BREAKING - DioVA: Judge Bellows Issues Ruling on Property Cases

This appears to be very good news from the standpoint of Truro and the other churches. I wonder if the litigation can now finally draw to a close.

This looks great—though I know nothing about the law.

And it won’t help parishes in other dioceses . . . and of course it will end up in the Virginia Supreme Court.

That being said—if it is as good as it looks to my untutored eyes . . . and if the opinion is as good as this press release . . .

OH BOY OH BOY OH BOY OH BOY . . . these parishes get to keep their property!!!

I’m so happy!  More thrilled than I could have imagined . . . this is fantastic news!!!!

The opinions issued by the judge today are now on the website for the ADV under the News tab in the News Release section if you want to peruse them.

I wonder if +Lee is still going to be willing to be Schori’s glove puppet or if he’s finally going to stand and object to millions of his diocese’s money getting poured into this rat hole.

Waiting for the Gnashing of Teeth from the H Twins David and Emily.
Intercessor

Judge Bellows seems not to realize that The Episcopal Church isn’t subject to the property laws that apply to all of those Nonconformist chapels. Surely the Supreme Court is aware of the special position of The Episcopal Church and will overturn this horrid ruling!

I predict they will just keep on suing and apealing.  And why not?  That is their MO.

Overplaying their hand and wasting valuable, scarce resources to punish these parishes will prove to have been a pathetic gamble. Had 815 followed the inhibition on litigation (and negotiated in good faith) TEC would have garnered millions in property settlements. I pray that the Virginia churches will show more grace to TEC than they received. These determined churches are a great inspiration to the rest of us and have shown how to confront illegitimate bullies.
Bishop Lee’s first duty was to defend the faith in his diocese. Instead he sold out to the New York enforcers and now he will have lost both his integrity and property.

Anybody know how much of DioVa’s $2 million line of credit has been blown through?  Or if it has been “extended”?

It will be interesting to follow the pointing fingers if DioVa ends up in the worst of all positions for them…they owe the bank the money to pay off the line of credit, but do not get back any of the parish properties to sell in order to scare up the funds.  That’s a long way away, though…at least to the Virginia Supreme Court, and the filing of a petition for certiorari in the US Supreme Court.

The Diocese/TEC actually admitted in court last week during the hearing that they don’t actually own the Anglican congregations’ properties (a jaw-dropper, that one) under Virginia law (except perhaps for one part of Church the Word Gainesville which has the bishop or some diocesan entity named on the property deed - I’m not exactly sure what is named on the deed, but it’s the only one of the eleven), so they decided that they would assert that they had special contractual interests in some parts of the properties instead.  They also suddenly decided that the Anglican congregations had mysteriously waived their rights to even invoke 57-9, and in claiming this alleged waiver by the congregations, admitted that after a year of litigation and millions of dollars spent (even more if you add in TEC’s bills), that they never thought they’d lose.  They needed to adjust their prior statements as they attempted to shift their legal strategy.  But their contract arguments and their waiver assertions and their petition to change past court submissions were all resoundingly rejected by the court today. I certainly am stunned.

bb

This looks great to me.  I’m hoping that this will cause TEC to give up.

Oh Ann - would that were the case. They will not - because they cannot - they committed themselves to this course and they will scorch the earth and then salt it if they can. If they cannot “own” the property as it were they will do everything they can to make it as miserable a loss for the parishes as they can muster in their “defeat”. This is activism strategy time. Read up on your activism sites - you will get a substantial profile of what they will do. Expect them to pull out every stop to mitigate the damage here, to get the case reasssigned, to leverage every political favor they can muster, to castigate the judge, to compromise the case entirely or in part. Expect appeal upon appeal, every quarter attacked. And look also for counter strategy, look for compromises with vulnerable groups to build an orthodox fifth column if you will.

Look for a hardening of position in the ACC, by influence and other means. TEC has already exported themselves into CoE, look for them to try and spread rapidly into Africa and other provinces to try and undermine the orthodox solidarity. Look for them to try and keep CCP and CANA as riven as possible to prevent an effective unity among the various groups and compromise the formation of the orthodox province in North America.

This is not pessimism but a hard look at what is being faced. The progressives have been (relatively) nice up until now, because they had some momentum and felt they were in power and in control of things in the main. They perceive that they were dealt a setback by the initial success of GAFCON, at Lambeth - where Indaba failed to sell their position, and now VA. The responses will be rougher and more vicious now. The minor lesse majeste, the lawsuits, will seem pleasant by comparison to what the next few years will provide. GC2009 will be a rallying call for TEC, any moderation left to be practiced will be thrown out.

In other words, look for TEC to pull every dirty trick in the book….and some that aren’t in the book!

And Regressive Neanderthal, I hope you’re just being facetious!  If not, then you’ve got a real problem!

Great. It looks like the final outcome of the lower court proceedings is close to certain.

It will move to the Supremes. Keep praying.

These congregations, these churches, deserved to keep their property.  They have acted in a brilliant manner. Almost as if a higher power was at work.

masternav:  Actually this may increase the tension between the liberal institutionalists (like Peter Lee) and the liberal extremists (like KJS).  The former will be very concerned about (1) their standing in the Anglican Communion; (2) the financial viability of lawsuits when they don’t seem to be going like 815 promised; and (3) the implosion of TEC.  The latter will very probably become increasingly shrill, demand more money be spent on lawsuits and demand TEC turn its back on the Anglican Communion.

