Prepare for Bad News on San Joaquin

The bishop of Virginia has decided to withhold consent from the bishop-elect, biblebeltblogger.com reports.

http://fresnosuperiorcourt.org/_pdfs/tentative_rulings/law_motion/5-05-09.pdf

The “tentative” ruling is here:

http://www.fresnosuperiorcourt.org/_pdfs/tentative_rulings/law_motion/5-05-09.pdf

The Anglican Curmudgeon’s initial reaction is here (with more to follow after oral argument tomorrow):

http://accurmudgeon.blogspot.com/2009/05/arguments-in-san-joaquin-case.html?showComment=1241480760000#c1915208943255693579

Doesn’t it just say that the real, departed diocese can’t get the new fake diocese to pay for the real diocese’s lawyers , which they were asking to have done since the fake diocese was causing the expense by suing them?  And the judge said no because the fake diocese has
a “colorable claim”  which means one which can be presented as having some substance. They can’t really have expected to win that one anyway, could they?  I

  It doesn’t say to whom the property belongs. 

But then, I am not a lawyer.  Just tried to make sense out of the legalese. 
Susan Peterson

I think what was linked to in #3 and what I read was a tentative ruling on the ‘demurrer,” not the main case.  Sorry.
SFP

My only question in these matters is “What does the Curmudgeon say?”

Given the prior ruling of the Calif Supremes, I wouldn’t expect much to change on appeal. 

Peace,
-miserable sinner

What can you expect from the courts on the LEFT coast?

Damn.  I’m a lawyer in Ohio, so I am not familiar with the “tenative rulings” they apparently have in California.  I trust A.S. Haley on this one.  It is not over, but we need to pray.

This is in a Court of the Left Coast.  If this is a liberal court, they will ignore anything presented by the DSJSC and just use what TEO and the rump diocese present to support the courts decision.  Maybe the judge will do such a bad job that there will be sufficient grounds for appeal if it goes against DSJSC.  Remember that liberal judges tend to decide the case based on politics and only use enough facts to support their forgone conclusion.

DavidH @3 Thanks for the links!

DavidH@3 Thanks for the links EmilyH

Folks, the “tentative ruling” linked to above is an Adobe Acrobat file of all of the Fresno Superior Court’s rulings for tomorrow, May 5. There are three rulings having to do with the San Joaquin case. They are on pages 4-7, and 48-58, respectively, of the Adobe file.  The main one is the ruling on the plaintiffs’ motion for summary adjudication, which begins on page 48 of the file. The second ruling, beginning on page 4, is a ruling on the cross-complaint that proceeds from the premise of the first one—-that ECUSA is “hierarchical” as a matter of law (meaning: don’t trouble me with any of the facts). The third ruling (pp. 57-58) is on a discovery motion to compel the production of documents, and is inconsequential.

As you read the main ruling on the motion for summary adjudication, ask yourselves these questions: “Where is the Supremacy Clause in ECUSA’s Constitution? Where does it say in the Constitution that once a diocese “accedes”, that such accession is permanent and irrevocable?  (Where is the definition of “accede,” anyway? How is a court to know what the word means in the context of a religious organization like ECUSA without expert testimony to guide it?) And where is the court’s discussion of the expert testimony offered by the defendants?”  (Hint as to the last: read the second paragraph on page 50.)

There are a lot more questions like those which the ruling raises, which is its purpose: in California, “tentative” rulings are to show how the court is initially thinking, to get the parties to address the issues which matter in the court’s view, and thus (ideally) to speed up the hearing and waste no one’s time. The court will most likely take the matter “under submission” following oral argument, and then issue its final ruling (by California law, within 90 days, but probably after just a week or two). So hold your fire—-it’s not over yet.

I know that Chancellor has told us to sit tight for now, but the tentative ruling suggests this court seems to be setting out the extreme “ecclesisatical tyrant” approach under cloak of the “neutral principles of law” approach.  If you read through the important tentative decision, you read the judge saying “it really doesn’t matter if TEC’s canons weren’t followed, in fact it doesn’t really matter what TEC’s constitution and canons say.  TEC is hierarchical and that means that whatever TEC (read the PB) declares must be so.”  That means under secular law in California, TEC will no longer be under the rule of law, but rather under the personal dictatorship of the PB.

