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ENS: Virginia property litigation to continue, church’s attorneys say

Monday, February 26, 2007 • 10:15 pm


Virginia property litigation to continue, church’s attorneys say

By Mary Frances Schjonberg
Monday, February 26, 2007

[Episcopal News Service]  Lawyers for the Episcopal Church have told two attorneys representing some of the 11 Diocese of Virginia congregations involved in a legal dispute over possession of church property that “there is no basis at this time” to put that litigation on hold.

Washington, D.C. attorneys Mary A. McReynolds and Steffen N. Johnson asked by letter on February 22 that the litigation be put on hold after the communiqué issued at the end of the recent Primates’ Meeting “urge[d] the representatives of The Episcopal Church and of those congregations in property disputes with it to suspend all actions in law arising in this situation.”

The Primates’ recommendation concerning litigation was one of a number of interrelated recommendations which they made concerning the way the Episcopal Church should deal with disagreements among its members.

In their February 26 reply, David Booth Beers, chancellor to Presiding Bishop Katharine Jefferts Schori, and his colleague Heather H. Anderson, first reminded the two attorneys that the Anglican Communion is a federation and not a “juridical or legislative body.”

Thus, they wrote, it “has no legal authority over the affairs of its members.”

...


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Comments:

Wow.  Note that these are—Schori’s lawyers.  She could call them off and has chosen not to.  That speaks volumes about her response to the Tanzania Communique.

[1] Posted by Newbie Anglican on 02-26-2007 at 10:45 PM • top

I wish I could say I was surprised, but I am not….  Just think of what a great first step the Diocese of Virginia could have taken as we “live into” the Communique….. But, clarity is a good thing, and I am thankful to the Lord for that!

[2] Posted by Liz Forman on 02-26-2007 at 10:48 PM • top

Kathy Schori, following in Frank Griswold’s great footsteps: lie to the Primate’s faces.  Sign on to a course of action, come home and renege.  What a principled and honorable woman.

[3] Posted by Phil on 02-26-2007 at 10:59 PM • top

So the litigation will continue, and the same-sex blessings will continue as we have already been told by Minnesota.  The TEC bishops will really have to do an about-face to comply with the Primates.  The only real question remaining is the original question—are they going to let ECUSA get away with it?  If not, what are they going to do about it? smirk

[4] Posted by GB on 02-26-2007 at 11:17 PM • top

A lawsuit filed by the Diocese of NW Texas against a former Episcopal church in San Angelo, Texas is apparently proceeding as well.  I am curious as to the urgency of these lawsuits in light of the Tanzania communique which—while not demanding an immediate delay of lawsuits—suggests that such action on the part of the TEC would be certainly conciliatory.  The evident decision by TEC to proceed with litigation in the absence of an urgent and compelling reason to so and in oppostion to whatever might be perceived as an (temporary) extension of good faith Christian behavior is troubling. I can only conclude that the urgency indicates that TEC will be leaving the AC soon and is trying to secure as much property as it can by hard and quick litigation. They also likely recognize that many of the chuches in question will likely never house again an Episcopal congregation, but their value is singificant to the maintenance of a new “Episciopal Communion.”  Henry VIII would be proud.

[5] Posted by rudydog on 02-26-2007 at 11:21 PM • top

Several people commented within a few hours of reading the communiqué that we will not have to wait long to learn 815’s real intentions. Our BP could stop these lawsuits tomorrow morning. None are on autopilot. They are being aggressively managed to intimidate and discourage orthodox parishes.

These lawsuits will end up exacting a very heavy toll. Influential leaders in the affected parishes will never forget the ruthlessness that our loving brothers and sisters in New York have visited upon them. It will further polarize. They will cost everyone a fortune and the bitterness will last for decades. Even the most moderate, openminded members will see TEC as vicious.

[6] Posted by AngloTex on 02-26-2007 at 11:24 PM • top

On property disputes

The Primates urge the representatives of The Episcopal Church and of those congregations in property disputes with it to suspend all actions in law arising in this situation. We also urge both parties to give assurances that no steps will be taken to alienate property from The Episcopal Church without its consent or to deny the use of that property to those congregations.

