A.S. Haley: Lawsuits Are a Symptom; the Disease Is Terminal

Sunday, December 14, 2008

Excerpt:
Recently, however, facts about the Dennis Canon have emerged which tend to cast the foregoing argument in a slightly different light. For one thing, from what appears in the official records of the 1979 General Convention, the Canon may not have been adopted in the same form by both Houses concurrently, as would be required for it to take effect. And for another thing, it does not appear that the enactment of the Canon was reported to the parishes that were directly affected; the first mention of the Canon in the Episcopal News Service Archives does not occur until 2001---some twenty-one years after its supposed adoption. (I have commented in this post on the disconnect between the deputies elected to General Convention and the parishes that elect them.)

What we have here is a form of "prescriptive right" to parish property that was established in a rush under questionable circumstances, in the waning days of the 1979 General Convention, and then lay dormant for years until a property dispute required its disinterment in 2001. The recognition it has received in some courts in the years since has tended to give it full legitimacy in the eyes of those who invoke it.

But those court decisions simply assumed, without deciding, that the Dennis Canon was a properly enacted provision of Church canon law. The question has now been squarely presented to a trial court in New York, which is one of the States whose highest court has assumed the legitimacy of the Canon heretofore as a given. (Indeed, New York is unique in also having a statute that assumes the existence of the Canon, and purports to legitimize the trust relationship it claims to establish.) No matter what the trial court decides, there is certain to be an appeal; and the question ultimately will have to be decided anew in each State where it arises. Talk about having to fund litigation---just you wait!

the rest-do not miss this!!!