Breaking News from the Virginia Parishes Case

Sarah,

One of the arguments that has been made by TEC and the DioVA is that the Division Statute, if interpreted the way the CANA congregations interpret it, is unconstitutional because it violates a number of First Amendment issues.  The Attorney General in the brief filed with the court is making the argument that the Episcopal Church’s deference in a division to the hierarchical aspect of the church and not to a neutral principles approach is simply not valid.  The Statute is a neutral principle approach for settling church property disputes and TEC is incorrect in it’s interpretation of the statute.

I’m not an attorney, but it seems to me that ADV just got a rather large gun to roll up on their side.

Well, I’m no attorney (I did stay at a Holiday Inn Express last night, though) but it seems to me like the DioVa case just took a torpedo hit amidships. This is sure as hell going to get the attention of +KJS/DBB and the rest of the 815 gang.

the snarkster

Has anyone found a link to the actual brief?

Christians =1, Lions = 0

Sic semper tyrannis.

It’s a good day to be in the Old Dominion.

Jeff,

The actual brief is at the following link about 1/3 up from the bottom labeled Commonwealth of Virginia. The motion and the brief are both there.

http://www.anglicandistrictofvirginia.org/resources/legal-resources

Well, at least now I know who to support for governor in the next Virginia election.

Though a lawyer, I am not a Virginia lawyer or specifically a constitutional lawyer, and would not purport to comment on Virginia’s Division statute, or its constitutionality (vis-a-vis the federal constitution).  However, as a general statement of how the legal process works, the Virginia Attorney General getting involved on behalf of the CANA congregations simply means that there will be one more voice arguing the CANA position, and a voice that may carry significant weight with the court.  Assuming that the Virginia Attorney General is correct in his interpretation of the law, 815 will indeed be in a difficult position.  Let us hope that he is correct.  What a terrible waste of the time, talent and treasure of not only the CANA parishes, but the entire Church.  And, I do wish that we had a “Division Statute” in Louisiana.

Not a lawyer - do believe, though, the two operative segments of the Baby Blue report are 1) ADV - forming an entity within the diocese to take the helm of legal matters appears to make sense whether in a “division” state or not and 2) Atty General intervention appears to be a strong “friend of the defendant” ploy - perhaps vetting Atty General leanings by diocese for all others in harm’s way may be worthwhile

The Commonwealth is arguing for the constitutionality of the statute; in otherwords, the Commonwealth is arguing that the court may apply the statue in this case without violating the Constitution.

See footnote 5:

“Although the Commonwealth believes that CANA’s interpretation of § 57-9 is both textually and historically accurate, it does not address either the meaning of § 57-9 or its application to the facts in this case. Rather, the Commonwealth addresses only the issue of whether the CANA’s interpretation of § 57-9 is consistent with the Virginia and United States Constitutions. Because CANA’s interpretation of § 57-9 is constitutional, the doctrine of constitutional doubt is inapplicable. If this Court chooses to accept CANA’s interpretation, there is no constitutional problem.”

Of course, AFAIK, some portion of CANA’s argument is that the statute applies.

So, how’d this happen?

Is this a neutral thing or is someone in the AGs office sympathetic?

McDonnell: “As a matter of federal constitutional law, the Episcopal Church is simply wrong.”

And, as a matter of faith, practice, doctrine, teaching, order, belief (jump right in if I’ve left anything out) the Episcopal Church is simply wrong.

Do you think that ECUSA will take this to the US Supreme Court?  I sure hope not…

Legal thoughts from a Virginia Tax Lawyer, by WG.

Don’t think this is Slam Dunk for the CANAnite fans, I’m afraid.  Sure, it’s always a good thing with the state’s AG shows up in support when in state court.  But here is the rub (or the money section from the brief):

there will be some instances—such as this case—where national and regional leaders insist that there is no “division” within the denomination and/or that there are no resulting branches.  In those instances, the court has to determine if a division has taken place, but such as inquiry is straightforward according to the evidence.  There is no need for the judiciary to inquire into matters of religious doctrine.  The inquiry is entirely secular.

This same idea is crucial in applying step three of Lemon (no excessive entanglement).  I guess a question to ask the AG would be, “How in this case should the court decide if a division has occurred?”  I think you’re gonna have to follow a blended secular/religious inquiry.  That is not in and of itself a bad thing, but I think the AG protests too much on this point.

If Virginia is like my state, any time the constitutionality of a state statute is called into question in civil or criminal litigation, before the court can rule on the question the Attorney General must be given notice and has the opportunity to intervene into the lawsuit to defend the constitutionality of the statute.  (Yes, I’m a lawyer who does constitutional cases.)

So I wouldn’t read too much into this in terms of the Commonwealth taking the side of the Anglican churches.  I presume they are simply defending the statute as required by Virginia law.

[12]

I would characterize this as neutral in motive (though maybe not in effect) in that the arguments pertains to the validity of the state statute.  You can see how TEC might challenge the validity of the statue as *one* of its various alternative theories (e.g., “Even accepting CANA’s version of the facts for purposes of argument, the statute is invalid because…”) 

Of course, it is useful for a court to know how the Commonwealth might view the statute, but the court may ultimately disagree.

I think ECUSA will fight this flagship case until they win or have no more legal recourse.

I think they will try to take this or any other case as far as the Supreme Court in hopes of upholding their ridiculous and unjust “hierarchical church” argument.

If they press this silly argument too far, and a court goes along, they may be exposed as being congregational in polity, rather than episcopal.

As the ABC noted in his Advent Letter, the Episcopal Church has forgotten what “episcopal” means.

Well now, I’m no lawyer, and can’t afford the Holiday Inn, but I’ve heard quite a few folks say something like, “..but of course the properties belong to the diocese!  That’s understood!”  While I can’t honestly argue against the authority of bishops, the Lord’s authority to define the mission of the Church, and the responsibility of the bishops to fulfill their “contract”  needs to be considered.  Whether St. X parish joined, was formed by, or created the diocese, there was a mutual understanding about the purpose of that association.  The current administration and her later-20th C predecessors have turned away from the bases of that Purpose since their 1975 official rejection of Holy Scripture as authoritative and have since redefined that Purpose in purely socialistic terms.  They have broken the Charter.  They have disassociated themselves from their own stated purpose for existence as a body, and they have, in so doing, broken faith with the parishes who had supported them and whom they were pledged to build up in the Faith.

I do remember,  though, a piece from God’s Smuggler about a faithful Russian layman who turned down opportunities to escape the persecutions.  “If I go,” he said, “who will pray?”

Are there ever any coincidences?  I walked by my open computer, heard the bell signifying an incoming email and immediately noticed the “Breaking News” from SFIF.  Simultaneously, after a day of rain the sun broke though the window.  Wow!  If this results in a win for the Virginia congregations what a blessing it will be for those of us belonging to those congregations.  There is still a lot of ground to tread but Praise the Lord for this first step.

Thoughts from a D.C. Attorney:
  Nothing about this case was a slam dunk from the beginning for either side. This brief is welcome support for the proposition that the Virginia division statute is constitutional. Without doing the legal research myself to check, on first read, the arguments in it look persuasive.  This brief is important because I’ve heard that the Diocese of Virginia and 815 are leaning most heavily on the constitutionality question in their arguments. Every day that passes provides more evidence for the factual question of whether there is a division in the Anglican Communion.
  Those who actually take the time to read this will see that the assertions of Lauren Stanley+ and others in the liberal media who have said that this statute is clearly unconstitutional are both tendentious and wrong.  There are many live issues on the table here. 
  We in the ADV ask all of you: please pray for Judge Bellows as he decides this case.

I assume “WG” that you are referring to the “Religious Thicket” argument that was the favorite objection of Diocese of VA lawyers during the trial.  I am not a lawyer, I did not stay at a Holiday Inn, nor do I play a lawyer on tv, but what would one make of the pretty much constant (according to the transcripts) rejection of “You’re honor, we object on the grounds of ‘the religious thicket’” that Dio. VA received during the trial?  Would that be evidence that the judge was sympathetic to the idea that not everything to do with the church throws bre’er rabbit in the thicket?  Just curious.

The Hour of God’s Judgment is Come! Believers must NOW Flee the Churches!

The Bible teaches that in these days we should flee the churches. Gods judgment has begun, and God starts it at the external church. We should, if possible, fellowship with other believers; (He.10:25) but not in a church.

Fear God, and give glory to him; for the hour of his judgment is come: and worship him that made heaven, and earth, and the sea, and the fountains of waters. (Re.14:7)

When ye therefore shall see the abomination of desolation, spoken of by Daniel the prophet, stand in the holy place, (whoso readeth, let him understand: (Matthew 24:15)
And when ye shall see Jerusalem compassed with armies, then know that the desolation thereof is nigh.
Then let them which are in Judaea flee to the mountains; and let them which are in the midst of it depart out; and let not them that are in the countries enter thereinto. For these be the days of vengeance, that all things which are written may be fulfilled. (Lu.21:20-22)

In these verses, Jerusalem and Judaea refer to the external or corporate churches. The ETERNAL CHURCH consists of all those whom God has saved and these will live with Him forever in Heaven.
The armies are Satan (the antichrist), as he comes with his false prophets and lying signs and wonders.
This is Gods judgment on the church. See also:2 Thessalonians 2:1+.
For the time is come that judgment must begin at the house of God: and if it first begin at us, what shall the end be of them that obey not the gospel of God? (1 Pe.4:17)

Join us for live fellowship over the Internet: http://www.ebiblefellowship.com

Re my prior post, please see this statement which appears in the Attorney General’s motion to intervene:

“The Attorney General has the obligation to defend the constitutionality of all Virginia
statutes, regulations, and policies. Because the Episcopal Church has suggested that § 57-9 may
be unconstitutional, the Commonwealth, upon relation of the Attorney General, should be
allowed to intervene to defend the constitutionality of the § 57-9. Indeed, in federal court, such
intervention is a matter of right. See 28 U.S.C. § 2403(b).”

