Does the Recent Memo About the P.O.'s Violation of Canons Hurt TEC's Case in Property Litigation?

I was reading the comments on Stand Firm last night about the memo detailing the P.O.'s violations of the Constitution and Canons of the Episcopal Church, and whether a case of presentment could be made against her, when one particular comment struck me.  The commenter asserted that these violations of Canons would have "no effect" on the property litigation.  In thinking on this and doing a little research, I am not so sure that is necessarily the case.

TEC is asserting in the various church property litigation that their claimed Diocesan ownership or property is a right they hold based upon trust and contracts law.  For example, in Virginia, in response to the Virginia Eleven's position that there had been no "offer and acceptance" to form a contract, TEC and DioVA have asserted that a contract does exist, in part via operation of the Constitution and Canons of the Episcopal Church.  TEC and DioVA cite to numerous cases wherein various Courts state that members of associations must conform to the rules of the association, i.e., the Constitution and Canons.  In response to the Virginia Eleven asserting that there is no "writing", i.e., no document, evidencing a contract, TEC and DioVA again point right to the Constitution and Canons.

TEC is further claiming that any action, be it the Virginia Division Statute or a court ruling, that does not support their Dennis Canon claims is in violation of the Contracts Clause of the U.S. Constitution.  The Contracts Clause is found in Article I, Section 10 of the U.S. Constitution and states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

There's this funny thing about Courts.  They tend to require consistency by parties that are before them.  There are several places in the law where we find such requirements.  One example is in the various applications of the doctrine of "waiver and estoppel", wherein parties are not allowed to take inconsistent positions, or enforce inconsistent positions, particularly where to do so allows them to take advantage in both inconsistent situations.  Another is in basic contracts law, where a party who is found to be already in violation of the contract is not allowed to enforce the contract against another party for its purported violation.  This is referred to as coming before the Court with "unclean hands" in some of our more archaic Court decisions.  There are yet other examples of the law demanding consistency.

The admitted problem with application of these theories in this instance is a matter of timing.  The Canonical violations by the P.O. have occurred subsequent to the Dennis Canon and many of the property litigation issues, except possibly in more recent cases such as the Church of the Good Shepherd in New York (Fr. Matt Kennedy's Church).  The "unclean hands" theory usually includes an element that the breach of the party who is said to have "unclean hands" has to have occurred prior to the other party's breach, hence the phrase "prior breach."  This problem, of course, would lead to an examination of earlier, and in some cases longstanding violations of its own Constitution and Canons by TEC, together with the P.O.'s more recent contributions.

Nonetheless, it appears to me that the Canonical violations by the P.O. do potentially have an effect on the property litigation in that not only do they lend themselves to the legal arguments such as waiver, estoppel, and "unclean hands", but they illustrate to any considering Court that the current leadership of TEC cares little, if at all, for the Constitution and Canons of their own Church, except when they can be used to promote and enforce leadership's own secular/political agenda.  Few Courts are willing to enforce contracts, or other such rules, regulations, or agreements, where the party seeking enforcement itself does not comply with those rules, regulations, or agreements, and in this instance actually demonstrates contempt for them by repeatedly violating them to its own advantage.

To the extent that there is any question whether there is a "division", which has been largely put to rest by Judge Bellows in Virginia, the memo should amply demonstrate that such a "division" does exist, now at the highest levels of TEC, where we find some "Working Group" of Bishops obtaining legal advice on Canonical violations by the P.O., and her writing threatening letters in response.

So what is the upshot of all this?  In my opinion, given the consensus that it is unlikely that the Title IV Committee would act against the P.O. unless there is a sufficient groundswell from among the HOB to make it happen, I think these arguments are better deployed in the civil courts under theories such as those mentioned above.  I think clergy subjected to discipline, particularly Bishops Schofield and Cox, could use this information to support a civil claim for defamation, infliction of emotional distress, and other potential claims.  Likewise, laity subjected to the P.O.'s abuses, such as certain individuals in San Joaquin, might consider similar litigation.  Whether civil courts would raise questions over any failure to proceed for ecclesiastical discipline first is unclear without further specific research.

  At the end of the day, though, in my opinion the failure and outright refusal of the P.O. to be bound by TEC's own Constitution and Canons should have a far-reaching effect on the current controversies.  She and her Chancellor, Beers, have managed, for the sake of short-term expediency, to sacrifice the long-term credibility of the entire polity of TEC.  Could this be the verge of a Nixonian meltdown and removal from office, such as Jacksonian suggested on this blog yesterday?  Possibly.  Stay tuned - this is just beginning to get interesting.

Comments

[Lone Star]

According to the information in the Living Church article, a presentment doesn't HAVE to be filed by bishops. The alternative method could give liberal and/or moderate and/or conservatives "cover".

"Title IV, Canon 3, Section 23a requires the consent of three bishops, ---OR-- 10 or more priests, deacons and communicants “of whom at least two shall be priests. One priest and not less than six lay persons shall be of the diocese of which the respondent is canonically resident.” [emphasis mine]