributions from the Trust be paid over, not to St. Andrew's and its vestry, but to the Rt. Rev. Edward Gulick, whom Bishop Jefferts Schori had caused to be installed as the "provisional bishop" of an entity which she insisted on calling "the Episcopal Diocese of Fort Worth."

Now, as we have just seen, while no one but a court of law could order the group not to use that name, calling itself by that name did not magically make the group into what it called itself, in the eyes of law. The entity historically known since 1983 as "the Episcopal Diocese of Fort Worth" was still very much in existence, was still "Episcopal" in that it was led by its bishop, the Rt. Rev. Jack L. Iker, and still occupied the same headquarters in Fort Worth which it had always been using. Moreover, however much Bishop Jefferts Schori and the new group wanted to call themselves a diocese of ECUSA, they -- on their own, as ECUSA itself has successfully argued to many, many courts -- could not become such a diocese without the participation of General Convention. General Convention 2009 took no action whatsoever to admit a new "Diocese of Fort Worth" into union with it, and I am quite sure that General Convention 2012 will not do so, either. So even under ECUSA's own rules and Constitution, there is not, and will not be for some time, an "Episcopal Diocese of Fort Worth" which is one of its own member dioceses.

That did not stop Bishop Gulick and ECUSA from pretending to be what they in law were not. Invoking ECUSA's bête noire, the Dennis Canon, they asked the Trustee Mr. Wenner to recognize that since St. Andrew's of Fort Worth was no longer a parish of ECUSA, all Trust moneys had to be paid to Bishop Gulick, for the good of the Episcopal Church [sc. fund more litigation]. In her letter to the Trustee, Ms. Wells asserted that she was writing on behalf of "the Episcopal Diocese of Fort Worth" and its affiliated "Corporation."

The Trustee went into Hood County District Court, and filed a petition for a declaratory judgment, which in effect asked the court to tell him whom he should pay. He named as defendants, among others, the Episcopal Diocese of Fort Worth and the Corporation of the Diocese of Fort Worth -- along with St. Andrew's.

Now the fun starts (sorry for the elaborate buildup, but it is necessary to follow the horses in this race). Seeing that they had been sued (but not yet served), Bishop Iker's Diocese and his Corporation responded to the Trustee's lawsuit. They disclaimed any and all interest in the Trust distributions -- because, as they alleged, St. Andrew's had not gone anywhere! It was still in the same building it had occupied when Cynthia Brants worshipped there; it was still led by the same rector and vestry to whom the previous payments had been made; it still worshipped in the same fashion, using the same prayer books, chalice and other accessories, as it had worshipped in 2002, when she set up her trust for the church's benefit; and nothing about the church to which Cynthia Brants had made her gift had changed in the least. (She did not, after all, make her gift to ECUSA, or even to the "Episcopal Diocese of Fort Worth", but to "St. Andrew's . . . of Fort Worth.")

Incensed that their little charade had backfired, Bishop Gulick and his attorneys rushed to file an answer to the Trustee's petition of their own, using their pretend names. On behalf of the "Episcopal Diocese of Fort Worth" and its "Corporation", they assured the Court that oh, no -- everything had changed: St. Andrew's had left the Diocese for foreign parts, and while there was no longer a functioning congregation of the Episcopal Church (USA) with that name, the provisional bishop of the diocese would be all too happy to receive all future distributions from the Trust, and put them to the charitable purposes which Ms. Brant had so evidently intended. (I shall pardon the snickers; we are not, after all in court. But imagine the talent it takes to make that claim with a straight face!)

As I have explained in an earlier post, the maneuvering and jockeying for position went back and forth from there. Bishop Gulick's group first tried to have Judge Walton put a hold on any further proceedings until Judge Chupp, in Tarrant County, could sort out the players and decide who was the real Bishop of the Episcopal Diocese of Fort Worth, and the Chairman of its Corporation. Judge Walton denied that motion. Then Bishop Gulick (and later his successor, Bishop Ohl) tried to file a plea in intervention, to be allowed to assert a personal stake in the Trust proceeds, as a sort of canonical successor to the (supposedly vanished) St. Andrew's. Judge Walton would have none of that, either: the Trustor named "St. Andrew's of Fort Worth", and not any individual bishop or diocese. The terms of the trust were irrevocable, and since there still unquestionably was a St. Andrew's church in Fort Worth, there was no occasion to apply what lawyers call the cy pres doctrine.