So, it seems that the attempt of the Virginia AG is to defend the statute rather than CANA, so does that mean the case is in the very same place as it was before? Or is there a change? Or does the question remain, has a division occured, or can one?

I read God’s Smuggler too….and one can always pray from a position of safety…TEC is wrong!! and it seems to me that there should be no difficulty in understanding that there has been a break (breach) in communion….why else would there be parishioners, priests, bishops, parishes, and even dioceses leaving daily.

It is the job of the state attorney general to argue for the constitutionality of state statutes. The VAAG is just doing his job. It doesn’t imply that the ADV argument is any stronger than if he hadn’t intervened. In all likelihood, he will be making the same types of arguments that the VA parishes are making.

Reminds me of the Israelites circling Jericho. They had to do so 13 times, but after the last “go round”, the city fell-and how! This may be one of the first marches around the pagan city that TEC has become, and it is indeed encouraging. If my analogy is correct, 815 will fall, and great will be the fall thereof. So shall it be for any house built upon the sand. “The voice of rejoicing and salvation is in the tabernacles of the righteous; the right hand of the LORD doeth valiantly.” (Psalm 118:15)

Fr. Van - I think the issue is whether the “division statute” can even be applied at all.  TEC was arguing that the courts should not even consider the arguments CANA put forward under the “division statute” on the grounds that the “division statute” was unconstitutional.  In other words, TEC’s argument would be “it doesn’t matter whether there was a division in the diocese, because the statute violates the constitution.”

What the Virginia A-G did was argue that the state’s “division statute” IS constitutional.  What this means is:  If the judge agrees with the Virginia A-G and CANA, then he must further determine whether a split has occured.  If the answer is “yes”, then CANA keeps the buildings.  If the judge disagrees over the division statute’s constitutionality or decides that no split has occurred, then the litigation goes on to consider the issues that have been dealt with in other states.

Where’s commenter Emily when you need a purse made from a sows ear?

#25—No, I think this action of the AG is very helpful for the CANA churches, as it gives the judge a roadmap on how to avoid invalidating the statute as unconstitutional.  A general maxim of jurisprudence is that courts are to avoid invalidating statutes if there are other proper analyses that would avoid that.

I have never understood the argument that deferring to the “hierarchical” nature of denominations is less intrusive constitutionally than simply applying a “neutral” state property law approach.  My feeling is that if a denomination wants to have a trust impressed on property, they need to do what anyone else does and get a recorded document acknowledging the trust or that they have title.  I don’t see how having a church convention that simply declares a trust exists is sufficient, if an individual church doesn’t assent to that.  If the courts go along with that, they are giving validity to the national church’s non-secular actions and agreeing that its actions were correct, which obviously means assenting to the national denomination’s supposed religious tenets that it calls the shots, thus “entangling” itself with religion.

Look at it this way.  Suppose the Episcopal Church passes a canon that simply says that from now on, all property of its individual members belongs to 815.  Would that be enforceable in court when TEC shows up at the reading of your will to claim your estate?  Of course not.  Why should it be any different for individual churches that can show a chain of title that they own the property, and TEC is nowhere in that chain.

FrVan:

The judge is looking to have the second round of briefs in the post trial phase filed today with the final brief due next Thursday.  The judge has indicated that he will render a verdict at some point but that neither side should expect a verdict by the end of the month.  Also if you look at the link above to the ADV website legal resources page the testimony from the court proceedings is on the website for review in the transcripts from the case.

rwkachur,

Yes, I think.  AG argues “purely secular” and 815 argues “religious thicket.”  I’m a little more Forrest Gumpish on this one (Ah theenk eet’s Boaath).

I agree this is simply a nice-to-have.  What I really like about it, though, is that it addresses the constitutionality question head on.  It’s been an irritation to me that 815 is clearly wrong on both the applicability of the statute and the facts, so it’s pursued the usual strategy of the Left of seeking (in effect) to have the statute itself thrown out.  Good for AG McDonnell.

Jim the Puritan:

I am with you 100% in your legal reasoning.  I would throw in the following:  under the “heirarchical church” theory, an essential part is the fiduciary duty owed by the church authorities to defend the traditional doctrine and unity of the church.  For the courts to only look at the heirarchical power, but not at the fiduciary duty aspect, they are making religious and ecclesiological decisions.

Heirarchical churches have every right in the world to demand parishes alter their property deeds - to suggest that this is too onerous or impossible for heirarchical churches to do undercuts the very claim.

I think that only the neutral principles approach properly respects the courts obligation not to intervene in religious matters.

My two cents.

The AG was obligated to defend the statute.  He was in no way obliged to defend it in a way that so helpfully dovetailed with ADV’s positions.  That he did is in the main very helpful.  The judge will be appropriately respectful of the AG’s position.  He will do whatever he can NOT to rule the statute unconstitutional, as that is a last resort.  All things being equal, ADV is better off with this opinion, because the AG could have defended the statute in a way that was not such a mirror of their own arguments.  And by and large 815 and the Diocese are worse off—especially because of the potency and dismissive tone of the AG’s brief. 

None of which is to say it will go ADV’s way, or that the division question will be settled in their favor.

Good reason to have a celebratory beer.  Not reason enough to have two.

Thank y’all… So if it does help the cases in Va, because of this unique statute in the Commonwealth of Va., it will not necessarily help in case law in other states? Perhaps not in Federal Law?

I think this is more a proof of ECUSA’s misguided and often clueless legal strategy than a decisive development in this case.  The Virginia courts were never going to rule that the Virginia statute was unconstitutional.  For ECUSA to make that argument was simply to guarantee this public relations disaster.  And any strategy based on preserving this issue for appeal to the US Supreme Court is equally misguided.  The Supreme Court will not take this case.  I would bet the house on it.

The issue remains what it always has been: was there a statutory “division” in this case?  There are clearly non-religious criteria that can be used to make this determination.  When a single parish refuses to allow a denominational body to discipline its adulterous pastor and breaks off and forms an “independent Bible church,” there is no division.  When twenty churches break off at the same time and form a cohesive district affiliated with an internationally-recognized structure, there is a division.  We have seen over and over again in this dispute that the CANA churches are light years ahead legally of ECUSA and the Diocese of Virginia, who continue to run ever more amok.

This is like drawing a wild card to augment your poker hand.  It doesn’t guarantee you’ll win, but it sure ups the odds.  And it’s wonderful to hear of Petra’s experience.

Mark Brown
San Angelo, Texas
Jan. 11, 2008

McDonnell: “As a matter of federal constitutional law, the Episcopal Church is simply wrong.”

  One is lead to wonder how many NY lawyers were paid by TEC at $500 an hour to draw up the brief that challenged the constitutionality of the Virginia law, only to be shot down in one sentence by the Attorney General of Virginia.  Granted, if 5 years from now, this is in the US Supreme Court, they may try again, who knows.  But I am willing to be the AG of Virginia did not make this determination in a vacuum, and that the Virginia courts see it the same way he does.

Oh well….I guess for TEC, it is back to trying to win on the merits of the case, if there are any merits to their case.  Of course, if they do win, do they then have to give the property back to the Bishop of London?  After all, he is the guy TEC stole it from….

This makes the case for the KICKASS (Kirk of Independent Christian Klowns Associated for Sunday Services) Denomination look very good and we are now prepared to proceed.  We need volunteers to join the target churches and get on the vestry.  No need to attend (except the 3x/year minimum).

There’s a lot of nice old stone churches in the Blue Ridge up for grabs.  Hot damn - I should of thought of this years ago - - -

Dear Tjmcmahon: You said, “Of course, if they do win, do they then have to give the property back to the Bishop of London?  After all, he is the guy TEC stole it from….”
  I actually think you have a good point here, especially given that TEC is part of a “Hierarchical” Communion and Church… 

#9 You say you wish you had this law in Louisiana.  As a aside, I must ask if there are similar disputes now in Louisiana, and if so, what parishes and diocese?  I was unaware that such litigation might be happening back home.  I guess I assumed us Louisianians are too smart to go this route.

Okay, where does the division need to be for 57-9 to apply?  Is it at the international level, the national level, the state level, or the diocese?

And what constitutes a ‘branch’?  I think that’s the hard thing to prove - that there are two ‘branches’ of the Episcopal church in Virginia.  Or are the two branches TEC and ADV?

The Virginia Attorney General technically has a general obligation to defend the constitutionality of Virginia statutes; however, getting him to intervene and take this stance is huge, even though it doesn’t settle the issue of whether a “division” has actually occurred.  Bravo to all that had a hand in this!

I am less happy with the Archbishop of Canterbury, whose statements and actions seem calculated to subvert the “division” argument, and those that are pushing the existing covenant draft that would do the same thing by prohibiting interventions (and thus the CANA formation) which have not been explicitly authorized (before the fact) by the Instruments of Communion, which deferring any discipline or recognition of withdrawal until a decision by the Primates. That would be a gift to TEC in this litigation.

Should have been “while deferring any discipline or recognition of withdrawal until a decision by the Primates.”

I was wondering how the Presiding Bish can get away with saying something like, “I would sell the property to baptists, methodists, etc even a bar, but not to any group that used to be Episcopal and is now aligning with someone else.”  (that’s a rough paraphrase…)  Isn’t that some kind of religious discrimination???  She is definitely making her decision based upon a certain set of applied religious convictions.  Can that be legal??  Just wondering…

#42 - yes and the Bishop of London might have to give it all back to the Roman Catholic Church.  This could get interesting - - -

Meanwhile, we’ll have fun with KICKASS.

Going Home,
On his current trajectory, the ABoC is insuring that there will be a full fledged division of the Communion.  The longer he stays on this path, the more divided it will be.  The hierachical argument fails altogether if the Communion splits into two distinct denominations.

We will all just have to stay tuned.

Church is FUN!

