A Request that Ought to Be Granted

from Anglican Curmudgeon by A. S. Haley

The nine parishes in the Anglican District of Virginia (ADV) who were appellees in the Virginia Supreme Court have filed an application with that Court to reconsider or clarify its decision of June 10. At stake are what issues will be tried in Fairfax County Circuit Court on remand, or if there is a need to consider the constitutionality of Virginia's "division statute" (quoted in this previous post). Although well over 90% of such applications are routinely denied without comment, this application is worth considering, because the issue it raises is a genuine one, which the Court apparently overlooked in its decision.

The issue is the treatment of the trial court's factual findings on appeal. The Court itself stated the applicable standard at pp. 15-16 of its decision:

While the issues raised by these assignments of error deal primarily with questions of statutory construction which are reviewed de novo,Smit v. Shippers’ Choice of Va., Inc., 277 Va. 593, 597, 674 S.E.2d 842, 844 (2009), to the extent that we must also review the circuit court’s application of a statute, we accord deference to the court’s determinations of fact. Virginia Baptist Homes, Inc. v. Botetourt County, 276 Va. 656, 663, 668 S.E.2d 119, 122 (2008).

Thus the interpretation (construction) of Virginia's division statute presents a pure question of law, which the appellate court visits afresh (de novo), without being bound by the trial court's views on the matter. But the appellate court owes "deference" to the factual findings made by the trial court, because that court actually heard all the evidence on which its findings were based. In fact, however, the Virginia Supreme Court in this instance did not defer to those factual findings in one crucial respect: it disagreed with Circuit Judge Randy Bellows' conclusion that CANA and ADV were both "branches" of the same polity as the Episcopal Church.

The Virginia Supreme Court reached its result not by rejecting the findings outright -- it could scarcely do that, unless there were no evidence in the record to support them. Instead, what it first did was to redefine the word "branch" as used in the statute, and then hold that the trial court's findings were not applicable under that term as so redefined. Here are the relevant passages from the Court's opinion (pp. 28-29; bold emphasis added):

We turn now to consider the circuit court’s finding that CANA and the ADV are “branches” of TEC and the Diocese for purposes of applying Code § 57-9(A). For the reasons that follow, we hold that the circuit court’s finding was erroneous.

In its second assignment of error, TEC contends that the circuit court’s definition of a “branch” as meaning “a division of a family descending from a particular ancestor” demonstrates that CANA is a branch of the Church of Nigeria, not of TEC. Likewise the ADV, as a district of CANA, descends from the Church of Nigeria and CANA, not the Diocese or TEC. TEC contends that the historical connection between it and the Church of Nigeria through the Anglican Communion is not sufficient to establish that constituent parts of each church are “branches” of the other. TEC further contends that the circuit court erred in giving particular significance to the fact that the majority of the congregations in the ADV and CANA were formerly affiliated with TEC and its dioceses. We agree.

ECUSA argued, and the Supreme Court agreed, that the test of a "branch" was not the previous affiliations of those who now belong to it, but the historical origin, and coming into being, of the branch itself. Under this interpretation, the Court concluded, CANA could not be a "branch" of the same denomination as ECUSA, because its origin had been the result of actions by an entirely different church. In reciting these findings, the Court's opinion makes it appear as though it was accepting the facts the trial court had found, but was applying them in a different way (pp. 29-30; bold emphasis again added; italics in original):

When it was initially formed, CANA was a mission of the Church of Nigeria designed to minister to expatriate members of that church in North America. The subsequent expanding of the mission to allow dissident congregations of TEC and the Diocese to affiliate with CANA, and the formation of the ADV, unquestionably occurred in response to the disputes that had occurred within TEC. However, it is equally clear that the revision of CANA’s mission and the formation of the ADV did not occur as a result of the division within TEC and the Diocese. Indeed, the dissenting congregations maintained that they had “determined to disaffiliate from TEC and the Diocese” in order to join CANA, a pre-existing polity within the Church of Nigeria. Thus, while CANA is an “alternative polity” to which the congregations could and did attach themselves, we hold that, within the meaning of Code § 57-9(A), CANA is not a “branch” of either TEC or the Diocese to which the congregations could vote to join following the “division” in TEC and the Diocese as contemplated by Code § 57-9(A).

The Court then summed up its analysis in these words (pp. 30-31; bold emphasis added):

In summary, we conclude that the evidence does not establishthat there was a division in the Anglican Communion for purposes of the application of Code § 57-9(A). We further conclude that a proper construction of Code § 57-9(A) requires a petitioning congregation to establish both that there has been a division within the church or religious society to which it is attached and that subsequent to that division the congregation seeks to affiliate with a branch derived from that same church or religious society. While the branch joined may operate as a separate polity from the branch to which the congregation formerly was attached, the statute requires that each branch proceed from the same polity, and not merely a shared tradition of faith. The record in these cases shows that the CANA Congregations satisfied the first of these requirements in that there was a division within TEC and the Diocese, but not the second, as CANA clearly is not a branch of either TEC or the Diocese. Accordingly, we hold that the circuit court erred in ruling that the CANA Congregations’ petitions were properly before the court under Code § 57-9(A).

