Friday, December 26, 2008

The Episcopal Diocese of Fort Worth

Status of the Episcopal Diocese of Fort Worth
After Convention November, 2008


Introduction

This is intended to be a very brief explanation of the status of the Episcopal Diocese of Fort Worth ("EDFW") and those parishes and parishioners who were members of the EDFW prior to and immediately after the Diocesan Convention, November, 2008 ("The Convention"). This explanation is not intended to be a legal explanation of all the nuances and fine points of the law concerning this subject, but merely an explanation that will hopefully educate those who were affected by the actions taken at The Convention.

Legal Entity

In order to understand any of what follows, it is first necessary to understand the legal entity that is the EDFW. It is a nonprofit corporation duly organized and registered with the Texas Secretary of State’s Corporate Filings Office in Austin. The filing information is as follows:

Name: Corporation of the Episcopal Diocese of Fort Worth
Date Filed: February 28, 1983
Charter. No.: 64493201
Registered Agent: Jack Leo Iker
Registered Office: 2900 Alemeda Street
Fort Worth, Texas 76108-5960
Status: Domestic Nonprofit Corporation
Tax ID: 17518551332

As a legally constituted corporation, the EDFW functions as any other nonprofit corporation functions, with all the rights and privileges attached to such a corporation. As such, it is free to enter into whatever associations it may choose. It is also free to disassociate itself from any association it may have once made. No nonprofit corporation, or any other corporation or person, is required to remain in association with any organization with which it does not wish to remain. There is no irrevocable association law. The corporation is governed by its governing documents, which, in the case of EDFW, in addition to its Charter and Bylaws, are its Constitution and Canons. No other governing documents may have legal preference over these. According to Article 2, Constitution of the Episcopal Diocese of Fort Worth,("the Constitution") the legislation of the diocese is entrusted to:

". . . a Convention to consist as follows: First, of the Bishop, when there be one; of the Bishop Coadjutor, when there be one; of the Suffragan Bishops, Assistant Bishops, if there be any; Second, of all priests canonically resident in the Diocese, and not under Ecclesiastical discipline, and who have not in contemplation of removal from this Diocese, applied for their Letters Dimissory; and Third, of Lay Delegates chosen by and representing their Congregations. Lay Delegates and their Alternates shall be elected by the Congregations of their respective Parishes and Missions at the Annual Parish Meeting and shall hold office until their successors are elected. The Rectors of Parishes and Vicars of Missions shall have authority to fill such vacancies as may occur from the list of Alternate Lay Delegates between the time of such election and any meetings of the Convention. Lay Delegates shall be confirmed communicants in good standing, at least 18 years of age."

Status After The Convention

By law, any "legislation" passed by the duly chosen representative members of the EDFW at convention, held according to the Constitution, is the act of the EDFW and all of its constituent members, i.e. parishes and members of parishes. Some rectors and lay leaders within EDFW who voted at the Diocesan Convention in November, 2008, against the proposed changes to the Constitution and Canons of EDFW at that convention are making the mistake of declaring that because they voted "No" the changes do not effect them. They mistakenly believe they are unchanged by the vote of almost 80% of the duly chosen delegates to that convention.

The parishes that were part of the EDFW prior to The Convention sent their duly appointed clergy and lay delegates to The Convention, just as they had always done, and those delegates voted at The Convention on the propositions properly placed before them, just as they had always done. Unlike previous conventions, however, some parishes (or rather rectors and vestry members) went away from this convention convinced that what happened at this convention did not apply to them, as all previous actions at previous conventions had applied. For some reason, these rectors and vestry members took the position that they were no longer a part of what took place, nor were they a part of the diocese that had just held its convention. The question then remains, what was the defining moment that made such a result possible? How did those parishes walk into that convention a part of it and walk out not a part of it?

To illustrate the absurdity of this position, consider the recent national elections that were held in the US. First, there were the primaries where voters voted for their choice for the nominee of their party. John McCain won enough votes in the Republican primaries to be the nominee of that party, and Barack Obama won enough votes in the Democratic primaries to be the nominee of that party. Then there was the general election where voters voted for President and Vice President. Obama won and McCain lost. To apply the reasoning of those who "lost" the election at the Diocesan Convention in November, 2008, if I did not vote for Obama for President, then the election of the majority of voters in America doesn’t affect me. I can still claim to be under President Bush, or even worse that I am under John McCain. To make such a claim is absurd.

So it is absurd for those who voted "No" at the Diocesan Convention in November, 2008, to claim that they are still in TEC, when the vote of almost 80% of the delegates voted that the EDFW leave TEC. Some will say, "But we didn’t vote to leave, so why should we have to be the ones to start a new diocese? Shouldn’t you who voted to leave be the ones to start a new diocese?" Since the only diocese with any standing is the EDFW, and since the EDFW has left TEC, the only choice for those who wish to remain in TEC is for them to take some action to accomplish that. It is not possible to remain in place and remain in TEC, because the EDFW, to which they all belong at present, is no longer in TEC. They must separate from the EDFW and go their own way. The Canons of the EDFW were amended to provide for just such action by those who wish to separate from the EDFW.

The crux of the problem seems to be that some have believed the continual pronouncements from TEC that parishes and dioceses cannot leave TEC, only people can. From this premise follows all the conflict in the EDFW. It is important to check the premise of any argument in order to arrive at a correct result. If the premise is wrong, the result will be wrong. Each time TEC is challenged to defend their position concerning who can leave TEC, they are silent. Their only response is that the Constitutions and Canons of TEC do not allow a diocese to leave TEC. In fact, there is nothing in the Constitutions and Canons of TEC that even address a diocese leaving TEC, let alone prohibiting such action. The rule of law is that any act that is not prohibited in the governing document is, therefore, allowed.