I agree with a lot that has been said.  On the one hand, an AG is generally expected to defend the constitutionality of a state statute, but they also have an awful lot of discretion, so there is no way this is not helpful to CANA.  I read the language quoted in #15 as a bit of a roadmap as to how the statute could be applied constitutionally, at least in the AG’s view.  After all, you can argue “religious thicket” about anything having to do with a church, but the real test is excessive entanglement, not no entanglement at all.  That boat sailed in the 19th century.

Anyway, as to #31, the current “liberal” view (as in secular legal analysis) is that neutral principles should almost always be applied in laws regarding churches in order to avoid establishment.  Special rules for churches should be sanctioned as free exercise only in very narrow circumstances.  Certainly not property.  This view is held by a number of “liberal” denominations, such as the UCC.  It is probably also the view of the 9th Circuit.  But not, of course, of TEC, for its own interests.

At least one beneficial effect of this is the way in which this puts those who have long and vocally proclaimed “you are stealing my property” in such a very bad light.  Of course, they may now claim there is no “division” in Anglicanism, but outside of the courtroom, that is another one of those arguments that destroys the credibility of the one making it. 

Just my opinion.

Going Home,
I am not an attorney and not really tracking the church property litigation lately.  Are you saying that CANA or ADV is relying on the division argument in their case in an important way, and that therefore their argument to retain the properties would be much stronger if the Communion splits during the litigation?

Kevin:  That was an incredibly stupid thing for the PB to have said as it serves to highlight and establish a “division.”

Kevin-
At the current rate, TEC can say whatever they want, it won’t make much difference in 20 years (at current estimated losses which are in all probability accelerating), because there will be no more Episcopalians.  After that, there will just be a shell corporation left to finish the various litigations, you know, the lawsuit against Canterbury, VGR’s suit against them for unauthorized use of his marriage ceremony in the 2009 book of uncommon prayer, the suit agaubst the high Druid for adopting the trademark chasuble of the PB, all that stuff.

In the meantime, should we sue them over the use of the word: Episcopal?  It is false advertising.  Next thing you know, they will claim to be catholic and apostolic too.

I bet the dio of Va wishes they had followed through on the negeotated settlement talks. Kiss that money bye.

#45 said:

I am less happy with the Archbishop of Canterbury, whose statements and actions seem calculated to subvert the “division” argument, and those that are pushing the existing covenant draft that would do the same thing by prohibiting interventions (and thus the CANA formation) which have not been explicitly authorized (before the fact) by the Instruments of Communion, which deferring any discipline or recognition of withdrawal until a decision by the Primates. That would be a gift to TEC in this litigation.

I’m not so sure, and I think you may be giving them too much credit.  Making the interventions for CANA and AMiA illegal per se (which I think is the clear goal of some with the covenant), in fact, would seem a pretty clear statement by the communion that the division has occurred.  I think it is intended to force Nigeria, Uganda, et al, out of the communion because they certainly will not stop protecting the orthodox in the US.  I do not think it occurrred to the CoE commenters, for example, that it would at the same time close the door to any Virginia legal arguments by TEC that division has not occurred.  Of course, the covenant is a long way off.

#54 - I posted on this earlier.  The official TEC name is “Domestic and Foreign Mission Society”  +John Howe and others wanter to incorporate the PECUSA a few years back as a competing corporation.  See:

http://andromeda.rutgers.edu/~lcrew/coup05.html

Craig:  Let me give it to you fairly simply.  Virginia has a state law that says basically if there is a division in the denomination, the congregations get to keep their properties.  So, yes, it is very much in the interests of CANA’s legal position that there be a clear division seen in the denomination.  I believe that CANA has argued that the “denomination” is the Anglican Communion.  So, yes, it is very much in the interests of CANA’s legal position that there be a clear division in the Anglican Communion.  And such has been argued in CANA’s legal briefs.

And, yes, like you Craig, this raises questions for me about potential conflict of interest - morally if not legally - in CANA’s bishops’ advocacy in such matters as Lambeth attendance, GAFCON, the ABC, etc.  I have a great personal respect and regard for CANA’s bishops, but I strongly disagree with them on many issues and am very uncomfortable with their advocacy in these areas, given the larger issues at stake.

QUESTION: In an historic parish, is it just the existing members who must “divide” or will some sort of consideration be given to former members, going back over the centuries, who have contributed to the physical plant and thus have “ownership” rights in the property or at least rights similiar to the folks there now.

I guess this is why Attorneys and Judges need to be involved.

Well, based on the comments by the const. lawyers it sounds as tho the fat lady has not yet sung her song.  So I guess we must wait to see what the court will decide.  I will not be surprised if this drags on for another 5-10 years with appeals and the like.

Craig Uffman,
Not meaning to speak for Going Home, but I think the point he was making is that the ABoC’s pretense that there is no division, that TEC is Windsor compliant, and that Dar has been adequately addressed (if one accepts the 815 interpretation of the Archbishop’s advent letter, although I believe both of us find their interpretation flawed) does indeed do some PR damage to the ADV legal position. 
However, the division is obvious to everyone other than the ABC, so I hardly think the ADV needs the ABC to do anything to back up their case- or for the AC to split between the GS and Canterbury.  The primates unanimously stated that TEC must drop the lawsuits.  TEC refused.  Therefore by the act of suing, TEC has openly broken with the Communion yet again, and TEC has made it clear to any casual observer that it is not in a hierarchical church, since it can with impunity defy the hierarchy.

Thanks, jamesw.  I tend to assume the best in people and so I am usually the last to recognize when others are playing Machiavelli. This is a surprise to me.  What you have raised has never occurred to me until now, but it does sadly have explanatory power.  With properties that valuable I imagine both sides are willing to sacrifice quite a lot in order to conquer the other.  How tragic.

# 58.  Yes - but what “property”.  You cannot grant better Title than you have.  Who says the current OCCUPANTS are the OWNERS.  Who says the DofV has “ownership”.  Who says TEC has “ownership”.  Who says the Bishop of London has “ownership”.

Trust is different from Ownership.

IMHO, possession will be based on Occupancy and not Ownership.  Truro belongs to the ages.  Do does TFC.

The statute that is being argued in this case is the Virginia Statute 57-9 which says:

§ 57-9. How property rights determined on division of church or society.

A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court’s civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.

B. If a division has heretofore occurred or shall hereafter occur in a congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society, a majority of the members of such congregation, entitled to vote by its constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom, may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court, and if approved by it, shall be so entered as aforesaid, and shall be final as to such right of property so held.

In the evidentiary hearing the court was focusing on four key words of the statute:

division, branch, attached and religious society or church.

The CANA congregations have to prove that there is a division in TEC and AC and that they have joined a branch of the Communion.

Thanks for the explanation tjmcmahon.  I have not paid attention to how important this dispute is to those outside of Virginia, except for the obvious importance to TEC because of not wanting to set a precedent that would harm efforts in other states.

815 and its little minions are surely spinning real fast now to get a press release out ASAP countering the significance of this, in time to make tomorrow’s Washington Post.  Should be arriving any minute.

10 ..  9 ..  8 ..  7 ..  6 ..  5 ... incoming!

Craig:  Do note, that I raise the issue of potential conflict of interest.  I am not suggesting that the CANA bishops are advocating in the way they are with an improper purpose.

By the same token, I will say that the ABC’s reluctance to support Communion discipline has led to a discipline-less Communion, which has inevitably led to the “everyone does what is right in their own eyes” Communion.

OK - but is the “Property held by Trustees” and who are they.  Is the Diocese of Virginia the Trustee.  - - -  and that the Property is held - - -

Under A.  CANA would have to be a “Branch of Anglicanism”, and who would decide if it is in fact a “Branch”.

Under B.  Truro would have to already be an independent congregation.

#58, no, I think the strategy has been for TEC, or at least most of it, to be disinvited from Lambeth, so that the global south could attend.  That is what they said starting long ago, and I’m pretty sure they meant it.  And that would be the division of TEC from the communion.  I think the global south primates would then try to have the communion recognize the orthodox portion of TEC and the CCP as a formal part of it.  Lots of details to be worked out, of course.

That the ABC might choose to keep TEC in the communion at the cost of losing the global south was always a possibility, and it is looking more likely by the day, but that is his decision.

This is excellent news for Virginia and any other state that may have this law on the books.  As mentioned before, KJS & DBB and 815 will be pulling out their hair over this one.  If the AG is correct in his interpretations, then more power to them.  We certainly need something in our column to show that we are winning.  I do hope and pray that the good Lord will guide these people into a direction that will bring them to full churches every Sunday.

I think the 1974 Virginia case involving the Presbyterian church is the most telling. Va applies neutral principals - as the brief eloquently states neutral principals are constitutional (in fact I view deference to hierarchical church’s as being suspect constitutionally).  It is clear that there has been a division - the TEC made up requirement that TEC must recongize it is ludicrious on its face and historically as shown by the reformation.

I think the judge will view the 1974 case and the AG opinion as good cover.

If, God forbid, TEC would win a Supreme Court ruling and granted ownership, they will also assume all financial responsibilities of those properties including some with with mega mortgages.  Seems to me that a better business case scenario for TEC would be to argue that those leaving the church must keep the property and all the financials associated with them.

McDonnell is a candidate for Governor and is aggressively wooing his rightwing Republican base.  This guy was first elected AG in 2006 and has never had a reputation as a great legal mind.

I fail to see why it is necessary to show the Anglican Communion is breaking apart. Twenty or so parishes voted to leave TEC in virginia and set up a new church - that is a division.  I think it really is that simple.

Here we go:

McDonnell is a candidate for Governor and is aggressively wooing his rightwing Republican base.

I was going to comment that 815 will probably start playing the politics card in response to this opinion, but thought better of it: no, they aren’t that lame.  Well ...

What it means is that the Commonwealth, through its attorney general, is arguing that the Virginia statute at issue does not favor any particular denomination and therefore is not unconstitutional.

