February 5, 2010
Also see the February 9, 2010 update at the bottom of the article.
Introduction:
On February 2, 2010, the American Anglican Council (AAC) released an accounting of how The Episcopal Church (TEC) has spent millions of dollars in over 50 lawsuits, deposed or inhibited 12 bishops and more than 400 other clergy, and violated its own canons numerous times. The Rev. Phil Ashey, AAC Chief Operating Officer and practicing attorney, authored the paper at the request of several members of the Church of England's General Synod in preparation for their vote regarding the nature of their relationship with the Anglican Church in North America. On February 4, Mr. Simon Sarmiento, member of the Church of England and founder of the blog Thinking Anglicans, published a rebuttal of what he called “factual inaccuracies” in the AAC’s paper. Mr. Sarmiento is not an attorney and admitted to having the help of, among others, The Episcopal Church’s lead lawyer, David Booth Beers, and the Presiding Bishop’s Special Council for property litigation, Mary E. Kostel.
Mr. Sarmiento’s full paper is located here.
The following is a reply to Sarmiento’s assertions of factual inaccuracies.
1. The numbers of clergy deposed for abandonment of communion is at least 237, not 170. The number of bishops so deposed is three. In addition, nine bishops and at least 152 clergy have been removed for “renunciation of ordained ministry” in violation of the plain reading of the canons.
All of this has been documented in our paper The Episcopal Church: Unjust and Overbearing Episcopal Acts, at pp. 3-21. The list we published does not purport to be a complete list—in fact, since we have published it, more clergy have contacted us and identified themselves as having been inhibited, deposed or released under the abandonment and renunciation canons by TEC. We have documentation and substantiation showing the inhibition, deposition and release of all these clergy for either alleged abandonment of communion or renunciation of ministry. The American Anglican Council can provide copies of this documentation by facsimile or e-mail if requested.
2. The Renunciation canons are not simply juridical in process. The plain language of the canons (III.9.8 for priests and deacons. III.12.7 for bishops) does in fact address the indelibility of Holy orders.
Please read the plain language of the canons at pages 9 and 12 of our brief: upon renunciation, the bishop, priest or deacon “is deprived of the right to exercise the gifts and spiritual authority as a Minister of God’s Word and Sacraments conferred in Ordination.” Please note: the removal is not specific to the Episcopal Church. It goes directly to the gifts and spiritual authority conferred in Ordination. If the Episcopal Church wanted to change the catholic understanding of Ordination and limit the renunciation to ministry within the Episcopal Church it could have done so by amending Canons III.9.8 and III. 12.7. It has chosen to leave the language referring to ordination intact and without limitation.
3. Neither Bishop Jack Iker nor any of the other bishops removed by TEC under the Renunciation of Ministry canons ever voluntarily resigned their Holy Orders or ministry as a bishop.
Please note Bishop Iker’s statement on page 10 of our brief:
“The Presiding Bishop is misleading the Church and misrepresenting the facts in her recent allegation that I have renounced the ordained ministry of the Episcopal Church. According to Canon III.12.7, any bishop desiring to renounce his orders “shall declare in writing to the Presiding Bishop a renunciation of the ordained ministry of this Church, and a desire to be removed therefrom,” and that the PB shall then “record the declaration and request so made.” I have not written to the Presiding Bishop making any such declaration or request. I hope the House of Bishops will hold her accountable for her continued abuse of the canons.”
This statement and the statements of the other bishops who did not voluntary resign as required by the canons are a matter of public record and may be read at pp. 8-11 of our brief. Of the clergy who resigned their position within The Episcopal Church, transferred to another Province of the Anglican Communion, and were summarily removed by the renunciation of ministry canon (III.9.8), not even one wrote a letter voluntarily renouncing their ministry and a desire to be removed therefrom. There is no such thing as an “implied renunciation” in canon law or common sense.
4. The statement “all clergy—including bishops—who leave TEC for another province of the Anglican Communion… are required to complete a corresponding exit process [under the Renunciation of ministry canons]..” is manifestly false and misleading.