If the founders of PECUSA had intended to prohibit dioceses from leaving PECUSA, they could have placed such a prohibition in the Constitution and Canons of PECUSA, but they did not. In the intervening 200 years, if the Bishops and clergy and lay delegates to General Convention had desired to place such a prohibition in the Constitution and Canons of PECUSA, ECUSA, or TEC, they could have amended those documents. The have not. It is not as if this has never been an issue. During the Civil War, the dioceses of the Confederate States left PECUSA, and after the war, they returned to PECUSA. No question was raised about whether they could leave PECUSA. The precedent has clearly been established that a diocese can leave TEC. There is no issue now, except in the mind of the Presiding Bishop and of her supporters, about diocese leaving TEC. So far, no court has been asked to settle this question, so that remains to be resolved, but the law appears to be on the side of the diocese in this conflict.

What About The Bishop?

Some rectors have told their parishes that they no longer have a bishop in the EDFW and that they will be having a convention in February to elect a new bishop. The Restated Articles of Incorporation of the EDFW set forth the process for selecting a bishop.

"In the event of a dispute or challenge regarding the identity of the Bishop of the body now known as the Episcopal Diocese of Fort Worth, the elected Trustees shall have the sole authority to determine the identity and the authority of the Bishop, as provided by the Bylaws of the Corporation, for the purposes of these Amended and Restated Articles of Incorporation." (Amended and Restated Articles of Incorporation, Article VI.)

Since the Bishop of the EDFW is still Bp. Iker, there is no vacancy to be filled, but should such vacancy exist, it is clear that the Trustees of the Corporation of the Episcopal Diocese of Fort Worth have the "sole authority to determine the identity and the authority of the Bishop" and no one else. Therefore, those rectors and parishioners who believe they can simply call a convention and elect or appoint a bishop clearly do not know the rules by which this must be accomplished. Certainly, the Presiding Bishop of TEC has no authority to convene such a convention, as she proposed to do in Fort Worth on February 7, 2009.

What About the Property?

The issue of the title to the property of the EDFW is one of continual conjecture and controversy. It need not be. The title to the real property, i.e. the parish buildings and grounds, was vested in the Corporation of the Diocese of Fort Worth by court order in the case of the Episcopal Diocese of Dallas, et al. v. Jim Mattox, Cause No. 84-8573, the 95th District Court of Dallas County, Texas, (1984) in which the court entered a judgment whereby the title of all property standing in the name of the Bishops of the Episcopal Diocese of Dallas and located within the present boundaries of the Episcopal Diocese of Fort Worth were vested in the name of the Corporation of the Episcopal Diocese of Fort Worth. Since a court of competent jurisdiction has already ruled on the title to the property, the EDFW is in a better position to withstand a challenge by TEC to the property of the EDFW.

Conclusion

The EDFW is still alive and well. It is a legal entity with a life of its own, separate and apart from TEC. There is nothing TEC can do that will have any legal effect on the EDFW. Those who voted at The Convention for the EDFW to leave TEC can thank God that He placed in positions of authority wise and learned leaders who were responsible for the formation of the EDFW in the beginning, and who have guided it through the troubled seas of recent times. From a legal perspective, it would appear the EDFW is on very solid ground. From a pastoral prospective it would appear the EDFW is on solid biblical grounds in how it proposes to treat those within the EDFW who disagree with leaving TEC. Those members of the EDFW who wish to remain in TEC must now take some affirmative action to go their separate way from the EDFW. Until they take such action, they remain part of the EDFW.

47 comments:

  1. Anonymous1:14 PM

    I have been reading your comments over at Stand Firm and borrowed my aunt's computer. I do not know what a URL is so I will sign my name at the end. The problem that some people I have talked to have is that according to the agenda of the reorganizing DoFW/TEC is that they plan to elect all new committees, including a Board of Trustees for the Corporation. Sounds to me like a hostile takeover. They will claim to be the true diocese, the true convention, the true CEO and the true Board of Trustees therefore in charge of the corporation. In order words be able to freeze every asset and items until the Texas courts decide who owns the corporation. TEC is going to play the corporation game and I hope the real EDFW - ours - has good lawyers and playing attention to this. It is on the Steering Committee website under the new convention.
    Terri Shaw

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  2. Terri, I understand your concern. I believe the "true" EDFW has much better lawyers than the "make believe" diocese. Since there is not one person from the Corporate Board of Trustees involved with the "make believe" diocese, they have absolutely no authority to alter the Corporation in any way, or to change its governing documents. No court will allow a total stranger, like the "make believe" diocese steal a corporation like that.

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  3. Anonymous11:15 PM

    If Bishop Iker truly owned the property within the diocese, then why did he buy the property from All Saints for the diocesan center? He paid a good sum and had the closing at a title company?

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  4. Anonymous11:26 PM

    I have not been able to find the "Episcopal Diocese of Fort Worth Corporation". Only the corporation which holds the property in trust, called "Corporation of the Episcopal Diocese of Fort Worth" What have I missed?

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  5. Anonymous11:30 PM

    According to Bishop Iker in a recent Diocesan publication admits that property belongs to parishes not the TEC and not the EDFW. Do you agree with this assertion by Bishop Iker?

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  6. Anonymous11:33 PM

    What authority if any does the EDFW have over a separate corporation within the diocese (parish) when the bylaws state they belong to the TEC. Further, EDFW has no position on the corporate board?

