Get Ready: Decision expected this Friday in Virginia Property Litigation

Maybe “Stephen from Falls Church” or another commenter from northern VA can chime in here with a timely reminder of the strong bias of this particular news source in Falls Church.  Clearly this article is written with a strong presumption that the “continuing Epscopalians” (including the mayor of Falls Church) are in the right.

But at least the wait is almost over.  By tomorrow or Saturday, we should know how Judge Bellows has ruled in the intial stage of this bitter court battle.  But it’s already a foregone conclusion that whichever side loses will appeal the decision, and so the wait will go on, and on, and on.  Meanwhile, the Anglican Civil War will continue…

David Handy+

Prayers for Judge Bellows and the Church of Christ in Virginia.

1.  The newspaper is biased.
2.  I do not believe that the “continuing Episcopalians” were ever denied access to The Falls Church.  Someone from the Falls Church can explain how that came down at the time of the separation but as I recall, they had a remaining Episcopal priest on their staff of clergy to accommodate those folks.
3.  I also do not believe that the canons of TEC (i.e. Denis Canon) were in any way a part of the Virginia Congregations’ case.  (A mention was made of the Denis Canon in the news article in another case.)
Thank you for your prayers from Truro and the other Virginia Congregations.

Boy, talk about a biased news story. This one takes the cake.

the snarkster

As the saying goes among those of us who try lawsuits in Southern Illinois,  “this ruling is only going to decide which color the briefs will be.”  Or, in other words, which party will be the one to take the (inevitable)appeal (from the fact that, under Illinois procedure, the cover pages of the briefs filed in the appellate court differ in color based on whether filed by appellant or appellee.)  However, this is not an incidental issue.  A common maxim of appellate law is that “an appeal scans the record”, meaning that the ruling of the trial court will be upheld if it can be sustained on any legal basis—even if that was not the basis used by the trial court.  So, an appellee can succeed in upholding the ruling of the trial court even if only because the trial judge did the right thing for the wrong reason. In this respect appellate law, like virtually all law, is conservative in nature, and there is a definite advantage to being the party charged with defending the trial court’s ruling—especially if the appeal is based on subjective judgments or inferences to be made from the testimony of witnesses.

I can’t help but wonder at what the impact will be on the three California parishes’ case before the California Supreme Court, should Judge Bellows rule in favor of Falls Church et al?

Consider the source.  The Falls Church News-Press is a weekly free community paper that is available at places like Borders, Barnes & Noble, Starbucks and the Metro Stations in Northern Virginia and DC where it can be found with the other esteemed ad-rags like the Blade and City Paper.

Cenny:
It may have some perceptible amount of influence, especially considering how NoVa and Cali slowly grow more politically alike (emphasis on slowly). However, whatever impact it may have will occur not because it’s the same denomination in all cases, but because of similarities in the two states’ stances on contract interpretation, property rights, and equitable remedies. If there is anything I have learned in my first year of law school, it is that California courts do whatever they please.

Petra,

You are correct that neither The Falls Church Anglican or Truro Anglican or any of the other Anglican Districts of Virginia have barred anyone from their buildings.  Actually in several cases they have made the facilities available for funerals and weddings and continue to welcome anyone from the “continuing congregations” who want to worship there with open arms. 

The article refers to the case in New York that was decided last week.  I don’t think that case will have any bearing on the Virginia case since this case revolves around the applicability of the Virginia Division Statute which, if decided in favor of the departing congregations, would trump all other claims to the property.  The statute states that when the judgement is made for the congregations that it is also conlsuive for title and control of the property.

Those of us in Virginia are anxiously awaiting Judge Bellows’ ruling.

^Yes!  This is one of the WORST news articles I have read on this case.  It is completely biased.  Even more, it does a TERRIBLE job of summarizing the legal issues in the case.  It discusses the NY ruling from last week, but fails to even mention the Virigina statute that is the center of the legal issue!!!  Obviously, the reporter is completely unaware that the NY case has virtually no relevance to this case.  Poor, poor journalism.

Boy, talk about a biased news story. This one takes the cake.

Sadly Snarkster, this is one of Benton’s more balanced ones

The author of this “news” story is a local Episcopalian (from the other side of the fence) that is always been very biased (both against the orthodox and politically against all that is not on the extreme left of the political spectrum).  His weekly opinion column is called “anything but strait.” – you can guess what it is about.  I have authored several letters to the editor about his stories. 

Key take away points here are: the “continuing Episcopalians” are at most 100 people kids included they are renting space from a Presbyterian church across the street.  The Falls Church dates from 1732 (celebrating 275 years at that site, and predating the US), and had 3,500 plus at Easter services last month.  We do not have anyone at the doors holding people back, so if these “continuing Episcopalians” want to worship at the church, they can. 