The liberal institutionalist/liberal extremist alliance depended on the gradual Anglican acceptance of TEC’s position and the success of the extremist litigation strategy.  Neither has worked out, and so I expect TEC’s liberal factions to begin infighting which may just lead to civil war.  It would be nice if this infighting could be leveraged to stymie the attack on Bishop Duncan next month.

Hopefully the parishes can be awarded their fees and costs from the TEO Diocese of Virginia and 815.

It would have been a travesty if these faithful congregations had been put out of their homes.  I hope they will go on to spread the Word and be a witness to the power of our God.

I hope dio Virginia get back on track with what a church is supposed to be about.

I just checked the “Red Book” online via the TEO website for The Falls Church (TEO version).  It shows a congregation size of 10, with no Church Sunday School, or phone/fax number. 

Wonder what happened to all those people TEO & Bp. Peter Lee expected to show up?

With some good fortune it would be wonderful if this precedence could carry across the Nation to all that choose to leave TEC.  Judges take note and let our people go.

One of the potential gray areas was whether the Contracts Clause would apply to The Falls Church, which came into existence prior to the passage of the Division Statute (57-9) in 1867.  Judge Bellows makes clear that the Contracts Clause does not apply, regardless of whether or not a parish was in existence at the time of passage of 57-9.

Folks, look for this to move to the ugly stage now.  The trial will turn to the final question, which is the propriety of the disaffiliation votes.  TEC, the Diocese, and their surrogates will make lots of unsubstantiated allegations about box-stuffing, denying the vote to members in good standing, misrepresentation of congregation size, and “non-Episcopalians” being allowed to vote.

Fantastic news.

Of course, this will not happen in other states….

But nonetheless, it may help to set up further precedence…..at least one can hope and pray so….

This looks great to me.  I’m hoping that this will cause TEC to give up.

Tragically, I think DioVA/TEC are in this for long haul to inflict as much financial damage as they can to act as a deterrent, everything keeps going against them with Judge Bellows but they keep pressing ahead.

Judge Bellows has a wonderful way with words.  His skill at skewing faulty TEC logic puts even StandFirm to shame.

The Court today holds that ECUSA/Diocese may not now-long after the first 57-9 petitions were filed, and long after the Court held a five day trial regarding whether or not Va. Code § 57-9(A) had been properly invoked-assert that the CANA Congregations have contracted away, waived, abandoned, or relinquished their right to file their 57-9 petitions. To have their day in Court on this claim, ECUSA/Diocese had to do two things: (1) plead their claim and (2) do so timely. They did neither. After a five-day trial, this Court issued a lengthy opinion finding 57-9 to have been properly invoked. Then, after extensive briefing and oral argument, this Court issued another lengthy opinion finding 57-9 to be constitutional. Now, in effect, ECUSA/Diocese assert that the past year of litigation was unnecessary because CANA never had the right to file 57-9 petitions in the first place. It is too late. While a court has discretion to hear untimely claims and permit late amendments to answers, it should not exercise its discretion in a manner that would severely and unduly prejudice the other side. Put simply, to hear now whether 57-9 could have been invoked at all, after this Court has already determined that it was both properly and constitutionally invoked, would constitute an injustice.

At the August 11, 2008 hearing, the Court further elaborated upon this point in an exchange with counsel for ECUSAj Diocese:
[Y]ou say that the CANA Congregations are not surprised at all by this. Well, I’m skeptical of that, because in my orders and in the litigation that has ensued, I certainly was not under the impression that there was a whole other phase to this litigation.
And, you know, I can tell you that, had I been aware that there was a whole other phase to this litigation dealing with waiver, your position that it was only efficient to [try the waiver issue at the end of the litigation] to me, is not at all persuasive.
The idea that-essentially, you’re suggesting that the past year of litigation that we have spent since November 2007 and before, the April 3rd opinion I issued, the June 27th five-question opinion I issued, the constitutionality opinion, they all turn out to be a complete waste of time.
And if it is true that, from the beginning, your position was that they waived 57-9, I don’t understand why that wouldn’t have been tried first. Because, if they waived it, I wouldn’t have had to spend two weeks in trial with you all going over the history of divisions and the history of the Episcopal and Methodist and all the various churches that we discussed and their various divisions and the Civil War statutes and constitutionality issues. All that would never have been addressed by this Court.

Hooray for our side again! BUT
our problem still is, as many have said on this blog, TEC will not back off UNLESS some legal eagles get together and go on the offensive and sue the pants off TEC with a class action lawsuit, and freeze their bank accounts for misuse of TEC funds. In my humble opinion, our side would have an excellent case, as TEC has broken every rule in the book in their attempted property snatch. They have a Chancellor who’s own law firm appears to be involved in a huge conflict of interest and obtaining financial gain by advising TEC to pursue the lawsuits. It is a huge cash cow, and the Chancellor will never back off under those circumstances, and why should he?

Judge Bellows schools TEC on elementary Constitutional Law.

<blockqoute>Finally, the Court would note that ECUSAjDiocese argue that “[t]he General Assembly’s restrictions on denominational ownership are unconstitutional and may not be enforced today.“31 But that is not the question that this Court must consider. For the purpose of determining vested rights in a Contracts Clause analysis, the question is whether the Commonwealth’s rule prohibiting denominations and dioceses from holding property was unconstitutional in 1867. And the answer to that question is a definite “no,” since, as of February 18, 1867, the First Amendment to the United States Constitution was not even applicable to the Commonwealth of Virginia, since the Fourteenth Amendment was not even ratified until 1868.32</blockquote>

Wow.  The Diocese/ECUSA lawyers have clearly dug themselves a deep hole on the waiver issue and have yet again gotten under his skin.  But, being the skilled jurist that he is, Bellows gives highly reasoned and well-footnoted dismissals of the Diocese/CANA waiver and contracts clasue claims, thus not opening the door for much on appeal. 