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  7. Anonymous11:36 PM

    It has been said Bishop Iker has allowed Trinity Church to leave EDFW without a vote. But Bishop Iker wants All Saints. It has been rumored Bishop Iker wants All Saints so he can sell the school to fund his litigation. Can he do that?

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  8. "If Bishop Iker truly owned the property within the diocese, then why did he buy the property from All Saints for the diocesan center? He paid a good sum and had the closing at a title company?"

    In the first place, Bp. Iker does not own the property within the diocese. The Corporation of the EDFW owns it. According to Article 14 of the Constitution of the EDFW:

    "Corporation of the Episcopal Diocese of Fort Worth shall hold real property acquired for the use of a particular Parish or Mission in trust for the use and benefit of such Parish or Mission."

    Any property that was once "acquired for the use of a particular Parish or Mission" but is to have its used changed to be used by the diocese instead would need to have its title transferred to the diocese to designate the change in use. This would be the reason for the diocese paying “a good sum” to the parish for the property and going through a title company to effect the change in the title from one held in trust to one held outright.

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  9. “According to Bishop Iker in a recent Diocesan publication admits that property belongs to parishes not the TEC and not the EDFW. Do you agree with this assertion by Bishop Iker?”

    Yes. According to Article 14 of the Constitution of EDFW:

    “Corporation of the Episcopal Diocese of Fort Worth shall hold real property acquired for the use of a particular Parish or Mission in trust for the use and benefit of such Parish or Mission.”

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  10. “What authority if any does the EDFW have over a separate corporation within the diocese (parish) when the bylaws state they belong to the TEC. Further, EDFW has no position on the corporate board?”

    First, read this link: http://www.fwepiscopal.org/news/asfwresolution.html, which is Bp. Iker’s pastorl letter to All Saints in response to the All Saints vestry resolution dated October 4, 2008.

    Article I of the bylaws of All Saints does not, as you state, “state they belong to TEC.” The bylaws state instead:

    “The name of this Corporation (hereafter referred to as the "Corporation") shall be ALL SAINTS' EPISCOPAL CHURCH, a parish church in the Episcopal Diocese of Fort Worth.”

    Article II of the bylaws of All Saints states:

    “The affairs of the Corporation shall be conducted in conformity to the Constitution and Canons of the General Convention of the Episcopal Church in the United States of America (hereinafter referred to as "General Convention Canons" and "The Episcopal Church", respectively). The affairs of the Corporation shall likewise be conducted in conformity with the Constitution and Canons of the Diocese of Fort Worth (hereinafter referred to as the "Diocesan Canons"); provided in the event of any conflict between the General Convention Canons and either the Diocesan Canons or these Bylaws, as they relate to the affairs of the Corporation, the General Convention Canons shall prevail, to the extent of such conflict."

    All Saints’ corporation bylaws and charter state that it is “a parish church in the Episcopal Diocese of Fort Worth,” and its bylaws state that its affairs will be conducted in conformity with the Constitution and Canons of TEC and EDFW, and as you can read from Bp. Iker’s pastoral letter, All Saints cannot alter the Constitution or Canons of EDFW. Therefore, when these were amended at the Diocesan Convention, November, 2008, All Saints, in conformity with the Constitution and Canons of EDFW, became a parish in a diocese that is affiliated with the Province of the Southern Cone.

    The argument will be over whether there is a conflict between the C & C of EDFW and the C & C of TEC. Since there is nothing in the C & C of TEC to prevent a diocese or parish from leaving TEC for another province of the Anglican Communion, the argument can be made, and I expect will be made, by EDFW that All Saints is still “a parish church in the EDFW.”

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  11. “It has been said Bishop Iker has allowed Trinity Church to leave EDFW without a vote. But Bishop Iker wants All Saints. It has been rumored Bishop Iker wants All Saints so he can sell the school to fund his litigation. Can he do that?”

    “It has been said” sound suspiciously like a rumor, and I do not comment on rumors. “It has been rumored” is a rumor, and I clearly will not comment on that, either.

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  12. “I have not been able to find the "Episcopal Diocese of Fort Worth Corporation". Only the corporation which holds the property in trust, called "Corporation of the Episcopal Diocese of Fort Worth" What have I missed?”

    There is no legal entity named “Episcopal Diocese of Fort Worth Corporation.” At least none that I am aware of. You have made the mistake of listening to what other say about the “Corporation of the Episcopal Diocese of Fort Worth.” (“the Corporation”) It does not exist merely to hold property in trust. The charter of the Corporation says that it can “receive and maintain a fund or funds of real or personal property,” but nowhere in the charter does it say these properties are to be held in trust. These words in the “Purpose Clause” of the charter of the Corporation are the same words that the IRS Code requires to be placed in the charter of every tax exempt corporation.

    The Constitution and Canons of the EDFW is where you will find that the property is held in trust. That is a separate issue from the overall purpose of the Corporation, which is to “receive and maintain a fund of funds of real or personal property” and “to use and apply the whole or any part of income therefrom and the principal thereof exclusively for charitable, religious, scientific, literary, or educational purposes.” Again, these are the words required by the IRS Code to be included in every tax exempt corporation’s charter. This means that the Corporation is the legal entity for the operation of the EDFW and it’s tax exempt activities. This is how every tax exempt corporation is set up. The Corporation is not a separate entity from the EDFW. The Corporation is the legal entity that operates the EDFW.

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  13. The argument will be over whether there is a conflict between the C & C of EDFW and the C & C of TEC. Since there is nothing in the C & C of TEC to prevent a diocese or parish from leaving TEC for another province of the Anglican Communion, the argument can be made, and I expect will be made, by EDFW that All Saints is still “a parish church in the EDFW.”

