Attorneys for the Episcopal Diocese of Fort Worth, the Corporation of the Episcopal Diocese of Fort Worth, and the Episcopal Church have on Sept. 3, 2009 filed a motion for a partial summary judgment in the 141st District Court of Tarrant County, Texas as a step to recover property and assets of the Episcopal Church.
The defendants are former members of the Diocesan Corporation’s board of trustees and the former bishop of the diocese, all of whom have left the Episcopal Church and its Episcopal Diocese of Fort Worth but continue to control significant Episcopal Church assets.
The 67-page document includes an extensive brief of legal authority in support of the motion and was accompanied by a box full of exhibits [copies of court cases, affidavits, journals, etc.].
The Rt. Rev. Edwin F. [Ted] Gulick Jr., provisional bishop of the Episcopal Diocese of Fort Worth, commented on the litigation in his reflection The Fall – Season of New Beginnings: “We find ourselves in a ministry of the recovery of identity and resources after the storm of schism. It is stewardship work and we do it deliberately and prayerfully and with urgency so that we can be the most effective community we can be. We want to be available to be the evangelistic and world-serving Body of Christ that our Baptisms and the power of the Holy Spirit call us to be.”
What happens now
A hearing will be scheduled so as to give at least 21 days notice to the defendants, who will then have to file their response including their affidavits no later than seven days before the hearing.
The hearing will consist of lawyers making their case before the judge. There will be no live testimony from witnesses.
Content of the Motion
The motion requests a partial summary judgment because it focuses on the primary issues that identify the “real” Episcopal Diocese of Fort Worth, its bishop, and trustees of its Diocesan Corporation. The motion seeks various declarations, an injunction, and an order for an accounting of the property in the control of the defendants. The plaintiffs’ remaining claims for conversion (or unlawful taking of another’s property) and attorneys’ fees will be addressed later.
Grounds for the motion are:
- Plaintiffs are entitled to a declaratory judgment that Bishop Edwin F. [Ted] Gulick Jr. and the leadership of the plaintiff Diocese and their successors are entitled to the use and control of the real and personal property of the Episcopal Diocese of Fort Worth and that the Defendants, who have left the Episcopal Church, and their immediate predecessor are not, because:
- Texas authority establishes that a constituent part of a hierarchical church is comprised of those remaining loyal to the hierarchical denomination.
- Texas law of voluntary associations generally confirms that the membership of a local chapter of a national or regional organization cannot alter the chapter’s affiliation or divert its property to another organization.
- The First Amendment requires the courts to defer to a church’s own determinations concerning ecclesiastical issues, including the identity of its leaders and constituent parts.
- The Plaintiffs are entitled to a declaratory judgment that the property held by the Diocese is held, and must be used, for the mission of The Episcopal Church because:
- Members of religious organizations are bound by their organization’s rules under both Texas law and constitutional requirements.
- Texas law of charitable trusts confirms that property donated to a charitable institution or society is held in trust for that society’s purposes.
- Texas statutes confirm that religious corporations are subordinate to and controlled by the religious organizations that formed them and hold property for the benefit of and in trust for those organizations.
- The “neutral principles” analysis approved as constitutional by the U.S. Supreme Court similarly requires that church property disputes be resolved in accordance with denominational rules and polity.
- The great weight of authority from across the country involving The Episcopal Church makes clear that, regardless of what particular method of analysis is used, property of an Episcopal Church body must remain with the Church in the event of a dispute (citing all recent appellate cases involving The Episcopal Church).
- The Diocesan plaintiffs are entitled to summary judgment on their claim under Texas Business & Commercial Code § 16.29 to enjoin defendants’ use of the Diocesan trade names and seal because all of the elements of the claim have been met: (1) the names and mark plaintiff seeks to protect are eligible for protection, (2) plaintiff is the senior user of the names and mark, (3) there is a likelihood of confusion between its names and mark and those of the defendants, and (4) the likelihood of confusion will cause irreparable injury.
The motion contends that there is no genuine issue of material fact and that therefore the plaintiffs are entitled to a summary judgment as a matter of law on these issues. It lays out several statements of fact and the supporting material for them.
The Affidavits of Dr. Robert Bruce Mullin, a professor of church history at the General Theological Seminary, New York, lays out the history of the Episcopal Church and its Episcopal Diocese of Fort Worth, tracing a bright line of unqualified accession to the Constitution and Canons of the Episcopal Church back to the establishment of the Missionary District of the Southwest by the Episcopal Church in 1838 and establishes that a diocese cannot unilaterally leave the Episcopal Church
The motion lays out the canons pertaining to the ownership of property, which is held in trust by parishes and dioceses for the use of the Episcopal Church. It explains how the Corporation of the Episcopal Diocese of Fort Worth acquired its property from the Episcopal Diocese of Dallas, and why the name of the diocese and the diocesan seal belong to the diocese that remains part of The Episcopal Church.
It also refers to several prior statements in which former Bishop Jack L. Iker and other former leaders of the diocese have acknowledged in other court proceedings the hierarchal nature of the Episcopal Church, the role of General Convention as the governing body of the Episcopal Church, and that diocesan canons must defer to national canons – all opposite of positions the defendants now take as they seek to keep control of Episcopal Church property and assets.
Motion for Partial Summary Judgment filed 9/3/2009
Plaintiff’s first amended petition, filed 9/3/2009