We all know how ECUSA views the word “urge.”    It’s meaningless to them.  Also, they are in a bit of a legal dilemma because their strongest position lies in their claim of autonomy vis-a-vis the Anglican Communion.  To forbear at this point could be argued later down the line to be evidence of ECUSA’s place in a hierarchical structre in the AC. 

Nothing at all will change I’m afraid.  My earlier hopes of reconciliation are dwindling to nothing.  Thankfully September 30 is not so very far away, and clarity is what we have all been asking for.

[7] Posted by this_day on 02-26-2007 at 11:45 PM • top

Newbie Anglican, I’m not sure Schori can call off the lawyers if she wants to. Even if she wants to (which she probably does not). Schori is not telling the lawyers what to do, the lawyers are telling Schori what to do.

[8] Posted by NancyNH on 02-27-2007 at 06:44 AM • top

Sadly, Nancy,you are probably right.

Jim

[9] Posted by AngloTex on 02-27-2007 at 06:53 AM • top

The good news is that the Primates know what is going on and will not be deceived by “another” PB for the TEC.  Is it September 30th yet?

[10] Posted by Horsemansouthern on 02-27-2007 at 07:45 AM • top

Perhaps Jr. Wardens or others responsible for maintenance of Episcopal church buildings in “moderate” parishes throughout TEC should now cease caring for “their” church buildings so long as the lawsuits continue.  Let the 815 clowns do the heavy lifting in maintaining the old buildings they say they want.  I can send them a list for the parish I now attend.

[11] Posted by Sparky on 02-27-2007 at 07:54 AM • top

Schori is not telling the lawyers what to do, the lawyers are telling Schori what to do.

I disagree because

Washington, D.C. attorneys Mary A. McReynolds and Steffen N. Johnson asked by letter on February 22 that the litigation be put on hold…

The attorneys asked to put the litigation on hold and it was the TEC Chancellor who responded to continue the litigation.  Given that the attorneys in the case made the request, there is obviously no legal reason not to put the litigation on hold.  TEC leaving the AC would not affect the Dennis Cannon nor prevent them from continuing the litigation.  The only reason to press forward now is intimidation.

[12] Posted by Edwin on 02-27-2007 at 08:47 AM • top

Let me clarify the above.  The property attorneys, presumably the experts, want to hold off on the litigation and it is the church attorneys, otherwise known as the Dark Side, who want to continue.  I think I hear Darth Vader in the background.

[13] Posted by Edwin on 02-27-2007 at 08:55 AM • top

Not surprising in the position, only in how “in your face” it is, not only to the primates, but to the ABC who made a personal appeal to cease litigating in his remarks after DES.  I tend to think this is simply one of the first solid indications that TEC does not intend to comply with any of the four things the communique requests.  Since they are headed towards a departure from the communion by September 30, it would make some sense for them to keep litigating.

It is interesting, too, though, that the chancellor apparently believes that the First Amendment means that when bishops sign documents or agrees to something, it has no legal implication.  The language of the communique may be diplomatic speak, but I do not that does not necessarily mean that it can be ignored without consequence, or that TEC can operate in bad faith, as Schori and Beers are proceeding to do.

[14] Posted by pendennis88 on 02-27-2007 at 08:57 AM • top

And our good friend +Peter is on vacation:

I will be away from the office on vacation until March 2 and then away on a staff retreat March 5-7.  I will return to the office on Wednesday, March 8, at which time I will have a chance to look at emails. 

[15] Posted by R S Bunker on 02-27-2007 at 08:57 AM • top

In fact, an affirmative decision to press the lawsuits suggests:
1)Intimidation
2)Confidence that there will be no serious consequences within the AC, or
3)The AC doesn’t really matter anymore – if it ever did.

[16] Posted by AngloTex on 02-27-2007 at 09:18 AM • top

I still have a hard time not rolling my eyes when the “protect its interests and that of its past . . . members in seeing that parish property be used for the Church’s ministry and mission” argument is used.  Beers and his henchmen have to be laughing when they put together a pleading that past Episcopalians wanted nothing more than to have men marrying men in their parishes – preferably with the celebrant wearing a clown suit and blessing the happy two or three or four people in the name of Mother, Rock and Womb.  Right.