    I agree there is a conflict. However, you would agree that the TEC is a hierarchical church. And, the TEC states the EDFW has been vacated. So, wouldn't a corporate board follow the TEC instead of a diocese that has violated the Canons of the TEC? Wouldn't it otherwise be a breach of their fiduciary duty?

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  14. What legal control does the EDFW have over All Saints (corporation) if they refuse to follow or listen to EDFW?

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  15. “I agree there is a conflict. However, you would agree that the TEC is a hierarchical church. And, the TEC states the EDFW has been vacated. So, wouldn't a corporate board follow the TEC instead of a diocese that has violated the Canons of the TEC? Wouldn't it otherwise be a breach of their fiduciary duty?”


    I don’t know how you can assume that I would agree that TEC is a hierarchical church. In fact, I do not agree. Have you read “Is the Episcopal Church Hierarchical” by Mark McCall? If not, please see the link to it in the frame to the right on this page. This is an excellent treatment of why TEC is not hierarchical. I believe McCall makes a very convincing argument.

    Now, to the rest. Since I do not agree with your premise that TEC is hierarchical, I do not agree that TEC has, or can, according to the C & C of TEC, declare that the EDFW has been vacated. There is no provision in the C & C of TEC to authorize such a thing.

    First, in regard to TEC stating the EDFW has been vacated, just how do you suppose such a statement could be made, by whom could such a statement be made, and upon what standard could such a statement be made? Such a serious undertaking as you suggest must surely have clearly defined procedures and rules established by which such an action could be taken. There are no such procedures or rules contained within the C & C of TEC.

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  16. "What legal control does the EDFW have over All Saints (corporation) if they refuse to follow or listen to EDFW?”

    As in all cases when voluntary compliance fails, one must either abandon the fight or submit the dispute to an impartial tribunal with authority to resolve the matter. If ASFW refuses to follow or listen to EDFW, the only choice for EDFW is to surrender or take ASFW to court. Which option do you think EDFW will take?

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  17. That is the question of day. I think Bishop Iker wants All Saints for the property value. He has to fund the litigation and the sell of the school would give him such revenue.

    That being said I don't think the EDFW will take All Saints to court. Too costly and politically a bad move. He already has a major battle with TEC and does not need, nor can he support a second costly legal battle.

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  18. Have you seen the recent California Supreme Court case?

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  19. I am assuming you believe the EDFW as a non-profit corporation has the right to associate or disassociate with TEC or any other entity of its choice? If so, wouldn't a parish non-profit have the same right? Of course requiring a parish to use canon 32 is like requiring the EDFW to use TEC canons.

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  20. That is the question of day. I think Bishop Iker wants All Saints for the property value. He has to fund the litigation and the sell of the school would give him such revenue.

    That being said I don't think the EDFW will take All Saints to court. Too costly and politically a bad move. He already has a major battle with TEC and does not need, nor can he support a second costly legal battle.


    It seems to me that those who continue to allege that Bp. Iker is doing this so he can get his hands on the property are missing a very important fact. As the Chairman of the Board of Trustees of the Corporation of the Episcopal Diocse of Fort Worth, he already has his hands on the property because it all belongs to the Corporation of EDFW. This is NOT about money for Bp. Iker and those who support him. It is about "contending for the faith once delivered." The only people who are taking action based on the money are the ones supporting TEC

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  21. Have you seen the recent California Supreme Court case?

    Yes, I have seen the decision of the California Supreme Court, but sadly have only had time to read it quickly. From what I can tell, the Supremes of California have issued a contradictory decision which will make it easy to attack. I don't really know if any of the parishes will appeal or not, though I've heard that one is seriously thinking of appealing.

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  22. I am assuming you believe the EDFW as a non-profit corporation has the right to associate or disassociate with TEC or any other entity of its choice? If so, wouldn't a parish non-profit have the same right? Of course requiring a parish to use canon 32 is like requiring the EDFW to use TEC canons.

    I agree that EDFW can associate or disassociate at will with TEC. Parishes are a different situation. While a parish may incorporate as a non-profit, an act I always encourage parishes to do, it is, nonetheless, subject to the jurisdiction of the diocese. Parishes can only exist as they relate to the diocese. Parishes do not spring up and then apply for membership in the diocese. They are a creation of the diocese. Therefore, in order for a parish to leave a diocese, the parish must submit to the rules of the diocese. In the case of EDFW that is Canon 32.

    In the case of EDFW leaving TEC, since there is nothing in the canons of TEC addressing a diocese leaving TEC, there is no resort by TEC to any process to which EDFW must adhere in leaving. All that is required of a diocese to leave TEC is for the duly elected representatives of the parishes within the diocese to vote by majority vote to leave TEC. Once the vote is taken the deed is done.

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  23. The Commonwealth Report said... From what I can tell, the Supremes of California have issued a contradictory decision which will make it easy to attack.

    Then you better lean how to read a legal document because your "can tell" is sadly wrong.

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  24. James, I am quite capable of reading legal documents. I've been doing it for over 45 years. I wrote in response to a question about my reading the California Supreme Court decision, to which I replied that I only had time to read it quickly. I have not had the time to digest the decision completely, but, from what I read on first reading, I saw several areas that appear weak. In the following weeks I will dig into it and probably issue a more complete response.

    Nonetheless, I believe that the California Supreme Court decision would be supportive of my main point in this blog. I have not yet gone into any depth here about the hierachy argument and what that means for a diocese that leaves TEC. My opinion, in summary, is that there is nothing in TEC's Constituion and Canons that prohibit a diocese from leaving TEC, and that a diocese, being the foundational ecclesial authority in the Anglican Communion, will own the property in that diocese should it decide to leave TEC as the EDFW has chosen.