The decision due this week is surrounding the application of a Virginia specific law that states that if there is a split in a denomination, the individual parish can, by majority vote, determine which branch of the denomination they want to join.  It dates from the post Civil War time when the Episcopal Church and other denominations did split into north and south branches.  TEc says that there is no split because the national church convention did not vote to split.  The groups of churches that split from the Diocese of Virginia (about 12 to 15 parishes with about 25% of the Diocese of VA’s ASA) say that their own actions (plus others such as Plano and other parishes that split) show that there is a split in the denomination. 

If he says that there is a split in accordance with the VA statute, then he can decide ownership or he can ask for a second trial on the issue.  The interesting part is that the group of parishes in VA joined together into one venue and they are all in this judge’s hands.  We (The Falls Church and the other churches) have been praying in our prayer of the people for Judge Bellows, TEc bishop Peter Lee, and for the leadership of the Episcopal Church since this suit started.

Tim,

I believe there was a motion on both the part of TEc/DioVA and the congregations to consolidate the case into one court’s jurisdiction thus the reason that Judge Bellows was appointed to the case.  From my observations of Judge Bellows, he is very intelligent where the law is concerned and a ruling from him will be a fair ruling however he rules.

and when will this information be avaliable

Tim posts a good summary of what’s going on. I’ll add that my understanding is that the judge will rule on a second matter: The constitutionality of the division statue. Again, as I understand it, and in a very simplified summary, there are two issues, and he can rule up or down on each:

1. Whether the churches have made their case that there has been a division in the Episcopal Church.

2. Whether the statute is constitutional.

My understanding is also that if he rules no on (1), then he won’t rule on (2) at all. So the options are either:

A. Yes on 1, Yes on 2
B. No on 1, silent on 2

If it’s A, 815 will appeal. If it’s B, the churches will appeal.

The argument that there is no split because General Convention didn’t vote to split is frivolous.  By filing a lawsuit, the Episcopal Church clearly indicated that there was indeed a split.  If there wasn’t a split then according to TEC’s argument wouldn’t they be suing themselves?  This would analogous to General Motors suing Chevrolet would it not?

In the spirit of comment 13, I would ask that people keep one thing in mind over the next few days.

While it is clear that ADV is in the moral right, that doesn’t necessarly mean that it is clear to everyone that they are in the legal right, no matter how much that those of us (and we aren’t exactly an unbiased group) want it to be true.  It is the job of Judge Bellows to rule impartially based upon his understanding of the laws as writen, not who actually is morally right.  I would ask that, should he rule against ADV, we all remember to exercise respect toward his office and charity toward the challenging job he is faced with and not direct any anger at him as a person.

A timely reminder, Andrew A.

Petra,
You are correct.  I don’t recall all the details, but I believe the proposal was for the continuing Episcopalians to have a dedicated service in the historic church at TFC; the plan was stopped by the inhibitions.  So it was not merely a matter of “doors being open to anyone who wants to worship” (that’s always been true) but something far more structural regarding shared use of space.

Since the “journalist” referred to Akinola as a “right wing Bishop” (didn’t realize he’d been demoted from Archbishop), I would expect he would take an objective and balanced approach and refer to Schori, Chane, et al as left-wing bishops?

I agree with AndrewA #17; Piedmont #16 also makes a good point.  I made that point in an earlier discussion with the perennial (on Virginia issues) DavidH that the GCC’s argument essentially means it gives itself the unilateral right to nullify Virginia’s law.  If GCC says there’s no split, there’s no split, even if people and churches and dioceses are fleeing left and right, and GCC itself has filed suits against every one of them it can.

No state should be required to accept this presumption of a religious institution.  The First Amendment cuts both ways.

Not Nick Benton, Tar Heel.  He’s the sort of person that criminalizes religious and theological differences.

“...the contractual agreement between the Episcopal Church and the local church…”

Putting aside the author’s lamentable redundancy of “contractual agreement” (“an added bonus?” “past history?” “an ATM machine?”) he succumbs to the failure common to any who smoke their own dope - petitio principii. 

The legal question (n.b., AFAIK not a subject of the present opinion for the present case) is whether an enforceable agreement under the circumstances exists - not whether to uphold an agreement the existence of which is manifest and undeniable. 

The New York trial court apparently found an enforceable agreement under New York law given the circumstances of that case - I have not read the opinion. 

Unfortunately, bias and poor writing once again interferes with the business of reporting.

You assume that because he was unbalanced in one direction, he’d be unbalanced in all directions in a balanced way? 

Greg,

There is also a third possibility: yes on 1; no on 2.

This seems to be the fallback argument of TEC, and the one that prompted the intervention of the Va. AG.  The notion that a state trial judge would declare a longstanding state statute unconstitutional has always seemed farfetched to me, but that is TEC’s argument.

