ECUSA Prevails Again in California; Loses in South Carolina

The litigation agenda of the Episcopal Church (USA) continues to garner victories in California (where a single federal district court was allowed to overturn a constitutional initiative passed by a clear majority of voters). At the same time, ECUSA’s agenda in South Carolina suffered another defeat. Nonetheless, neither decision resolves any of the questions at issue once and for all. Thus, neither side may yet claim “victory”, but only to have reached one more stage in the interminable torture of litigation.

As for California, there is now one more court decision (albeit a tentative one) that proceeds along the lines previously discussed in my previous posts here, here and here. The difference is that those previous decisions involved parishes leaving their dioceses without the consent of the diocesan bishop or the standing committee; the present decision uses those same precedents to hold that a diocese of the Church (in this case, the former Diocese of San Joaquin) is in no better a position to withdraw than is a single parish.

Thus Superior Court Judge Donald S. Black writes in his tentative decision, filed yesterday:

At its highest level, the Church is governed by and acts through its General Convention, which is composed of a House of Bishops and a House of Deputies. Under the Church’s Constitution, “all acts of the Convention shall be adopted and be authenticated by both Houses.” With the exception of the Presiding Bishop, currently The Most Reverend Katherine Jefferts-Schori, no single bishop or deputy is authorized to speak for, act on behalf of, or bind the Church….

The fact that the diocesan Bishop may be the ecclesiastical authority of the diocese does not mean that the bishop speaks for, acts on behalf of, or is authorized to bind the Church itself. As set fo11h above, only the General Convention as a whole, or the Executive Council can speak for, act on behalf of, or is authorized to bind the Church. Nor does the diocesan Bishop have “plenary” authority within his or her diocese, but rather must perform his or her duties subject to the Church’s Constitution and Canons, and often in conjunction or consultation with other diocesan bodies, such as the diocese’s standing committee.

Diocesan bishops are at all times subject to and bound by the Church’s Constitution, Canons and Book of Common Prayer. None of these documents authorizes a diocesan Bishop to waive, to declare null and void, or modify or amend any of the Church’s Constitution and Canons.

This opinion by Judge Black may come as news to certain bishops of ECUSA who have not hesitated to waive the Church Canons in their dioceses, as they saw fit. For example, there was San Joaquin’s own Bishop Jerry Lamb, who routinely permitted all to receive communion, whether baptized or not, and also Bishop Tom Shaw of Massachusetts, who personally performed a same-sex marriage ceremony in violation of the Book of Common Prayer. But it is typical of the kind of arguments made by ECUSA’s attorneys on its behalf, and which are accepted without question by secular judges far and wide across the land.

Since I am currently representing the Anglican Diocese of San Joaquin in this California litigation, I can present only what Judge Black says in his opinion, and have to reserve my criticism of his decision for the papers that will be filed in the weeks to come. This is, as I stated, only the judge’s tentative decision; he could alter it in response to objections and arguments offered by counsel to show where they think he erred. Nevertheless, one has to accept that most tentative decisions become final, despite any objections made to them.

No appeal may be taken until a final judgment (as opposed to a decision) is entered. Since the judge has called for a full accounting of all diocesan property and bank accounts, it may be a while before any such final judgment is entered. I will post further updates about this situation as I am able, and as may be appropriate.

Today it was also learned (via a statement released from the office of Bishop J. Jon Bruno) that the Diocese of Los Angeles had finally settled all outstanding litigation over property matters involving three of its parishes: All Saints in Long Beach, Saint David’s Church, in North Hollywood, and the Church of St. James the Great in Newport Beach. (Earlier the congregation of St. Luke’s of the Mountains, in La Crescenta, had moved out of its property after losing a bid to have its case reviewed by the United States Supreme Court.)

All Saints will continue to operate outside the Diocese, while renting back its property; St. David’s, with no congregation capable of using it, will be taken over by an Episcopal school; and the Anglican congregation of St. James, which already has vacated the buildings, will abandon its appeal of the decision awarding its property to the Diocese, in exchange for an undisclosed consideration.

What is significant in the statement from Bishop Bruno is that we have yet another figure to plug into the total litigation costs expended by ECUSA and its dioceses to date: the statement acknowledges that the Bishop, as a corporation sole, has incurred a total of Eight Million Dollars to date in the litigation in Los Angeles and Orange County courts on behalf of the Diocese and ECUSA. (Obviously that total does not include amounts incurred by ECUSA itself, for its own joiners in those lawsuits.)

The statement indicates that congregations will continue to meet in the Newport Beach and La Crescenta parishes, so it is unclear just how much money the Diocese of Los Angeles will be able to recoup in revenues from All Saints and the school that takes over St. David’s. But it seems certain to be a long time before the corporation sole can replace the $8 million it spent in pursuing these properties.

Finally, in South Carolina, the Supreme Court of that State issued an order denying the appeals transferred to it from the Court of Appeal, and which had been prosecuted by Bishop von Rosenberg and his Episcopal Church in South Carolina. This decision now clears the way for the main case, brought by Bishop Lawrence and his parishes, to go to trial before Judge Goodstein, starting this July.

So as always in litigation, we have a mixed bag, and nothing is quite final. Stay tuned to this blog for more developments in San Joaquin and South Carolina, as they happen.

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