Saturday, December 13, 2014

Conscience Issues

In light of the new information on the in-group behind the hidden agenda to seize the parish, I went back to the timeline at the Freedom for St Mary blog. By February of 2011, the bishops of the ACA, relying on the opinion of their chancellors, had already determined that the ACA and the Patrimony of the Primate were two separate jurisdictions.

In addition, according to the timeline, Louis Falk testified in a deposition

At a subsequent meeting in Tucson, Arizona, held on April 26, 2011 each and every ACA Bishop both agreed to, and signed, a Solemn Agreement which established the guarantee of the jurisdictional independence and integrity of the Patrimony in the United States. This established an “amicable agreement” for the coming separation, whereby the Bishops choosing to remain in the ACA, who did not intend to accept Pope Benedict’s gracious offer, pledged not to interfere with those Bishops, Clergy and Parishes choosing to proceed to join the Roman Catholic Church, and vice versa.
We know that by late 2011, Stephen Strawn had had informal contacts with Patrick Omeirs, by Omeirs's own statements to me. In itself, this is a violation of the April pledge. Omeirs strongly implied that others among the dissident group were involved in those contacts. We simply don't know how far back in 2011 (or even into 2010) those contacts extended. However, it's hard not to think that Brian Marsh was also aware of those contacts.

The timeline reflects that as of January 2011, the then-parish treasurer had stopped making tax withholding payments to the IRS, and the then-clerk of the vestry had failed to file the parish's revised bylaws reflecting the vote to enter the Patrimony with the California Corporation Commission. Both the then-clerk and the then-treasurer were on the fringes of the hidden agenda and were probably being manipulated by the in-group. It's hard to think that Strawn was not at least being kept abreast of these steps, if he was in contact with the dissident group later in the year.

What we have here morally is several major issues: it appears that Strawn, at the very least, swore falsely in the April 2011 Tucson meeting and had no intent of leaving St Mary of the Angels alone. The then-treasurer was basically stealing from the IRS -- the Catholic Catechism makes it clear that non-payment of taxes is a sin. She was also bearing false witness, in the sense that she was setting up an appearance of financial impropriety on Fr Kelley's part. The then-clerk was leaving something undone, a clear sin covered in both Anglican and Catholic general confessions. If Strawn was aware of, encouraging, or endorsing these actions, his sin was basically using his prestige as a bishop to encourage others to sin-- as would be Marsh's.

It appears that both the then-treasurer and the then-clerk eventually found themselves unable to continue with this agenda, which is understandable and reflects well on them. If struggles with their conscience were involved, that would only be natural. However, Marsh and Strawn appear to have had no such difficulty with conscience.

This is troubling to see.

Thursday, December 11, 2014

Here's The Frammis -- II

I was watching one of my favorite true-crime TV genres last night, a show where a detective solves an old, tough cold murder case. He gave some insights into how to do it: you develop a theory of the case, and you let new facts take you where they lead you. The new information on the lawsuit against Church Mutual Insurance by the Bush vestry and the et als has given me some additional leads to consider.

I said yesterday that this case is full of hidden agendas. Chatting with my wife last night, I revised this interpretation: these agendas are what I might call "group hidden agendas", which for the time being do not rise to the level of criminal conspiracies, and may never do so, although on the other hand, they might. It's plain that there are still many facts we don't have, which we may never get, or may not get for years. But I'm still looking, and so, it would seem, is the Armchair Detective.

As a shorthand for "group hidden agenda so far falling short of criminal conspiracy", I'm going to bring back the term "frammis" that I used in an earlier post on my theory of the case. This term was used by the US noir crime novelist Jim Thompson to mean an elaborate scheme of deception, or con, perpetrated by two or more people. That's the sense in which I use it here.

The extra information I've gained from the Bush vestry v Church Mutual Insurance lawsuit is that the et als among the parishioner plaintiffs, Patrick Omeirs, Langley Brandt, and Marilyn Bush, are the in-group, simply because they appear to have pledged personal assets toward the legal expenses involved in the April-May 2012 seizure of the parish. This, however, leads to a puzzling question: why is Mrs Bush in this group? Omeirs and Brandt are long-term parishioners, among the angriest of the angry "continuers". But Mrs Bush joined the parish only in early 2011 after, by her account, 40 years of not going to church. In other words, she would be something of an Anglican Rip Van Winkle, waking up to find she'd missed the controversies over prayer books, women's ordination, lady bishops, John Spong, Gene Robinson, Anglicanorum coetibus, the whole history. What would bring her to St Mary of the Angels, and why would she care? And why would she suddenly care enough to pledge money to lawyers over this stuff? Interesting question.

