ECUSA's Strategy Goes Down in Flames in Fort Worth

from Anglican Curmudgeon by A. S. Haley

As predicted last September on this blog, the Court of Appeals for the Second District of Texas has shot down the claims of ECUSA and its puppet Bishop Gulick to be able to come into court pretending they are the true "Episcopal Diocese of Fort Worth" and its associated Corporation. The Court's opinion and order represent an unqualified victory for the Diocese and Corporation headed by the Rt. Rev. Jack L. Iker, which were both established in 1983. Here is the essential quote from the Court of Appeals' opinion (footnotes are omitted; bold emphasis added):

It is undisputed that there is only one Corporation and only one Fort Worth Diocese, regardless of how those entities are named or characterized in the underlying suit - whether as entities, as individuals "holding themselves out" as those entities, or as individuals "associated with" one or the other Bishop. There is a single Fort Worth Diocese and Corporation, which both a majority and a minority faction claim to control. The attorneys whose authority is challenged are either authorized to represent those two entities or they are not. But the trial court has barred them from representing only the Corporation and the Fort Worth Diocese associated with the Iker Group. We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction.

This is correct, both as a matter of law and of common sense. As I explained in my earlier analysis,

The original motion under Rule 12, as I explained in the first post linked above, called on the plaintiffs' attorneys to prove they had the authority to file pleadings on behalf of the "Episcopal Diocese of Fort Worth" and its "Corporation", given that those two entities, first organized in 1983, already had a Bishop (Iker) and trustees elected at the Diocese's previous Annual Conventions. The attorneys responded to the motion by disclaiming any intent to represent the entities which were under Bishop Iker's control; they maintained that the entities they were representing still belonged to the Episcopal Church (USA), because the vote to leave the Church taken at the last Annual Convention of the Diocese had been beyond its powers. Thus neither the "Diocese" nor its Corporation had ever really left, they argued: only their bishop and officers had left, and the Presiding Bishop had kindly stepped in to call a "Special Convention" (since there was no Bishop or Standing Committee left to do so) to fill the vacancies thus created. And once a new bishop and standing committee had been elected, they were the ones who authorized the plaintiffs' attorneys to file suit in the name of the Diocese Which Had Never Left, and Its Corporation Which Never Left Either.

. . .

However, as I also pointed out in the earlier posts, both the complaint (petition) filed by the plaintiffs, as well as the amended one filed a few months later, stated in unequivocal language that the plaintiff "Diocese" had been started in 1983, as had the plaintiff "Corporation." Now maybe in the spiritual realm it is possible for one religious corporation to split into two, which then can be superimposed on one another to still look like one, but that does not fly in the temporal world. There is and can be in law only one Corporation of the Episcopal Diocese of Fort Worth which was incorporated under the Texas statutes in January 1983. And likewise, there is and can be under Texas law only one voluntary association called "the Episcopal Diocese of Fort Worth" that was formed in 1983, as well.

Thus, the Court of Appeals has soundly rejected ECUSA's Machiavellian strategy, as I laid out in this earlier post. Although ECUSA's own complaint (and motion for summary adjudication) will stand for the time being, Bishop Gulick and his five "trustees" will have all their pleadings stricken, and so will have to start from scratch (with Bishop Ohl, who replaced Bishop Gulick during the proceedings, in the lead). They will have to admit this time that the entities they claim to represent were newly organized in 2009, and that will undermine ECUSA's position as argued in its motion as well. So my guess is that if this decision stands (and there is every reason to expect that it will, since it is so straightforward), ECUSA will have to refile its motion for summary adjudication also. Given the appellate court's ruling as quoted above, ECUSA cannot go forward on its preferred theory that "dioceses never leave, only people do." That is why this decision is such a huge victory for Bishop Iker and the true Diocese of Fort Worth.

The left, of course, will see this post as a gloat -- because had they prevailed, that is what they would have indulged in. But I do not gloat. I celebrate simply the ability of rational analysis to carry the day in the face of obfuscation and distortion, aimed at securing a quick advantage. (This post went up just after 9 PM PDT on the day the decision was handed down. As of this writing, the pseudo-diocese has not acknowledged the decision, while Bishop Iker's diocese already has it posted on their Website. It will be instructive to see how the left deals with the news, since they studiously avoid linking to analyses on this blog.)

[UPDATE 06/26/2010: The one and only Episcopal Diocese of Fort Worth has now posted this statement about the decision on its Website, as of 12:30 pm PDT, and other sites in sympathy, such as TexAnglican andApostolicity, have quoted it as well. Meanwhile, the Potemkin diocese's Website is still silent about the news, as are the usual sites in the left's echo chamber: Episcopal Cafe, Thinking Anglicans, and individual blogs such as Katie Sherrod, Grandmère Mimi, Preludium, Lionel Deimel and the Three-Legged Stool. It would seem as though the latter Websites do not recognize news until it is published on an authenticated, left-recognized Website. So be it -- do you see why it is better to follow as many blogs as you can on all sides, instead of just those who form the left's echo chamber? The news is still the news, whether commented upon to one's liking, or not. (This is so much fun to watch in real time -- when will they acknowledge the decision, and who will be the first to take the hit?)]

But now back to earth, in the year 2010. It is my fervent prayer that ECUSA and its attorneys will cease playing this game, which has thus far managed to succeed with trial judges, but which has now met with its first defeat on appeal. Still to come is a decision by the Court of Appeal in Fresno, which has yet to announce any date for oral arguments.

If ECUSA and Bishop Gulick's attorneys appeal this ruling to the Texas Supreme Court, then we will all know how high of a premium they place on their strategy. But one of the virtues of higher appellate courts is that they usually have the time and the acumen to sort through the hyperbole and fluff, in order to reach the substance. Texans may take justified pride today in their Second District Court of Appeal, who stuck to basic legal principles, and as a result, got it right.

P.S.: If there is an appeal to the Texas Supreme Court, it occurs to me that it may be dictated by the immediate need of the Rev. John Stanley, Ms. Cherie Shipp, The Rev. James Hazel, Mr. Robert M. Bass, and Dr. Trace Worrell to try to avoid the liability that they might incur to Bishop Iker and his diocese for damages under Texas law resulting from their filing official documents misrepresenting who they were, as I noted long ago in this post, which I entitled "To Whom It May Concern." Well, now they know: the post was addressed to them. They may want to request, perhaps, that a certain entity headquartered at 815 Second Avenue, New York City, New York step up to indemnify them -- if it would not serve to point up just who is controlling this little stage-piece. (I cannot say anything about the possible additional criminal liability mentioned by JoeMonk at that post, as I am not a Texas lawyer. Perhaps some readers who are will comment, in light of the decision by the Court of Appeals.)