Since no one is in the mood to settle, It seem this will end at the Federal Supreme Court level so, hold your hats, this ride is far from over.

-ms

P.S. And, congrats to the clerks that Judge Bellows has used on this case, if any are finishing their time with the court - well done and best of luck on your legal careers.

Judge Bellows’ extensive footnotes, while entertaining in some respects, are indicative of why he stands unlikely to be overturned by a higher court.  These are very well reasoned findings and rulings, and they point out the contrived nature of TEC/DioVA’s claims. 

It is unfortunate to the extreme that there is no division statute available to others caught in litigation in other states.

As to TEC/DioVA’s sure-to-be-made argument of voting irregularities, I suspect it will come down to two basic questions for members of the congregation:  Were you entitled to vote, and did you understand what you were voting for?  Be assured the answer will be shown to be “YES” to both questions.

Ralph,

In regards to the votes, the Judge has indicated that he only has to determine whether or not the votes were “fairly taken” if they are and he approves the votes, then the declaratory judgement actions of the Diocese and TEC are moot and the case is over at this level.

Dear TEC,
It the end, evil loses. 
Have a nice day,
Rich

Wow.  TEC is denied at every turn.  So the Judge wants counsel back on Friday to discuss the scope of the trial.  What is left to try?  Just whether the parishes followed all the rules about how they had their votes?  From everything I’ve seen, there’s not really been much question about whether that was done properly.

NBS #32, I think what’s going to be left is what Steven in Falls Church #21 said.  What we’re going to have is a short hissy-fit of a trial in which ECUSA hyperventilates about how all these people that voted are really Baptist fundagelicals and not proper Episcopalians, and look!  It’s October and they’re even gauche enough to still wear white shoes!  At which point Judge Bellows will calmly issue a short ruling and tell ECUSA’s lawyers not to ever enter his courtroom again.

Still no comment from Pravda…interesting….
Intercessor

#33, Phil. I feel that I must reprove you. Back when the Episcopal Church was still PECUSA (back in the Dark Ages in other words) white shoes were a faux pas. Today, the Spirit has continued to enlighten the new, revised and improved Episcopal Church and driving SUV’s are the current faux pas. Which will certainly be raised at some point.

The Episcopal Church: Where vox populi is always received as Vox Dei.

It is one of those basic rules of litigation that you need to figure out what your strongest arguments are, lead with those, and discard the weak ones.  The Diocese and TEC do not seem to follow that.  They are throwing everything at the judge but the kitchen sink.  It does not seem that they have a strategy intended to win by persuading a judge, who seems to be a very smart one, of the merits of their case.  The contracts clause argument turns out to be an embarrassment because they neglected to look up the date the 14th amendment was enacted (sure, I did not know it either, but that is why you are supposed to have a constitutional law expert look at these things), and the waiver argument is both implausible and barely comprehensible.  I thought the TEC lawyers must have some unknown but good reason for introducing such lame arguments, but, nope, the arguments are even more lame on examination than they first appeared.  And now the absolute lamest argument of all, that the votes were somehow bad, is still months away. 

The only explanation I can think of for the Diocesan strategy so far, and evidence seems to mount for it each time something like this happens, has been that they have not been litigating to persuade or win, they have been litigating all along out of anger, and out of a largely emotional desire to strike out at the departing parisioners and clergy.  It has always been uncertain who owns the property in Virginia.  The rational thing to maximize the value of property held in trust, if the diocese or TEC took the trust idea seriously, would have been to settle.  The departing parishes would have been happy to pay a substantial amount to settle.  Only they had any use for it.  They agreed to do so in the protocol.  But no, these are flagship parishes, and leaders in establishing CANA and the CCP, now poised, as TEC undoubtedly feared, to become the building blocks of a new American Anglican province under the Jerusalem Declaration primates, to compete with TEC.

So instead, they litigate in a scorched earth manner, their primary purpose to be mean, with winning only a secondary purpose.  They sue individuals, against whom they have no apparent claim, only a desire to intimidate, to “encourage the others”, and the judge throws that out.  And so on, and so on.  Those of us who have been in litigation know the type.  So convinced of the rightness of their cause and angry at the other side, they cannot concieve that someone might see things differently.  A dangerous client to have, as any losses tend to be received as the fault of the lawyers, not the client.

Of course, it is not over.  Maybe TEC or the Diocese will win on some point on appeal, a long time from now.  Anyone who says they know, does not know.  But I think the odds in favor of CANA continue to go up.  To some degree, because TEC and the Diocese keep behaving badly.

I have worn white shoes - for and only for tennis and cricket.

#36. I think you have hit the nail on the head. The institutional faithful I’ve spoken with have tended towards a great deal of anger. I’ve also seen that anger in what I’ve read on the HoBD mailing list.

As far as the attorneys who are representing TEC go, I think that they have probably indicated to their client that this is a dog of a case. I hope they have a letter on file from the Diocese and 815 reflecting that disclosure.

The only possible hope 815 can have in this litigation is that some appellate court will decide that they really like dogs. To that end, I’m thinking they will try to federalize the case at the earliest possible opportunity.

The Episcopal Church: We blink at reality more than fifteen times a minute.

I personally prefer white wall ties on my 3 SUVs.

