Fort Worth Files Its Opening Brief

from Anglican Curmudgeon by A. S. Haley

The Episcopal Diocese of Fort Worth, along with Bishop Jack L. Iker, his Diocesan corporation and its trustees, and forty-three congregations have filed their opening brief in the Texas Supreme Court (the brief and the appendices may be downloaded at the link). The brief is very well written, and extremely readable; I commend it both to legal and lay minds alike.  The statement of facts begins as follows (footnotes omitted):

This is the largest church property dispute in the history of Texas. The suitinvolves control of property rather than title: all parties agree the Corporationholds legal title, but they disagree whose representatives are entitled to sit on itsBoard of Trustees. The facts are undisputed; the only question is whether thecase is governed by: (A) the Corporation’s articles of incorporation, by-laws, andapplicable state laws, or (B) documents and opinions about the structure,practices, and beliefs of the churches involved.

The description of the controversy and how it came to its present posture is clear and succinct (again, all footnote references to the record are omitted):

The Controversy. In recent years, many in the Diocese believed that TEC’sactions reflected “a substantial departure from the biblical and historic faith.” Accordingly, in 2007 an amendment was offered to remove references to TECfrom the Diocese’s Constitution. At that year’s Diocesan Convention, a hugemajority (83% of clergy, 77% of lay delegates) voted to adopt the changes. At asecond convention in 2008 (as required to amend the Diocese’s Constitution),the changes were approved by similar majorities (79% of clergy, 80% of laydelegates) and went into effect.  

The Diocese Attempts Conciliation. Recognizing that a handful of churchesdissented, the Diocese adopted procedures for an amicable separation. InFebruary 2009, the Corporation transferred property to three parishes whowithdrew from affiliation with the Diocese. These transfers were granted notas a matter of right, but to avoid litigation and reach a peaceful settlement.  

TEC Files Suit. TEC soon put an end to conciliation. On April 14, 2009, thissuit was filed by TEC and 36 individuals drawn from the minority who lost the2007 and 2008 Convention votes and had withdrawn from the Diocese. ThePlaintiffs demanded turnover of more than 60 churches in the Diocese, including49 churches in which not a single member was willing to appear as arepresentative Plaintiff. All told, the contested properties have an insuredvalue in excess of $100 million dollars.

And here is the summary of the argument, in its entirety:

If Texas follows the Neutral Principles approach in church propertydisputes (like almost every other state), the trial court granted the wrong motion.Neutral Principles have been used by Texas appellate courts for some years withno problem. The approach has numerous advantages over the Deferenceapproach urged by the Plaintiffs, including disentanglement from issues aboutchurch government in favor of the same laws that apply to all other cases. TheDeference approach may also create problems with the Texas Constitution,which bars any preferences in the treatment of one form of religion over another. 

All the property at issue here is owned by the Corporation. Texascorporate law provides that the election and removal of corporate officers mustbe governed by the entity’s articles of incorporation and by-laws. The DefendantTrustees were elected according to the Corporation’s charter provisions; thePlaintiffs’ ersatz replacements were not. 

Similarly, Texas law provides that the election and removal of officers inunincorporated associations must be governed by the association’s own rules.The Diocese elected Bishop Iker according to diocese rules; the Plaintiffs did not.Under Jones v. Maples, Texas courts cannot decide which bishop can baptize orpreach, but must decide which one sits on the Corporation’s board that controlsits property. 

Texas law requires that any trust concerning realty must be written andsigned by the settlor. TEC has no trust interest in this property because itcontributed nothing to create it, and has no trust instrument signed by anyonewho did. Texas law also makes all trusts revocable unless they expressly stateotherwise, which no trust alleged by the Plaintiffs does. So even assuming atrust for TEC ever existed, it was revoked in 1989 by express act of the Diocese. 

Finally, the corporate amendments of which the Plaintiffs complain areirrelevant to the property issues involved here. The Corporation had the right toamend its charters under Texas law, and none of the amendments challenged bythe Plaintiffs deprived the Plaintiffs of anything. 

The trial court disregarded all these statutes on the ground that thisCourt’s 1909 opinion in Brown v. Clark required that Texas courts must enforcewhatever TEC commands. This Court should correct that error.

The brief thus frames a classic case under State law, and asks the Court to apply that law under the doctrine of "neutral principles" to reverse the summary judgment granted by Judge Chupp to the Episcopal Church (USA) and its rump diocese, and to enter judgment instead in favor of the Iker parties.

The ECUSA parties are due to file their respondents' brief by February 27. What will they argue? They first will contend that the Texas Supreme Court should follow its 1909 holding in Brown v. Clark, and defer to its demands because it is "hierarchical." The only problem is that the national Church is no more hierarchical with respect to its member dioceses than the United Nations is "hierarchical" with respect to its member nations. All of the case law thus far about the "hierarchical" character of the Episcopal Church (USA) developed out of disputes between dioceses and their parishes, or between bishops and their clergy. What is characteristic of those relationships isnot characteristic of the relations among dioceses themselves.

If, instead, ECUSA tries to argue "neutral principles," it will be a non-starter. Long ago, in oral argument before Judge Chupp at the outset of the case, ECUSA's attorney made (as he had to) a huge concession (bold emphasis added):

THE COURT [Judge Chupp]: Yeah, but, I mean, you're still talking about a body that voted to do something, and they voted something that you didn't like. And what I've got to figure out is, I guess, did they have the -- obviously, they have the authority to do that. They can vote and do what they want to do, that group of people. I -- well, I say that, I don't see where it says they can't.  

MR. NELSON: . . . And you're absolutely right, there isn't anything in there that says that specifically, nevertheless, the Courts have held that they cannot leave.

That last bit about the courts' rulings "that they cannot leave" was referring, as noted, to parishes, not dioceses. There is not a single adjudicated case on the books yet which reads ECUSA's Constitution to provide that member Dioceses may not withdraw from the Church -- just as the southern Dioceses did after the start of the Civil War. ECUSA's Constitution is utterly silent on the point, and it would contradict the nature of a voluntary association to read it otherwise.

Once ECUSA files its brief, Bishop Iker's diocese will file its reply by March 13, and then -- probably in the fall, but perhaps earlier, the Court will hear oral arguments from the parties. Look for a final and definitive decision from the Court by the end of this year.