All the law suits currently going on in The Episcopal Church

(Ed: Source, Anglican Mainstream)

In a private session of the Executive Council, meeting in Dearborn, Michigan, October 26-28, the Presiding Bishop's Chancellor, David Booth Beers, gave an extensive review of the state of property litigation and other legal issues and related disciplinary considerations confronting the Episcopal Church and articulated the policies of Presiding Bishop Katharine Jefferts Schori regarding those issues.

"This is hard. The concepts are hard," said Beers. "It is costly. And it requires a lot of pastoral care of those involved."

Beers talked about three types of situations confronting the church:

* When a group of congregants decides it no longer wants to be part of the Episcopal Church but intend to retain the church building and other parish assets;

* When a bishop and diocesan leadership determine to allow such a group to retain Episcopal Church property under certain circumstances;

* When a bishop and other diocesan leadership decide they no longer want to be part of the Episcopal Church.

In the first group of cases, Beers said, litigation has recently been successfully concluded in the dioceses of Missouri, North Carolina, and Rochester, while other court decisions in recent years favoring the Episcopal Church have been made in Colorado, Massachusetts, New Jersey, Virginia, New York, and several other dioceses.

Favorable lower court decisions have been issued by a trial court in the Diocese of South Carolina and by an intermediate appeals court in three cases from the Diocese of Los Angeles. All of those decisions are being appealed. In Long Island, a decision is expected within a month in the case of a parish that sued the Episcopal Church and the diocese. Lawsuits are also pending in the Dioceses of Colorado, Connecticut, Northwest Texas, San Diego, and Virginia.

The Presiding Bishop has been asked to file an amicus brief in a lawsuit involving the Diocese of Colorado, where the dispute is complicated by the fact that the congregation's rector has been accused and found guilty by a diocesan court of embezzlement.

The lawsuit against a group of 11 breakaway Virginia groups is "robust" litigation, said Beers, which has raised interesting questions about the nature of the Anglican Communion itself.

Lawsuits could conceivably be forthcoming in Georgia, Nebraska, Northern California, Ohio, South Dakota, Southern Virginia and a few other dioceses, Beers said.

There have been several settlements, including one in Central New York, where the departing group promised not to invite a bishop from another Anglican jurisdiction until it had secured its own space.

Another settlement in the Diocese of Olympia is being revisited by the incoming bishop.

"What we do for the dioceses in these cases is to provide legal research and other materials such as expert statements, briefs, and advice on litigation strategy. Then we hold a conference with the bishop and other leaders of the diocese such as the chancellor and standing committee officers," said Beers. "We talk to them about what to do about the departing group, how to help those who remain with the Episcopal Church, what to do about the clergy involved, what to do if another Anglican bishop is involved, when it's best to settle, when to pursue litigation, and what works and what doesn't in litigation."

The costs are "heavy," said Beers, but national expenses generally have not exceeded those of some single dioceses in the church. By contrast, he said, it has been reported that the Convocation of Anglicans in North America (CANA) congregations in Virginia have spent at least $1 million to date on the pending litigation.

Beers predicted another year or so of lawsuits.

"The total number of parishes in active litigation is probably 20-25, at the outside," he said.

The second category of cases involves diocesan leadership negotiating with congregants who wish to leave with Episcopal Church property. Agreements have been made with congregations in Dallas, Kansas, Olympia, Quincy, Rhode Island, and Virginia.

Critical to these negotiations, in the Presiding Bishop's estimation, are the requirements that congregations not invite a primate or bishop from another province of the Anglican Communion to assume jurisdiction over the departing group and that the diocese be fairly compensated for the value of the real and personal property to be retained by the group of departing members.

And then there are the dioceses seeking to disaffiliate.

Beers stated that it is important for "the disciplinary process of the church to speak to the issues." Something like that has already been attempted with respect to Bishop John-David Schofield of San Joaquin, after a group of California bishops claimed canonical violations when the diocese voted to take the first step to change its constitution in 2006 to qualify its agreement to submit to the Episcopal Church's Constitution and Canons. Article V, Section 1, of the Constitution says that a diocese's constitution must contain an “unqualified accession" to the Constitution and Canons of the Episcopal Church.

