Friday, 18 September 2009

Fort Worth legal ruling

There are conflicting reports on this from either side in the dispute over who is the “real” diocese.

Living Church reports Both Sides Debate Significance of Fort Worth Ruling

Episcopal News Service reports FORT WORTH: Continuing diocese has right to sue breakaway group, judge rules.

The Episcopal Diocese of Fort Worth has published a PDF of the actual ruling made by the judge, see here and issued these two statements:

What the legal language of the order means

What the legal language of the order (click here to read it and note that the hand-written portions of the order are in the judge’s own hand) means is this: essentially the court refused to strike the pleadings i.e. it ruled that the reorganized Episcopal Diocese of Fort Worth and the Corporation had the right to continue to sue the defendants and establish our right to seek declarative judgment. The defendants lost on their main argument that we should not be able to sue the defendants because they are the rightful diocese. This was the main objective of former Bishop Iker’s attorneys, and they did not achieve it. The court left that determination for a later hearing.

The order also barred our attorneys from appearing on this suit as attorneys for the entities associated with Jack Iker. Our attorneys have, of course, never asserted that.

As is clear in the order, no other rulings were made. The judge did make comments and he did ask questions, but he made no other rulings.

We now await the October 15 hearing.

Statement on hearing that concluded on September 16

The Hon. John Chupp, judge of the 141st District Court of Tarrant County, Texas today ruled that attorney Jon Nelson and Chancellor Kathleen Wells are not authorized to represent the diocese or the corporation that are associated with Jack L. Iker. These attorneys have never claimed to do so. The judge denied the motion by Bp. Iker’s attorneys to remove the diocese and the corporation from the lawsuit filed April 14, 2009.

While the judge did make some off hand remarks in court and asked many questions, he made no other rulings.

A hearing is set for Oct. 15 on the motion for partial summary judgment in this same court.

The Southern Cone diocese has published a statement as a PDF:

Court Issues Decision on Rule 12 Motion

FORT WORTH, Texas – In a hearing today in the141st District Court, Judge John Chupp granted the Diocese partial relief under Rule 12 of the Texas Rules of Civil Procedure. He ruled that attorneys Jonathan Nelson and Kathleen Wells do not represent the diocese or the corporation which have realigned under the Province of the Southern Cone. He denied a second aspect of Rule 12 relief which would have removed the plaintiffs’ diocese and corporation from the lawsuit filed April 14, 2009.

The judge also ruled that neither the Constitution and Canons of The Episcopal Church nor the Constitution and Canons of this diocese prohibit withdrawal from TEC and realignment under another province. Further, he found that the Diocese had done so at its November 2008 annual convention, saying that “they [the members] took the diocese with them.” The action of the November convention was not, he said, ultra vires and void, as the suit’s plaintiffs have argued. He declared, too, that the Diocese had taken its property with it in realignment. He said he did not consider any court ruling concerning a realigning parish to be applicable in the present case, and he said that he considered it “self-serving on [the part of TEC] to say that [Bishop Iker] abandoned his job.”

The hearing on the Rule 12 motion began Wednesday, Sept. 9. At that time, the judge denied a motion for continuance filed by Nelson and Wells. Each party filed a supplemental written statement in the period between the first and second portions of the hearing. The statement submitted by attorney Shelby Sharpe is available on the diocesan Web site.

Commenting on today’s ruling, Bishop Iker said, “We are pleased that Judge Chupp has recognized the legitimacy of the vote of our Diocesan Convention in November 2008 to withdraw from the General Convention of The Episcopal Church and has ruled that we had the legal right to amend our Constitution in order to do so. This a positive step in support of the position we have taken. We will continue to keep our concerns before the Lord in prayer.”

The date for a further hearing to take up the remaining Motion for Leave to File a Third-Party Petition will be set shortly. A date of October 15 has been set to hear the plaintiffs’ motion for partial summary judgement.