Do you not think that the ABC plans for radical bishops in TEC, and elsewhere, to not sign on to the covenant making them secondary, loosely, “members” of the Anglican Communion (i.e., the ABC used the example of the CofE and the Methodists). I don’t think anyone really expects TEC to be the same after Lambeth. Whatever is left would be THE Anglican Communion presence in USA. I think, too, this process is being undertaken by the ABC to destroy any power or authority vested in GC, in order to raise up a healthier more faith based GC or whatever it becomes. Given, by all sides until a few months ago, the ABC defines membership in the AC, these Va. cases may well come down to arguments involving the ABC’s stance on the relationship CANA and others have to ABC and the Communion. Which is why I think these lawsuits are premature on both sides. They may be immaterial after Lambeth. Those who have the buildings presently would still be in them as a legitimate part of the AC, and those fighting to keep them may be in a position of powerlessness—- as I believe the ABC said about those not signing on to the covenant (that may be a stretch, but I seem to remember something like that)...

On the question of the Covenant, I think that something that has not been addressed yet, either in the Covenant itself, or by any of the instruments, is who will get to sign it, and under what terms.  I think it is obvious that if existing missionary efforts had to be given up, this would present a huge obstacle.  If, on the other hand, future “boundary crossings” had to be given up in exchange for a strictly spelled out method of discipline, and perhaps putting some real force behind Lambeth and primatial resolutions, there would be room for negotiation.  Clearly, asking that CANA and the rest of Common Cause be “given back” to TEC is a non-starter.  Even if Nigeria were to acquiesce to this (and there is zero probability of this), all it would accomplish would be to form an “Evangelical Continuum”, or gain new members of the Reformed Episcopal Church, and expand the current Continuum of mostly Anglo Catholic parishes.

On the other hand, the Covenant could be accepted on a “status quo” basis, and things accepted as they are- which is to say, the condition of CANA would improve vis. Canterbury if Nigeria signed- because all entities that are structures of the signer would be recognized by Canterbury, by definition.

It is even possible that there might be preconditions to signers- ie: you would not be offered the opportunity to sign if certain conditions are not met.  This has in no way been decided as far as I know.  We assume that, for example, the LCMS could not become a signatory.  But what about the REC?  Common Cause either as an entity or individually? (Leave aside the Episcopal dioceses within it for the moment).  Rowan, in his letter to Howe, and reinforced in his Advent Letter, made it very clear that in his opinion, these decisions can be made diocese by diocese.  Maybe that will be true Communion wide.

Geaux Enfant Bleu! 

The AG is elected in most states.  Elliott Spizer comes to mind.  Isn’t he governor now somewhere?  Yup, a nasty personal attack on an attorney general for defending the constitutionality of a state statute.  Thanks for that brilliant display, #74.  Shows what CANA is dealing with.  Makes me wonder what kind of dirt the TEC and the Diocese of Virginia oppo researchers have dug up on the judge, waiting to see what he is going to do.

Also, given that these lawsuits are “out there”—and even with as much money as is being spent—the longer they go on (I mean months not years) the better it is overall for the people now in them, rather than the present incumbent in 815.  I really truly believe that the ABC will come through. My only worry is for the various conservative Primates not willing to attend Lambeth.

[#22] rwkachur (and anyone else who asked how it may help the ADV that the received a

pretty much constant (according to the transcripts) rejection of “You’re honor, we object on the grounds of ‘the religious thicket’” that Dio. VA received during the trial?

First, I am not an attorney, nor have I ever played one on television or silver screen. That having been said, I have discussed similar examples of inordinately embarrassing persistence in hectoring a judge with the same issue, and have personally experienced the same as a principal in a hearing on a motion.

These experiences, both personal and vicarious, have demonstrated to me the degree to which many judges tire of complainant’s attorneys who repeatedly belabor a question or issue beyond the bounds of what most of us (and the judge) might deem reasonable. In the incident (a case in divorce law) which I witnessed, the judge, having heard several times during the testimony a largely gratuitous argument from the attorney representing A, began to render his decision. A‘s attorney interrupted to raise the argument yet again. The judge quite curtly instructed A‘s attorney that he had heard that argument more than often enough. Charging smartly ahead, the judge continued apace with his decision in favor of A, specifying the amount to be awarded, and following with other details of his decision. It was not until the judge was almost finished rendering judgment that A‘s attorney suddenly recognized that the amount about to be awarded was less than what had been freely offered by B, in earlier testimony. Upon standing once more to point that out to the judge, he was recognized, albeit with some sense of irritation by the judge, and was able to get the latter to revise (with obvious irritation) the amount to that which had been proffered. The experiences of my esteemed friends among the ranks of prosecutors was eerily similar, despite being in wholly unrelated cases.

So, this is very likely to be beneficial to the ADV cause, although the magnitude of the benefit thereto remains unpredictable—it will be a case of how irritated the judge was over the repeated “religious thicket” objections, and how good the judge is at neither allowing that irritation to affect his judgment. I doubt that it would cause the judge to rule other than he would if both sides had been sensitive to staying “on topic,” but even a minor level of irritation well-handled might well allow the fairest of judges to be just that little bit more generous toward the other side, once he has decided who shall prevail based on the facts of the case.

Blessings and regards,
Martial Artist

FrVan,

What is it that gives you reason to hope that the ABC will “come through?”

Jim the Puritan is right on the law.  I’m a former Assistant Attorney General for the State of Ohio, and I did constitutional work for the State.  In general, states AG’s have the right to intervene whenever the constitutionality of a state law is being challenged.  The AG can be as effusive as he chooses in making his arguments, and argue the case narrowly if he chooses.  Or he can go full board in favor of one party.  And it looks to me as though that is what has happened here. 

It makes it much harder for the judge to rule against the parishes, now that the state’s top legal official has sided with them.  It lends a lot of credence to the parishes’ legal arguments.  The Judge was already going to look at this case very carefully because it is obvious there will be an appeal no matter which way he rules.  But knowing the Attorney General’s view of the law will certainly assist the Judge with his legal reasoning.

The Judge still gets to make his ruling though, and there are no guarantees as to what that might be.

This is not quite on topic, but I had not seen it earlier, and thought it might have some bearing on the current direction of the discussion.  The ABoC’s recent comment on GAFCON:
http://www.livingchurch.org/news/news-updates/2008/1/4/attendance-at-jerusalem-conference-not-disloyalty-says-archbishop-williams

TJ

[83] The many objections can be used as a potential basis for appeal - it is sometimes a tradeoff in litigation strategy to raise many objections and potentially annoy the trial judge, but preserve the issue for later argument.

[68] star-ace wrote:

OK - but is the “Property held by Trustees” and who are they.  Is the Diocese of Virginia the Trustee.  - - - and that the Property is held - - -

The Trustees are individuals appointed by the court to hold the property for the individual churches (congregations).

See my longer explaination <a >here</a>.

[87]  Yes, you’re right.  Generally, if, on appeal, you cannot point in the record to where you raised an objection, you are deemed to have waived the issue.  The point being that if you had brought it to the attention of the trial judge in the first place, he/she would have had the opportunity to rule on it, perhaps agree with you, and thus obviate the need to make the appellate courts spend time on it.

That being said, and without having seen the transcript, usually the attorney does not want to unduly annoy the judge.  So he may just say “I lay an objection to this entire line of questioning on the grounds that . . . .” which the judge will acknowledge and rule on.  Or the attorney may file a separate “motion in limine” asking that certain proffered evidence or arguments cannot be considered.

If this case is being tried to a judge, rather than a jury (which I think is the case), usually it can be more informal in the form of the questions and objections, because the judge knows what’s going on.  With a jury, however, it can be very important to make the proper objection at the right time, so that the jury doesn’t hear an answer to an improper question before the judge can rule.  The judge can admonish the jury to “disregard the answer to the last question,” but the fact is, they’ve already heard it.

chips wrote:
I fail to see why it is necessary to show the Anglican Communion is breaking apart. Twenty or so parishes voted to leave TEC in virginia and set up a new church - that is a division. I think it really is that simple.
No, it’s not that simple. The Virginia statute applies only when a division has occurred. If any congregation could claim that its unilateral departure constitutes, in itself, such a “division,” then any congregation could invoke the statute at any time for any reason to leave its denomination.

Personally, I think the statute is clearly constitutional, but the eleven parishes left prematurely, before a “division” had occurred in the Anglican Communion. Unless they are allowed to apply the statute preemptively (since a future division had become inevitable, even though it was not yet accomplished) this argument should fail. I hope CANA has a good plan B.

[#97] tired,

I understand what you are stating. However, I have not pored over the transcript of the ADV litigation, so I am not sure whether the question of many causes for appeal actually pertains in this instance.

In the personal experience which I was summarizing, there was only one issue, it was germane neither to the basic finding in the case (a question of temporary spousal support), nor to the amount to be awarded, and the probability of its going to appeal was somewhere between vanishingly small and zero—more likely the latter. I believe that I stated quite clearly that the argument repeatedly raised was gratuitous with respect to both who prevailed and in what amount; I did so because it was. I also believe that I made it quite clear, at least such was my intent, that I thought it unlikely to alter the judge’s basic finding in the ADV litigation, but that it could still affect the terms of any settlement in some unknown, and probably slight, degree.

Appeals or no, some attorneys are simply clueless as to how to proceed in a court of law in such manner as to demonstrate the good faith and reasonableness of their cause—in the example I summarized, it was the consensus of opinion that the attorney was a first class twit. I am only very slightly trained in law (primarily U.S. military justice under the UCMJ), but judges are still human beings and if the objections are not being raised for purposes of future appeal, a judge will quickly recognize that. If that is what happened in the original several days of testimony in the ADV case, anyone present who is at all observant should be able to enlighten the rest of us as to how the judge reacted to the accumulation of objections on the “religious thicket” grounds.

Blessings and regards,
Martial Artist

Sorry for the bad link.  It should be:

Here.

