The Watcher Cat

The Watcher Cat

Thursday, December 11, 2008

Cognitive Dissonance

Over at Stand Firm, Fr. Matt Kennedy has posted the cross-motion his Church of the Good Shepherd has filed in opposition to the motion for summary judgment the Diocese has made for title to the CGS's property under the Dennis Canon. It is, quite frankly, a bizzare court filing, seeking judgment as a matter of law on the property ownership question on the novel theory that the Court should find that the Dennis Canon does not exist.

Yes, that's right. Fr. Kenendy's attorney is arguing that the procedures by which the House of Deputies received and acted upon the resolutions that became the Dennis Canon, as well as the House of Bishops, and the manner of its recordation in the Church's archives are not adequate under "principles of statutory interpretation and the common law of parliamentary procedure." (Cross-Motion at p.6). Therefore, d'ye see, the Dennis Canon is invalid. The source for these arguments? Roberts' Rules of Order. Oh, and a legal hornbook on the subject of how state legislatures enact legislation, which is then asserted to "govern" how one applies neutral principles of law to determine a property dispute's outcome.

CGS demands a far-ranging administrative review of the procedure and polity of TEC--a judicial strict scrutiny absent any legal warrant for doing so, and one that belies the concession that TEC's canons contain "only the most cursory instructions as to the generation of documents by the secretaries and registrars of the General Convention." (Cross Motion at 7). CGS, admitting there is no formal process by which resolutions are "enrolled" then goes on to claim that the Journal of the 1979 Convention does not clearly track the progress by which the Canon was passed, and as he memorably phrases it, "the Dennis Canon is nowhere to be found!" (Id. at 12). Or, rather, since the text does appear in full in at least one place as the CGS admits, the Journal leaves open the possibility that the text was amended, rejected, or in some manner vitiated. The fact that it then subsequently appeared in the official text of the Canons and has continued to do so for just about 30 years, specifically admitted by CGS (Id. at 9, para. 28) does not, in CGS's view, vitiate the argument.

This argument is, frankly, deeply silly. Not a single New York State case, or indeed a case from any other jurisdiction, is cited in support for the notion that a denomination is required to follow legislative procedure equivalent to that of a state legislature. The only New York case cited by CGS are First Presbyterian Church v United Presbyterian Church and Episcopal Diocese of Rochester v. Harnish, ___ N.Y.3d ___ (October 23, 2008). Harnish, in particular is relevant, here, one would think, as it held:
The remaining factor for consideration under neutral principles, however, requires that we look to "the constitution of the general church concerning the ownership and control of church property." It is this factor that we find dispositive. We conclude that the Dennis Canons clearly establish an express trust in favor of the Rochester Diocese and the National Church (see Jones, 443 US at 606), and that All Saints agreed to abide by this express trust either upon incorporation in 1927 or upon recognition as a parish in spiritual union with the Rochester Diocese in 1947. We therefore need not consider the existence of an implied trust. In agreeing to abide by all "canonical or legal enactments," it is unlikely that the parties intended that the local parish could reserve a veto over every future change in the canons. We find it significant, moreover, that All Saints never objected to the applicability or attempted to remove itself from the reach of the Dennis Canons in the more than twenty years since the National Church adopted the express trust provision (cf., First Presbyterian, 62 NY2d at 125).
Now, CGS would distinguih Harnish on the ground that in that case the passage of the Dennis Canons was not disputed as a matter of fact. True enough. But here what is disputed is not the adoption of the Canons, but rather the validity of the process by which it was adopted and recorded, based on alleged defects in the archival evidence. There is no claim, for example, that TEC has not held itself out as having such a canon since the date of passage. The case from which the whole "neutral principles of law" approach stems, Jones v. Wolf, 443 U.S. 595 (1979) explains the requirements of the First Amendment:
It is also clear, however, that "the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes." Id., at 449. Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976); Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 368 (1970); Presbyterian Church I, 393 U.S., at 449 . As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. Serbian Orthodox Diocese, 426 U.S., at 724 -725; cf. Watson v. Jones, 13 Wall. 679, 733-734 (1872).
In explaining the application of neutral principles, the Court emphasized that "the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form."

No requirement that Roberts' Rules be applied, or the tenets of a 1940 handbook on statutes. Indeed, a respect for Church polity is required as a corollary to the required free exercise of religion, with only "minimal" steps be taken by the church in formalizing arrangements which are only required to be "embodied in some legally cognizable form." In other words, not only does Harnish forestall the argument CGS makes, the very depth of analysis CGS seeks from the court contradicts the lodestone of "neutral principles" jurisprudence. If you doubt this--ask how Fr. Kennedy would like a court doing this level of review of CANA at TEC's request?


Matt Kennedy said...

What is deeply silly Anglicat is that you have written an entire post without understanding much at all about the filing you mock.

The motion does NOT simply suggest simple proceedural mistakes somehow make the canon invalid.

The filing notes that there is presently...and on record there has been since 1981 in White/Dykman, a dispute as to whether the Canon passed through the House of Deputies or whether it was amended or whether it was rejected. There are eye-witnesses on both sides of this question...which is why Conger+ took the trouble to do the research in the first place. To settle that question. And what did he find?

He found that of all the records of the 79 convention, only those pertaining to the day that the Dennis Canon was allegedly passed were missing.

So you have a dispute as to whether it legitimately passed and a record that is inconclusive...

In NYS the bar to get through the initial hearings to the trial phase is to raise a triable question of fact.

That is all this motion seeks to do and despite your deeply silly misconstrual of it, it does that quite well.

I am still fairly certain we will not prevail this morning. Few judges want to rule in a way that could undercut a higher court and that's what would happen if the judge found in our favor.

But should we lose it will not be for the reasons you cite which have no relationship factual or otherwise to the arguments quoted.

Anglocat said...

I think you misunderstand my characterization of the argument--and, in view of the fact that my post came out on the eve of the hearing, I understand your obvious offense of the word "silly." The suffering on the other side is something that we are each capable of not taking into account, and for that insensitivity, I apologize.

That said, I stand by the analysis. I get that CGS is contending that the Dennis Canon was not, or at any rate may not have been, enacted. However, the Dennis Canon has been in the COnstitutions and Canons as compiled in every edition subsequent to the 1979 General Convention.

Thus, for the court to rule the Canons were not validly enacted, it would have to go behind the scenes and determine (1) whether the court has the authority to enforce the procedures by which the canons are to be amended; (2) what those procedures are; (3) and whether the lack of an authorittaive record permits recourse to the Journal and the archives; and (4) whether the gaps pointed to in the Conger Affidavit are sufficient to establish that the canon was not appropriately passed, despite three decades of being held out as a canon of TEC, and in the face of GC not revising or repealing it.

Only then could the court get to the question of what remedy would be appropriate. The problem is that this kind of scrutinization of church polity and internal rule-making is just what "neutral principles" of law approach eschews. That's why the Supreme Court stressed in Jones that it "only minimal" steps were needed to invoke the benefits of the decision.

In short, the argument CGS makes requires an in depth investigation of church internal rule-making, in the absence of any secular statute TEC would be required to comply with--it would turn the court into the parliamentarian of TEC, despite the First Amendment's requirement that such entaglement with the church's politics and polity be minimized.

BTW, I am a New York litigator, with experience in First Amendment litigation in state and federal court, and have published extensively on First Amendment issues, since you appear to question my knowledge of the field.