Posted by Simon Sarmiento on Friday, 18 September 2009 at 8:17am BST | TrackBack
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Categorised as: ECUSA

The real significance of the ruling is unclear. It was useful to look at the proposed order and see how the judge altered it. Clearly the judge thinks the lawyers in question represent someone who is a party to the suit. If not, then the pleading would have been struck.

It really looks like a null ruling. Iker's diocese didn't get the suit squashed which the real point of the motion they made. But the plaintiffs are on notice that they will still have to establish that they are the proper legal successors of the Episcopal Diocese of Fort Worth.

Posted by: ruidh on Friday, 18 September 2009 at 9:12am BST

Mr Iker seems to have the bit between his teeth. However, the only definitive ruling made by the judge would appear to be that TEC may proceed with its case against Mr Iker and his friends. Do I read that correctly? The US legal system seems a little confusing to an outsider.

Posted by: Father Ron Smith on Friday, 18 September 2009 at 11:41am BST

Upon what, other than earnest desire, are the beliefs of the So Cone authors and Bishop Iker based, re the notion that the Judge "ruled" or "recognized" that the Constitution and Canons of TEC do not prohibit diocesan withdrawal?

As a matter of fact, that is true, so far as it goes: there is no explicit reference in the C&C of TEC that prohibits a domestic diocese becoming independent. That does not, however, mean that it is possible. The US Constitution is similarly silent on the subject, and the Supreme Court ruled in a case (74 U.S. 700 (1869)) involving, of all states, Texas, that silence in this case does not indicate consent, as the whole tenor of the Constitution is about the creation of a Union -- language and tenor shared by the Constitution of TEC. No doubt the judge is aware of this particular aspect of Texan and US history.

Posted by: Tobias Haller on Friday, 18 September 2009 at 6:22pm BST

The submitted deposition testimony of Prof Bruce Mullin - to the diocese leave-taking point and more - can be accessed by a link at Mark Harris Blog:


Look for the Mullin on Polity post, then the HERE link that takes a reader to a full Google document of the court deposition. Must reading for anybody constantly hearing the spin doctoring of Iker and realignment company.

Of course it's Texas; maybe anything could happen in the case? Their governor just heehawed about the state leaving the union.

Posted by: drdanfee on Friday, 18 September 2009 at 8:28pm BST

Dear Father Smith and All:

I appreciate your confusion. For the record, I am an attorney licensed to practice in all California state courts, and all federal courts in CA, and the federal district courts of Arizona.

First, each state has its own state court system, consisting of one or more trial courts, one or more intermediate appellate court to which generally there is a right of appeal from a trial court judgment (itself a term of art), and a highest court, often, but not always, referred to as the state's Supreme Court, to which a right of appeal from a decision of a court of appeal usually does not exist. State Supreme Court review is usually discretionary, except, for ex., in CA, for death penalty cases and lawyer discipline cases.

The federal court system consists primarily of trial courts (district court for the district of [fill in the geographical blank] which are part of a judicial circuit (of which there are ten, each governed by its circuit court of appeals). Federal district courts are unlikely to hear church disputes, as they almost invariably involve questions of state law, even if some of those questions may depend on United States Supreme Court ("USSC") decisions.

There is no right of appeal to the USSC from decisions of any state appellate court, whether a court of appeal or of the highest state court. Review by the USSC is by petition for writ of certiorari, and is discretionary by the USSC. For example, St James Newport Beach has filed a certiorari petition with respect to the CA Supreme Court decision. In my considered opinion, it is dead on arrival. I have had access to and have read most of the briefing in that case at the appellate level, and have reason to hold the opinion I do.

The St James case went to the court of appeal on a frankly, stupid and ill considered decision by an Orange County Superior Court judge. Most people who visit here have seen what the court of appeal and CA supreme court did with that ruling.

Unfortunately, while there are many capable state court trial judges, there are many who, mainly for political reasons unrelated to any genuine qualification, reach the bench. It may well be that that's the case here. If that proves to be the case, then it will just be a more protracted judicial process involving an appeal.