I’m no lawyer, but it seems to me that the judge has pretty much rules out positive consider of any of San Joaquin’s arguments.

I can’t say this has suprised me.  I’ve suspected for a long time that outside of maybe Virignia all those that have left TEC behind will eventually have to leave their assets.  The real test of the ACNA will be how they make due without.

‘The real test of the ACNA will be how they make due without.”

LETS GET ON WITH IT.

You can read the entire text of the “Tentative Ruling” on the Motion for Summary Adjudication at http://commonwealthreport.blogspot.com/2009/05/san-joaquin-tentative-ruling.html

Geesh! The judge who sits in the chair, wears the robe and bangs the gavel hasn’t even made a ruling or heard oral arguments yet….heck it isn’t even May 5th yet! And all of you have got us in the San Joaquin Diocese dead and buried in the TEc water!.....So what! If he does rule in their favor…we will give up the buildings and move on to bigger and better ones….the ones that they would be getting will be empty and then sold to fill the coffers for more lawlessness of TEc! And you can bet your last buck that no one who is left in TEc will be safe after GC09 and if they win in these court proceedings because then the make-up of TEc will be forever changed and they will have it in legal writing! Do all of you really understand what this may mean with these people? Do you really get it?

Straight from the Curmudgeon:

The purpose of a tentative ruling is to let the parties know the way the judge is inclined to analyze the arguments and the evidence that has been offered thus far by each side. In that way, the parties know what points they need to address specifically at the hearing. The judge will not issue a final ruling until after he has heard the oral argument by counsel, and he can either affirm or modify his tentative ruling, or revise it completely.

There are a number of issues on which I believe the court’s initial analysis will need further justification. For example, he appears to hold that once ECUSA shows it is a “hierarchical” church, that no evidence to the contrary (as was offered in Bishop Wantland’s declaration) can be even considered. But parties have to be allowed to offer evidence on disputed issues, and it certainly is a matter for dispute whether or not the Episcopal Church (USA) is hierarchical—-look at all the argument that has gone on over Mark McCall’s paper, and in the courts in Virginia.

....there will be a lot to argue about tomorrow, and then we will probably have to wait some more before there is a final decision. Whether a court reverses its tentative ruling depends entirely on that individual court and on how well it believes it analyzed the case in the first place, or whether oral argument brings out points which the court may not have considered. I think there are a number of such points, and so remain hopeful that the court will modify its tentative thinking.

Geesh! Don’t throw dirt on us yet people!

The judge can’t make the people who have left TEO return to it.  TEO ends up with buildings as empty as its theology, a pathetic little cult.

1. How can TEC claim to be hierarchical when the previous Bishop Griswald cited that TEC was not hierarchical and could not intervene in a independent diocese to stop VGR as he was duly elected? Why hasn’t the team in the real DSJ had Griswald testify as to his press interviews?
2. How can California allow a outside entity to claim ownership of a registered corporation with a continuing board and existence? I mean, this is like a shareholder of a company disagreeing with the actions of the board of directors and then setting himself up as the legitimate entity and getting all assets. Why would any company keep itself based in CA?

Sorry. I really do not get CA. Nor do I get the defense that has been made in several of the property disputes, including the real DSJ. The claim of TEC as hierarchical is a new intervention and should be easy to disprove.

sorry - that’s new invention.

#21 - In CA courts, sex is the trump suit, evidently.

subscribe

“it really doesn’t matter if TEC’s canons weren’t followed, in fact it doesn’t really matter what TEC’s constitution and canons say.  TEC is hierarchical and that means that whatever TEC (read the PB) declares must be so.”

Good, this will be overturned. It is nonsense.

TLDillon is right!  If we have to give up our properties, we will worship in schools or storefronts!  We’re not going to go away or roll over and die.  And one <b>more thing:  We’re not going to shut up….much as Schori and Company would like us to!<b>

And the next time a case like ours goes to court:  Instead of having it heard by one judge, how about asking for a jury trial in a civil court?  That would really make things interesting, because of the public exposure that it would engender.  The problem with one judge making the decision is, as that, as I see it, it is only the decision of one man, and therefore even though that judge may try to be fair and impartial, he is looking at the complaint(s) only in legal terms, while a jury can look at it in human terms.  That’s been my interpretation after having served on seven juries….five of which were civil trials.