There is nothing in the plain language of canons III.9.8 and III.12.7 that require a Renunciation of Ministry upon a transfer to another province of the Anglican Communion—period. As we note in our brief at page 13, use of the Renunciation canons for transfers creates a novel and functional definition of Holy Orders in The Episcopal Church, the net effect of which might well be to redefine American Anglicanism in TEC as an autonomous church with an autonomous understanding of both communion and Holy Orders.
5. The statement “In fact, it is contrary to the policy of The Episcopal Church to seek remedies from laypersons, and it has never done so” is manifestly false and misleading.
The American Anglican Council has documented at least 48 cases where the Episcopal Church and the diocese have sued individual vestry members (see pp. 27-28 of our brief). This too is a matter of public record and we are prepared to substantiate the facts with copies of the pleadings if necessary—copies that will show from past cases that it is indeed the policy of the Episcopal Church to sue individual vestry members and that such cases are current within the courts. In Virginia alone, approximately 200 individual vestry members were sued by The Episcopal Church and the diocese. In some cases, the Episcopal Church and the Diocese have sued for punitive damages—which requires a showing of malicious behavior on the part of the vestryperson being sued. In other words, The Episcopal Church is alleging that the act of leaving amounts to the kind of malicious conduct that would be on a par with a fraud or a tort. Such damages are often triple the amount of the property and/or the accounting alleged. The Episcopal Church sued individual vestry members for punitive damages in the California cases (St. David’s North Hollywood, St. James Newport Beach, All Saints Long Beach). Even where punitive damages were not alleged, there are cases where The Episcopal Church has sued individual vestry members for an accounting of all funds expended by the church after they have departed. In any case, when the Episcopal Church and/or Diocese sues an individual vestry member, the financial costs of hiring an attorney as well as the emotional distress and intimidation is costly. In all such cases, as we have noted, the mere existence of a lawsuit has financial implications for the vestry member sued. Those consequences include the inability to obtain a mortgage for a home or other necessities, or a security clearance for a new job.
There is simply no need to sue individual vestry members. The corporation of the church in question is a sufficient party to sue. The only reason to sue individuals is to intimidate them.
One must ask the question, at what point does such a willful and reckless indifference to the facts amount to an intent to deceive?
Respectfully submitted,
The Rev J Philip Ashey, J.D.
Chief Operating Officer of the American Anglican Council
Update from February 9, 2010
The following comments on Mr. Sarmiento's paper are from Mr. Eric Sohlgren, practicing attorney. These comments focus on the portion of Mr. Sarmiento's paper that addressed the issue of property litigation. Excerpts from Mr. Sarmiento's paper are in italics while Mr. Sohlgren's comments are bolded.
Getting into the details of property, the paper completely misunderstands the question of ownership versus trusteeship. It attempts to draw a contrast between the situation in England and the United States while they are in fact very similar if not identical. The "Dennis Canon" (about which more below) did not "transfer ownership" of parish property, but clarified the trustee relationship that parish leaders have in relation to the larger church, just as in England.
No, the paper does not misunderstand the question of ownership versus trusteeship, but recognizes that under hundreds of years of common and statutory law in the U.S., only the property owner can create a trust interest on behalf of someone else. A non-owner of property (the putative beneficiary) cannot lawfully create a trust interest in someone else's property without the owner's consent.
This trustee relationship has only ever meant that the national church has an enforceable interest to ensure that the property should be used only for the mission of the church. A helpful comparison may be made with the provisions of the Parochial Church Councils (Powers) Measure 1956 and The Incumbents and Churchwardens (Trusts) Measure 1964.
This clarification came at the recommendation of the Supreme Court of the United States, which reaffirmed that civil courts were not to become entangled in settling religious disputes. An 1872 case (Watson v. Jones) clarified that either implied trust or being part of (and answerable to) a general church (both of which applied to Episcopal parishes) were sufficient to decide in favour of the diocese or national church, and under civil law this is how the vast bulk of property dispute cases were settled for over a century. In a 1979 case (Jones v. Wolf) the Supreme Court ruled that "neutral principles" might also be considered. Recognizing that this was a shift in the application of civil law, the Court noted (emphasis added):
At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church.