It is obvious to me that the reason litigation is the chosen approach by David Booth Beers and his crowd and some dioceses is they clearly know that they could never win in the courts of theology.  So, with that said they now turn to civil law.  If a judge must sort through everything but the kitchen sink the belief is that some victories may be possible.  Stacking up small victories leds to bigger ones.

With this judgment near complete and so far so good, hopefully the lesson learned is that even in the court of law 815 must have a case.  It does not!

make that “white wall tires”

http://www.episcopalcafe.com/lead/episcopal_church/court_limits_scope_in_virginia.html
Pravda awakes!!

Intercessor

#36—yes you have it right. My experience with these kinds of complainants is that they perpetually overplay their hand. The same hubris was on display at Lambeth. It is driving away the reasonable people who initially gave TEC the benefit of the doubt.

Pravda now has it and has started to spin it. How long before Izvestia breaks it.

Piskie sez: Have you taken your loyalty oath today?

Question then, based on the observations above. What if Judge Bellows were debilitated or somehow forced to recuse in the final trial, and TEC was somehow able to seat a much more sympathetic judge in the case? This would change the entire tenor of the case and snatch victory out of the jaws of defeat. I do not believe in cases such as this that the replcement judge is required to follow the lead of the replaced judge’s decision. Can anyone speak to this?

Pravda is living up to its billing: “Judge Randy Bellows ruled yesterday on some intermediate issues in the property dispute between the Diocese of Virginia and 12 CANA congregations…”

Sure, “intermediate issues.”  Technical stuff.  Housekeeping.  Will the court normally convene at 9:30 or 10?  Will this witness testify by deposition, or does one party insist he appear in person?  Stuff like that.  No stinging rebukes here to 815, nothing to see.  Move along.

#45. The only issue remaining is whether or not the breakawya churches followed statutory procedure. Given what is known publicly about the votes, I’d think that a judge would have to be very well compensated to hold for 815 on that issue no matter what his bias might be.

Pessimistic reappraisers see the tomb as half-empty. Optimistic ones see it as half-full.

Nothing at Challenged Anglicans.

#45 DioVA/TEC would have to dig-up something extremely major on Judge Bellows for what you write to happen. Something about as major as would cause Obama or McCain to drop out before their parties’ convention and the nomination going to the leading challenger, that type of major, more or less mere speculation into the far, far extremes.

In breaking news, Louis Crew has just proposed the “Eli Canon” requiring that all judges make their determinations in accordance with the Sacred Canons of The Episcopal Church as interpreted by the Magisterium of 815.  “The story of Eli makes it clear that judges are to submit themselves to the Will of God,” Louis Crew said, “and God’s Will is defined by the legislative workings of The Episcopal Church.” Presiding Bishop Schori immediately hailed the proposed canon, saying that “Mother Jesus is doing a New Thing in the field of jurisprudence.”  The Episcopal Church’s chancellor, David Beers, is, for a modest fee, already working with Louis Crew to draw up specifics.  “The first thing that must be clear is the courts are held in trust for the entire church.  It must me made very clear that judges must abide by the Constitution and Canons of the Episcopal Church, as interpreted by the Executive Committee.  Failure to do so will result in them being deposed and having their courthouse seized by the diocese.”  When asked for comment, retired Bishop Spong said that “The problem is that too many judges still pay homage to federal and state laws and constitutions.  These animists worship pieces of paper drawn up by men, and lack the Episcopal Church’s enlightenment.”  Bishop Bruno also offered his enthusiastic support, although is doubtful whether or not such a move is needed in the People’s Republic of California.  “So far, many of the top courts in the PRC already make rulings as if they felt themselves obligated to follow the doctrine, worship and discipline of TEC.  However, I suppose such a canon would be useful in backward areas like Virginia, where bitter people cling to things like guns, fundamentalist religious and enforcement of immigration laws.”

Yup.  From the Diocese:

“Court Limits Scope of October Trial

While we are disappointed in today’s ruling, we are committed to exploring every option available to restore constitutional and legal protections for all churches in Virginia. Meanwhile, we look ahead to the October trial and the issues to be considered in the fall.”

[Translation: Lessons learned: none.  More kitchen sinks to follow!]

“The Diocese remains firmly committed to ensuring that loyal Episcopalians, who have been forced to worship elsewhere, will be able to return to their Episcopal homes.”
[I thought only a couple of the departing ADoVa congregations had TEC shadow congregations?  Oh well, I’m sure the point is that if there had been any loyal Episcopalians at those congregations, they would like to return home.  Theoretically speaking.]

“Generations of Episcopalians pledged themselves to the Diocese in order to ensure a lasting legacy of Episcopal faith and worship in Virginia.”
[I’m pretty sure, actually, that they died before they could have conceived of doing such a thing one way or the other.  But maybe they got one of those Wiccan priests from the Diocese of Penn to do a seance or something to ask them to sign some pledge cards.  Spirit writing would count, wouldn’t it?]

DioVA sez:

“While we are disappointed in today’s ruling, we are committed to exploring every option available to restore constitutional and legal protections for all churches in Virginia. Meanwhile, we look ahead to the October trial and the issues to be considered in the fall.”

Flash to DioVA:

1.  There are no more options.  The judge has examined every legal wrinkle, and now he has shaken out the cloth.  He has ruled on the constitutionality and provided legal protection to the Christians remaining in these churches, who form the large majority of people worshipping them before the separation.

2.  There is basically nothing left to try in October, so the judge may shorten the trial to “nothing”.

3.  You have spent a ton of money and so far you have three strikes (as in baseball—not bowling).

4.  Your apperances in court are becoming less winsome with each new arrival.  Cut your losses, it may be vital to your survival.  The Lord may be slow to anger, but it is an everpresent danger.