If approved at its second reading slated for the upcoming December 7-8 convention, the diocesan constitution would read that the diocese accedes "to the extent that such terms and provisions, and any amendments thereto, adopted by the authority of the General Convention, are not inconsistent with the terms and provisions of the Constitution and Canons of the Diocese of San Joaquin..."

If the Title IV Review Committee, which serves as a kind of "grand jury" in such cases, had determined that Schofield had abandoned the Communion of the Church under the terms of Canon IV.9, its decision would have begun a process that could have resulted in Schofield being liable to deposition and removal from office. But the committee agreed that the actions of the bishop at that time "did not constitute abandonment of the communion, as it is defined in the canon."

Appointed to the 2007-2009 Title IV Review Committee are Bishop Suffragan Bavi E. Rivera of Olympia, Bishop Suffragan David C. Jones of Virginia, Bishop C. Wallis Ohl Jr. of Northwest Texas, the Rev. Carolyn Kuhr of Montana, the Very Rev. Scott Kirby of Eau Claire, J.P. Causey Jr. of Virginia and Deborah J. Stokes of Southern Ohio. Causey, Kirby, Kuhr and Stokes served on the 2003-2006 Review Committee.

A charge of abandonment of the communion of the Episcopal Church is determined by vote in the House of Bishops. There is no appeal and no right of formal trial outside of a hearing before the House of Bishops. A proposed revision of Title IV would have changed that, but those provisions were not passed by General Convention 2006.

Of those dioceses considering "realignment," Springfield appears not to have yet acted, and Quincy declined in its recent diocesan convention to pass a proposed canonical revision.

Fort Worth's convention, meeting November 14-15,is set to consider the first reading of a constitutional amendment that would remove accession to the Constitution and Canons of the church, as well several canonical amendments that eliminate mention of the name of the Episcopal Church. Jefferts Schori intends to send a letter to Bishop Jack Iker, who advocates these changes, before the convention notifying him that such a step would force her to take action to bring the diocese and its leadership into line with the mandates of the national Church.

A similar canonical change is set to come before the Diocese of Pittsburgh's convention November 2-3, and Jefferts Schori has written to Pittsburgh's bishop in this regard (see link to letter cited above).

In December the Diocese of San Joaquin is scheduled to hear the second and final reading of its constitutional accession amendment, a proposed act that may prompt "more dramatic action" beforehand.

At some point, assuming that all these and other constitutional changes go forward, the Presiding Bishop could ask the Title IV Review Committee to consider whether the three diocesan bishops who have proposed and supported these changes have abandoned the communion of the Episcopal Church.

Presentment charges were filed in 2005 against Connecticut Bishop Drew Smith, because he deposed a priest on the ground that he had abandoned the communion of the Episcopal Church in rejecting the bishop's authority. The Title IV Review Committee upheld Smith's action, and Beers said the decision is "an important road map to where we are going."

If the Presiding Bishop were to present materials to the Review Committee regarding potential abandonment by the bishops in question, and if the Committee were to agree that abandonment had taken place, the bishops would have two months to recant their positions. If they failed to do so, the matter would go to the full House of Bishops.

If the House concurred, the Presiding Bishop would depose the bishops and declare the episcopates of those dioceses vacant. Those remaining in the Episcopal Church would be gathered to organize a new diocesan convention and elect a replacement Standing Committee, if necessary.

An assisting bishop would be appointed to provide episcopal ministry until a new diocesan bishop search process could be initiated and a new bishop elected and consecrated.

A lawsuit would be filed against the departed leadership and a representative sample of departing congregations if they attempted to retain Episcopal Church property.

"These are consequences, not punishments," Robertson said, "consequences that have long been clear, and are now being reiterated by the Presiding Bishop in the letters of warning. The goal is reconciliation, but also accountability."

Beers added, "The consequences can easily be avoided. But the Episcopal Church has the obligation to discipline its leaders under circumstances like this."
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