GJ - In the interview below, another Episcopal leader questions the legal authority of the presiding bishop to grab parish properties through her lawyer. The details are important because there are many parallels with the LCMS and the Little Sect on the Prairie. Both groups are confederations rather than papacies, no matter how the Little Popes behave. ELCA reconstituted itself to be a hierarchy, something lacking in the ALC of 1960. Probably most of the congregations that left ELCA in the last 20 years were ALC in origin or older than the papal LCA.
Congregations and pastors should never concede property rights to the District Popes or the Synodical Pope. An ecclesiastical position should not be confused with the concept of a corporate business executive.
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Canon Bishop Says National Church Has No Legal Claim To Church Properties
An exclusive interview with the Rt. Rev. William Wantland, the retired Bishop of Eau Claire. Bishop Wantland was bishop of the diocese from 1980 - 1999. He is a canon lawyer and lives with his wife in Oklahoma. He agreed to be interviewed by VirtueOnline about church property lawsuits, a number of which are making their way through various courts in the United States.
By David W. Virtue
www.virtueonline.org
11/26/2007
VOL: Bishop Wantland, because of the Dennis Canon there is the overwhelming belief, substantiated in a number of state courts, that all parish properties are held in trust for the local diocese. Is that true in all cases? If not why not?
WANTLAND: Generally speaking, there is a trust interest running from the parish to the diocese. In 1570, the British Parliament passed legislation restricting the disposal of parish property. This was carried over to New York law, where an early statute provided that the Bishop and Standing Committee would have a say in the disposition of parish property, but so would the New York Legislature. This (without reference to State bodies) was added to Title II (now Canon II. 6) shortly after the Civil War. In the 20th century, a similar Canon was enacted in Title I, adding all parish property to that requirement, not just church or chapel buildings. Most States in the U.S. follow Implied Trust principles of law, so in those States, the diocese would prevail. Several States follow Neutral Principles of Law, and in those States, the local parish might, under certain circumstances, prevail.
VOL: Recently in the State of California, the Court of Appeal reversed a lower court ruling placing three parishes at risk of losing their parishes. They reversed an Orange County Superior Court's prior ruling that three former Episcopal churches, which disaffiliated from the national denomination in 2004, did not forfeit their property. This division of the appellate court broke with nearly thirty years of California church property law, and instead ruled that hierarchical church denominations can take over local church property. Where is this going?
WANTLAND: It is going to the California Supreme Court, which has already agreed to hear the matter.
VOL: Attorney Eric C. Sohlgren said the decision puts one division of the appellate court in direct conflict with other California court of appeal decisions that for almost thirty years have rejected the idea that a court must automatically defer to a church denomination in church property disputes. He said that idea offends basic principles of fairness and property ownership. Do you agree?
WANTLAND: The latest Appellate Court decision certainly offends the previously settled law in California. However, nothing would prevent the California Supreme Court from rejecting the Neutral Principles idea, and moving to Implied Trust.
VOL: It is also alleged that all properties are also held in trust for the National Church. Is that automatically true if the diocese can also lay claim?
WANTLAND: What is the National Church? We commonly use that title, but the so-called National Church has no current machinery for holding title to property outside of New York. While the Canons in both Title I and II recognize an interest in parish property for the diocese, this only re-states law that has been a part of our Church for over 400 years. Further, a careful reading of the Dennis Canon does not grant any real interest in diocesan property to 815 2nd Avenue.
VOL: What exactly is the National Church? Is it an ecclesiastical body or strictly an administrative body?
WANTLAND: The so-called National Church is an administrative body with very limited authority. It has defined itself in a number of documents over the years as a confederation of dioceses. Neither General Convention nor Executive Council has any jurisdiction over dioceses granted in either the Church Constitution or Canons.
VOL: In the 'which came first, the chicken or the egg', is the national church a product of General Convention, or are the dioceses the product of the national church and General Convention?
WANTLAND: The Episcopal Church came into being in 1789. Dioceses preceded the existence of TEC by a number of years. For example, the Diocese of Connecticut not only existed for years before 1789, but elected a bishop and had him consecrated in Scotland in 1784. New York, Pennsylvania and Virginia also elected bishops and had them consecrated in England in 1787. Clearly, the dioceses came together to create the Episcopal Church by adopting a Constitution and Canons and a Book of Common Prayer. The dioceses created the Episcopal Church, and not the other way round.
VOL: If the national church or general convention is the product of dioceses and not the other way round, then what legal claim can the national church make in court for parish properties?
WANTLAND: The only way TEC could even claim a trust interest in parish property is to rely on the imprecise language of the so-called Dennis Canon. However, prior to 1979, the so-called National Church never claimed any trust interest in parish or diocesan property. A basic principle of trust law is that two people can agree to create a trust interest in property which one of the parties owns. However, a third party cannot then claim a trust interest in that property without the consent of the original parties. While it might be possible, I am not personally aware of any diocese which has recognized the interest of 815 2nd Avenue in any property. To the contrary, a number of dioceses have specifically rejected any claim of the so-called National Church to property within those dioceses. With the possible exception of the Diocese of California, I am not aware of any parishes voluntarily granting an interest in their property to 815. In the absence of such a granting of trust interest, I doubt any court would uphold it.