“Generations of Episcopalians pledged themselves to the Diocese in order to ensure a lasting legacy of Episcopal faith and worship in Virginia.”

Generations of Episcopalians gave to their parishes in order to leave a lasting legacy of CHRISTIAN faith and worship on Virginia.

At this point the Diocese/ECUSA is in the ‘in for a penny, in for a pound’ mode.  They know this case is lost at the trial level and are merely preserving issues for appeal.

What if an appeals court remanded and forced a trial on the waiver option?  Possibly/likely in front of a different judge. 

As for the Constitional issues, as I’ve articulated elsewhere how the Fed Supremes will come down is far from certain. 

A 40, 70, 100-year standstill should be considered by all sides.

Peace,

If anyone from the Diocese of Virginia is reading this and you wish to determine what prior generations of Episcopalians would have wanted, the best place to pick up Ouija boards cheaply is at yard sales. Just check Craigslist on Thursday and you’ll be able to have mass seances for very little cash.

The Episcopal Church: Cheap Grace, Cheap Faith, Cheap Good Works. My church has been taken over by Dollar General.

Pagentmaster, LOL!  Turns the tables on all the revisionist phallically-phrased distortions of SFIF’s name.

If TEC lawyers were responsible for failing to raise the waiver issue; doesn’t Schori have a fiduciary duty to sue them for malpractice?

#57. Please write her and point that out to her!

Pessimistic reappraisers see the tomb as half-empty. Optimistic ones see it as half-full.

With each of its “blinking at reality” press statements on the litigation, the Diocese of Virginia increasingly resembles the Black Knight in Monty Python and the Holy Grail.  In a duel with King Arthur, the Black Knight gets his limbs severed one after the other, and each time responds “‘tis but a scratch” and “just a flesh wound” and continues the fight.  After successive legal blows, the Diocese has, like the Black Knight, been reduced to a limbless torso flailing about and threatening to bite off the legs of the 11 parishes as they ride away with their properties.

#58, surely, Schori reads SF.

If I were the TEC, I would recommend to the courts that Indaba groups be formed to work all this out, since they were obviously successful working out all the issues at Lambeth.  Or, perhaps, the judge could just tell the TEC to “stick a SPORK in it!”

Off-topic, but maybe Greg or someone can post it for all to see: This just in—-The California Supreme Court, which a few days ago delivered a unanimous opinion holding that rights against discrimination trumped rights to the free exercise of one’s religion, has just scheduled oral arguments in the Episcopal Church property cases for October 8, 2008 at 9:00 a.m. in Riverside.

This would generally mean that a written decision would follow within about 90 days or so thereafter.

Thank you Chancellor…
Intercessor

“While we are disappointed in today’s ruling, we are committed to exploring every option available to restore constitutional and legal protections for all churches in Virginia. Meanwhile, we look ahead to the October trial and the issues to be considered in the fall.”

What a silly thing to say.  TEC no longer believes in the Fall.

Per #62, it is always hazardous to predict the outcome of litigation.  But anyone paying attention to the California Supreme Court and the 9th Circuit would note that the trend in legal thought has definitely not been towards granting churches special exceptions under the free exercise clause, but towards mandating that churches follow neutral laws generally under the establishment clause.  As Rick Warren has found out before.  Their positions on gender issues are not in opposition to that, notwithstanding their general sympathy with the political views of national TEC.

If I were a betting man I would bet that the 11 Virginia congregations will win their case the Diocese of Virginia and TEC, unless Virginia is willing to toss § 57-9 in the trash.  Assuming that they win (or that they lose), would any legal eagles like to tell us to what court either the CANA parishes appeal or the Diocese of Va./TEC appeal?

Rudy+

I believe an appeal would go straight to the Virginia Supreme Court.

bb

Rudy, if the Legislative branch were to repeal 57-9 right now, it still would not matter because that was the law that applied at the time the relevent actions were taken.  The question is whether the Virginia Supreme Court will uphold Judge Bellow’s rulings.  I think they will, but as a “lay person” in matter of law, my opinion and two cents will get you two cents.

Sorry Intercessor, 5, I have no gnashing for you.

Obviously these are rulings that are uniformly against the Diocese and TEC.  But at this point, does that surprise anyone who’s been paying attention?  I doubt it.

It’s hard to comment intelligently on the rulings themselves because, as far as I know, neither the Diocese nor the ADV have the pre-ruling briefs online.  That said, I feel quite comfortable in saying that BB’s spin machine (see #10) isn’t the full story.  There was no such admission.

Nor does it particularly help to quote the Judge at length, AndrewA, because his opinions are offering only the rationales for his decisions, not all of the arguments and counterarguments in detail.  And if you or pendennis88 think that anyone didn’t know when the 14th Amendment was ratified, you’re really off the deep end.  Even the paragraph AndrewA quoted reveals that no one was arguing that the 14th Amendment applied in 1867—the dispute was whether a Court today is permitted to rewind the clock to 1867 and ignore developments in the law since.

pendennis88, 36, I think you’re dead wrong about the reason for litigation.  Sure, everyone’s angry (on both sides).  But sane people with good lawyers, as both sides have here, do not spend millions “to be mean.”  Litigation is about winning.  (Of course, both you and I are engaging in wild speculation about what’s in people’s heads here.)

bb, 67, is correct about where an appeal goes.  There’s no intermediate appellate court in Virginia for these kinds of cases.

Finally, I feel compelled to recommend this link for a number of the posters here.

“length, AndrewA, because his opinions are offering only the rationales for his decisions, not all of the arguments and counterarguments in detail.” 