— Justin Martyr

The ADV churches are making arguments only under 57-9(A), not under B.  Under A, they are claiming division and new branch at all three levels: diocesan, national, and international.  The diocese is “divided” and ADV is a “branch” from it.  TEC is divided and CANA is a branch from it (as is, they argue with testimony from Bishop Guernsey and others, the Ugandan church in the US).  The Anglican Communion is divided, and TEC and Nigeria are separate branches of it b/c they are not in communion with one another and Nigeria has invaded the US, after having amended its constitution to implicitly excommunicate TEC and to authorize the invasion. 
The constitutional issue is largely distinct from all of this, except that (1) the ADV churches of course can’t win under the statute if the judge strikes it down, and (2) TEC and the Diocese are trying to wave around the Constitution to scare the judge into bending the words of the statute in their favor.  The AG’s intervention makes a straight up interpretation and application of the statute more likely.

79-there is nothing in the covenant as currently drafted that would grandfather prior interventions,  or permit continuing interventions, nor have I heard any suggestion from that Common Cause entities would be signatories.  I would, of course, welcome both.  But as written today, I believe the covenant is a Trojan Horse for those of us who are, or will soon be, outside of TEC.

Fr.Van, the ABC clearly stated, even before the Lambeth boycott emerged, that diciplinary action was not on the agenda for Lambeth.  In terms of lessing GC influence, he has repeatedly said, both before and after NO, that TEC’s response to Windsor, et al was substantially compliant.  He has termed the interventions as not helpful, and refused to give even an inkling of recognition to them.  He invited all TEC Bishops to Lambeth other than Robinson, while refusing to invite any of the new GS consecreated Bishops in the US.  In light of all this, what exactly what do you mean by the ABC “coming through”?

[#90] Roland,

How germane to the question of whether a division had, or had not, occurred at the time of the separation of the ADV is it that a number of the Primates had declared that there was a rupture of communion? In your analysis, what specific actions would have to occur for the court to be able to apply the statute. At some point, it becomes a matter of res ipso loquitur, does it not? I would think that the fact that a number of primates in the AC having publicly stated that TEC’s actions had caused a rupture in the Communion would be one such possible candidate.

Blessings and regards,
Martial Artist

http://www.pwcweb.com/ecw/tec_to_nigeria.html

This is indeed good news for the ADV congregations who in the last generation of worshipers have largely built the properties concerned from scratch or have radically expanded them. Their sweat equity is in the property as well as their dollars! This law was constructed to keep Church property disputes from the courts by providing a neutral principal for deciding such issues. Let’s hope the wisdom of the law is upheld and the Diocese and national church accept reality with grace.

http://www.pwcweb.com/ecw/tec_to_nigeria.html

“This guy was first elected AG in 2006 and has never had a reputation as a great legal mind.”
That makes it really scarey, since he’s obviously smarter than TEC’s legal team.

I understand the significance of this brief and the order in which the judge is handling the issues related to the Division Statute to be as follows (and would crave correction if someone knows better):

1.  Does the Division Statute apply?
2.  If so, is the Division Statute constitutional?
3.  If not, what is the proper constitutional standard for evaluating church property disputes in the absence of an applicable state statute?
4.  Based on the proper standard, who owns the property?

If the answer to #1 is no, go on to #3 and #4.
If the answer to #1 and #2 is yes, ADV wins in the trial court.
If the answer to #1 is yes and #2 is no, go on to #3 and #4.

This brief represents the State of Virginia’s assertion of an affirmative answer to only #2.

The Attorney General’s brief provides important support for orthodox side.

—1—The key point for nonlawyers is that the AG’s brief is as good, but only as good, as the arguments it makes. The AG gets no formal deference here. But he has a official bully pulpit from which he can seek to PERSUADE.

—2—The parties to this case (e.g., ECUSA and the ADV) have obvious pecuniary reasons for making the arguments they make. The Attorney General has no pecuniary interest. Under the circumstances, the AG’s brief provides a sort of nonbinding, independent validation of the orthodox side’s arguments. Judges are human, and as a matter of human chemistry the AG’s position offers reassurance to a judge inclined to rule for the orthodox on the merits.

Consider this: If you were representing the ADV and could get one person in the world to file a brief in support of your case, who besides the Virginia AG would you want? (No fair saying KJS or Bp. Lee.) WHO ELSE would be a more valuable advocate in this Virginia state court case?

—3—The filing of this brief also increases the likelihood that the AG’s office would argue for the constitutionality of the Virginia statute in any appeal of this court’s decision.

Going Home

I am less happy with the Archbishop of Canterbury, whose statements and actions seem calculated to subvert the “division” argument, and those that are pushing the existing covenant draft that would do the same thing by prohibiting interventions (and thus the CANA formation) which have not been explicitly authorized (before the fact) by the Instruments of Communion, while deferring any discipline or recognition of withdrawal until a decision by the Primates. That would be a gift to TEC in this litigation.

Going Home, what is it in the Covenant that prohibits interventions?  The ABC did say something along those lines in his advent letter, and the Windsor Report is critical of interventions, but I just re-read the Draft Covenant and didn’t see anywhere that it directly addresses the question of interventions, either existing at the time of signing, or in the future.

I think the suggestion threads are still open. How would you change the Covenant wording to eliminate the “Trojan Horse” aspect?

Bingo, Jeff.  And this is only the Commonwealth’s position, not necessarily the judge’s.  We’ll know his only if he decideds “yes” for Question 1. 

Real value of this is to finally have a neutral legal observer with stature declare the diocese and 815 wrong.  This totally undercuts their attempt to assert that ADV had no credible, reasonable assertions and were in effect simply stealing property.  It doesn’t go to the question of ownership, of course.  But it makes the departing parishes look much more as if they were and are acting in good faith. 

Peter Lee should, given the financial consequences earlier reported and this bad bit of PR, seriously consider breaking from 815 and settling these cases.  This is pure folly—even if he wins in the end.  There is definitely not a convergence of interests here between 815 and the diocese.  They are not his friends.

Craig:  Greetings from Louisiana and your former parish!

On matters in Louisiana: Check the website of the First Presbyterian Church for an interesting story about how they settled property ownership of their buildings in downtown Baton Rouge in the courts.  To my knowledge there are no property suits in either diocese. 
RBK

“There is definitely not a convergence of interests here between 815 and the diocese. They are not his friends”

But they seem to have his number.

#42 - yes and the Bishop of London might have to give it all back to the Roman Catholic Church. 

And who is standing looking over the Pope’s shoulder but the Patriarch of Constantinople…

Someone asked earlier what the judge’s response was to the “continuous religions thicket” question
check out babyblue’s coverage of the thicket question and objection here

http://babybluecafe.blogspot.com/2007_11_01_archive.html

or read the transcripts of the trial on the Anglican District of Virginia website.  It was an objection that the judge tired of and overruled regularly.

StarAce:  The law doesn’t recognize previous generations (no matter how long or consistent their beliefs) as once they are dead, they’re dead.  If that weren’t the case, I’d wager that the Church Victorious (along with the orthodox Church Militant) would have won overwelmingly against TEC long ago…

Does this mean the AG is acting as an amicus for CANA?

No, the AG is not acting as an amicus for CANA.  If he is seeking to intervene, he actually becomes a party to the proceedings.  It doesn’t necessarily make a huge difference, but it is stronger than an amicus brief.

FYI, the PB has inhibited Bishop Schofield.  As of 5:00 pm Pacific Time.  See Episcopal Life.

For #30, Anglican Hopeful.  I did read the two documents and was amused to see the atty general’s comments about doing his duty to defend state statute when constitutional issues are involved.  I was aware of this, I believe in Maryland. My thinking is the VA cases are a toss up, and as I have mentioned here before, may turn on the meaning of “division” “branch” etc.  It may be that the cases are not judicable without an inappropriate intrusion of the court into matters religious.  ‘Twill be interesting but I’m not sure that the atty gen. had anything new to contribute to the debate.  But I am not an atty, and do not play one on tv so may I suggest that there may be others here present who might wish to speculate?

[Breaking] KJS - “I hereby inhibit the said Bishop Schofield” http://www.episcopalchurch.org/79901_93559_ENG_HTM.htm

One of the great inconsistencies of KJS is that she will use the hierarchical nature of the Church argument for property, but certainly will not use it for theology. In fact she will rail against the hierarchical/ male dominated church structures. Can this disingenuous attitude on her part be used against her in a court disposition of her remarks, verbally or written. I find it another example of the hypocrisy of Liberals. If I recall, Jesus was not too keen on hypocrites.

Good point Forever Anglican.  As someone smarter that I pointed out, you need to be careful about appealing to hierarchy when you yourself are in middle management.  Which she surely is.

On January 9, Upper South Carolina Bishop Dorsey Henderson, committee chair, wrote to Jefferts Schori, telling her that the nine-member committee had met that day and that a majority agreed that the documentation provided to them “demonstrated that Bishop Schofield has abandoned the communion of this Church by an open renunciation of the Doctrine, Discipline or Worship of this Church.”

Sarah don’t you just swell with pride that this is the bishop of our diocise?

99, points 1 and 3, and 108 make good points.

Interesting that there have been 114 comments and no one’s bothered to note the fact that the Chief Deputy AG (Mims) used to go to a mission of one of the breakaway congregations and previously used his position in the legislature to try to amend the division statute against hierarchical churches.  But I’m sure you’re all right—this is completely non-biased and independent and a real shock to everyone.

Phenomenal waste of taxpayer money.  (Just like both sides are engaging in a phenomenal waste of church money.)

please.  for the love of chocolate lets conservatives be consistent.  the va statue overides the rules of the episcopal church.  in the long run we don’t want the state dictating to the church the rules for property division.  the va statute gives us the result we want but the principle is wrong.  do we conservatives have any integrity?  unless we are true anglicans in the tradition of king henry the viii (and soon charles who will pick the next bishop of cantebury) lets follow scripture and let church rule church and state rule state even if it gives us a result we don’t like in the present circumstances.  for what it is worth I am trained as an attorney and am a sitting federal judge.

