Church of England Newspaper
July 2, 2010

Episcopal Church in Texas legal loss

by the Rev. George Conger

A Texas court has rejected the Episcopal Church’s contention that ecclesiastical policy trumps state law, giving the third province movement in the United States a major legal victory.

On June 25 the State Court of Appeals for the Second District of Texas handed down a unanimous decision rejecting the claims of the minority faction loyal to the national church that it was the lawful “Episcopal Diocese of Fort Worth” and could prosecute a lawsuit in that name against breakaway Bishop Jack Iker and his supporters.

While the Court of Appeals did not determine who the lawful Bishop of Fort Worth was nor address the question whether a diocese may quit the Episcopal Church, Friday’s decision was a significant procedural victory for the conservatives, as it rejected the notion that the views of the national church hierarchy supplanted state law.

Canon lawyer Mark McCall of the Anglican Communion Institute told The Church of England Newspaper this “decision resembled the one in South Carolina, which said that judicial determinations about change of corporate control are decided under state law without deferring to the self-proclaimed religious hierarchy.”

In the Texas case, the court held that there was only one Episcopal Diocese of Fort Worth, and that the attorneys engaged by the loyalist faction could not hold themselves out as representing the diocese in legal proceedings. “It is “undisputed that there is only one Corporation and only one Fort Worth Diocese, regardless of how those entities are named or characterized,” the court said.

“There is a single Fort Worth Diocese and Corporation, which both a majority [Bishop Iker’s group] and a minority [the loyalists] faction claim to control,” the court noted, adding the attorneys [for the loyalists] whose authority is challenged are either authorized to represent those two entities or they are not.”

The lower court however held that a corporation cannot sue itself. The trial court had “barred [the loyalist attorneys] from representing only the Corporation and the Fort Worth Diocese associated with the Iker Group. We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction,” the court ruled.

The attorneys engaged by the loyalist faction “have not established their authority to represent or appear on behalf of the Fort Worth Diocese and Corporation as required” by Texas law.

The Court of Appeals issued a conditional writ, that would take effect if the lower court did not “strike the pleadings” filed by attorneys for the loyalists in the name of the diocese and barred “them from appearing in the underlying cause as attorneys” for the diocese.

Following the secession of the Diocese of Fort Worth under Bishop Iker in 2008, US Presiding Bishop Katharine Jefferts Schori gathered the rump group loyal to the Episcopal Church and in the Spring of 2009 called a “special convention” for the diocese to elect new officers. The special convention proceeded to elect new officers and invited the Bishop of Kentucky, Edwin Gulick to serve as interim bishop.

The loyalist group then initiated suit in the name of the Episcopal Diocese of Fort Worth seeking to gain control over the assets controlled by Bishop Iker and the majority faction. Bishop Iker’s group was granted a partial victory last year, but filed a writ of mandamus with the Court of Appeals seeking clarity on the underlying issue of whether the minority could bring suit.

The June 25 decision by the Court of Appeals in favour of Bishop Iker effectively repudiates the legal strategy adopted by the national church and the loyalist faction in Fort Worth that while people may leave the Episcopal Church, dioceses may not.

The Iker group’s attorney, Mr. Shelby Sharpe welcomed the decision saying it “simply follows the plain language of the law,” while Bishop Iker offered his thanks to the court and his attorneys for the decision.

He added that “while we realize that our opponents will continue to pursue litigation against us, this successful first step reinforces the soundness of our legal strategy to protect our identity, our property, and our assets.”

On June 28 the loyalist faction released a statement saying the fight was not over. The Court emphasized that “[t]he trial court did not determine on the merits which Bishop and which Trustees are the authorized persons within the corporation and the Fort Worth Diocese, nor do we. The question of ‘identity’ remains to be determined in the course of the litigation,” they argued.

Canon lawer Allan Haley observed the effect of the decision was that Bishop Iker’s group had “achieved its objective of requiring the pretenders to prove they had authority” from the diocese to bring suit. “As both the trial and the appellate courts found, they failed to carry their burden of proof on that point.”

He added that to prevail at this stage, the loyalist faction must now “show that [the Episcopal Church’s] Constitution and canons prohibit dioceses from voting to leave, and this they cannot do.”

A petition for relief from the loyalist faction to the Texas Supreme Court is expected.