Bishop Iker Files for Stay of Orders

from Anglican Curmudgeon by A. S. Haley

Attorneys for Bishop Jack L. Iker of Fort Worth have now filed a request with Tarrant County Judge John Chupp for a stay of the orders he issued last Friday, January 21. A hearing on the request is scheduled for next Tuesday, February 1st, at 10:00 a.m.

The stay request is based on a number of objections to the orders, described in the papers just filed, which may be downloaded from the link just given.

[UPDATE - 01/26/2011: Note one of the problems that comes from blindly signing one side's pro forma order - since they are not interested in being impartial, they are likely to overreach, without any thought given to what the law allows. ECUSA's order ended with the command that Bishop Iker and his diocese hand over all their assets within so many days, and left a blank for the judge to fill in whatever number he decided was right. The judge wrote the number "60" in the blank, instead of crossing out the paragraph itself, which would have been the appropriate thing to do under Texas law and precedent. The objections point out (last two paragraphs) that such an order before there is a final judgment disposing of the entire case transforms the court's ruling on the declaratory cause of action into a temporary injunction, which the plaintiffs did not formally request, and which was not issued in accordance with procedural requirements for such injunctions. This is one more strike against the judge's orders on appeal.]

The request points out the massive disruptions possible if the orders are not stayed pending appeal, and serves to indicate some of the extent of the interests which are at stake in the litigation:

Defendants will suffer irreparable injury if this Court's order for the Defendants to "surrender all Diocesan property" to the Plaintiffs is later reversed on appeal. By way of example:

• The Plaintiffs deposed 57 ministers of Defendant congregations in 2010 (see attachment A), and declared that they "shall be deprived of the right to exercise the gifts and spiritual authority of God's word and sacraments." If parishes are immediately transferred to the Plaintiffs, these pastors may not be allowed to minister at these churches pending appeal. Due to the number, it is unclear how TEC can replace them all.

• Parishioners loyal to Bishop Iker may do what parishioners loyal to TEC did in 2008: leave. The Defendant parishes have about 5,600 people in average Sunday attendance; those attending Plaintiff congregations number only a fraction of that amount. The effects of the Court's interim orders on church buildings, budgets, and bank notes could be catastrophic.

• Even if they don't leave, parishioners may stop giving because they do not want to place offerings in TEC's hands. This again could have catastrophic effects on scores of pastors, staff, and families who depend on these gifts for food, clothing, and shelter. How can such hardships be undone if the appellate courts decide the summary judgment orders here were a mistake?

• In many churches, there is no one loyal to TEC. For example, in their First Amended Original Plea in Intervention filed on November 2010, the Plaintiffs listed the names of loyal "representatives" for 12 churches, but listed 34 additional churches as to which nobody appears to have been willing to be a loyal representative for TEC. Who will occupy these churches? What will happen to their condition if they are abandoned? At least 13 families affiliated with the Defendants live in homes owned by the Corporation. As these ministers and staff are no longer recognized by TEC, the Court's orders appear to allow the Plaintiffs to evict them.

• Almost 200 employees, spouses, and children of ministers and staff are covered by a group insurance policy. If a significant number of these are no longer employed by a local church, their insurance and perhaps that of the entire group may lapse.

• The property here includes schools where classes are ongoing. Surrendering these schools immediately is likely to cause losses of both students and teachers, losses that may be unrecoverable if these orders are reversed after these people are enrolled or employed elsewhere.

• The bishops and staff of both sides must move out of their current administrative offices into new ones, a move that will have to be repeated if the summary judgment order~ are reversed.

• Defendants will have to relinquish personal property owned by the Diocese or Corporation, such as autos, cell phones, office equipment and supplies, computers, and the like without any promise by the Plaintiffs to pay future rentals or invoices related to them, and which can be replaced only by incurring substantial extra expenses.

• Vendors and creditors have relied on the Corporation's books and records regarding which directors are authorized to promise repayment. By unsettling who that might be, the Court's orders will make it difficult for either side to secure credit until all appeals are concluded and it is finally decided who the authorized directors are.

This is why deciding that a diocese cannot leave the Church is not the same as deciding that a parish may not leave a diocese. Dioceses are sizable entities in their own right, with literally hundreds and hundreds of clergy and laity dependent on their continuing function and existence. The relocation of a parish, while painful and inconvenient, is on an entirely different scale than the relocation of an entire diocese.

Moreover, the Dennis Canon does not apply to the property of Dioceses. The outcome of the parish cases cited by ECUSA's attorneys turned largely on the application of that Canon's language as "codifying" an existing trust relationship between a parish and its diocese. There is no counterpart "trust relationship" between an individual member diocese of an unincorporated association and all of the assembled members as a group. The entire reasoning of ECUSA, as adopted holus bolus by Judge Chupp without any discussion or input of his own, is defective in treating dioceses as the legal equivalent of individual parishes.

One of the reasons I find charges of "theft" and "stealing" so inappropriate for these unhappy situations is that they are not based on any rule or canon which existed before the dispute arose. Those in charge of ECUSA are simply making up their legal theories as they go along, and changing the rules at whim, to suit their personal, and very un-Christian, aims. Thirty-four churches must be turned over so they can become vacant and sold for other uses? And many more emptied of their current large congregations so just a few people can return to them? All because a judge is misled about the difference between a parish and a diocese?

There is no Christian or moral ground here -- let alone a legal one -- on which Bishop Ohl may rightfully stand. But watch him direct his attorneys to oppose Bishop Iker's request for a stay.