Let us Pray…

If you read the Court’s tentative ruling, the Judge is inconsistent with respect to whether the secular court can even consider what the Church’s constitution and canons say and whether they were properly followed.  If the outcome of the inquiry favors TEC, such as whether the constitution and canons provide that General Convention approves the admission of new dioceses and the election of bishops, the Court has no problem interpreting and applying them.  On the other hand, if the outcome of the inquiry favors Bishop Schofield’s position, such as whether Bishop Lamb’s election was in accordance with the constitution and canons, the Court simply states that it is powerless to even consider the issue.  The result of this blatant inconsistency is that the answer to every disputed issue is whatever TEC says it is, and you no longer have neutral principles of law being applied.

[27] I know that at least some states do not allow jurry trials for real estate matters.  You would have to check the rules in California to see if that is even possible.

How about it, California lawyers?  What do the rules tell us?

The oral arguments in the San Joaquin case will be made at 3:00 PM today (Tuesday 5/5).  The attorney for the Diocese of San Joaquin (Rusty V.R.) needs our prayers, and I would request prayer and fasting from any of you who are willing to join me in prayer and fasting today.  God is Good ALL THE TIME.

Cennydd (#31), the San Joaquin case was slated for a jury trial, but by filing its motion for “summary adjudication”, ECUSA has attempted to cut that possibility off. Its argument is that there are no material facts in dispute that require a jury to resolve them. ECUSA argues there is no dispute that it is hierarchical, and therefore it gets to do whatever it wants. As Scott S. points out (#29), the court’s tentative agreement with this position means an abandonment of the neutral principles that California courts are supposed to apply.

California law (specifically Code of Civil Procedure section 437c) allows any party to move for “summary judgment” if the facts are not in dispute. If the court agrees, then the case is taken away from the jury, and the court enters judgment on the undisputed facts. In the San Joaquin case, there are a myriad of disputed facts, starting with how the plaintiff “Diocese of San Joaquin” got started and how Bishop Lamb got elected. The problem is that Judge Corona appears to think that those facts don’t really matter in the end, because he sees ECUSA as being “hierarchical”. So if the oral argument today can’t turn him around, don’t look for any jury trial any time soon in Fresno Superior Court on the issue of who is the “Bishop of San Joaquin.”

But wait for the final decision—-maybe the judge will see the error of his tentative position.

Any chance of appeal if the judge rules against them?

In that case, it stands to reason that our lawyers will file an appeal once the judge’s decision is announced, and that appeal will take months to resolve.  Am I correct?

Cennydd:

Last night I spoke with some folks at Diocesan Office, and I was assured that if the decision was unfavorable after the oral arguments today, it would definitely be appealed.  So, yes, you are correct.

[33] Chancellor,

In addition to your points in the referenced post, I think it is suggestive that the ACI paper entitled Is the Episcopal Church Hierarchical? provides direct and unambiguous refutation of a key assumption of the judge in his Summary Adjudication Tentative Ruling, namely [emphasis mine]

A hierarchical church is one in which individual churches are organized as a body with other churches having similar faith and doctrine, and with a common ruling convocation or ecclesiastical head vested with ultimate ecclesiastical authority over the individual congregations and members of the entire organized church.

Mr. McCall’s ACI paper quite clearly esatblishes that neither GenCon nor the PB is “vested” with such authority. If this is properly argued during the hearing today, there is certainly reason to hope that the judge will see the error of his assumptions.

Of course, the jurist is still a human being and one of the titles oft accorded an attorney with a substandard IQ, or an intellect overruled by ego, is “Your Honor,” so prayers are definitely in order. Had the defendant addressed that very point in their response to the request for summary adjudication, the Tentative Ruling might have leant the other way.

Pax et bonum,
Keith Töpfer

Thanks, Deacon Francie!  They’re in for a war!

San Joaquin:
Prayers from Fort Worth.