The Episcopal Church chose to accept this invitation, and adopted the "Dennis Canon" - named for Bishop Walter D. Dennis, Suffragan of New York - as a declaration of what the church had always held to be the case, and which had been the almost universal understanding under the civil law up to that time, that is, rendering the implied consent or trust explicit.
By selectively quoting from this paragraph in Jones, this claims as "fact" the Episcopal argument about what the Supreme Court meant. Some state courts, including the South Carolina Supreme Court, have rejected this interpretation. Jones never held that church rules can unilaterally create a trust interest in local church property. All the Court was suggesting is that the parties -- local church and denomination together -- could agree in advance of a dispute, under neutral principles of state law, about who would get the local church's property. The so-called Dennis Canon never obtained that consent. Instead, Jones commended the use of religion neutral state laws to adjudicate church property disputes, and as noted above, under longstanding state law, a beneficiary cannot create a trust in someone else's property.
As the Court had stated in 1872, in defining the nature of a hierarchical church such as The Episcopal Church (which they named explicitly as an example):
All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.
Watson was not a property dispute, but a dispute about religious governance. As Jones held over a century later, church property disputes can be resolved under non-religious principles of state law because the court need not make any ecclesiastical determinations.
Thus, what the paper perceives as some sort of novel transfer of property rights was actually a continuation of what had been well understood practice, and canonical requirement, for over a century, and the underlying principle has been recognized by the appellate courts of all but one American state in which cases have been tried.
No canon before 1979 purported to create a trust interest in local church property. To the contrary, diocesan canons have required parishes to incorporate and hold property as separate legal entities in their own name, because TEC wanted nothing to do with the burdens of property ownership. An ecclesiastical practice that local churches would fly the Episcopal flag while Episcopal is very different than trying to confiscate a separate legal person's property when they exercise their religious freedom to affiliate with a different religious group. Didn't The Episcopal Church do that when they disaffiliated from the Church of England?
It is not that the courts are reluctant to address disputes involving churches, but that the rule of law, rather than debate over doctrine, should be the controlling factor. The paper seeks to introduce just such a doctrinal debate (as to who is more faithful to "Anglican belief and practice"). By gaining a form of approval for dissident congregations from the Church of England the motion is hoping to make use of the very legal principle its proposer holds to be inappropriate - but at the level of the Communion rather than of the Diocese or Province - in order for ACNA and its parishes to succeed in their litigation.
A motion by General Synod is unlikely to have such an effect, but will exacerbate the lawsuits by introducing additional confusion, and likely raise false hopes that parish property will be retained by those departing from the very church whose existence made their holding property in trust as a corporate parish possible. Such an action by General Synod will represent an interference not only in the polity of the Episcopal Church, but in the civil courts - and will increase both the extent and expense of litigation.
U.S. courts will not be bound or influenced by British action.
Which brings us to the issue of natural justice. First of all it must be noted that in many cases the vote of a vestry or congregation to secede from the Episcopal Church is not unanimous - the rights of the minority who wished to remain loyal to the Episcopal Church appears not to factor into consideration in this paper. Moreover, with the exception of those few parishes actually founded and constructed by the present generation, and however "faithful" the dissident members may be, they are in point of fact alienating property that had been dedicated to the use of the Episcopal Church and its worship. (In some recent instances, dissident parishes have come to a settlement with their respective dioceses, and been able to retain property on condition they do not re-affiliate - the situation is not as black and white as the paper portrays it.)
This argument commits the sin alleged in the paragraph above by confusing doctrine and civil law. Under U.S. civil law, parish corporations are governed by their vestry and in many cases voting members, just like a board of directors and shareholders in a for-profit corporation. Under the rule of law, when a church corporate board and members vote to change the corporation's religious affiliation, those votes are binding on the entire corporation. Those few members (usually a handful compared to hundreds in the majority) who voted in the minority have no civil law right to overturn the will of the majority just because some non-corporate religious leader deems them more "faithful."