This should help define whether or not there has been a division:

Friday, January 11, 2008
The Episcopal Church Division Intensifies: Schori “inhibits” the Bishop of San Joaquin
UPDATE via e-mail: The following is the Diocese of San Joaquin’s statement in response to a letter sent to Bishop Schofield by Bishop Schori of The Episcopal Church today:

The Episcopal Church’s assertion that Bishop Schofield has abandoned the communion of this Church is an admission that TEC rejects the historical Anglican faith.

This is why The Diocese of San Joaquin appealed to the Anglican Province of the Southern Cone of South America for emergency and temporary protection. The majority of the other provinces of the Anglican Communion hold to the traditional faith.

It is the primary duty of bishops to guard the faith and Bishop Schofield has been continually discriminated against for having done so while Bishops and Archbishops around the world have affirmed not only his stance but the move to the Southern Cone. Bishop Schofield is currently a member of both the House of Bishops of the Episcopal Church and the House of Bishops of the Southern Cone, not prohibited by either house.

Governing documents of TEC do not prohibit relationships between different members of the Anglican Communion, rather they encourage it. TEC’s action demonstrates that there is an enormous difference between their church and most of the Anglican Communion. Again, this action is a demonstration that TEC is walking apart from the faith and its expression in morality held by the rest of the Anglican Communion. The Episcopal Church’s own identity is dependent upon its relationship with the whole Anglican Communion.

TEC should consider whether it is imperiling that relationship by taking such punitive actions.

morningside:

Last I checked, since the Statute of Frauds and before, property title has been, by definition, in the realm of the state.  There is nothing non-conservative about expecting the state to protect one’s right to own, control and enjoy property, even if it is from another purportedly Christian church.  CANA congregations are not under the jurisdiction—religious, legal, or otherwise, of TEC—and neither are their real properties. 

The Virginia statute in question is not a liberal or conservative issue—it is just an attempt to prevent the rights of individual congregations to be trampled by much larger, richer and more devious denominations.  The CANA congregations tried for years in good faith to avoid a legal case, only to have the rug pulled out of them—by corrupt masters—or mistresses—of the ultimate deep pockets.

By conservative definition, the government exists to protect the rights of the individual, the small, the weak, from powerful, wealthy organizations and individuals.  Laws that protect the little guy…or the little congregations…from large predatory organizations are in principle very conservative kinds of things.

“Let’s conservatives be consistent. The va statue overides the rules of the episcopal church. in the long run we don’t want the state dictating to the church the rules for property division”
—-MorningsideAnglican

Consistency of principle is crucial. We can’t assert one set of rules for others and another for ourselves. But doesn’t the Virginia statute help uphold the reasonable expectations of those who have purchased and maintained church property?

_ _ _ _ _ _

“Phenomenal waste of taxpayer money”—-David H

Not at all. The AG is defending a reasonable state statute.

kyounge, you are technically correct,the offending language is found in the Church of England’s official comments to the Covenant, recently delivered by the Archbishops of Canterbury and York, as Presidents of the COE’s General Synod. The COE and ABC propose the following language in note 34:

“[We commit ourselves] to refrain from intervening in the life of other Anglican churches (sc. provinces) except in extraordinary circumstances where such intervention has been specifically authorised by the relevant Instruments of Communion. ”

Almost as if written by TEC.

MorningsideAnglican, I make it a practice not to publicly disagree with a sitting federal judge, however, I don’t think the Virginia statute can reasonably be interpreted as interfering with an ecclesiastical dispute. Rather, it simply provides a mechanism for a church (not the state) to resolve its own fate when there has been a division within its denomination.

What in fact is the Doctrine, Discipline, and Worship being appealed to by both sides?

It would seem to me that ” we believe what we pray”. Thus, the 1979 Book of Common Prayer dictates our Doctrine and Worship, and the current Canons our discipline consistent with the rubrics of the BCP. If that is the case formally for The Episcopal Church, then Bishop Schofield should be able to successfully appeal the case made against him by KJS and others that he departed from the Doctrine, Discipline, and Worship of The Episcopal Church; and that it is the KJS and other bishops that have, in fact, departed from the Faith and Order of the official Episcopal Church’s stance. Is that not correct????

What do others think?? Can Christian, Episcopal lawyers come to his defense in this matter as friends of the ecclesiastical court?

Also, has not the ABC not said the Windsor Bishops hold the Faith of the Communion—in other words—they have NOT departed from it.

I would like to read the statement of the those bishops who voted against him as to their reasoning, especially the bishop of Upper South Carolina.

Can this argument defending Bishop Schofield be used in Property disputes with TEC??

Forever Anglican

[#121] Going Home,

Just to be precise, the statute provides for a congregation to decide. The statute, by its wording, treats church and religious society as more or less interchangeable, while naming as a congregation what we refer to as a parish. Given the precise language used in the statute, your formulation is ever so slightly ambiguous.

Blessings and regards,
Martial Artist

My post # 122 could easily be on the Breaking News that Presiding Bishop has inhibited Bishop Schofield thread, but I don’t know how to put it over there now that I wrote it here.  Just a clarification since it is somewhat off topic here.  FA

[#124] Forever Anglican,

Please check your Private Mail on SFIF. I have sent you the string to embed in a short comment on that other thread. All you have to do is open the text file I attached to the Private Mail and follow the instructions in the Private Mail message body.

Blessings and regards,
Martial Artist

1. There is no issue of division in either Louisiana diocese. I have noticed some odd comings and goings but nothing is on the radar screen.

2. A cavalcade of silliness about the Virginia Set To. I don’t know about y’all, but when the AG of a state says ” “As a matter of federal constitutional law, the Episcopal Church is simply wrong” I take that to mean that the considerable talents and resources of the Commonwealth of Virginia are on our side. Quit looking for nuance.
We seem to have become incapable of understanding the plainly written or spoken word.

A prayer for Judge Bellows and others.

119 wrote in response to the comment that the AG was wasting taxpayer money:

Not at all. The AG is defending a reasonable state statute.

Explain to me why, with all the problems in Va (like elsewhere), the AG’s office should be spending money intervening in a private religious dispute, supposedly to defend a statute that gets used no more (and probably a lot less) than once every 20 years.  Both sides of the dispute are very adequately represented legally.  The Court has a full set of arguments before it.  The AG’s action is phenomenally unnecessary.  Indeed, for all the “duty to defend the statute” bluster, it appears like the AG is doing little more than attempting to put his finger on the scale of justice and promote one religious group over another.  See my earlier post if you’re interested in why this might be.

tjmcmahon, you suggested in an earlier post that TEC retained NY attorneys (early comment, “....at $500 an hour…”) 

I thought Beers’ firm is in DC.  Do you know of attorneys in NY who worked on its brief?  If so who/what firm?

David-

Welcome to Civics 101.  A legislature passes a law which is codified into a statute that is binding on all who are within the jurisdiction of said legislature….and said legislature speaks for the citizens who elect said legislature.  Some aggrieved party challenges said statute, which is currently the law in said jurisdiction.  It is the duty of the chief legal officer of same said jusisdiction to defend said statute as sound.  To suggest that an elected official, performing their duty in the course and scope of their employment, is doing so because they are trying to tip the scales of justice, is scandalous.  My prayers are with you.

BigTex AC

I am not an attorney but wonder a lot about the interaction of the church with and especially in a democracy such as ours.  Many of our institutions and our courts retain the deposit of Christian (ethical) origins.

So when the church wrestles in court in democracies that have emerged in large part out of the Judeo-Christian tradition, you have to think that Christ is present in the midst of these struggles and that, in answer to the Lord’s Prayer, he will shape them to bring the wider culture into his body.  How significant it is that English law re-encounters the English church, in specific battles engaging their respective descendants, appears to be a question that can be answered only by the Lord of History.  If indeed his teleological imprint becomes more prominent in our courts after the encounters than they were before, might the special charism of the Anglican Church become more widely available to the world, not by necessity, but by Christ’s own self sacrifice and offering in shaping our own corporate institutions?

Yet is this scenario just another version of sin more so that grace may abound?  Wouldn’t his stooping to conquer democratic courts resound the humility of his incarnation?  If a priest’s vow to the Anglican church meant putting her head on the block, and if the entire priesthood and laity did this, would this be a better choice and why?  It appears so because of the Pauline prohibition against court proceedings in the body, if, however, it could be determined with confidence who is in the body. Did Paul mean the body in distinction to the world?  It appears so.  It seems he would draw a sharp distinction, but what kind does the Creator of the world and the incarnated Son draw?

Yet if the entire priesthood and laity of the Anglican Church were beheaded because they sought to follow St. Paul, would not Christ, if he so chose, raise the Anglican Church from its sacrificial death?  He would indeed, no less than he could conform our courts in history to his body.

So we then would return to Paul’s meaning of the body as opposed to the world and how, or even if, to distinguish, to sort, to judge, the members of the body.  Jesus had Judas among his twelve.

David Booth Beers is of counsel and a former partner for Goodwin Procter. He is a Washington attorney. Goodwin Procter is headquarted in Boston, with offices in many major US cities. If anyone knows how much Mr Beers is billing the Episcopal Church, I’d like to know the figure. I have very good reason to believe that he is either not billing them for his time or doing so at a greatly reduced rate.

On the other hand, Goodwin Procter is supplying other attorneys to work on the assorted ongoing lawsuits. I do not believe that they are billing at anything other than their full hourly rate.

I have a blog thingy

The only time I checked it out a little, mousestalker, it appeared that only Beers and an associate or two worked on the brief.  I assumed that Beers was a partner, but if it means that no partners or only one partner is working on the brief/case, it suggests it is a pretty unimportant case to Goodwin Procter, a fact I doubt the PB knows.  And it seems safe to say that SF blogging will not phase her into realizing it.

