A.S. Haley: A Further Look into ECUSA Finances

Saturday, August 15, 2009

In a post last week I discussed how some of the exhibits presented to the Court in the Pittsburgh litigation offered a window into the fast track available to certain insiders within ECUSA who signaled their willingness to cooperate with the Church's litigation strategy: never acknowledge that a Diocese has withdrawn, but organize those remaining and "recognize" the insiders as quickly as possible in order to give the appearance of an ongoing entity. Then use that claim of an ongoing entity to have it take on the role of plaintiff in a lawsuit against the departed Diocese.

As I have pointed out in this post concerning the similar strategy being followed in San Joaquin, ECUSA is playing a very high-risk game. It is staking everything on the success of its being able to prove to secular courts that dioceses are not at liberty to withdraw from the voluntary association which is the Episcopal Church (USA). Not only does this argument ignore the very nature of voluntary associations, but it violates First Amendment principles of free exercise and freedom of association as well.

A chief reason for this strategy is probably this: the Dennis Canon provides no means or argument with which ECUSA can go after the property and assets of departing dioceses. By its terms, the Dennis Canon addresses only property held by or for the benefit of individual parishes. Thus to maintain any claim to the assets of a diocese, ECUSA has to act as though the diocese never left, and is coming into court to take back from those who did leave that which (it says) they had no right to take with them.

ECUSA's concerns for property are thus shaping its legal arguments, and that is not a healthy dynamic. In this post, I want to underscore that point by showing how another of the Pittsburgh exhibits demonstrates that ECUSA appears (on the surface, at least) to disregard the terms of trusts to which it is subject: namely, the gifts, bequests and devises that have been left to it over the years. You will see below how, to suit its immediate needs and purposes, ECUSA at first would seem to twist and contort the terms of individual bequests to enable it to carry on with its misguided litigation strategy. But then a surprisingly different possible interpretation suggests itself, as I also spell out below. Which interpretation is correct? You will have to be the judge. the rest