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  25. James, are you licensed to practice law in Texas? It's come to our attention that folks are having trouble finding you at http://www.texasbar.com/

    A search using the "Find a Lawyer" feature at the bottom of the home page yields no James L. Fisher. What is your Texas Bar #? Where did you go to law school and when?

    Just checking your creds.

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  26. James, my name is not James L. Fisher, so I would guess that is why you are having trouble finding me. I don't know where that name came from. My name, as listed by the State Bar of Texas, is Billy L. Fisher, State Bar # 07049200. You should find out all about me there. I've just checked it to make sure all the information is up to date. BTW, I have used "William" for over 35 years, but I am known to all as just plain "Bill."

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  27. "It's come to our attention that folks are having trouble finding you. . ."

    Who might "our attention" be? Now that you know who I am, it would only be common courtesy to reveal who you are and who you're working with that constitutes an "our."

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  28. episcogal,
    I took your advice and looked for William L. Fisher (author of Commonwealth report) and did not find him either as a licensed Texas lawyer. Mr. Fisher are you a licensed attorney?

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  29. If I am clear: Iker does not believe the TEC is hierarchical and therefore has no power over his diocese. However, his diocese is hierarchical so it has power over the parishes? Sounds like he wants his cake and eat it too.

    His diocese as a non-profit can associate and disassociate as it pleases, but parishes as a non-profit can only associate and disassociate with permission from Iker. Sounds like a power grab.

    For the benefit of the Blog readers please discuss "legal" title v. "equitable" title. Because as we all know the diocese only holds legal title because equitable title belongs to the parish.

    Also, I agree there is a conflict in the canons between the diocese and TEC. All Saints by-laws state that when there is such a conflict the TEC canons will prevail. Based on this any prudent vestryperson has to default to TEC. Your thoughts?

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  30. "I took your advice and looked for William L. Fisher (author of Commonwealth report) and did not find him either as a licensed Texas lawyer. Mr. Fisher are you a licensed attorney?"

    humbleservant, hopefully you have read my response to James and have found out that I am, indeed, a licensed attorney in the State of Texas. I would be subject to serious discipine if I were to say I was a licensed attorney when I wasn't, not to mention how absolutely foolish it would be to make such a claim.

    Do you folks truly believe these kinds of things about others?

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  31. hunbleservant, I've made my thoughts abundantly clear on this matter, both in my blog here and in my comments on Stand Firm. My opinions have been developed during much deliberation, and I have not seen, nor read, anything to make me change my mind.

    Since the diocese is the foundationsl ecclesial authority in the Anglican Communion, the situation is different for a diocese leaving TEC and for a parish leaving a diocese and/or TEC. A parish is a parish only in relationship to the diocese and does not exist outside that relationship. It is created at the moment is becomes a mission or parish of the diocese and not before. A diocese is created prior to becoming affiliated with TEC, therefore the diocese is no subservient to TEC and does not owe its existence to TEC. In fact, TEC was formed by pre-existing dioceses and, according to the Consitution and Canons of TEC, a diocese must be formed before it can apply for affiliation with TEC. Thus a diocese, which does not owe its existence to TEC may leave TEC when it chooses.

    Later -- in a week or so -- assuming I can find the time, I will write another blog here about the hierachy of the diocese versus the heirachy of TEC. In the meantime, I recommend to you that you read Mark McCall's excellent paper on this subject.

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  32. You have referred several times to Mr. McCall's paper. Your argument seems to rely solely on this paper for your basis that TEC is NOT hierarchical.

    However, as a 35 year lawyer you know a paper has no precedential value in court.

    With the California Supreme Court ruling in mind do you have any Texas case law to back your premise that TEC will not be found to be hierarchical?

    And, if Texas courts do find the TEC is hierarchical where does that put the EDFW in regards to the property dispute?

    Also, what authority does Iker have to disolve a parish corporation's board of directors? Isn't what he really saying is I won't recognize the board on ecclesiastical desisions. As he has no authority over the corporation in the legal sense. Or do you contend he has both ecclesiastical and legal control over a corporate parish board?

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  33. Iker and co. continually point to the C&C as not prohibiting a diocese from leaving TEC. However, the C&C does provide a mechanism whereby dioceses outside the US may leave. These dioceses are all termed Missionary Dioceses - the only definition of which in the C&C is:

    "Missionary Dioceses...shall constitute jurisdictions for which this Church as a whole assumes a special responsibility."

    In all other respects, however, these dioceses are formed, structured and function just as any other domestic diocese:

    - They are admitted into union with General Convention via acknowledging the TEC C&C
    - They have a Diocesan Convention and Standing Committee
    - They are governed by Diocesan Constitution and Canons
    - They elect a bishop by Diocesan Convention
    - They elect Deputies to General Convention
    - They elect Deputies to Provincial Synod
    - They adopt an annual budget and program, and provide for its administration

    Structurally, Missionary Dioceses are identical to a domestic diocese. The only difference is that they exist outside of the US, but they are, to all intents and purposes, 'dioceses' of TEC.