“PB has inhibited Bishop Schofield” #109
Inhibit it from what?  Serving TEC?  From being an Episcopal Visitor???

#133,

Goodwin Procter had a partner, Heather Anderson and two associates, Soyong Cho and Bradley A. Brooker at the Virginia trial. In the San Diego trial, both David Booth Beers and Heather Anderson were there as well as Matthew J. Wilshire, who was an associate.

I have a blog thingy

120, “BigTex AC”, your description of what’s going on here reveals that you don’t really have any idea what the issues are in Va.  This is not a case of an aggrieved party challenging a statute.  This is a case of two sets of well-funded religious parties fighting about what a statute means in contentious, high-profile litigation.  As they usually do in church litigation, constitutional arguments came up.  AGs do not routinely intervene in church property litigation, and Va’s AG did not need to do so here.  It is unnecessary and clearly partisan—in short, something stinks in Bob McDonnell’s office.  Sadly, in today’s age, that may in fact be “Civics 101.”  That is something that needs some prayer.

DavidH, usual disclaimer - I am not a lawyer and did not stay in a Holiday Inn express last night.  However, my wife says that I have an option on everything…

The AG is simply defending a statute in a high profile civil litigation.  How is that partisan?  For the AG to file a brief saying that he WON’T defend the statute, now, that would be another story.

The judge in the case, if I remember correctly, is going to rule soon on whether 57-9 applies to this case, and if it does, what the outcome will be.  TEC has said that they don’t think the statute would pass constitutional muster.

The AG has filed a brief that gives the judge guidance about the constitutionality of the statute.  That allows the judge to make one ruling on 57-9.  If he decides that it applies to this case, he has the AG brief for the reasoning on the constitutionality of the statute that he can use.

If this wasn’t a church litigation, would you still object?

As others have said, no doubt this AG’s brief makes for a good day for the CANA crowd. IMHO, it also seriously strengthens a petition for cert to the Supremes for those who want to argue against it.

Peace,

A judge I once heard about knew some facts pertaining to a murder case he was called to try.  Now, he could do things properly and let somebody else try it, but the State’s collection of circumstances was all the evidence there was, and it seems the defendant was at home alone when it happened.  What the judge did was fascinating.

At the start of the trial he lit a long crooked cigar which he had enforced with a headless hat pin earlier that morning.  The longer the trial wore on, the longer grew that ash,  and the more it fascinated the jury.  After a long day of heinous circumstances and damning suppositions that honest jury had to declare, “Not Guilty,” because none of them really heard any of the case against the boy.

Even if this Attorney General’s contribution was a little unusual, it seems like it was a reading of what honest law ought to say, it gave support to some honest people, and probably saved the Commonwealth a chunk of change in, let’s hope, showing some of the holes in ex-cusa’s case and thus making for a shorter and more agreeable end to this whole mess. his opinion his opinion did happen to support

Robert

137, Paul B, I would not be offended if this were a case in which Virginia actually had an interest (for example, a private person challenging some sort of licensing statute, regulation, etc).  But it isn’t.  The state does not have (and should not assert) any interest in which private religious group winds up controlling some pieces of disputed private property.

The AG can call it defending the statute if he wants.  But if you read the brief, it’s pretty clear that this is a state official explicitly trying to promote one religious group over another.  (For example, the brief includes commentary that the AG believes CANA is right on interpretation of the statute.  That clearly goes beyond defending its constitutionality.)

139, Robert, I suppose it is “fascinating” when a person in a position of authority attempts to manipulate the legal system.  (I assume that’s the point of your bizarre judge story—it doesn’t convey any other point.)  But the AG is costing the Commonwealth money here, not saving it a chunk of change.

Back to Sarah’s original question—The AG’s opinion is not outcome determinative, though it is persuasive; but from a legal standpoint, it’s always good to have someone with unlimited resources on your side.  When an AG intervenes, the dyanamic changes, because dollar costs are not usually a relevant issue to the AG.  The Presiding Chancellor and his bishop certainly will not be happy about this.

DavidH,

I am not a lawyer, but I have plenty of them and I get cookies and coffee for them for a living.

The kind of church property litigation (i.e., the lawsuits instigated by the Diocese of Virginia followed by the Episcopal Church) that you may be referring to has not yet begun (one reason the Diocese of Virginia and TEC were requesting the court start those proceedings asap and the court said no, not until after he rules on this current case and then we’ll see what needs to be dealt with, it may all depend on how he rules).  The lawsuits over the property have not yet begun.

In fact, this part of the case had originally been covered by the Standstill Agreement between the Diocese of Virginia (Standing Committee and the Executive Board) and the eleven parishes where we all agreed that our actions taken when we filed our report of our votes with the court was not a hostile action.  Repeat, it was not a hostile action and the Standstill is very clear on that matter.  The Standstill Agreement was put in place so that we could then continue on to negotiate over the property in a way that would be a witness to the community and to find a way to stay in as close communion as possible.

The Standstill Agreement is still not up on the Diocese of Virginia’s website, by the way.  So it’s understandable if Virginia Episcopalians in particular are confused.  We thought we would not be in court, that we would be at the negotiating table and - if we all recall - that changed after 815 intervened.

No, what is before the court now is the whether the Commonwealth of Virginia’s statute 57-9 applies to this high-profile case that affects not just eleven major churches in the Diocese of Virginia (including two flagship churches) but will have ramifications nationwide and all the way to the Archbishop of Canterbury.  It means that the PEOPLE (remember them?) have the freedom to vote (remember that?) to decide what branch they wish to affiliate when there has been a division in a church.

Branch.

Division.

Of course this is HUGE!  The judge may decide both whether this statute applies to this case and whether the statute is constitutional.  Every major denomination, as well as the Episcopalians, are watching this case very very carefully.  It will mean that the PEOPLE (remember them?) have the freedom to VOTE (remember that?) to decide the fate of their church when there has been a division.

D I V I S I O N .

bb

#142 Baby Blue - I love ya.  I’m ex-Truro, ex-Epiphany and have now started KICKASS (Kirk of Independent Christian Klowns Associated for Sunday Services) Denomination.

What do you think of the possibility of success of my takeover scheme.

To reiterate.

1. We target an Episcopal Church in Virginia.
2. We get 20-30 KICKASS members to join - no need to attend, just join.
3. They get on the Vestry - might take 2-3 years
4. “that the PEOPLE (remember them?) have the freedom to VOTE (remember that?) to decide the fate of their church”

Seems like an easy way to get attractive property given that many rural Episcopal Churches have 40 members or less.

Would you personally be willing to participate.  We have Chief Abbot (5 year term) and Associate Primate (2 year term) positions available.  We could negiotiate other positions.

The possibilities are mind boggling - - -

137, Paul B, I would not be offended if this were a case in which Virginia actually had an interest (for example, a private person challenging some sort of licensing statute, regulation, etc).  But it isn’t.  The state does not have (and should not assert) any interest in which private religious group winds up controlling some pieces of disputed private property.

DavidH, I agree that the state shouldn’t care which side wins.  Their only interest should be that there is a system of laws that enable a society to operate.  That’s what it is doing.  I don’t know how someone can comment on the constitutionality of a statute in a legal case without talking about the two sides.  The options are one side is right, the other side is right, neither side is right, or both sides are right.  Mentioning the sides isn’t a big deal, is it?  The “state” is allowing the argument to take place and provided a courtroom and a judge.  What’s the big deal about a legal opinion?

DavidH misunderstands:

... a state official explicitly trying to promote one religious group over another.  (For example, the brief includes commentary that the AG believes CANA is right on interpretation of the statute.  That clearly goes beyond defending its constitutionality.)

Nonsense.  This is not an evaluation of religious belief, the general virtue of one group over another, or anything of the kind.  This is an evaluation of a specific legal argument, which lawyers (and judges) do all the time.  It makes absolutely no difference to the AG’s brief whether the argument was presented by CANA, the Diocese, Bob Dylan, or Mrs. Schori in the course of an allegorical liturgical dance.

It’s the interpretation of the statute, not the overall merit of CANA’s case, that the AG is supporting.  And this is eminently proper; it’s part of the State’s job to defend its laws, and thereby its legislative processes.

#145 But what if the arguement were (will be) presented by KICKASS (Kirk of Independent Christian Klowns Associated for Sunday Services) Denomination.

We’ll start small, but after we gain momentum, anything can happen.  Is ADV can take Truro from DofV, then KICKASS can (and will) take Truro from ADV.  Hey - this might gain momentum.  The property is valuable.  Maybe 2-storey biker bar.

Seriously, the “DIVISION” statue, if ruled legal and applicable without preconditions, will open a very large can of worms.  I am only scratching the surface with KICKASS.

#146—no difference.  Suppose in a better world Crew had remained leader of a tiny faction, and were much less politically savvy.  GC over the last 30 years had regularly passed by overwhelming margins resolutions essentially identical to Lambeth I.10.  Finally ++Barry Morgan decided to rescue US progressipalians, and set up a missionary diocese of the Church of Wales, the Welsh Homosexual Association for Apostolic Theology (WHAAT).  Being suburban yuppies, Truro and FC voted overwhelmingly to join (forgive me, BB!), and in the course of litigation filed legal briefs like CANA’s, arguing that a church division had occurred.  The Va AG would presumably file an identical brief.

This is a legal, not a theological or moral, issue.

star-ace, I wondered a couple of years ago why the MORMONS have not pursued something similar to the scenario you described to take over all the assets of the whole Episcopal Church.  Mormon young men (nicely dressed, polite, white shirts, black slacks, name tags) have to do some kind of missionary activity, right?  Well, why not give the whole next class of Mormon nice young men the mission of taking over TEC?  Here’s how it works:

1. Send every 18 year old Mormon male to Episcopal churches for the next 2 years.
2. Get ‘em “baptized” (tee-hee!) and “confirmed” (snort!) as Episcopalians (shhhhh..!)
3. Have them all run for vestry, vote each other in, take over the churches, elect diocesan delegates, take over each diocese, and liquidate all diocesan assets.
4. Send all the money to Salt Lake City.