DavidH, for early stages of this trial, the briefs of both sides have been publically available for all to see.  To be honest, though, I didn’t bother reading them until after the decisions have been issued.  Why?  Because lawyers can be trusted to argue their case.  It is easily predictable that the ADV lawyers are going to say everything they can to make their case and the DioVA/TEC lawyers are going to do the same. 

His opinion is a direct response to these arguments and counterarguments, and presumably a carefully considered, educated, professional response weighing all the details.  Nor do I consider any of his rulings so far a foregone conclusion or easily predicted, and I don’t think you can make that argument unless you want to claim that TEC’s arguments are so weak that anyone can see that they are blatently wrong.  Nor do I consider it a foregone conclusion that ADV will be uniformly sucessful in all appeals. 

Finally, while they are only his rationales and opinions, since he is the judge in this case, his opinion is law, unless over ruled.

AndrewA, based in large part on reading the Court’s past opinions and comparing them to the briefs, I think you’re missing a fair amount if you choose to read only opinions and not the briefs that preceded them.  It’s not that briefs aren’t argumentative.  Of course they are.  It’s just the obvious point that you have to read what the parties argue—not the filtered version of them that comes out in an opinion—to fully understand and evaluate their arguments.

I submit that it was pretty clear where this case was going after the three rulings in April and June. 

But, to end on common ground, we can at least agree, I think, that the result of appeals is uncertain and that we are all governed by those in black robes.

David H,

In regards to your comment about the BB Spin machine and no admission made to that statuts.  I hate to inform you you are incorrect.  I was in the courtroom and heard the argument for all the issues on which the judge ruled.  The attorney for the Diocese of Virginia in fact stated that they had no vested interest in the property but that they had an in personam right to how the propertys were used in a contractural rights issue.  From the opinions the judge issued yesterday, he did not buy the argument.

Thanks, seminarian.  Perhaps the transcript of a week ago Monday’s hearing could be put up online.  Then folks could read it for themselves (including DavidH)and see for themselves what happened up close and personal - it makes for compelling reading!

bb

Excerpt from transcript of the hearing conducted on Monday August 11, 2008 in Fairfax Virginia.  From page 60-61.

Mr. Sommerville (for the Diocese of Virginia): We are not asserting that we have vested rights in real property before 1867 or after 1867, for that matter.  We are claiming vested contractual rights.  What they are arguing repeatedly in all three of their briefs is that if we cannot show vested rights in real property, we lose.  That’s their issue.  It’s a red herring.  It’s not our issue at all.

The Court: All right.  Let me make sure that I understand.  Your position is the contractual rights that you describe as in persona is between the general church and then the congregations’ trustees or the congregations.  Who is it with?

Mr. Sommerville: With the congregations in general, but the duty would be incumbent on the trustees to hold and manage, since they hold the legal title for the benefit of the loyal Episcopalians and the Commission of Ministry. So the duty would be incumbent on the trustees.

The Court: I think I know - I know I understand what you’re asserting there.  So the question, the issue I raised with Mr. Johnson (CANA Council) a few minutes ago where he’s saying that a denomination cannot own property or have an enforceable interest in property prior to 1867 and, therefore, the contract clause is inapplicable to this case entirely because you could not have vested rights, your view is I don’t even need to reach that issue because you’re not asserting vested right in property.

Mr. Sommerville: Exactly right.

Nearly spilled my coffee after reading that the other night.  The entire transcript makes for fascinating reading, even for the non-lawyers among us. 

I do find it rather stunning that after all this talk for the past year about TEC’s ownership of all our properties and then suddenly out comes this admission that they do not and the whole thing was a red herring and turning around and blaming the CANA Counsel for thinking that the Diocese of Virginia was asserting vested rights in our property (though the Diocese listed our properties as “abandoned” in the Diocese of Virginia 2006 Counsel Report, by the way - which of course we now learn they had no vested nor contractual right to do).  The waiver-argument was latest red herring and it was struck down as well.

Remember, the bishops and diocesan lawyers in Virginia keep telling the souls at the “shadow congregations” that the property belongs to the Episcopal Church, but that is false (in fact it was against the law for the denomination to own property in Virgina at the time the properties were aquired and when it did became legal for the denomination to own property, it was up to the denomination to follow the law and transfer the property into the name of the bishop, which the diocese did not do and with reason, they would have had a revolt on their hands which they also admitted at the earlier hearing in June).  So the Diocese/TEC argues that it was a contractual right instead, but that was struck down last night.

Now what are they going to tell the shadows?  That it was all a red herring?

bb

Thank you BB for keeping track of this case so diligently for us.

“your view is I don’t even need to reach that issue because you’re not asserting vested right in property.

Mr. Sommerville: Exactly right”.

It seems to me that this man has just admitted to the Diocese’s wasting everyone’s time and money. 