Mark,

You’re correct - there is that third option. I agree with you that it’s an unlikely one.

On McCall’s “Yes on 1, no on two”, Boolean or Aristotelian, I think that’s an option too

EmilyH,

I started to put “logical possibility” in my post, but I decided it rose (only) slighty above the level of mere logical possibility.  In the realm of practical possibility, Greg’s original post is more realistic.  The judge will now probably prove me wrong; it wouldn’t be the first time.

There are actually three possible outcomes that the judge can decide on this case:

1 - there is a division and the statute does not apply because it is unconstitutional

2 - there is a division and the statute applies and is constitutional

3 - there is no division and it is a moot point.

It is interesting that TEC and the Diocese devoted half of their last post-trial brief to the constitutional issues.

It seems to me, as an amateur, that there is good reason to believe that it will be found constitutional.  The earliest important legal findings tended to emphasize ownership of private property back in the John Marshall days.  Of course “Eminent Domain” arguments have eroded that principle in recent years but I don’t see that as very applicable here.

It is interesting to note that the Virginia Attorney General McDonnell defended the constitutionality of Statute 57-9, the Virginia Division Statute.  (Jan. 11, 2008)  I have been told that if Judge Bellows decides in favor of the Virginia Congregations and TEC appeals on the basis of constitutionality, the state of Virginia will defend against their appeal.

I was thinking of this Supreme Court ruling as characteristic of Chief Justice Marshall’s court: http://en.wikipedia.org/wiki/Fletcher_v._Peck

Mike Watson #30,

I did not understand that emphasis for three reasons: (1) Va. courts are unlikely to find a Va. statute unconstitutional; (2) that argument after Jones v. Wolf is very weak; and (3) it invited intervention by the AG, which was a PR fiasco.  The only reason I can see for that emphasis is to try to push him in their direction on the interpretation of the statute.  Do you see it differently?

New Reformation Advocate (#1)—Thanks for thinking of me.  I have nothing to add to the discussion of the local paper, which I think has been well-stated above.  This article is actually relatively unbiased given this publication’s history.  Plus, one should be honored for being called a “defector”—the last time I heard that term used so much was to describe people fleeing from Soviet tyranny.

So, is this done in open court or is it just “published”?

Paul,

The information we’re getting is that it will be published, with messages sent first to the lawyers, who will then immediately inform those named in the suits.

Thanks, Greg.  I guess we’ll have to wait and see.

Mark McCall (#34),  It seems to me your idea that the constitutional arguments are made to try to motivate the judge to rule favorably to the Diocese on the application of the statute has merit.  It also occurred to me that perhaps they went into more detail on the constitutional issue because they think they may ultimately need it, even if they think Judge Bellows is unlikely to accept that the statute is unconstitutional.  (But I’m not anywhere close to being enough of a procedure maven to know what and how much has to be raised when.)  I don’t think they accept that their position after Jones v. Wolf is very weak.  They think TEC has been grandfathered out through the “invitation” to adopt the Dennis canon.

#39

Your post prompts me to clarify my previous comment.  I do not think TEC’s position overall is weak post-Jones.  They may not prevail in all states, but their position is certainly not weak (in any state).  What I find weak after Jones is the argument that the application of a state statute (the division statute) that is neutral on its face is unconstitutional.

BTW, whenever I see discussions like this, I wonder just how many of y’all are lawyers.  Not to disparage anyone, but it does fit the sterotype of the Episcopalian demographic.

#20 Tar Heel-don’t hold your’ breath. This is common in the liberal media, who would constantly refer to, say, Newt Gingrich with appellatives such as “right wing” or “arch conservative”, but would never refer to Ted Kennedy as being “far left” or a “staunch liberal”, for the simple reason that in their minds, the Clintons, Kennedys, and Boxers of this world are centrists or moderates.

Subscribe.

Mark McCall (#40)

Mark, I should have noticed from your original comment that your post-Jones weakness evaluation was directed to the position on unconstitutionality of the Virginia statute.  It seems to me though that there is still a question to be asked why should a facially neutral division statute be accorded more or less deference than more general facially neutral principles of property, trust and corporate law applied in similar contexts.  In the California Episcopal Church Cases, the argument is made not just that California should revert to a deference approach rather than neutral principles, but that the result in Barker runs afoul of the First Amendment, etc.

Paul, Greg and others:

Once the decision has been issued and the attorneys have been informed the information should be published on the website for the Anglican District of Virginia (http://www.anglicandistrictofvirginia.org).  I would keep checking there.  I will also try to post on this thread once I see the decision appear on the website.

In essence, TEC’s position boils down to “if we lose on any theory it is unconstitutional.”  This position was articulated very well in the Jones opinion: “The dissent would require the States to abandon the neutral principles method, and instead would insist as a matter of constitutional law that, whenever a dispute arises over the ownership of church property, civil courts must defer to the ‘authoritative resolution of the dispute within the church itself’.”  That second word, “dissent”, sums up the strength of that argument, IMO.