[17] Posted by Phil on 02-27-2007 at 09:25 AM • top

Now it appears +Lee is a weasel as well.  He’s out for two weeks while his lawyers do his dirty work.  How convenient.

[18] Posted by Newbie Anglican on 02-27-2007 at 09:27 AM • top

Well R S Bunker, it’s a good way he doesn’t have to answer any tough post-Tanzania question. Let 815 come up with the party line, he can nob & smile and pretend it’ll all go away.

+Lee seems to loves escapism, till that 2X4 hits. Kind of like his “Mission Congregation Dissolves Without Notice when there were negotiations had been going on since the spring. Not wanting to call him a out right lier, he certainly has deceived himself, probably this vacation & retreat are his ways to let ++KJS & Beers continue while he remains swell guy +Lee. It is pretty pathetic in my opinion, but this same attribute did allow much to happen for the faithful over year until 815 stepped in, so in that sense it was good {also probably why 815 has basically stepped in with same fortitude in January}.

[19] Posted by Hosea6:6 on 02-27-2007 at 09:56 AM • top

Is anyone taking odds that 1-the primates will acknowledge the actions vs words of TEC and 2- will they actually DO anything other than add more words anytime soon after Sept 30?
Lizzy

[20] Posted by Elizabeth on 02-27-2007 at 10:11 AM • top

Elizabeth,

We live in hope.

RSB

[21] Posted by R S Bunker on 02-27-2007 at 10:13 AM • top

Seems funny to me that when Frank Griswold was BP, we rarely heard of Beers.  But now it appears that he is in charge.  What happened to our PB Katharine ?

[22] Posted by justme on 02-27-2007 at 10:40 AM • top

And the beat goes on.  Of course they will continue in their autonomous ways.  After all it is all about the money and property.  The only question is what the Anglican Communion will do, if anything but words.

[23] Posted by PROPHET MICAIAH on 02-27-2007 at 11:30 AM • top

Griswold was from a particular background, and had more of a view of lawyers as servants.  Respected, but servants nonetheless.  Schori is from a different background, and this appears to lead her to look up to her lawyers for direction rather more than a bishop should.

[24] Posted by pendennis88 on 02-27-2007 at 11:32 AM • top

The most strategically important statement for the orthodox, made by TEC in the aftermath of Tanzania has herein been made.  This statement clearly lays out TEC’s position that irregardless of what was said in Tanzania, it is proceeding with a different agenda.  How so?  The PB was presumably in contact with Mr. Beers and the Executive Council throughout the Tanzania meeting.  Why would she have agreed to the “cease” litigation language in the communique?  Clearly she would have or should have known that they would not have consented to ceasing the litigation.  Her agreement to this communique and her subsequently conflicting behavior with regard to the litigation significantly strengthens the view that the consent she gave to the communique can only be construed as solely for the purpose of buying TEC time for more strategizing. 

This action seems to say that TEC is preparing an offensive with no interest in reconciliation with the AC.  TEC, through the PB, has realized the show is over.  This 7 month period is a period to salvage as much as possible with no intent of dealing with the request of the AC in an honest manner.  At this time, TEC’s strategic plan can only be related to money.  Watch for a campaign which highlights the demise of the AC without TEC funds.  That is TEC’s only remaining card and she will play it up as best as possible.

Clearly, the most visible step TEC could have made after Tanzania to show its intentions of good will would have been to call for a moratorium on any new litigation and seeking to arbitrate rather than litigate any current lawsuits.  TEC has opted against this course of action.  Everything else which follows over the next 7 months will be solely for the bail out process.

richardc
http://www.thinkingreasserters.blogspot.com

[25] Posted by richardc on 02-27-2007 at 11:42 AM • top

“...suspend all actions in law arising in this situation.”