The knowledge of who the in-group is, though, clarifies some of the political dynamics in the parish from 2011-2012. I think I can now say there were three broad factions in the parish during that period. The largest, a majority (though probably not enough to constitute the supermajorities that did variously vote to join the Ordinariate and leave the ACA) simply thought Anglicanorum coetibus was a good deal and sincerely wanted to become a Catholic parish. This group, on balance, admired Fr Kelley's strength of character and erudition and saw no reason to replace him. A second group was basically a clique of younger parishioners surrounding Andrew Bartus, who had only graduated from Nashotah House in 2010 and had back channel connections with the group of former Episcopal Diocese of Fort Worth clergy that had the inside track in the US Ordinariate. That clique supported his ambitions. The third group was the long-term angries led by Brandt and Omeirs, which Bush joined, unknown to the parish at large.

The two smaller factions had in part competing agendas. The long-term angries did not want to go into the Ordinariate, for whatever reason. Only Omeirs among this group had a divorce and remarriage that might have been an obstacle to becoming Catholic; the others in this group may simply have been anti-Catholic but sorta-kinda Anglo-Catholic; it's still hard to fathom their full motivation. The clique around Bartus wanted to become Catholic, and some did separately become Catholic with Bartus after he left the parish. However, Bartus's agenda was to bypass Fr Kelley, using his Diocese of Fort Worth connections in the US Ordinariate, knock Fr Kelley out of the running for Rector, and place himself in that position once the parish went into the Ordinariate. The Bartus clique and the long-term angries, though together never a parish majority, shared one short-term goal: get rid of Fr Kelley.

What of the odd man out among the et al group, non-parishioner but diocesan official Anthony Morello? I think Morello was the link to Stephen Strawn and the other ACA bishops. This in turn brings us to the question of how the frammis got its start. We know that a major subtask of the frammis was to create the impression of financial misconduct on Fr Kelley's part, in the beginning by stopping quarterly payments to the IRS for salary withholding from parish employees beginning with the January 2011 payment, although the money was in the bank to do this (this could, of course, rise to the level of criminal conduct if all the facts led in this direction once they came to light). I think it's important that the IRS payments stopped beginning with the payment for the final quarter of 2010, soon after the parish entered the Patrimony of the Primate.

The parish treasurer who apparently facilitated this subtask by not writing checks to the IRS was a member of the Bartus clique, but she was clearly furthering the ends both of Bartus and the hard-core angries. (She left the parish in the summer of 2011, separately became Catholic herself, and has since become an active, sincere, and devout member of a local parish. We will never know what she may have said to her confessor.)

Fr Kelley and the vestry briefly made me interim treasurer of the parish following her departure. It was plain that, by early summer 2011, almost no bills had been paid, and the parish van was close to being repossessed. It's difficult to know if the previous treasurer was facilitating a plan to create an impression of financial misconduct, or if struggles with her conscience had left her unable to function in that position. All I can say is that by September 2011, many bills were long overdue, while ample funds were available to cover them.

How much did Anthony Morello know about any of this? But that's a different way of asking how much Stephen Strawn knew, and when he knew it. "Before you do anything like this, you have to plan it," says my wife. We know that the ACA bishops were deeply concerned about Hepworth's formation of the Patrimony of the Primate at the end of 2010. This led to the ACA Chancellors' letter of February 5, 2011. While we know for certain that Stephen Strawn attempted a formal meeting with the core group of angries in January 2012, a discussion I had with Patrick Omeirs in December 2011 indicates that there had been informal contacts between that group and Strawn prior to that date. A key question would be how far back those contacts extended, and whether Strawn was in any way aware of plans to create the impression of financial irregularity by ceasing payment of IRS and other obligations beginning in early 2011.

Wednesday, December 10, 2014

Train Wreck

An online dictionary defines "train wreck" as
train wreck n. a disaster or failure, especially one that is unstoppable or unavoidable. . .
to which a commenter adds,
To “a disaster or failure” I would add, “especially one that, though foreseen, is difficult or impossible to avert.”
I believe this stems from the image of two trains on one track that are coming toward each other and inevitably will collide, and they can neither get out of each other's way nor stop in time to avoid a collision. I think that those observing the St Mary of the Angels legal developments are beginning to conclude that this is developing into a slow-motion catastrophe for the ACA and some individuals, and at this point, there's no way for the ACA to avoid it. Take a seat, we're about to see a train wreck.