46:  In summary, “The Church is Always Right, even if the State Law says otherwise.”  Not a precendent I want to see.  I wonder when some religious organization is going to rule that the property of all its individual members is held in trust for the organization.  I could easily see some fringe cult doing that.

Don’t give them any ideas.

Petra, it is my understanding that the Attorney General of Virginia has already filed an amicus brief in support of the parishes, and in defense of the constitutionality of the statute.  (State Attorneys Generals are charged with defending the constitutionality of their state statues).  Certainly if either side appeals, (which one of them will) I would expect the AG to continue to be involved.

Thank you #49.  Any explanation that can be offered to those of us who are not lawyers is much appreciated.  I’ve tried to follow the interesting comments by studying Jones v. Wolf, the California situation, the principle of neutrality, etc. but it is great to have some additional insights as the discussions continue.
We, at Truro have been told we will be notified by email as soon as the verdict comes down and I would suppose that would be true of all the Virginia Congregations. No doubt, Stand Firm will have the word immediately, also.

I assume that appeals will be filed by the losing side in the Virginia case.  From the court it’s in now, will the appeal go to an appellate court in Virginia, or to the Virginia Supreme Court?

I understand that there is a California case that went to an appellate court and has now been submitted to the California Supreme Court.

My really big question is whether there is any chance that any of these cases would be appealed to the U.S. Supreme Court.  My understanding is that property law and the law concerning what a trust is, is a state matter.  Is there any chance a federal court would get involved.

I’m not in a congregation or diocese involved in litigation.

Rudy+

#51,

One opinion: while the constitutional issue we have discussed above is a federal issue, it is most unlikely that the U.S. Supreme Court will take any of these cases.  Were it to do so, it might be in the context of a state Supreme Court finding a federal constitutional requirement of deference to a hierarchy, i.e., if a state court were to accept TEC’s constitutional argument.  As indicated above, I think that was the position rejected in Jones.  And I would expect the Supreme Court to require neutral principles when it next hears such a case.  But I doubt that will be any time soon.

None of this is to comment on the strength of TEC’s arguments about statutory interpretation or public policy, but only the constitutional argument.

Rudy:  THREE California cases.

Continuing from Cennydd back in 29:

If it’s option 3, and Judge Bellows finds there’s no division, then it’s my understanding that because the state statute doesn’t apply, then the parties will litigate under the more typical issue: which constitutional standard is used to decide church property suits in Virginia, and how does it apply.  That raises a whole bunch of other issues the court hasn’t dealt with yet.

But it seems to me there will likely be an appeal of the 57-9 issue by the losing side first, in the Virginia Court of Appeals.

I may be incorrect in my prior post about where an appeal would go.

The Virginia Court of Appeals website says the following about the Court’s jurisdiction:

Jurisdiction

The Court of Appeals has authority to hear appeals as a matter of right from:

  * any final judgment, order, or decree of a circuit court involving affirmance or annulment of a marriage, divorce, custody, spousal or child support, or control or disposition of a child, as well as other domestic relations cases;
  * any final decision of the Virginia Workers’ Compensation Commission (a state agency responsible for handling workers’ compensation claims);
  * any final decision of a circuit court on appeal from a decision of an administrative agency (example: the Department of Health); and
  * any interlocutory order granting, dissolving, or denying an injunction or adjudicating the principles of a cause in any of the cases listed above.

 

The Court of Appeals has authority to consider petitions for appeal from:

  * final orders of conviction in criminal and traffic matters except where a death penalty is imposed.
  * final decisions of a circuit court on an application for a concealed weapons permit.
  * certain preliminary rulings in felony cases when requested by the Commonwealth.

The Court of Appeals has original jurisdiction to issue writs of mandamus, prohibition and habeas corpus in any case over which the Court would have appellate jurisdiction.

In addition, the Court of Appeals has original jurisdiction to issue a writ of actual innocence upon petition of a person who has been convicted of a felony upon a plea of not guilty.

If I’m reading that correctly, any petition for appeal of this decision would go to the Virginia Supreme Court, not the Court of Appeals.  Can any Virginia civil procedure experts confirm this?

Civil appeals go directly from the circuit court to the Supreme Court of Virginia.

Thanks, DavidH.

The appeal would indeed go to the Virginia Supreme Court and depending on how the judge rules on constitutionality will determine who files the appeal.  If he files it is an unconstitutional statute, then the Attorney General’s motion to intervene in the case becomes another piece in play.  While the AG brief was an amicus brief, if the statut were to be ruled unconstitutional then he would become a party to the litigation. 

Again, we are awaiting the decision of the judge.