I think TEC should cut a deal, and only take back the pretty older, more historic, buildings….Some of that 60’s, 70’s, and 80’s stuff is really awful…

Fr. Van,
My wife and I attended St. John’s the Evangelist in Stockton California which is proud member of Bp. Schofield’s diocese last Sunday. Built in 1850 with the lots and lots of very old stained glass and just 5 miles from the Vichy sock-puppet Jerry Moonbeam Lamb’s office.
I am sure he has gotten the estimates to remove and sell the glass,strip-out the interior wood paneling (perfect for the cabana he is building near his pool)then shut the sucker down since no one will show up for services if we leave. I can name 10 other facilities in the diocese with a similar fate if the liberal courts continue this travesty.

Thanks for your prayers.
Intercessor

Intercessor:  If Lamb and his faux-diocese win, then you can be sure that the buildings will be sold, the profits sent to 815, then the handful of TEC parishes remaining will be parceled off to the surrounding TEC dioceses and the TEC Diocese of San Joaquin will cease to exist.

St. James Anglican Church, at the centerpiece of a nationally publicized church property dispute with the Episcopal Church, announced today that it will file a petition for writ of certiorari with the United States Supreme Court to resolve an important issue of religious freedom: Does the United States Constitution, which both prohibits the establishment of religion and protects the free exercise of religion, allow certain religious denominations to disregard the normal rules of property ownership that apply to everyone else?

http://www.kendallharmon.net/t19/index.php/t19/article/22383/#more

At our church St.James Cathedral in Fresno which is the head of Bp. Schofields’ diocese a different fate awaits Senor Sockpuppet.
The facilities are older and need of repair through out. The private school that controls 30% of the buildings will close and the people that work and teach there and are the attraction that brings in the revenue will likely leave and take the students with them. The Cathedral has an ASA of around 180 but is ideal for 400+. That overhead is carried by the great generosity of the members of St.James.We will leave. There is a large and rapidly growing Latino congregation. They are not into your “Sodomy is Nice” sermons. They will leave. We will also leave the following: Real Estate values have declined drastically as the new Mega-churches have left the central city where we are and moved way North as have the suburbs. We chose to stay to serve the declining neighborhood. Our Food Pantry outreach will close. There is a large tract of land that fronts the buildings that was to house the large,new and improved cathedral as our current building is a remodeled parish hall and kitchen facility. The new finished cathedral was never built as the gay church label withered all and any markerting efforts over the last 30 years. So ...big empty lot in a not so desirable part of town. The faithful and the Dean have developed a youth ministry for the surrounding youth who must choose us or the gang lifestyle. Recently the clergy Baptised 15 youth who chose Christ over crime. Without this clergy and laity they would be lost. The gangs live down the street. They know that the Cathedral is off limits.
When Jerry has his Gay Pride parking lot rummage sale I can say with confidence that all bets will be off and no youth seeking Christ will come back.
I say all this because we don’t really want the buildings as much as we want to bring others to Christ.
How about you Jerry. What are you going to do if you steal the keys?
Intercessor

Dear Intercessor:
  I really am sorry that things are going this way, for all concerned. While I don’t feel that congregations leaving are entitled to the buildings, I do think TEC should work out arrangements when the vast majority of a congregation leaves. There has to be a better way. And, I was only half joking about the buildings. I really do believe that historic buildings are a legacy to TEC from generations before…

One advantage to having court cases go one way in one jurisdiction and another way in another is that it makes it more likely for the Supremes to take a look-see.

MA, 37, wrote:

Mr. McCall’s ACI paper quite clearly esatblishes that neither GenCon nor the PB is “vested” with such authority. If this is properly argued during the hearing today, there is certainly reason to hope that the judge will see the error of his assumptions.

I am not a California lawyer, but I see two problems here.  First, McCall and the ACI’s papers and statements don’t establish anything.  They make a good argument, but they’re the first word, not the last one.  Second, I think it’s whistling past the graveyard to see reason to hope for a 180 by the judge.  If the judge modifies his opinion at all, it will be to do what all trial judges do:  attempt to make it more difficult to reverse on appeal.

