Arguing the Fort Worth Case in Texas

The videos of the oral arguments yesterday in the two church property cases before the Texas Supreme Court are now archived. The first, The Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church (No. 11-0265), may be watched here; the second, Robert Masterson, et al., v. Diocese of Northwest Texas, et al. (No. 11-0332), is at this link.

The two cases involved similar issues of property law: under the “neutral principles” approach, how do courts resolve intra-church disputes over who has control of the entity holding title to the real property? In both of the cases, the entities holding the legal title are corporations; and in both cases, the Episcopal Church (USA)—or the diocese (in the Masterson case)—claim the right to decide just who may occupy the offices in those corporations.

The central point, then, was what writings, agreed to before the dispute ever arose, vested the religious organizations with that authority? The attorneys for the national Church and its dioceses struggled mightily to give a straight answer to that question, and by my own estimate (after going through the arguments twice), they never did give a straight answer to it. Instead, the attorneys blustered: “the national canons and constitution . . . church is hierarchical  . . . all the courts around the country have found it so . . . everyone knew ‘the rules’ when they joined . . .”.

Well, fine—but just what are those “rules”? The Church’s Presiding Bishop, or its General Convention, or its Executive Council, have no authority inside a given diocese. As Scott Brister argued in rebuttal for Bishop Iker and his diocese, very effectively: “[They] can’t appoint a bishop; they can’t ordain a priest; they can’t discipline or remove a priest; they can’t marry anybody in the diocese; they can’t bury anybody in the diocese; they can’t preach to anybody in the diocese; they can’t stop the purchase of any property; they can’t stop the sale or misuse of property. . . They do not have any right to review our [diocesan] constitution or canons once we decide to change [them]. [But] we have the right to vote on whether they can change theirs.”

In the Fort Worth appeal, the Court appeared to defer a good deal to Scott Brister—he is, after all, one of their own, as a former Justice on the Court. But at the same time, as I say, he had all the best arguments—he stuck to what the constitutions, canons, articles and statutes all actually said. In response to his literal arguments, ECUSA’s national and local attorneys offered mostly bluster.

He also scored one of the best points of the day, when he said in the opening minutes of his argument:

[My learned opponents say that church] property in Texas belongs to the people who remain loyal to the larger church. That wasn’t the rule when the Episcopal Church left the Church of England in 1789; the members who didn’t remain loyal took all the property. That wasn’t the rule when the Church of England left the Church of Rome in 1534; the members who weren’t loyal took all the property. The Episcopal tradition is just the opposite of what they say it is, and that’s the kind of distortion that is the reason we require rules regarding property to be in writing.

The Justices seemed well inclined to adopt “neutral principles” as the approach to follow in Texas church property cases. Mary Kostel’s argument that they should adhere to the deference rule was self-serving (she is the Special Assistant to the Presiding Bishop for Litigation), and did not appear to find any takers on the Court. On the whole, she seemed to me to be lecturing the Court on what it should do, rather than advocating for her position, and I cannot imagine she helped her cause with her “argument from omniscience.”

ECUSA’s local counsel, Mr. Leatherbury of Vinson and Elkins, acquitted himself much more smoothly, and was initially an effective foil to Scott Brister. But he, too, eventually succumbed to falling back on unwritten and implied “rules” deriving from things like canons enacted in 1868 and weak words like “accede”. For Mr. Leatherbury and his clients, “accede” means “agree irrevocably and in perpetuity,” not simply “agree.” Courts are generally reluctant, however, to read perpetuity into promises that do not contain that or an equivalent term in writing, and I predict that the Supreme Court of Texas will be equally reluctant to do so here.

Watching an oral argument can be frustrating for someone who has read all the briefs and knows the record—I can imagine how frustrating it was for Bishop Iker and his colleagues (to say nothing of Bishop Ohl and his colleagues). The Justices touch upon little technicalities, such as jurisdiction to hear the direct appeal, and dance around the big and central issue without ever addressing it directly. But now having reviewed the tape twice, I have a firm conviction that most, if not all, of the Justices have the bigger picture firmly in mind. (Justice Paul Green, with his concern for fairness to the minority who remained loyal to the national Church, may be the exception.)

Indeed, Justice Medina put it succinctly to Mr. Leatherby when he asked him (tape at 24:50): “What happens when, as you say, your ‘canonical restrictions’—what happens when they conflict with Texas law?”

Exactly, Justice Medina. Mighty and old though it may be, the Episcopal Church (USA) still has to comply with local Texas law if it wants to order itself in that State in the manner it claims to be ordered.

ECUSA, in short, cannot waive an Episcopal wand where property is concerned—too much of business affairs, inheritance law and finance depend on fixed and settled rules about how interests in real property are created, held, and extinguished.

Texas law is much clearer than most States on many points regarding property: a trust in Texas, for instance, may always be revoked, unless it is expressly declared to be irrevocable at the time of its creation. (In California, by way of contrast, a special statute enacted in 1981 is read by California’s Supreme Court to make religious trusts created by national canon effective in the State, and to allow such trusts to be revoked only by national canon, as well, and not by the individual parish.)

But now I am getting into the issues involved in the second case (Masterson), and I shall end this post in order to take up the latter case when I post next.