DUH

The CANA churches would have won without 57-9.  The diocese has no legal claim on the properties in question, only a canonical claim.  Their only argument is the Dennis Canon, and this is not a law on the books of the Commonwealth of VA.  The Fairfax District Court cannot be expected to enforce a church canon. That is not within their jurisdiction. The court can consider only those claims that are recognized by VA law.  The trustees and congregations own the buildings,and this is clearly stated on the deeds.

bb, apparently you didn’t read far enough.  At pp.105-06:

                                            [Mr. Somerville:]
15         I want to clarify something that I said
16   earlier so that we not be misunderstood as having
17   waived an argument.  We do claim property rights, but
18   not in the context of the contract clause.  This Court
19   has already ruled out our taking clause defense and
20   our neutral principles arguments.  Those were
21   predicated, in part, on the claim that we had a
22   proprietary interest, and we’re not intending to waive

                                            106
1   those.  But for contracts clause purposes, while we’re
2   here today, we are claiming only vested contractual
3   rights, not vested property rights.
4         THE COURT:  Let me see if I understand what
5   you’ve just said, because I don’t think you’re saying
6   anything that I did not understand already.
7         To the extent declaratory judgment actions
8   are going to be heard in October, they’re going to be
9   heard based on the principles of Green versus Lewis;
10   right?
11         MR. SOMERVILLE:  Yes, Your Honor.
12         THE COURT:  The course of dealings, the
13   Constitution, the Canons, all of that, are going to
14   guide the Court’s decision in the declaratory judgment
15   action.
16         MR. SOMERVILLE:  Yes, sir.  That’s our
17   position.
18         THE COURT:  Mr. Coffee, do you agree with
19   that?  Mr. Johnson, do you agree with that?  That to
20   the extent that there are declaratory judgment actions
21   the Court is going to hear in October, aren’t they
22   governed by Green versus Lewis?

                                            107
1         MR. JOHNSON:  Yes, to the extent that 57-9
2   doesn’t cover it.
3         THE COURT:  To the extent that 57-9 is not
4   applicable in any of the scenarios that I described in
5   my order, or one of my orders, where 57-9 was not
6   filed by the parties or a contract clause invalidated
7   57-9, or I decide that I reject the vote in any of
8   those scenarios, then the declaratory judgment action
9   will be based on the language that appears in Green
10   and other cases.  Is that your point?
11         MR. SOMERVILLE:  We agree completely, yes.

So enough with the spin already.

South Florida, 77, you’re wrong.  Modern Virginia case law is favorable to denominations.  Hence the CANA folks’ attempt to ignore current law and apply only the law in 1867.

DavidH,

Once again, if you look at the case history in Virginia.  Virginia does not recognize an implied or expressed trust on behalf of the congregations.  So TEC/DioVA could not have won on the Dennis Canon issue.  It may come up should the judge hear the declaratory judgement actions, but the wayt it is looking those will be moot when the judge hears the evidence surrounding the votes in OCtober.  Actually the current case law in 2008 supports the positions of the CANA congregations, not TEC.  If you read the opinion the judge issued he indicates that the case law that the Diocese is using goes against their argument on the contracts clause issue so they have an uphill fight here.  The uphill fight for them now, especially since the ruling on the Constitutionality of the statute is proving that the votes were not fairly taken.  We shall wait and see what happens.

I submit that it was pretty clear where this case was going after the three rulings in April and June.

I’d full heartedly agree, which is why this August session confuses me. In June the next reference was October then this suddenly caught me by surprise and everything I’ve read seems that DioVA should have known this to be a real long shot and this result was predictable.

I know Hanlon’s razor: “Never attribute to malice that which can be adequately explained by stupidity.”

I just can’t think the DioVA/TEC lawyers are that idiotic, they’re hired council so have less vested interest, so was this a strategic move choosing a known tactical loss to maybe get Judge Bellows to talk more to give an appellate court more material to review? What 815 behind it in a war of attrition move knowing CANA had greater number of lawyers so every filing and every proceeding would run up the billable hours more on CANA than on DioVA/TEC ?

What folks have produced, this layman’s opinion is that should have been a slam dunk in favor of CANA, so the question is why should this ruling happen at all? Is this just a desperate move or a professional trial maneuver or as Hanlon instructs this was just stupid.

seminarian, 80, I have.  There is not a case within the last 50 years where a seceding congregation has won.  There are at least two Virginia Supreme Court and two Virginia Circuit Court cases where the denomination won (notwithstanding Virginia’s anachronistic and unconstitutional limitation on trusts).  Sure, this 57-9 litigation is breaking all kinds of new ground, but that wasn’t the point—the point was that to argue Virginia law other than 57-9 is favorable to congregations is simply incorrect.

There is not a case within the last 50 years where a seceding congregation has won.

Do you mean 30 years? I thought the whole point for the Dennis cannon was that the Supreme Court ruled unless such a by-law existed then they would rule in favor of the congregation.

Hosea (83), it’s a lot more complicated than that, unfortunately.  What the Supreme Court said was that, in states applying the neutral-principles approach to deciding church-property cases, the parties could conclusively settle the issue by adopting a denominational trust clause that reflected the intent of the parties that the property be held in trust for the denominations.  So that doesn’t mean that judgment would be for the congregations otherwise.

And DavidH is at least partially right in that, if 57-9 were found invalid or not to apply because of defects in the votes or some other reason, Virginia caselaw is far from clear as to what the outcome would be.

Anyone have a link to a site that details the case law, Green vs Lewis referenced?

Mari (85), I highly recommend this old post from T1:9, which has links to a lot of helpful materials on Virginia law on the area, including Green v. Lewis.

Jeff (84), While I’m not an attorney, I still think the logical universal statement that I was responding to in #83 would be false. After all, it seems like a lot of trouble for several denominations to enact by-laws in response if “There is not a case within the last 50 years.” A logical universal statement only needs one example to be proven invalid. Unlike another time I was involved in one of these one SF, where the universal was the word “never,” by context, could have been substituted “in so far as,” here DavidH made a pretty clear declaration, are you also supporting that there is NOT a case within the last 50 years?”