VOL: Does the Presiding Bishop have any canonical authority in a diocese, any diocese, either liberal or conservative?
WANTLAND: The authority and duties of the Presiding Bishop are set forth in Canon I. 2. 4. In regard to dioceses, the PB shall consult with the Ecclesiastical Authority of the diocese if there be a vacancy in the office of bishop, but the PB has no authority to act, only to consult. Further, the PB is to visit every diocese, and takes order for the consecration of bishops within a diocese. No other duties in regard to dioceses are delineated. All other duties apply to the administrative structure of the Episcopal Church.
VOL: Mrs. Jefferts Schori, while holding the title of Presiding Bishop, is in reality the bishop of nothing. She has no diocese, unlike the Archbishop of Canterbury who is both the titular head of the Anglican Communion and the Archbishop of Canterbury. In that case, does she have any legitimate (legal or ecclesiastical) authority over the leadership of a Diocese?
WANTLAND: The Presiding Bishop has no authority over the leadership of a diocese, except if charges are brought against a bishop. The PB does have certain responsibilities in regard to the charges, as set forth in Title IV of the Canons. However, there is absolutely NO authority in any instance over Standing Committees, Diocesan Councils, or other diocesan leadership.
VOL: Ft. Worth Bishop Jack Iker said to his diocese recently that "there is no such thing as "the national Church." We are a confederation of Dioceses, related to each other by our participation in General Convention. He went on to say that from the earliest days of the beginnings of the Episcopal Church in this country, including the formation of dioceses and eventually the creation of the General Convention itself, there has been a strong mistrust of centralized authority that is deeply rooted in our history as Episcopalians. We do not have an Archbishop in this Church, who has authority over other Bishops and their Dioceses. Instead, we have a Presiding Bishop, with very limited canonical responsibilities, mainly administrative in nature." Do you agree with him?
WANTLAND: Bishop Iker has stated precisely what I feel the situation to be.
VOL: Mrs. Schori has said she will allow the sale of properties back to the parishes, even to other religious groups, but not to another Anglican jurisdiction. In your mind is that legal? Can she in fact do that? Is she breaking some federal statute by saying that a property sale can be restricted because she says so?
WANTLAND: Federal law does not apply here. The law of the State rules. I would simply observe that the previous Presiding Bishop declared in Louisiana that the so-called National Church had no interest in property disputes between a parish and the diocese, and would not intervene unless asked to do so by the diocese. Therefore, if a diocese is negotiating with a parish to avoid a costly lawsuit, what right does a Presiding Bishop have to dictate terms? None whatsoever.
VOL: Recently the Diocese of Western Michigan sold their cathedral to an independent evangelical mega church without apparently a whimper from the national church or David Booth Beers, Mrs. Schori's attorney. But when the pro-cathedral in El Paso, Texas, under the ecclesiastical authority of then Bishop Jeffrey Steenson in the Diocese of the Rio Grande, wanted to leave the diocese and TEC, I was told by Steenson that Beers raised all hell. Steenson told me that he did not want to litigate and furthermore the parish gave the diocese $2 million as part of the deal! Why do you think Beers ignored one situation and yet weighed in on another?
WANTLAND: Because of prejudice against so-called conservatives.
VOL: David Booth Beers bills out his time at $600.00 an hour less 15% discount for TEC at a cool $510.00 an hour, so I have been told. Presumably he has a team working with him. He seems to be everywhere, - Virginia and Philadelphia (recently). I can't imagine that at the end of the day millions of dollars in legal fees are being given to him by the national church. Where, in your opinion, is the money coming from?
WANTLAND: The money, in all probability, is coming from the endowment funds of TEC, which funds are more than $200,000,000.00.
VOL: A number of bishops, including yourself, have asked Mrs. Jefferts Schori where the money is coming from for the present litigation, but she has not replied. Why is that?
WANTLAND: I was one of the bishops to raise this question. To date we have received no answer. My guess is that TEC doesn't want to start the precedent of providing full and complete information about anything. The name of the game is "spin".
VOL: Is it possible that litigation costs could, in the end, bankrupt the Episcopal Church?
WANTLAND: I doubt it. While the cost of litigation is ridiculous, I don't think it will deplete the endowment funds.
VOL: Can the Trust Funds be raided without accountability and financial responsibility to pay legal costs?
WANTLAND: Some of the trust funds are unrestricted, and can be used however 815 2nd Avenue sees fit. Others are restricted, and cannot be legally used for purposes other than stated in the establishment of those funds. In any instance, the matter of our Treasurer (Ellen Cooke) who went to jail for misuse of trust funds proves that there must be accountability.
VOL: In the end, if the National Church takes possession of dioceses that will be 90 per cent empty, is the victory anything more than pyrrhic?
WANTLAND: In the highly unlikely event this were to occur, it is not really a victory of anything. What do you do with property you can't use? History has shown that it gets sold at a great loss.
VOL: With empty or near empty churches which will have to be sold in the open market, what is the ultimate victory for the National Church?
WANTLAND: The only victory is for the forces of Satan and secular humanism.
VOL: Thank you Bishop Wantland.
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