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US legal battle is postponed again: CEN 5.01.09 p 7 April 30, 2009

Posted by geoconger in Church of England Newspaper, Fort Worth, Property Litigation, San Joaquin.
Deputy Constable Smythe serving the Rt. Rev. Jack Iker with the lawsuit

Deputy Constable Smythe serving the Rt. Rev. Jack Iker with the lawsuit

The first legal test of the Episcopal Church’s claim that dioceses are subordinate creatures of the national church and may not secede at will, has been postponed for the sixth time by a California court.

On April 27 the Fresno County Superior Court announced that it had again rescheduled hearings originally set down for Feb 25 in the case of the Episcopal versus Anglican Diocese of San Joaquin.

Hearings on a motion for summary judgment brought by Bishop Jerry Lamb and the Episcopal Diocese against Bishop John-David Schofield and the Anglican Diocese, and on cross-complaint brought by the Anglican Diocese asking the court to order the national Episcopal Church to pay for the costs of litigation, including attorneys’ fees have been postponed until May 5 to enable the court more time to consider the merits of the cases.

While a majority of cases decided so far have sided with the diocese against the parish where the parish seeks to quit the diocese with its property, no court has addressed the question of whether a diocese may quit the national church. The constitution and canons of the Episcopal Church are silent on this issue, and the Dennis Canon—which states that parish property is held in trust for the diocese and church—does not on its face apply to property held by or for a diocese.

Virginia has proven the exception as a Civil War era state law permits a parish to secede from its diocese or ecclesial jurisdiction for a rival body in the case of a denominational schism. The Episcopal Church and Diocese of Virginia have appealed the trial court’s decision, arguing the law is unconstitutional.

Supporters of the parish secession movement have turned to the state legislatures in Texas and Oklahoma, seeking a change in those states laws to model the Virginia statue and allow parishes to quit their diocese and keep their property. In February, Republicans Senator Gary Stanislawski and Rep. Pam Peterson introduced legislation to “define property rights in Oklahoma so that if people in Oklahoma, whether in a church or some other nonprofit, sign on a deed for the land, they own the land. If they ever separate from the parent organization, they own the land.”

In Texas, House Bill 729 seeks to amend property laws governing churches so that in the event of a schism “a court shall order a division of the estate of the parties in a manner that the court considers just and right, having due regard for the rights of each party and any other interested person.”

Church leaders have urged the state legislatures to reject the laws. Bishop Edward Konieczny of Oklahoma argued that state’s proposed law would “effectively take any property that is held in the name of a congregation in our denomination and gives them the authority to walk away with the property.”

Litigation is currently underway between the national church and its allies against the Dioceses of San Joaquin, Pittsburgh, Fort Worth and Quincy. Last week a state constable served suit against Bishop Jack Iker, opening litigation against Fort Worth.

San Joaquin will be the first case that addresses the question of the secession of dioceses in the modern era—-10 dioceses quit the American church during the US Civil War in 1861 to form the Protestant Episcopal Church in the Confederate States of America, but the schism ended with the close of the war and the voluntary reunion of the southern dioceses with the national church.

The national church is seeking a ruling from the Fresno Superior Court granting it title to all diocesan properties, investments and accounts.

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