Hosea6:6 (87), I took DavidH to mean (and DavidH, correct me if I’m wrong) that there hasn’t been a Virginia case in the past 50 years in which a congregation has won.  As far as I know, that’s correct, but the question of whether those cases mean the same result would obtain here is a whole different matter—numerous factual distinctions exist between those situations and this one.

There have certainly been cases in other jurisdictions during that time in which the congregation has won.

#88 Has there been any civil case in Virginia in the last 50 years? It’s pretty easy for no congregation within Virginia to win a case if there not been a case to loose.

Again, logically, it escapes me why a congregation would not use 57-9 when there is such a powerful legal tool. When this was in the 40 Days of Discernment process, these type of questions were posed to vestry (also members of the bar) and there were no citations of risks given inside Virginia (there were references outside Virginia, but explanation of the “Division Statue”). I realize that source may not the most impartial, but I take it neither is DavidH.

A universal declaration is pretty easy if there is a “null set,” I can just as easily state that congregations have always won in Virginia in the last fifty years. It’s kind of like Network Solution which comforted their employees in the call center with the fact they had never lost a case in court (they never reveal how many they settled out of court and everyone had a gag clause to them).

Hosea6:6 (89), here are at least three:

Norfolk Presbytery v. Bollinger, 201 S.E.2d 752, 754-  55 (Va. 1974).
Green v. Lewis, 272 S.E.2d 181, 186 (Va. 1980).
Reid v. Gholson, 327 S.E.2d 107, 112-13 (Va. 1985).

So it’s not a null set.

Then, it the escapes me why these congregations didn’t try to use the 57-9, since it’s requirements are not burdensome.

Actually, do we know who won Norfolk Presbytery?  It seems like the case may have been settled after the decision not to apply canon law trusts.

Green v. Lewis seems to have involved the hierarchical entity being on the title.  Again, different facts.  And I assume they did not involve 57-9 because that statute applies where the church property is held in trust.

Reid involved rights to vote at and fair conduct of a meeting of a baptist (congregational) church.  It appears that it might have eventually gotten around to a property dispute and then 57-9 (the rule for congregational churces) might apply.  Don’t know who ultimately won that one in the end, either.  (Though the court mentioned in passing that Virginia does not allow implied trusts, so I’m not sure how that favors the Diocese.)

One more curious question from a “jailhouse canon lawyer.”  What would it take for the case to go to a federal court if TEC/DioVa (or the CANA parishes) don’t like the outcome of the Va. Supreme Court?  (I admit I’m getting ahead of where the case is at the moment, and I would wish all litigation to cease.)

Rudy+

Rudy-
An appeal from a State Supreme Court is to the U.S. Supreme Court.  Thus any unhappy litigant would have to file a petition for cert with the U.S. Supreme Court.  The granting of certoriari is discretionary with the Court. (they grant cert to a very small percentage of cases.)

An appeal to the Supremes is not gonna happen. They can file for it but this case doesn’t have any of the elements they like (the circuits aren’t split, it isn’t an issue of federal law, it doesn’t present an issue of overarching constitutional importance or represent a gross injustice). There is a Con Law issue, but it only concerns one state and it isn’t especially sexy.

They have already had their “we’ll be remembered forever for this” case with Heller. Given the court’s composition, I don’t think they will be interested in this one.

I’d rather my church was less appealing.

This is wonderful! I am very happy for our fellow churches.

It also is one of the reasons Christ Our Lord Church did not try to fight to keep her building. It my memory serves me right, Peter Lee insisted his name also be on the deed as a condition for the loan through the diocese to purchase the building.

That loan we were working really hard to pay off.

Peace,
Pat Kashtock
take it for what it’s worth

Hosea, 89, I thought I was pretty clear in spelling out that there were at least 4 cases in Virginia in the past 50 years.  Norfolk Presbytery (which was strictly a pretrial decision about the right of the denomination to intervene) and Green v Lewis are the Supreme Court of Virginia cases.  Diocese of Sw Va v Buhrman is the only reported Virginia Circuit Court case, but there’s another unreported one too—forget the name, but it’s got Cave Rock in it.  (Citing unreported Virginia Circuit Court cases is relatively common in Virginia because there’s no rule about publishing those decisions and no “official” circuit court reporter.)  All those cases came to light in the run up to the Court’s “5 questions” opinion on June 27, so you can pop over to the Diocese’s website and read both sides’ briefs if you’d really like to find the cites.  I won’t rehash the arguments—that’s relatively pointless.

penden, 92, I wasn’t talking about Reid.  But again, that’s a case that both sides in this litigation claim as favorable, and it’s relatively easy when you read it to see why. 

ms, 95, the flip side of the argument is that the SCotUS tends to like to beat up on states doing weird things related to constitutional rights.  Virginia is unique here. 

Or they could view it as an opportunity to clarify Jones v. Wolf—which both sides in this litigation claim as very favorable.  Based on odds alone it’s fair to say a grant of cert is quite unlikely, but it’s certainly possible.

Jeff #84 paraphrases—

... the parties could conclusively settle the issue by adopting a denominational trust clause that reflected the intent of the parties that the property be held in trust for the denominations.

This is in fact what the SC said in dicta, but several courts have since noted that the parties referred to here would have to include both sides, i.e. whoever actually held the current title as well as the denominational leadership.  There is no intent here to legitimize unilateral declarations of trust (“I hereby declare that your house is held in trust for me,” which is what the Dennis Canon and similar clauses in other denominational canons essentially say).

#35 Mouse, ... as long as it’s our kind of populi and the vox is telling us what we want to hear…

I thought I was pretty clear in spelling out that there were at least 4 cases in Virginia in the past 50 years.

I’d disagree.