    If a Missionary Diocese wishes to leave the Episcopal Church for another neighbouring (nb) province, it must:
    - pass such a motion at its Diocesan Convention and then forward that request to the General Convention
    - undergo a 3 year trial period between conventions
    - the next Convention may either grant or deny the request, or extend the trial period

    From this we could conclude a number of things:
    - that it is an unwritten assumption in the C&C that only non-domestic dioceses may leave TEC, therefore only they are provided with a mechanism to do so. If TEC had contemplated the possibility of a domestic diocese leaving they would have provided a mechanism. Provision is provided for domestic dioceses to revert to Area Mission status, or be subsumed into or unite with a neighbouring diocese, but not leave. The explicit granting of such provision to non-domestic dioceses, while only providing for Area Mission/uniting for domestic ones shows that the C&C does not make it possible. It is unwritten but explicitly assumed.
    - However, if we generously grant the possibility that a domestic diocese may leave TEC, then why should their process for leaving be any different from that of a Missionary Diocese? What is different about them that does not require a similar process? Why did the dioceses that are now part of the provinces of Mexico, Central America and the Philippines require permission from General Convention to leave, but those dioceses who now claim to be part of the Southern Cone did not?

    It appears clear that the lack of provision in the C&C for a domestic diocese to leave is not affirming that any such diocese may leave at any time without approval by GC. It is a sign that it was not envisaged that a diocese could do so, and so no mechanism was provided. If, however, we grant that a domestic diocese may leave, then it is clear that such a leaving process could not be along lines different from non-domestic dioceses who are formed, structured, and governed identically to domestic ones.

    Secular courts have shown a propensity to defer to the authority of TEC in interpreting its own Constitution. Such will be the case here too.

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  34. humbleservant, I have read quite a lot about the idea of the heirachical nature of TEC and other denominations. I have not attempted to cite them all for they are too many. I cite Mark McCall's article because it is an excellent treatment of the subject and one I believe anyone can read and understand. I do not cite it as legal precident. In fact, as you will notice this is not a legal brief with case citations.

    Did you read my blog? In the very first paragraph I wrote:

    "This is intended to be a very brief explanation of the status of the Episcopal Diocese of Fort Worth ("EDFW") and those parishes and parishioners who were members of the EDFW prior to and immediately after the Diocesan Convention, November, 2008 ("The Convention"). This explanation is not intended to be a legal explanation of all the nuances and fine points of the law concerning this subject, but merely an explanation that will hopefully educate those who were affected by the actions taken at The Convention."

    I am not going to conduct legal research to satisfy the curiosity of my readers. It is my opinion that there are no Texas cases, or for that matter no cases in other states, that deal directly with the situation of a diocese leaving TEC and what happens to the property. But then, I have not done an exhaustive search of such cases. Since this is the first time since the Civil War that this has happened, it is my opinion that these cases should be cases of first impression for the courts. As I have written repeatedly, the issue of hierachy is different for parishes and diocese. The mistake you and other are making is trying to apply the principle to both the same way. I doubt very seriously if a court will do the same, if the case is presented properly to them.

    In response to your last question, I refer to the California Supreme Court case which you seem to admire. Read the references to the Georgia cases. It is indeed possible that Bp. Iker may have the authority to do exactly what you suggest.

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  35. Anglican, thank you for your thoughtful comment. I would simply respond by pointing out that during the Civil War the diocese that were in the Confederate States of America separated from PECUSA. That having happened, I believe an argumuent can be made for the proposition that (1) surely there was a possibility of a diocese leaving PECUSA, and (2) since PECUSA, ECUSA, and TEC have not addressed the subject in the C&C, then, in that event, the decision was made to do nothing about this problem. And since specific provisions were made for missionary diocese, it is clear that some thought went into dealing with that situation, and had there been a decision to address the issue of a domestic diocese, it would have been addressed.

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  36. The Corporation of the Episcopal Diocese of Fort Worth holds the monetary assets of the Episcopal Diocese of Fort Worth. It does nothing else. It does not hold the people of the Diocese of Fort Worth in so that they have to pledge membership in the Southern Cone. The people are the diocese, its membership is listed in terms of people membership, not numbers of buildings. If a group of people decides they are going to continue to be members of The Episcopal Church (USA), the Corporation cannot say,"No, we are a corporate entity, you cannot leave the Southern Cone." The church is the people, not the buildings. Many people have continued their membership in The Episcopal Church by renting space and holding services there each week. Jack Iker cannot deny this is happening. There are people who have a strong desire to continue life in the Episcopal Church, with or without the buildings. Therefore, Jack Iker cannot say there is no Episcopal church in Fort Worth just because he alledges he has title to the buildings. That's not gonna fly with anybody. The Episcopalians also have quite a lot of money and will do just fine with or without the property held by the corporation. The Episcopal Church will live on in Fort Worth and I think that makes a lot of people mad because if their church buildings were taken away, they would not want to go to great lengths to rent space, find clergy, etc. in order to go on as a parish community as the Episcopalians are doing.

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  37. Sarah, as far as I can determine, neither Bp. Iker nor any of his supporters have claimed that people, or parishes for that matter, may not leave the diocese. Quite the contrary. There have been repeated statements asking those who wish to stay with TEC to abide by the rules set up to accomplish that. So far, those who want to stay in TEC have not availed themselves of the procedures to accomplish it. All that has happened is the continual resort to the kind of argument you make here based on allegations about things that have not happened.

    I would ask those of you who hold to this position expressed here by Sarah, if the dioceses is the people, then what is all of this fuss about the property? Why is TEC so aggressive in going after propery? In diocese that have not left TEC, there are parishes, like Good Shepherd in the Diocese of Central New York, who left TEC and were sued for their property. It is only about the property for TEC. The diocese that have left are leaving because of heresy in TEC, not to take property.

    Also, if the diocese is the people and only the people, how are the bills of the diocese paid? What entity writes the checks to pay the salaries, the telephone bill, the electric bill, the printing, the postage, the insurance, and all of the other expenses. It would by my guess that some legal entity set up a bank account to receive the apportionments from the parishes and then used those funds to pay the bills. There has to be some legal entity to conduct the businesss of the diocese. It is not simply some whispy, invisible thing occupying no space and having no form.