The application for rehearing filed last week calls the Court's attention to the fact that in finding that "CANA is clearly not a branch of either TEC or the Diocese," the Court actually misread the factual record. Here is the relevant passage from the brief in support of the application:

In support [of its conclusion], the Court cited the following factual understandings:

(1) that "when it was initially formed, CANA was a mission of the Church of Nigeria designed to minister to expatriate members of that church in North America"-and thus that CANA was "a preexisting polity" that "descends from the Church of Nigeria and CANA, not the Diocese or TEC"; and

(2) that "[t]he subsequent expanding of [CANA's] mission to allow dissident congregations of TEC and the Diocese to affiliate with CANA, and the formation of ADV, unquestionably occurred in response to the disputes that had occurred in TEC," but "did not occur as a result of the division within TEC and the Diocese."

Op. 29. As we will show, each of these findings rests on a "mistake of fact," justifying rehearing. Tanner, 266 Va. at 172, 580 S.E. 2d at 851-52.

The application then recites all of the evidence in the record that related to the foundation of CANA, as follows:

First, while CANA was originally formed to minister to Nigerian expatriates, those expatriates were not members of the Church of Nigeria. They and their clergy were members of TEC. As the trial testimony showed:

Q Bishop Minns, can you tell me what the acronym CANA stands for?

A The Convocation of Anglicans in North America.

Q Has the Convocation of Anglicans in North America always been the acronym that CANA stood for?

A No, it's not. It was originally the Convocation of Anglican Nigerians in North America.

Q Why was that the original name of CANA?

A Because it's a structure set up to provide for the ecclesiastic -- I mean, the Episcopal and pastoral oversight for ex-patri[ate] Nigerian clergy and congregations who had broken away from the Episcopal Church.

Q So were these clergy and congregations CANA's first members?

A Yes, they were.

JA 2155 (emphasis added). As Bishop Minns later elaborated:

Q Now, I think I heard you testify that the original CANA, which I think you said was the Convocation of Anglican Nigerians [in] America, did I get that right?

A You did.

Q All right. That that consisted of Nigerian -- no, that the vast majority of its members were Episcopalians. Did I hear you correctly?

A In the beginning, yes. Were involved with the Episcopal Church, yes.

Q What?

A They were functioning within the Episcopal Church, yes.

Q But were they Episcopalians?

A Yes.

JA 2205-06 (JA excerpts attached). As this testimony shows, CANA's first members were fully "Episcopalians." No contrary evidence was introduced. In fact, as TEC's own witness readily admitted, CANA "provides ecclesiastical oversight for former members of the Episcopal Church" and "ministers to individuals who have left the Episcopal Church." JA 2567-68 (Douglas).

Here, both sides agreed that CANA's initial members came entirely from the Episcopal Church (USA). How, then, could Judge Bellows' finding that CANA was a "branch" of ECUSA within the meaning of the statute be rejected as having no evidence to support it? Listen to the words of the Supreme Court again (emphasis added as before):

We further conclude that a proper construction of Code § 57-9(A) requires a petitioning congregation to establish both that there has been a division within the church or religious society to which it is attached and that subsequent to that division the congregation seeks to affiliate with a branch derived from that same church or religious society. While the branch joined may operate as a separate polity from the branch to which the congregation formerly was attached, the statute requires that each branch proceed from the same polity . . .

What the Supreme Court has failed to appreciate here is that CANA receivedepiscopal oversight from the Anglican Church of Nigeria, once its members had all separated from the Episcopal Church (USA), because they could no longer live under episcopal oversight from the latter church. Pastoral oversight is not equivalent to "polity" (though the two are related, through the discipline of the oversight). Moreover, as far as I know, CANA's polity is not the same as the polity of the Anglican Church of Nigeria -- although it does not appear as though any evidence came in on that point.

The application goes on to point out that the Virginia Supreme Court has its facts wrong when it describes CANA as "a pre-existing polity within the Church of Nigeria." CANA did not come into existence until 2005 -- well after the consecration of V. Gene Robinson in 2003 which eventually, among other consequences,resulted in the formation of CANA.

The second argument of the application for rehearing concerns the Anglican District of Virginia itself, and is in my view even stronger than the one with regard to CANA. ADV, the brief points out, was not formed as a legal entity until the congregations in question had decided to follow the Protocol drawn up by the Diocese of Virginia for departing parishes. It was formed specifically as an entity to provide governance for those particular parishes, and was organized not under the Church of Nigeria, but under Virginia law. There is no requirement that its members belong to CANA, and some of them do not:

Rehearing is independently warranted because the record also forecloses the Court's branch analysis as to ADV. Unlike the Court's analysis of the statute's "church," "attached," and "division" prongs -- which considered the status of TEC and the Diocese separately -- the Court's "branch" analysis treated CANA and ADV as synonymous, overlooking critical facts establishing that ADV is a "branch" even if CANA is not. In fact, the Court's analysis of whether ADV was a "branch" consisted of one sentence: "Likewise the ADV, as a district of CANA, descends from the Church of Nigeria and CANA, not the Diocese or TEC." Op. 29. Respectfully, however, that statement cannot be squared with this record, even assuming, arguendo, that the Court properly reached a contrary conclusion as to CANA.