In my chat with informed parties Sunday afternoon, I posed the inevitable question: is there any chance of raising with the ACA and the Bush group the possibility, even now, of coming to some sort of Christian reconciliation -- say, the ACA and the dissidents turn the property over to the elected vestry, and the elected vestry forgives some part of monetary damages in return? My interlocutors nodded sympathetically, appreciating my good feelings -- but they patiently explained that things have gone way past that, proposals to that effect had been made long ago, but had been angrily dismissed by Bush and the ACA.

My retired-attorney wife says that, in a traditional big law firm, things are at the point where a partner goes to a newly hired associate, straight out of Harvard Law, and says, "OK, Schmidlap, here's the Rector, Wardens, and Vestry case file. Give me a memo on what the damages are and how you think we should pursue them." The result is a 20-page report. (This would, of course, apply to deep-pocket plaintiffs and respondents and might not be done in this specific case by the elected vestry's attorneys.)

However, it appears from my chat Sunday that some thought is being given to this stage of the proceedings. While no specifics were mentioned, I am going to speculate on the direction that I think the question of damages might take. Again, I'm not an attorney, and beyond that, there is a great deal that we don't know, including the state of the parish building and what financial transactions have taken place. This case has been full of back channel dealing, hidden agendas, secrets, and prevarications, and a knowledgeable attorney with a more complete understanding of the circumstances might pursue a different strategy. That said, damages might result because

  • Every action taken by Anthony Morello and the Bush vestry, as well as inhibition and deposition of Fr Kelley, was ordered, supervised, or endorsed by bishops of the ACA, often in the written record by unanimous votes of the ACA House of Bishops.
  • By closing the parish, excommunicating numerous members, and threatening to call police if numerous parishioners even entered the property, the ACA essentially stopped the functioning of the parish, causing it to forego pledge, gift, and bequest income, as well as income from hall rental.
  • The ACA and the Bush faction maliciously interfered with numerous employment contracts, as well as contracts for hall rental.
  • The ACA and the Bush faction will be responsible for damage or missing property from the parish building.
  • The elected vestry might also pursue the Bush vestry and the ACA for its own attorneys' fees, if these aren't awarded to it by the judge in the case.
  • In addition to damage to the parish's property, finances, and ability to conduct business, the ACA also defamed Fr Kelley by deposing him when, by its own admission, it did not have jurisdiction to do so. Information has now also emerged that Anthony Morello, who conducted Fr Kelley's trial, appears to have had a financial interest in its outcome, since he had pledged personal assets to pay the attorneys advising the ACA in seizing the parish.
Without a full knowledge of all actions and consequent damages, it's not possible to come up with any sort of final measurement. I do know that the elected vestry will have a fiduciary duty to pursue all appropriate damages. A preliminary quantified estimate might be along these lines:
  • Annual pledge and offering income for two years: $156,000
  • Employee salary and expense payments under contract for two years: $250,000
  • Hall rental income under contract for two years: $10,000
  • Unspecified damages to building and missing assets.
  • Unknown financial issues.
  • Costs of evicting ACA and Bush occupants, possible forensic audit, and engaging private security subsequent to eviction.
Because the ACA and the Bush vestry interfered with contracts and the written record gives clear suggestion of malice, punitive damages would apply. The estimate above leaves aside any action Fr Kelley might take for defamation, although quantifiable damages to him might include the amount of income he will have foregone between 2012 and a reasonable retirement date, since he is probably no longer employable as a priest due to the ACA's action -- plus the cost of medical care and counseling for him and his family as a result of the ACA's campaign of character assassination and harassment.

This is a complex case, and the strategies for collecting damages would be extensive and diverse. Some pockets would be deeper than others, but it would probably be necessary to pursue all the individuals and entities here:

  • The estate of Anthony Morello
  • The ACA Diocese of the West as a corporation
  • Other officers of the ACA Diocese of the West as individuals
  • Brian Marsh, Stephen Strawn and Owen Williams individually as episcopal visitors to the ACA-DOW
  • Owen Williams individually as "pastor" of the parish while under ACA control
  • Frederick Rivers individually as "Rector" of the parish while under ACA control, as well as in his role as Vicar General DOW
  • The Anglican Church in America as a corporation
  • Each member of the ACA House of Bishops as individuals
  • The members of the Bush vestry as individuals
Some people and entities might be covered by insurance, although others probably would not be, the specific coverages will vary with each policy, and the amounts might well be subject to caps. The ACA's insurers might fight any claim by the ACA bishops on the basis that they were acting outside the scope of their authority -- all of this will depend on the individual policies. There are probably few individuals outside the insurers who could come anywhere close to paying the damages in question. Nevertheless, all would need to defend themselves and hire attorneys, and they would be subject to the anxieties and emotional effects resulting from long-term litigation. The consequences for most of the people involved here are potentially catastrophic.