I remain puzzled why the Mormons, who seem to be a pretty well disciplined bunch of folks, haven’t figured this out yet.

Star-Ace, the Diocese of VA and TEC could easily thwart your plan by doing what they should have done in the first place, demand the congregations vote to turn title to their property over to the Diocese or National Church (Let’s see how well that would be received.).  If the trustee is 815 in neutral, legal and secular terms there would be no argument over property.  The Denis Canon is an implied trust that state courts won’t and can’t recognize.  In fact, any congregation is free to turn it’s title over to anyone, that’s what trustees are for.  The neutral principles test would then look to who holds the title.  That’s all.  That’s why it’s neutral.  Of course if 815 is the trustee, then 815 is also liable…just like the Roman Catholic Church. 

Of course, I may be reading this wrong, but the subtext of your argument is that the churches voted to leave because of some conspiracy to stack the deck.  I’ve been at the Falls Church over 20 years, if bringing in new believers is a conspiracy, I guess we’re guilty.

First, this could not be done Nationally because the DIVISION statue is State law and I am not sure that other states have this statue.

Second, I was a Member at Truro for 18 years, then Epiphany for two.  These are very good folks and there is no “conspiracy” thery being advanced.  I’m just pointing out one possible outcome of the DIVISION statue, if it upheld.  I also feel that they should have remained independent, like Neil Lebhar’s Diocese of Florida (not Central Florida) group, untill it worked out.  They may wake up and find that they really don’t want to be in Africa.

Third,  Yes, this all could have been avoided if good folks like myself had not taken a cavalier attitute towards vestry and diocesan and national convention “duty” and not had a “let the other folks do it” attitude.  It took Louie Crew and company 40 years to accomplish this.  They were dedicated and placed their supporters in key positions.  ++John Howe predicted this in his second sermon at Truro many many moons ago.

Fourth,  the Division statue will probably be upheld (my guess) with preconditions on it’s application to avoid the random takeover strategy I have suggested.  In small congregations, where 30-40 folks could “take over”, you could have a change in allegiance every 5-6 years.

Fifth,  I predict that an “occupancy” arrangement will be set up for the historic pariches.  The current occupants do no own these plants and it is ludicrous to suggest the same.  There are also the folks who elected to stay behind.

But, we have KICKASS (Kirk of Independent Christian Klowns Associated for Sunday Services) Denomination ready just in case - - -

Craig - your Suburban Yuppie remark also, sorry to say, hits home. 

Truro, since the latter days of Dr. Raymond Davis’ tenure, always seemed to “glob onto” new and different happenings (we were there).  It seemed like they did not want to have another “Apostles” incident, and therefore responded (possibly prematurely) to potentially divisive issues instead of just serving Tea and Cucumber Sandwiches and letting them “play out” in traditional Anglican style.

I believe the current folks are sincere, but have really not thought out the full impact of their actions.  As I have pointed out, this could could come back and bite.  “What goes round, comes round”.

And what about the potential lawsuits from folks who contributed to a Episcopal Church and might not want to have their goods diverted to Africa.

(as an aside - there has been some discussion on level of contribution.  George Washington contributed the land - value 10 pounds sterling - approx $50.  At 5% over many years, this has a present value of about $8M.  Everyone needs to hope that his heirs/successors do not request their money back if the church leaves DofV.)

RE:  136

Dear David-

I do not play a government lawyer on TV but I happen to play one in real life so I have more than just a passing interest in the goings on in Virginia.  A constitutional question has been raised.  The chief legal officer of Virginia weighs in regarding the constitutionality of said statute.  It happens….all the time….all over the country….at the state level and also the national level.  God’s peace to you and yours.

BigTex AC

As an attorney who clerked for two years at the Nebraska Attorney General’s Office I must completely agree with BigTex.  This is very, very common.  Each state is a bit different, but in most every state, when a state statute is challenged on constitutional grounds, the state AG usually will weigh in.  In Nebraska, by statute, once a constitutional question is raised as to a statute, the AG actually becomes a party of interest and has to be included in the litigation.

Star-ace, I’ll save everyone the time and add that that is why the “dead” have no voice unless they’ve been shrewd enough to spell it out in a legal document and even then it’s difficult, witness the problem with the Barns Foundation in Philadelphia.  It’s all speculation.  Would they have given their property if they knew where TEC would end up?  Who knows…but many of these churches in ADV are new churches bought and paid for almost exclusively by the current congregations.  Some even have land they bought within the last 10 years with money raised solely by the current congregation in order to build new churches.  Should that be negotiated over and “repurchased” by the existing congregation as well when not one dime came from the diocese or national church?  Is the “Episcopal” franchise name worth that whole thing?  My point is, had TEC not leaped into litigation, these all would have been handled in a much more equitable way.

Star-Ace-
I really think your “KICKASS” analogy is more than a little off.  First off, you are completely ignoring the requirements to vote and especially those to run for Vestry.  My understanding of Episcopal canon’s (which admittedly could be wrong) is that in order to run for Vestry you have to have joined the church and been received or confirmed by the bishop.  In order to be received by the Bishop each Parish can lay down some requirements, for example attend a membership class.  Assuming you are willing to do that in order to further some grand conspiracy scheme to steal church property, you then have to be ELECTED to the vestry by the Parish.  In order to vote in said vestry election you have to be a regular attender, giver, etc.  I, for one, take vestry elections very seriously and carefully scrutinize the candidates, and particularly look at their church involvement and what they have done, if I don’t know them personally.  Your scheme assumes total ignorance by multiple entire churches. 
Further- and I am assuming you probably know this, your entire argument really goes to why you think the VA division statute is a bad idea, not whether or not it is Constitutional/ applies.  Even if the Judge agreed with you 100% he could not rule this way since his job is to apply the law as it exists, not to apply the law as he thinks would be fair and equitable (that would be the role of the VA general assembly). 
I also think your occupancy scheme is unlikely to happen-  I believe you have referred to this multiple times as your prediction.  That is something that conceivably could have happened if the diocese had abided by the standstill agreement and continued to negotiate for the property.  That is not a result a Judge can reach-  Judge Bellows will determine ownership of the property.

145, Craig, you’re missing the point.  The only way that the state has a reason to care about the interpretation of the statute is if it cares who wins the underlying dispute.  Both sides are suggesting interpretations of the statute that they believe make it constitutional.  The AG chose to weigh in on one side.  His constitutional argument was unnecessary.  His statutory interpretation commentary can only be an endorsement of which side he wants to wind up with the property.

152, BigTex AC, it’s notable that you did not respond to a single thing in my earlier post (140).  I’m not saying AG’s don’t get involved in other kinds of cases.  I’m saying that there was no need for the AG to do what he did here, and that this is NOT routine in church property litigation.  (And bb, as you undoubtedly know from talking to your lawyers, if CANA’s arguments prevail, they wind up with the property.  So, by your own lawyers’ arguments, this is church property litigation.)

153, Va has no such law.  Read the AG’s motion—the only law on point that he cites is a federal law.

Folks, if you think that jumping in this thicket was not very, very carefully considered by the Attorney General of Virginia (as opposed to a brief routinely filed by an Assistant Attorney General in the normal course of business), then you don’t know the connections involved. They are numerous.

#135,

Yes, one partner, 2 associates, roped into it and coordinated by the Presiding Chancellor, a retired former partner.  Not a major case for Proctor. 

Do you think his bishop is getting her monies’ worth?  That’s what he told her, anyway.

#158. No, it’s not a major case for Procter. But it’s not a bottom of the barrel case either. And yes, 815 is very much getting their money’s worth. Procter Goodwin is a top tier law firm. David Booth Beers is an intelligent and highly skilled attorney.

815 is very fortunate in who the Chancellor is and what has done/is doing for them. Any damage that gets done to the TEC case will be done by the client, not the client’s attorneys. Luckily for the ADOV, I think that particular client is quite capable of doing a high level of damage. Certainly the past history shows that.

I have a blog thingy

#139 Robert
I think the first lawyer to do that was Clarence Darrow or was it William Jennings Bryant?

Maybe KJS should have somked a croocked cigar.

I think the TEC is “reaching” to some extent…and here’s why

*  If the diocese holds the property deed in trust, then doesn’t it make sense that the diocese owns the property and would be the entity to negotiate a settlement with?  If the TEC really owns the property, as they claim, then shouldn’t they be the ones that hold the property deed in trust?  Why would the TEC take that risk if they indeed intended to “own” all the property from the outset - why would you leave that door of doubt open?  To me, it was obviously set up from the beginning that the diocese, not the TEC, should own the property.
*  If we change and pretend this is not a church issue, but instead is an ordinary company, that is the logic I would follow - I would have the responsible party hold the deed in trust…not someone else.  Responsibility and authority should always go hand in hand.
*  I would think it would be incumbent for the TEC to “prove” that they should be the ones holding the deeds in trust.  The dioceses already have them - the burden of proof should fall squarely on TEC. 

Am I missing something??

mousestalker [159], gambling on a loss of this magnitude, that could leave TEC and the Diocese of VA in a significantly worse position legally & financially than before, not to mention several million short of cash (both TEC and borrowed money in the Diocese), with significant bad press along the way, is hardly what I would call getting your monies’ worth.  Who stands to lose more, Procter or TEC?  Win or lose, Proter gets paid.  A small, quasi-pro-bono case for Procter means one they can stand to lose in exchange for associate experience.  So I don’t think TEC, not to mention the Diocese of VA, whose bishop has already testified he was dragged into it, has such a wonderful gift in its Presiding Chancellor.  And yes, opposing counsel will take advantage of every possible opportunity, including mistakes by associates assigned too much responsibility in a low priority case.  It is an imprudent calculation, financially or just about in any other way, for TEC, but sadly, it can be relied upon to act on just such calculations.