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  38. Sarah, one last thought: I am very sympathetic to any orthodox Anglican who wants to remain in TEC in order to try to overcome the heresy that has crept into that organization. I wish them luck. As for me, I've seen enough to be convinced that there is no "inside" strategy that will work to deter the PB from her goal of taking TEC further into heresy.

    My only point about this is that there is an orderly process for this to happen. There are some rectors and lay leaders who are, I believe, misleading people about what has happened, and what is happening. My purpose in writing this article on The Commonwealth Report was to at least provide a reasoned explanation of what has happened and what is happening. . . to shed light on this subject, so to speak. I am not angry with you or any of the good folk in the Diocese of Fort Worth who wish to remain in TEC, for whatever reason. That is their right. Having said that, I felt called to provide this information in order to counter some of the disinformation that has been, apparently, purposefully spread about.

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  39. What authority does Iker have to disolve a parish corporation's board of directors? Isn't what he really saying is I won't recognize the board on ecclesiastical desisions. As he has no authority over the corporation in the legal sense. Or do you contend he has both ecclesiastical and legal control over a corporate parish board?

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  40. For the benefit of the Blog readers please discuss "legal" title v. "equitable" title. Because as we all know the diocese only holds legal title because equitable title belongs to the parish.

    I agree there is a conflict in the canons between the diocese and TEC. All Saints by-laws state that when there is such a conflict the TEC canons will prevail. Based on this any prudent vestryperson has to default to TEC. Your thoughts?

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  41. humbleservant, in response to your comment about the All Saints by-laws, please read the text of Canon 31 of the Episcopal Diocese of Fort Worth.

    First Canon 31 states:

    Sec. 31.1 Any Parish, Mission or Diocesan Institution which desires to organize a corporation to use in connection with the administration of its affairs may do so upon compliance with the following requirements.

    a. If organized by a Parish or Mission, any such corporation shall be merely an adjunct or instrumentality of such Parish or Mission; the Parish or Mission itself, being the body in union with Convention, shall not be incorporated.

    b. The articles of incorporation must expressly provide that such corporation is subject to, and its powers and rights shall be exercised in accordance with the Constitution and Canons of this Diocese.

    c. Such corporation shall not hold title to real estate acquired for the use of the Church in the Diocese, which title must be vested and dealt with in accordance with the provisions of Article 13 of the Constitution of the Diocese.

    d. The proposed articles of incorporation and bylaws of such corporation, and any amendments thereof, shall, prior to filing or adoption, be submitted to the Chancellor of the Diocese for his approval as being in conformity with these provisions.

    Sec. 31.2 Those in charge of the affairs of any corporation, organized by any Parish, Mission or Diocesan Institution, shall review its articles of incorporation and bylaws and bring them into conformity with provisions of this Canon, if inconsistent therewith.


    As you can see, All Saints' corporation is purely administrative and does not actually constitute the body in union with the Diocese. Secondly, the by-laws must state that the corporation is subject to the C&C of the Diocese. Finally, those in charge of the affairs of the corporation are required to bring the by-laws into conformity with Canon 31.

    It is my understanding that All Saints' corporation has repeatedly refused to bring the corporate by-laws into conformity with Canon 31.

    As far as I can see, as it relates to the administrative authority of the All Saints' corporation, there is no conflict between TEC and the Episcopal Diocese of Fort Worth. The conflict is outside the administrative limitations of All Saints' corporation.

    That being the case, Bp. Iker is not required to dissolve the corporate Board in order to exercise his ecclesial authority over the parish, since the two are separate entities. Bp. Iker may exercise his ecclesial authority over the parish, which would include actions related to the rector and vestry, without having to take any action related to the corporation Board.

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  42. Wow -- Mr. Fisher, I likewise have practiced for many years and I am trying to keep a straight face. Are you serious? A corporate entity purlely administrative?

    Please point me to any case law, treatise, law book or anything that supports your contentions. Sorry, All Saints' wins. By-laws in effect for sometime. Even Articles of Incorporation filed in 1953 (Before there was a Diocese of Fort Worth) state:
    "The purpose for which the corporation is formed is religious; that is to say, to associate ourselves together for the purpose of maintaining the worship of God and the preaching of the Gospel according to the doctrine , discipline and worship of the Protestant Episcopal Church (now TEC) in the United States of America in conformity with the Constitution and Canons of its General Convention and of the Diocese of Dallas...."

    The By-laws state: "...provided in the event of any conflict between the General Convention Canons and either the Diocesan Canons or these by-laws, as they relate to the affairs of the Corporation, the General Convention Canons shall prevail, to the extent of such conflict."

    Mr. Fisher, there is no judge in Texas that will say Former Bishop Iker has control or power over All Saints' corporation or vestry.

    All Saints' is a lost cause for Iker. We only want to be left alone to worship in Peace and to continue to be who we are --- An Episcopal Church in Fort Worth.

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  43. humbleservant, it is going to be extemely difficult to reach any understanding so long as you insist on ignoring the canons of the church, be they TEC or EDFW. Since it is obvious from your comment that my citing Canon 31 meant nothing to you, I truly do not see how there can be any point in continued dialogue. When I wrote that the All Saints' corporation was adminstrative, I was simply stating what Canon 31.1 says. Am I to understand your position that since All Saints' was incorporated in 1953 before the EDFW was formed that the articles of incorporation and by-laws of All Saints trumps the canons of the diocese. By following that line of reasoning, any parish in the EDFW that existed prior to 1983 is not bound by the canons of the EDFW. I doubt if you will find much agreement with such an assertion.