A no-brainer consequence for the ACA and the Diocese of the West would be the seizure of pretty much every tangible asset, minimal as these might be -- but they would include all bank accounts and income streams. The ACA and several of its dioceses would probably just cease operation. If I were the APA, I would figure this into any consideration of merger.

And it's probably too late to avert these consequences. That's why it's called a train wreck. This will be disturbing to watch.

Tuesday, December 9, 2014

The Standing Issue

Based on what I've been told by informed individuals, the elected vestry's attorneys appear to have filed a motion for summary judgment in the retrial of the Rector, Wardens, and Vestry case on December 5. The motion is based on the question of the ACA's standing (as well as, possibly, the question of the Bush vestry's standing). In effect, the claim is that the ACA has no interest in the case, since St Mary of the Angels was not a part of the ACA in April 2012. The evidence for this would probably be along these lines:
  • St Mary of the Angels parish voted, in a valid election, to enter the Patrimony of the Primate in January 2011. This election has never been challenged by any party.
  • On February 5, 2011 the ACA Chancellors (that is, the lawyers for each ACA diocese) issued a letter stating
    According to our canons, those Bishops, clergy and parishes who leave for another jurisdiction, such as a Roman Catholic Ordinariate or the so-called Patrimony of the Primate, have, at this time abandoned the communion of this church and the ACA.

    With deep regret, the ACA declares that they are no longer a part of the ACA, nor do they have authority of jurisdiction in any ACA diocese or parish, and ordinations and other ecclesiastical actions performed by them are null and void effective as of January 1, 2011.

    It should be stated clearly that there is no provision in the Constitution and Canons of the Anglican Church in America for an entity such as the Patrimony of the Primate. The Patrimony of the Primate is not part of the ACA.

  • The ACA canons allow parishes to leave the ACA with their property. "Abandoning communion" in the chancellors' letter is s fancy way of saying they've left the ACA.
  • On January 10, 2012, the ACA House of Bishops issued a letter reiterating that parishes that had joined the Patrimony of the Primate had left the ACA, and required any parish not wishing to enter the US Ordinariate and wishing to rejoin the ACA to reapply.
  • St Mary of the Angels, however, did not apply to rejoin the ACA, and subsequent to the January letter, voted an additional time to join the US Ordinariate by a required supermajority. This election was never challenged by any party.
  • The ACA never acted to seize any other former parish that had joined the Patrimony, whether it had elected to join the Ordinariate or not.
  • Nevertheless the ACA acted uniquely to seize St Mary of the Angels in April 2012, notwithstanding it had repeatedly claimed the parish was outside its jurisdiction.
  • The ACA designated a new vestry in April 2012, removing members in violation of California corporation law and designating new members who were not eligible to serve on the vestry according to the parish bylaws. This ACA-designated vestry has no standing in the case.
  • Once again, the parish voted by required supermajority in August 2012 to leave the ACA.
I've been told that the judge in the new trial has asked for written arguments on this motion by January 9, 2015 and will hear oral arguments on January 16. It seems to me that these facts are extremely persuasive, and in fact both Judge Jones in May-June 2012 and the California appeals court recognized that they were extremely persuasive as well. The ACA's position has consistently been only that a court can't consider them, a view that has been rejected at the appeals level twice. It appears that separately, the Church Mutual Insurance Company has also determined that the Bush vestry has no standing in its case.

It may be that this matter will be resolved more quickly than might be expected.

Monday, December 8, 2014

The Other Lawsuit Again

Last September, I discovered another lawsuit relating to St Mary's: the alternate-universe vestry of Mrs Bush and the squatters, with some significant et als, are suing the Church Mutual Insurance Company. At the time, I could only conclude that they want money. It turns out that yes, they do. Yesterday afternoon I had a very productive chat with individuals knowledgeable about the legal issues surrounding the parish.

I was especially puzzled that Carolyn Morello, Anthony Morello's widow, was among the et als suing Church Mutual. I wondered if there might be some death benefit they felt she was entitled to following Morello's sudden demise early in 2013, but that wouldn't explain the presence of Langley Brandt among the et als, since Mrs Brandt, while a prominent member of the dissident faction, is not on the squatter vestry.