Of course, the jurist is still a human being and one of the titles oft accorded an attorney with a substandard IQ, or an intellect overruled by ego, is “Your Honor,” so prayers are definitely in order.  Had the defendant addressed that very point in their response to the request for summary adjudication, the Tentative Ruling might have leant the other way.

I realize that what you’re writing here is partly in jest, but it bothers me that you’re constantly repeating the statement that judges are egotistical morons.  No doubt some are.  Many are not.  We’re all human.

(Also, I’m assuming that your last point is not suggesting that the breakaway folks should have addressed the point that the judge is a moron.)

Does the United States Constitution, which both prohibits the establishment of religion and protects the free exercise of religion, allow certain religious denominations to disregard the normal rules of property ownership that apply to everyone else?

according to this judge in CA, the answer would appear to be: No!

excuse me I misread it.  the answer appears to be: Yes!

Here’s the deal people…..no matter which way the judge rules…in TEO’s favor or in our favor….an appeal will be filed…..months go by….and then depending on that ruling the losing party will take it to the Supreme Court! We’re looking at a few years before this is all resolved. And BTW….St. James Newport Beach is taking their case to the Supreme Court…..no one has won anything yet no matter what color lipstick TEO paints on the pig….it is still a pig for now, a very stinky pig but still a pig!

Having said all of that…..it would be nice to have the ruling go in our favor as it makes our case that much more favorable IMHO when it is taken to appellate or Supreme Courts.
Francie is right ....we all need to be praying because however this comes out…..No one will be safe in TEO after GC09 and beyond if they continue to get the judicial system to believe in their lies and deceit.

[47] DavidH,

My apologies for being less than thoroughly explicit on two points:
<ol><li>In my opinion, the evidence presented in Mr. McCall’s paper, when taken together with the absence from the canons of any grant to either PB or GenCon of ultimate ecclesiastical authority over the individual congregations and members, makes a logically compelling argument which makes untenable the judge’s assumption of the existence of such powers. To get around that absence would require abandoning the recognized meaning of English words which are not legal terms of art.</li>

<li>Perhaps the more serious error in construction was my failure to unambiguously identify, in my final sentence, that the very point to which I intended to refer was the absence of the grant of hierarchy to either GenCon or the PB in the Constitution and Canons.</li></ol>

Finally, as to your objection that I am

constantly repeating the statement that judges are egotistical morons.

In my haste to post the comment, I misspoke. I do not believe that judges are inherently morons, nor that they are egotistical, and I have, to the best of my knowledge, never asserted that they were both. I agree with your characterization of jurists. Some of them are one or the other. And some (I suspect that many of these would test as Feeling personality types), while not stupid, are demonstrably driven by egotism. I certainly apologize to those judges who approach the law, and their duty thereto, humbly and with a studied intent to interpret and apply it in a logically consistent manner.
Pax et bonum,
Keith Töpfer

Now into the bogland of Federal Courts. That circuit (circus) is noted for its genuinely politicized agenda based rulings. It’s a long road to the US Supremes, but it’s the only road now.

What are the chances of continuing possession of the assets during the appeals process? Post large bonds of surety, etc?

Good morning my brothers and sisters in Christ.  The Chancellor of Diocese of San Joaquin and The Anglican Curmudgeon (as we fondly know him) gave their oral arguments and now we await the Judge’s decision—either to reiterate what he posted prior to hearing the arguments or to change his ruling.  We should be waiting in prayer (and fasting if you are able).  But, whatever happens, this is the beginning, not the end; it is not a sprint but a marathon and there will be many court rooms, many judges and then, possibly, the U.S. Supreme Court.  No matter how you may hear TEC folks rejoicing, this is NOT over, by any means, as Terilynn wrote.  So, pray, pray, pray to our one true Judge.

Dear Dcn Francie,
I would respectfully request you to use my moniker name and refrain from using my first name…...If I wanted it used I would have signed it that way! Thank you very much! Now can we all just pray about this as it now sits in the judges hands and we await his ruling!

Dear TLDillon:

I completely apologize.  I usually do not post on blogs (lurker), so I am not quite competent on the etiquette of addressing other posters, but now I know!  And with you I am praying.