Once again, there was no dispute as to the underlying facts:

. . . As the Court noted, "in 2005 Bishop Lee created a new commission 'to give attention to this rising threat of division in the Diocese.'" Op. 7. In September 2006, this commission expressly recognized "the division which may cause some to 'walk apart'" (JA 3034) and "promulgated a 'Protocol for Departing Congregations'" to follow, including "procedures for congregations to conduct votes 'regarding possible departure from the Diocese.'" Op. 7.

The Congregations followed the Protocol, creating ADV days before their votes. JA 2991 (ADV articles dated 12/4/06). . . . And as ADV's articles state, ADV was incorporated as "an association of Virginia churches, together with their clergy and laity, who join together to realign traditional Anglicans in Virginia displaced by the election of The Episcopal Church to walk apart from the Anglican Communion." JA 2988 (emphasis added). ADV thus formed "as a result of the division." Op.29.

[Also], as the foregoing evidence shows, ADV is not a "pre-existing polity" that "descends from the Church of Nigeria" rather than "the Diocese." Id. ADV is separate and distinct from CANA: It is "a discrete ecclesiastical and legal structure" incorporated under "the Virginia Nonstock Corporation Act." JA 2988 (ADV articles). . . .

Nor was ADV formed by the Anglican Church of Nigeria. True, the incorporators of ADV chose to place it "provisionally . . . under the ecclesiastical jurisdiction of [CANA]" -- and thus to bring it "into full communion with the . . . constituent members of the Anglican Communion." JA 2988 (emphasis added). But ADV is legally independent and has its own board; only one sentence in ADV's articles refers to CANA; and the decision to affiliate with CANA and the Church of Nigeria was ADV's own (provisional) choice. Indeed, ADV's members include several congregations that disaffiliated from the Diocese but are not members of CANA -- further confirming that ADV is properly viewed as a descendant of the Diocese, not the Anglican Church of Nigeria. JA 2475-77 (Allison); JA 2175-77 (Minns).

The attorneys make another important point about the division statute, and the Supreme Court's interpretation of it, in an accompanying footnote:

Like others that disaffiliated from TEC but wished to remain "'a part of the worldwide [Anglican] church" (Op. 8), these congregations affiliated with another Anglican province. JA 2475-77 (Allison); JA 2175-77 (Minns). We do not read the Court's opinion to hold that the bare fact of affiliation with the Church of Nigeria disqualified CANA and ADV as "branches." If that were a proper reading of § 57-9, it would violate the First Amendment by expressly discriminating against disaffiliating congregations based on "denominational preference." Larson v. Valente, 456 U.S. 228, 244 (1982) ("one religious denomination cannot be officially preferred over another").

The brief closes by reiterating that findings based on facts that were undisputed below cannot be set aside by an appellate court:

. . . The Court's analysis turned on what it called an "erroneous" "finding." Op. 28. But any such finding was necessarily factual, and factual findings may be reversed only if "plainly wrong or without evidence to support them." Perel v. Brannan, 267 Va. 691,698, 594 S.E.2d 899, 903 (2004). That is not the case here.

Thus the application asks the Virginia Supreme Court to rehear the case in order to bring its conclusions into line with the undisputed facts as found below. At a minimum, the Court should clarify its instructions on remand to allow "for further factual findings as to whether ADV, CANA, or both are branches under the Court's new reading of § 57-9. That would be especially appropriate given that the Court's decision marks the first time in 143 years that the Court has addressed the statute's core requirements, and sets forth an analysis that the circuit court understandably had no opportunity to apply." (Footnotes omitted.)

In this attorney's view, this is a much better strategy to have followed than the one suggested in some quarters following the decision, which would have had the congregations holding new votes, in order to try to requalify under the statute as now interpreted. By pointing out to the Court how it misread certain key facts, which were not in dispute, the application gives the Court what it has recognized in its precedents is the strongest reason to grant a rehearing: when the Court has "based [its] decision on a mistake of fact."

It takes the vote of just one justice for the application to be granted.

The Virginia Supreme Court's decision concludes by remanding the case to Judge Bellows, with directions that he dismiss the parishes' petitions under the division statute. Such a dismissal could only be ordered if their previously offered evidence failed to satisfy the statute as a matter of law. But that evidence, as the application notes, all came in without any opposition or dispute.

To refuse to grant the application for rehearing, therefore, would result in a grave injustice -- an appellate court refusing to respect factual findings which the trial court itself had no discretion to reject. (The alternative, as the brief points out, is to read the statute in such a way as to discriminate unconstitutionally among denominations.) Appellate courts are not equipped to try cases and make factual findings; that is why they are required to accept the facts as the trial court found them. Every trial and appellate lawyer knows this, and each justice who heard this case was once a lawyer, as well. One has to hope, therefore, that at least one of them will see the merit in granting the application.