Hmmm…be careful here.  Perhaps the primates were not suggesting a “ban” on lawsuits, but maybe they were asking TEC to refrain from publicly authorizing lawsuits. The difference is signficant, but Beers may have an awfully hard time explaining it to people. In an nutshell, you don’t need a public rite of authorization to file a lawsuit.  TEC has been filing lawsuits without authorized rites for decades. So TEC can continue that practice without running afoul of the communique.

wink

[26] Posted by tired on 02-27-2007 at 12:02 PM • top

RSB,

I see Bishop Robinson is also proclaiming hope.  That is why I love the clergy- they are so darn optimistic.  Maybe that is why they are so willing to wait indefinitely hoping the Second Coming will save them from the hard decisions.  Maybe they have a point.

[27] Posted by Elizabeth on 02-27-2007 at 12:09 PM • top

Folks, the money statement is this:

In their February 26 reply, David Booth Beers, chancellor to Presiding Bishop Katharine Jefferts Schori, and his colleague Heather H. Anderson, first reminded the two attorneys that the Anglican Communion is a federation and not a “juridical or legislative body.”

Not a communion, but a federation.  And there you have it from the mouth of the PB’s own chancellor that in the domestic courts, TEC will argue that the Anglican Communion is a federation and not a Communion.

In my opinion, TEC is playing with fire some more.  For one, this federation argument may just come back to bite them.  Because if it is true, then there is NO REASON why the Church of Nigeria can’t come into TEC’s back yard.  It tends to undermine their argument that TEC and the Anglican Communion are heirarchical bodies because they need to say “well, theologically we are heirarchical when it suits us, but we’re not heirarchical when it doesn’t”.  Theologically, it makes no sense to say that TEC is heirarchical when the Anglican Communion isn’t.  That is a purely political argument.

For two, this is, as others have noted, an apparant repudiation of the Communique.  If TEC thinks that it will be able to fudge language on SSB’s and gay bishops, then it should make very sure that it is following the rest of the Communique to the letter.  This sort of behavior seems to me the very sort of thing that will tick off the moderate primates and the ABC and lead to TEC being tossed.  And, if TEC is tossed, then CANA gets a major, MAJOR boost in its church-division argument.

I’m guessing that this and other litigation will continue to intimidate parishes until the very last moment.  KJS and 815 will probably wait and see if the HOB will accept the rest of the Communique, and if it appears they will, then she will call off her legal pitbulls.  But if not, I guess that she will pull out all stops on this and other fronts to push the liberal agenda. 

Think about it, if TEC does accept the Communique provisions even in August and at that time announces a stay in litigation, they will still get a pass.  From KJS’s perspective, there is no reason to suspend litigation now, unless she really did sign the Communique in good faith.  I think that KJS signed the Communique because she realized that it was the best “deal” she could get and still be in the Communion.  She sees this as a necessary retreat and regrouping.  Intimidation is a cornerstone policy in 815’s campaign to prevent further disintegration, so don’t expect it to be withdrawn until absolutely necessary, and then, only reluctantly.

[28] Posted by jamesw on 02-27-2007 at 12:12 PM • top

OK, one more time with feeling***pause for deep breath***:
TECusaCORP will not EVER, in a gazillion years, do what ++KJS has agreed to do or what is being plainly asked of them. The HOB and HOD, either jointly or severally, will NEVER back up one inch. Any watered down fudge agreement that they might accidentally pass will be universally violated before the ink is even dry on it. What will happen is that TECusaCORP, on September 30, will simply walk apart.

the SBBJ snarkster

[29] Posted by the snarkster on 02-27-2007 at 12:42 PM • top

jamesw - well said.  And the problem for the plaintiffs in these lawsuits (whether its TEC/USA or a particular Diocese) is that a judge will tolerate “pleading in the alternative.”  However, a judge will not allow TEC, etc. to claim they are one thing at one time and another thing at another. 
Pretty soon, even a judge will want to start slapping them around.
(why am I recalling the scene at the end of Chinatown with Jack Nicholson and Faye Dunaway?)