Indeed, in any disaffiliation action, the former denomination will label the departing majority "unfaithful" because they have voted to leave. But under civil law, no corporate outsider like a former denomination should be able to negate those votes through a religious determination.
Further, in a corporate disaffiliation action, no property has being alienated, as the church corporation still owns the property and holds the deed. All that has happened is that the corporation itself has changed religious affiliation.
The paper complains about the liability vestry members may encounter when their congregation moves to disassociate from the Episcopal Church. While acknowledging that this is the law in Canada, the author appears not to understand that it is also the law in much of the United States (again, such matters vary from state to state but the liability of vestry members for their corporate acts is a matter of civil law not church law.) In those states where this is the case, vestry members are generally covered by Directors and Officers Liability Insurance, for that very reason. In fact, it is contrary to the policy of The Episcopal Church to seek financial remedies from laypersons, and it has never done so.
This misstates the law in the United States and fails to address the concerns raised by the paper. First, however pleaded, almost all of the litigation in the U.S. has been about TEC and its Dioceses suing to recover local church property. Because TEC set it up that way, parish property is held by local church corporations, which are separate legal entities under state law. Clergy and laypersons don't own the property. Therefore, there is no sound legal reason to sue laypersons to recover corporate property whether for financial remedies or not. Even where TEC has claimed that a vestry vote to disaffiliate has been improper under state corporate law, the goal of that litigation has been to recover the property. In other words, even if vestry members had any liability under civil law for voting to change religious affiliation, which is highly doubtful, that liability would run to the corporation they serve -- the local church -- not to a corporate outsider like a religiously-affiliated denomination.
Second, the national Episcopal Church has a longstanding policy and practice of having its Dioceses commence litigation against local churches, and then the national church joins in the litigation against the defendants. For example, the Episcopal Church in the Diocese of L.A. sued all of the volunteer vestry members and clergy of St. James in 2004, and also brought virtually identical suits against the vestry members and clergy of All Saints', Long Beach, and St. David's, North Hollywood. This is the same complaint where the Episcopal Church in the Diocese of L.A. sued the individuals for punitive damages. The national church then joined into the lawsuit, naming all of the individuals as defendants. Even after the original complaint was amended to remove the punitive damages allegations, both the national church and its L.A. Diocese continued to sue the individuals.
Third, the claim that TEC has never sought financial remedies from laypersons is deceptive and disingenuous. TEC has orchestrated a national litigation strategy where its Dioceses have sued dozens of laypersons for financial and non-financial remedies, and then TEC has joined in that litigation against the defendants. It is true that in some cases financial remedies have not been sought against laypersons, but those lawsuits against laypersons have still caused financial worries by forcing them to retain or fund attorneys, emotional harm caused by the stress of being hauled into court, and the long-term effects of a suit showing up on future background checks and credit reports -- all where the Episcopal Church could have exercised restraint by only suing the corporate property owner. There are court cases where the Episcopal Church sought and obtained a court judgment against clergy and numerous laypersons in order take over the corporate-owned property. They could have achieved the same result by exercising some restraint with a judgment only against the corporation.
Finally, claiming that laypersons should not be bothered by being sued by a church because they have Directors and Officers Liability Insurance is a little like saying a victim of abuse can go to the doctor. The reality is that D&O insurance polices have routinely denied coverage for these kinds of disputes, leaving defendants with the financial burden of having to defend themselves.
Natural justice requires that people take responsibility for their actions. No one has forced individual clergy or laity to leave the Episcopal Church - and they do have the right to do so if their consciences are wounded by the decisions of that church. It is, however, a matter of both church and civil law - and natural justice - that they do not have any right to retain property given in support of the church when they choose to leave it.
Yes, natural justice requires that people take responsibility for their actions. The Episcopal Church and its Diocesan agents should be held responsible for their actions in suing dozens of laypersons in an attempt to confiscate property they do not own. But that judgment is likely to come in a different venue.