    I get that some of you at All Saints just "want to be left alone," and wouldn't that be convenient for you. Unfortunately, there are parishioners of All Saints that don't want to remain in TEC. They seem to believe that since All Saints was a parish within the EDFW before the convention in November, 2008, they remain in it now,and since EDFW has left TEC, so did All Saints. If you want All Saints to remain in TEC, you must vote to do so. By refusing the members of All Saints the opportunity to have any say in their future affiliation, you are denying the most basic Christian charity, and you are violating the canons to do it. You are in effect thumbing your nose at the canons of the diocese to which you belong, and have become lawless. There is only one Episcopal diocese in Fort Worth, and that's the one with Bp. Iker as the Bishop. By the way, he is not a "former" bishop. Either you will abide by the canons of the church to which you claim to belong, or you, like the PB, have become a law unto yourself.

    I am praying daily that this matter can be resolved with Christian charity all around, but frankly, humbleservant, after reading your comments, it doen't look much like that now.

    This absurd notion that the vote at the Diocesan Convention 2008 has no effect on anyone who disagrees with it is born out of a dillusion. Either All Saints is bound by the canons of EDFW, or it is not. From what you are writing here, it appears to me that you and other who agree with you do not believe the canons of the EDFW apply to All Saints. I guess that will have to be decided by an impartial tribunal. We certainly are not going to resolve it between the two of us.

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  44. Commonwealth Report

    Below is Canon 18.4 from Fort Worth Diocese. Focus on the last sentence. If we ignore Canon 32, does the canon forbid the Fort Worth diocese from suing the parish for the property?

    Sec 18.4 as presently amended, provides in part as follows:
    Property held by the Corporation for the use of a Parish, Mission or Diocesan
    School belongs beneficially to such Parish, Mission or Diocesan School only. No
    adverse claim to such beneficial interest by the Corporation, by the Diocese, or by
    The Episcopal Church of the United States of America is acknowledged, but rather is
    expressly denied.

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  45. humbleservant:

    I am copying below my response to you in the Stand Firm in Faith thread on this same subject. Please, in the future, post your comments to me in one place or the other but not in both. In the future, I will only respond once.

    What you fail to understand about Canon 18.4 and its application to the situation at All Saints’ Episcopal Church is that the EDFW is not attempting to claim the property of All Saints as diocesan property. You have been deceived by your rector and chancellor into believing that the EDFW is after your property. I’ve read over and over the words used by you and others about how this is just an attempt by Bp. Iker to take All Saints’ property. If you start with that false premise, then all that follows will be built on a shaky foundation.

    What this canon does is to actually protect the property of All Saints from any claim, including any claim by TEC, that All Saints does not own the property. It was created to protect the property of the parishes within EDFW. The term “adverse claim” means a claim to ownership that is adverse to the trust whereby the EDFW holds title to the property of the parishes for the benefit of the parishes. No claim adverse to or outside of that trust relationship will be valid or recognized, including a claim by TEC or the EDFW itself. In fact, the so-called “Denise Canon” of TEC, if found to be legally passed, would then have the further obstacle of attempting to pose a trust upon a trust, which moves TEC further from its goal of claiming parish properties within the EDFW.

    As applied to All Saints, Canon 18 upholds the trust established for the benefit of the parish. That would be for the whole parish, and not just a part of the parish. Until the parish, following the canons of the diocese which holds the legal title to the property in trust, takes the necessary actions under Canon 32, the legal title remains with the EDFW for the benefit of the parish. The parish remains attached to the EDFW until it votes to be otherwise attached to a different diocese. In other words, until All Saints follows the provisions of Canon 32, the legal title to All Saints’ property remains to be held in trust for the parish. This prevents someone from simply hijacking the parish and stealing its property. The parish must follow the very simple and equitable provisions of Canon 32. Jambor+ has convinced you that it can be done otherwise, but it cannot be done otherwise and remain legal.

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  46. As Bishop Iker so graciously provided a means for dissenting parishes to leave the diocese under Canon 32, and Bishop Iker determined a few parishes have met these conditions granting them their release, do you consider the recent actions of TEC of electing a new Bishop for those parishes legitimate?

    Before their release, TEC and the presiding bishop had no business meddling in the affairs of the diocese. Now their release has been granted, can they form a new diocese covering the same region as the original Fort Worth Episcopal Diocese?

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  47. Erik,
    In answer to your first question, No, I do not consider the recent actions of TEC of electing a new bishop to be legitimate. The PB and those parishes who attended the "special convention" on February 7th acted as though they were the Episcopal Diocese of Fort Worth. They were not. The EDFW is the one in which Bp. Iker is Bishop.

    In answer to your second question, yes, they can form a new diocese with the same region as the original EDFW. Since EDFW has left the province of TEC, there is now no TEC diocese in that geographical area, and they are free to form a new one if they wish. Unfortunately, they are not doing that. They are attempting to make believe that they are the EDFW and that the EDFW is without a Bishop.

    The basis of the problem is the position TEC has taken that dioceses and parishes may not leave TEC, only people can leave TEC. Of course, there is no canonical authority for such a position, but that does not seem important to the PB or her disciples in Fort Worth. Of course dioceses can leave TEC. They did it during the civil war.

    The sad thing is that, it appears, this will all be placed before a secular judge to be worked out. It does not have to be this way. The PB and the breakaway dioceses could mediate the issue and come to an amibalbe agreement. The PB appears not to want to do this.

    Be that as it may, this is not a time for dispair. God is separating the wheat from the chaff in His church, and it will turn out as He wills it, no matter what any of us want.

    Peace+

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