Posted by: Richard Zevnik on Friday, 18 September 2009 at 9:35pm BST

Thank you, Richard for your clear assessment of the legal situation obtaining in the U.S. Courts. It would appear that, perhaps like other national justice systems - e.g. Zimbabwe - there could be local political influences brought to bear on judicial outcomes. However, as evidenced below, in a submission quoted on the 'Stand Firm' website it would seem that there is a 'let-out' clause allowing local determination on religious cases to be based on either 'deferential' or non-deferential considerations. My question here would be: "Is it entirely up to the local judge as to whether the 'deferential' clause may be brought into play"?

Clearly, the Roman Catholic Church in the U.S. would appear to have no problem in obtaining a 'deferential' verdict - based on its presumed hierarchical status. One wonders why TEC, also, is not considered to be hierarchical, with the same treatment of legal cases, as per below:

"As Judge Bellows aptly noted in the Virginia cases, if a church is really hierarchical, it can fix the deeds to read however it wants and thereby always “win” under the neutral principles approach. Exhibit A: The Roman Catholic Church"
- Correspondent on the 'Stand Firm' website -

Posted by: Father Ron Smith on Friday, 18 September 2009 at 11:18pm BST

The ruling is rather ambiguous, in the context of the wider case.

It is certainly a battle lost for Iker. The original text of the ruling would have essentially been a knock-out blow to the TEC diocese, saying that it had no standing to appear in court. The judge has ruled that the TEC diocese is a proper party and is properly represented by counsel.

The ambiguity (and where I fear TEC may have won the battle but lost the war) is in the judge referring to the "Diocese of Fort Worth that are associated with Bishop Iker". This suggests that the judge sees 2 dioceses: the old one, now Southern Cone, and the new one, in TEC. TEC's claims are based on the argument that there is only one Diocese of Fort Worth, and that its assets belong to TEC and the TEC diocese.

I could be wrong. The judge could eventually rule that Iker's diocese is a new creation. I don't think either side has much to crow about at this point.

Posted by: Jim Pratt on Saturday, 19 September 2009 at 3:29am BST

I think Jim hits the nail.

Who has the best claim to the title (and property)!?? Can Iker's charitable body claim to be a proper and legitimate continuation of what has gone on before? Or has this change of flag made this ship of faith into a pirate vessel? And just who are these few cast adrift in the jolly boat and what claim might they have to the whole ship?

I have a feeling that despite the present ruling and the amusing publication of the hand amended document - Iker and his crew will loose the ship - though I am sure they will continue to claim they alone have the REAL treasure it contains.

I can only vaguely imagine the heartbreak that will cause to so many who have faithfully followed this bishop ......

Posted by: Martin Reynolds on Saturday, 19 September 2009 at 10:03am BST

Mr. Pratt, it struck me that the Judge's ruling in this case, and in the manner he did it, was so as not to suggest a settlement of the larger issue: just who is/are the Diocese(s) of Fort Worth. He did not, in this ruling, declare Iker not to be who he claims to be, nor the "continuing diocese" what it claims to be. If that was his intent, then he is simply being very careful, and may well show similar care in the subsequent course of the case.

Posted by: Tobias Haller on Saturday, 19 September 2009 at 3:00pm BST

At oral argument, the judge was told that the group led by Iker broke away from the Episcopal Church and had become a diocese under the jurisdiction of the Southern Cone in South America. It may be that all the judge is saying is that the Fort Worth Iker group aligned with the Southern Cone calls itself a "diocese". I see no rational inference that there is any advantage to be claimed by the Iker litigants. Indeed, they did not prevail on the central argument made in their motion. The Iker-led group did not achieve its goal of disqualifying the lawyers who are representing the real "Episcopal Diocese of Fort Worth."

Posted by: Robert on Saturday, 19 September 2009 at 3:26pm BST
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