Meanwhile, Bishop Iker's Diocese and Corporation filed a motion for summary judgment, which argued that there were no disputed facts about the existence and continuation of St. Andrew's. When Bishop Gulick tried to file opposition to the motion on behalf of the "Diocese" and "Corporation" he claimed to represent, Judge Walton ruled that the motion by Bishop Iker's Diocese was not directed against those entities, but against the plaintiff trustee. Accordingly, he ordered the opposition papers stricken.

Things got more intense when the Court of Appeals in Fort Worth handed down its decision last June 27 in the Tarrant County case, which I discussed in this post. Now Bishop Ohl (Bishop Gulick's successor as "provisional bishop") and his attorneys would be under an order to cease filing pleadings in the names of the entities governed by Bishop Iker, and would have to describe themselves differently in all future pleadings. Bishop Iker's attorneys amended their motion for summary judgment to include that result, and Bishop Ohl and his attorneys rushed in with amended objections to the amended motion for summary judgment, and an amended plea in intervention by Bishop Ohl, based on the same grounds as Judge Walton had ruled were inadequate earlier (and using the names which the Court of Appeal had indicated they could not use).

On the eve of today's hearing before Judge Walton, Bishop Ohl and his attorneys filed still more supplemental pleadings. Judge Walton thus had a number of motions and issues before him, and I will let the official release from Bishop Iker's diocese relate how he ruled:

HOOD COUNTY, Texas – In a hearing today Judge Ralph Walton granted three motions favoring St. Andrew's Episcopal Church in Fort Worth, as well as the Episcopal Diocese of Fort Worth and the Corporation of the Diocese. At issue in the case is payment of a bequest made to St. Andrew's in 2002 by a longtime parishioner. As he had done in past hearings on earlier motions, Judge Walton dismissed attempts by representatives of the national leadership of The Episcopal Church (TEC) to bring issues from a case pending in Tarrant County into the trust case before the Hood County court.

Judge Walton began by approving a motion asking that the Diocese and Corporation be identified by their legal names in an order issued following a hearing on June 2 [that hearing, and the orders made, are described in this post]. This substitution corrected inaccurate and informal descriptive terms suggested by representatives of the TEC interests. Next, the court found that Bishop C. Wallis Ohl, serving in The Episcopal Church, had no legal interest in the bequest to St. Andrew's. The filings submitted in Bishop Ohl's name sought to make the judgment dependent on resolution of an ecclesiastical dispute between the Diocese and TEC loyalists [, and the judge denied his plea in intervention]. The judge also denied a motion brought by the trustee of the bequest which would have delayed the hearing of the summary judgment filings to another date, contingent on proceedings in the Tarrant County case.

Is it all clear, now? (You have the Presiding Bishop's Chancellor to thank for the strategy of trying to muddy up the waters, and prevent clear thinking from prevailing. Fortunately, the judges of Texas are, to date, proving to be more than a match for the Chancellor's strategy.)

The official release concludes:

Proceeding then to arguments on the summary judgment, the court heard pleadings on behalf of the trustee, the TEC cross-plaintiffs, and the Parish, Diocese, and Corporation. The judge concluded the hearing saying that he would inform the parties of his ruling in writing. His decision is expected in the coming days.

Today's rulings bring the case nearer to a conclusion. Bishop Iker expressed gratitude for the wise counsel provided by J. Shelby Sharpe and the entire legal team, as well as appreciation for the prayer support of today's proceedings from the clergy and lay people of the diocese.

Thus in a week or so, we should know more. But if Judge Walton maintains the track he has been on, he understands that the charade does not need to be resolved for him to decide the narrow issue before him: can the beneficiary of an irrevocable trust be replaced against its will?

There is simply no legal precedent for the arguments ECUSA is putting forward here. The Dennis Canon purports to apply to property held by or for the benefit of Episcopal parishes. But the assets of the Cynthia Brants Trust are not held by St. Andrew's, and the entity that holds them for St. Andrew's is in no way subject to the canons of the Episcopal Church (USA).

At the oral argument today, I am told that Bishop Iker's counsel asked his opponents the following rhetorical question: "If you owed money to a bank on a promissory note, and you received a letter from some attorneys claiming that there was a dispute over which of two factions controlled the bank's board of directors, would you be justified in stopping payments on the note until the dispute was resolved?"

It's a good question. And I understand that Bishop Ohl's attorneys had no answer to it.