[30] Posted by William P. Sulik on 02-27-2007 at 01:32 PM • top

Just wondering “out loud” here…  would it be possible to file a class action against TEC, VA Seminary, Gen. Sem. and others with millions of dead peoples’ money to the effect that those $$$ were not left to finance a major change of direction of P.E.C.U.S.A.?  Just dreaming, of course….

[31] Posted by Soy City Priest on 02-27-2007 at 03:01 PM • top

jamesw—

For one, this federation argument may just come back to bite them.  Because if it is true, then there is NO REASON why the Church of Nigeria can’t come into TEC’s back yard.  It tends to undermine their argument that TEC and the Anglican Communion are heirarchical bodies because they need to say “well, theologically we are heirarchical when it suits us, but we’re not heirarchical when it doesn’t”.  Theologically, it makes no sense to say that TEC is heirarchical when the Anglican Communion isn’t.  That is a purely political argument.

Shazam!  That’s exactly right - every word they utter about being an autonomous member of a loose federation, they will hear echoed to them in court from the parishes they are suing.

Every time “local option” is mentioned, and every time a bishop makes any hint that his diocese will continue to support SSB despite BP003 (or whatever it was) - it’s an affirmation that ECUSA is not hierarchical.  And you can wager those words will be pivotal in court.

[32] Posted by this_day on 02-27-2007 at 03:21 PM • top

Depending on the litigation, it costs between 1 and 7 times as much to be on defense. It is often a war of attrition with the folks at 815 playing with someone else’s money. Suspension is nothing more than asking both sides to mutually sit still for a brief period – no new motions, delay scheduled court dates etc.  These steps are very common.

So who can gin up a list of the best lawyers in America familiar with 815 (and our other fine institutions) who could explore being on the offense for breaching their trusts?

[33] Posted by AngloTex on 02-27-2007 at 05:15 PM • top

“So who can gin up a list of the best lawyers in America familiar with 815…who could explore being on the offense for breaching their trusts?”

I don’t know how specifically JHGraves meant “breaching their trusts,” but it would certainly be interesting to see whether ECUSA’s rulers have taken liberty with money in trust funds—-akin to how United Methodist officials diverted money from a temperance endowment to their own social agenda.

[34] Posted by Irenaeus on 02-27-2007 at 06:40 PM • top

That would be on example. The key would be to have a strong enough case, usually via a whistleblower, to warrant legal discovery. Once there is enough standing for document requests, it is more likely to discover abuses. It could be anything from misuse of expense accounts, diversion of funds or more likely, breaking the terms of a bequest or trust by violating it’s terms. For example, a gift might have stipulated that the church continue in the AC.

[35] Posted by AngloTex on 02-27-2007 at 07:24 PM • top

While there is some merit to the above comment about being on the defensive in litigation being more expensive, it is also true that the placement of one’s name on the caption of the case as Plaintiff or Defendant does not control who is truly on the offensive or the defensive.  A Defendant can aggressively pursue the case and wrest the offensive from the Plaintiff.  Any good litigator worth his or her salt knows how to do this.  I would hope and anticipate the Virginia churches, and others who find themselves in Court opposite 815 and their Bishops, had their legal teams in place and prepared before taking the step of leaving TEC. I will watch to see whether they choose to take the fight to 815 and its minions. 
Otherwise, the Communique’s statement re the property litigation strikes me as one of several early litmus tests of whether 815 would view the Dar Communique and act in good faith, or not.  Beers’ implication that 815 has no control over the decision is transparently false and extremely disingenuous on his part.  By refusing to stay the litigation, 815 has sent a very clear message that they have no intention to act in good faith in responding to the Primates’ requests.  Staying litigation is really not such a big deal, and neither side concedes anything other than time by doing so.  In my view, this move by 815 not only evidences a lack of good faith in regard to the Communique, but it also belies a continued strategy, which began before Tanzania, to grab as many bargaining chips as they can before ultimately being brought to the table for a final decision on remaining in, or walking apart from the Communion.  This proves to me that 815 sees the Communique as another statement of position by the Primates with which they can attempt to bargain.

[36] Posted by Horseman on 02-28-2007 at 12:44 PM • top

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