On October 10, 2012 the Local Episcopal Parties and Congregations filed a motion for leave to file an Additional Brief, to address pertinent case law developments and new filings submitted after the parties concluded their briefing. A copy of the brief is here.
This summer, there have been several important developments in the case law. The United States Supreme Court denied petitions for writ of certiorari filed by two breakaway factions urging the exact same arguments as the breakaway Defendants urge here. The U.S. Supreme Court has now denied certiorari three times since 2009 to breakaway factions in cases finding for loyal Episcopalians. And just last month, Chief Justice Radack, Justice Bland, and Justice Huddle of the First Court of Appeals of Houston issued an important decision favoring Texas’s historic Deference approach in church property cases, while ruling against a similar breakaway faction from the Presbyterian Church under both the Deference approach and the alternate Neutral Principles doctrine.
In fact, eight state supreme courts, from states as diverse as California, Colorado, Connecticut, Georgia, Nevada, New Jersey, New York, and Pennsylvania, have now ruled for loyal Episcopalians against similar breakaway factions, under both Deference and Neutral Principles. And every Texas court to decide an ex-Episcopalian breakaway faction case – four since 2009 alone – has ruled in favor of the loyal Episcopalians against parties trying to take property from the Church – under both Deference and Neutral Principles.
In addition to addressing new case law developments, the Additional Brief responds to the several new filings submitted in the Fort Worth and San Angelo cases since the parties completed their briefing. These new filings, which total 49 pages, were submitted as recently as September 24, 2012, and raise a variety of purported claims that Appellees did not have the opportunity to respond to in their earlier briefing.
For example, the Additional Brief explains that the Liberty Institute’s amicus brief was right to prefer the Deference approach, but it made a fundamental error in suggesting that there was any genuine “dispute” about the hierarchy of The Episcopal Church. Every court in the nation to reach the issue, without exception, has held that The Episcopal Church has a three-tier hierarchy that does not stop conveniently in the middle. Among the indisputable facts showing this obvious fact, the Episcopal Diocese of Fort Worth was formed only with the permission of The Episcopal Church, and every leader and every parish of the new Diocese promised unanimously in writing upon formation to “fully subscribe to and accede to the Constitution and Canons of The Episcopal Church [including the Dennis Canon].” As one court put it, the “geographically-defined dioceses  belong to, are subordinate to, and are under the jurisdiction of the National Episcopal Church.”
The Additional Brief also informs the Court that the five active bishops who signed the ACI amicus brief have since repudiated the position taken in that brief. Those bishops wrote in their amicus brief on page one that, “if the Court elects to use a deference standard, it is constitutionally required to defer to the diocese and its bishop. . . . In the present dispute, that bishop is appellant Bishop Jack Iker.” But just three months later, those same five active bishops joined more than 150 of their colleagues in a unanimous roll call vote at the 77th triennial General Convention of The Episcopal Church, passing a Mind of the House of Bishops resolution reaffirming that Plaintiff, the Rt. Rev. C. Wallis Ohl, and not breakaway Defendant Iker, is the Bishop of the continuing Episcopal Diocese of Fort Worth. [The full text of this resolution is located on the official General Convention website at www.generalconvention.org/gc/resolutions?by=number&id=x022 ]. While wholly unnecessary to the Court’s legal disposition of the case, the Court is still entitled to know what Defendants and their amici have not disclosed – that even the amicus brief’s authors have repudiated it.
The Additional Brief also responds to the 8 page “letter” filed by petitioners in Masterson on September 10, 2012, repeating Defendants’ wrong and distorted version of the Neutral Principles analysis. What that letter did not mention is that these precise arguments have already been rejected, most recently in three 2011 state supreme court cases including two from the Georgia Supreme Court that created the Neutral Principles doctrine. And this summer the U.S. Supreme Court twice denied certiorari to breakaway factions urging those same rejected arguments. At some point, this costly breakaway litigation must end.
Finally, the proposed Additional Brief corrects several inaccurate factual assertions and arguments made by Appellants in their Reply Brief.
The Additional Brief concludes:
It is not surprising that, under any constitutionally permissible analysis, parties cannot submit to Church law and property rules, accept 144 years worth of historic Church property under those commitments, and then take that property for the use and benefit of a new and different entity decades later, by using civil courts to void their intra-church commitments. . . . This Court should affirm the trial court’s summary judgment. . . . The Episcopal Parties are entitled to closure in this matter and the chance to direct all their resources back to ministry and mission, and not to litigation that presses interminably against clear First Amendment protections.
As a reminder, logistical details about how to watch the live stream of the oral argument over the Internet and other details are in the article posted several weeks ago and can be accessed HERE.