My informants made things plain: the et als have pledged personal assets to pay their legal bills. However, they believe Church Mutual should pay those bills instead. It's that simple. Thus the lawsuit. The et als, Langley Brandt, Marilyn Bush, Patrick Omeirs, and Carolyn Morello, are an odd lot: Mmes Bush and Brandt are in fact well off (although their pledges to the parish did not reflect that when I was briefly treasurer), so the legal bills would probably not affect their lifeatyles directly, although they would certainly deplete their estates.

Patrick Omeirs, on the other hand, is a sometime actor who once appeared in an episode of Dynasty, and he is not in that league. Anthony Morello lived in a mobile home. That either would pledge personal assets to pay substantial legal bills is much more puzzling. My informants, however, say that Carolyn Morello appears among the plaintiffs because Morello's estate (consisting mainly of a mobile home), which passed to her, is encumbered by legal bills.

Church Mutual has presumably refused to pay these bills, thus the lawsuit. My informants, who are familiar with the insurance policy, say that in any case, the policy covers only legal expenses, such as filing fees or court reporters, and not lawyers' fees. In addition, there is a fairly low cap on this amount. (My wife, a retired attorney, has estimated that the squatters could have been responsible for half a million dollars or more in their own attorneys' fees, but this would not be covered under the Church Mutual policy.) My informants, shaking their heads, say that the cost of filing the suit against Church Mutual would exceed the amount the squatters could expect to gain if they won.

Church Mutual presumably refused to pay any amount in the first place based on a position that the Bush-ACA appointed vestry is neither the policyholder nor the insured, which is the elected vestry. They are now fighting the lawsuit on the basis that the Bush-ACA group does not have standing to sue. We will hear more about the standing issue in tomorrow's post. However, the fact that the Bush group filed suit at all suggests they are expecting to have their attorneys' bills reimbursed as well, however unrealistic this may be.

This information confirms my current theory of the case: Morello, Bush, Brandt, Omeirs, and the ACA expected a quick, trouble-free resolution and seizure of the parish beginning with the temporary restraining order in May 2012. My wife is of the opinion that Morello, Bush, Brandt, and Omeirs pledged personal assets to pay Lancaster and Anastasia because if they encumbered parish property, this would complicate a sale, which they expected to take place quickly following an easy seizure. Morello and Bush, however, later found that the elected vestry had itself pledged parish assets to pay their own attorneys (which they were entitled, and indeed obligated, to do) and went ballistic once they heard about it -- this was one more unexpected complication in their scheme.

Plainly by the summer of 2013, the ACA and the alternate-universe vestry had recognized that things weren't going as they'd expected and fell back on a clear Plan B, which was to try to get Church Mutual to clean up their mess. But even by late 2012, Strawn and Marsh were trying to distance themselves from the plan, putting Morello in full charge -- he had skin in the game, after all. Given his state of health, this probably killed him.

Sunday, December 7, 2014

Further Paper Trail

Someone connected with the upcoming retrial of the Rector, Wardens, and Vestry case tells me
on Saturday, February 5, 2011, the ACA officially pronounced that the Patrimony of the Primate was OUTSIDE the ACA's Constitution. It is an Australian entity, not an American one.
As a result, the announcement from the ACA House of Bishops dated January 10, 2012 that the Patrimony of the Primate has "ceased its operations" is meaningless, since the ACA had already declared that it had nothing to do with the Patrimony. As an Australian entity, it was under either the TAC or the ACCA, not the ACA in any case. This is further support for the elected vestry's contention that, once the parish had voted to join the Patrimony in early 2011 and placed itself under the direct authority of John Hepworth, and later David Moyer, it had left the ACA, and that by its own repeated statements, the ACA recognized this.

The parish, in short, was not part of the ACA when the ACA tried to seize it in April and May 2012. In addition, the ACA had no jurisdiction to inhibit or depose Fr Kelley, and Marsh and Strawn knew this. This could have interesting implications should Fr Kelley pursue any question of defamation against them, although I simply don't know his intentions in this matter.

Lancaster and Anastasia were able to get around this and other problems in the first trial by arguing that these were ecclesiastical matters in which the court couldn't involve itself. (I don't believe the elected vestry's attorneys were aware of the February 5, 2011 action at that time, although they were aware of the January 10, 2012 announcement, as well as Strawn's e-mail to Morello acknowledging that the ACA did not have authority to remove or appoint vestry members. Judge Linfield felt he could not consider these items at the time.)

The appeals court's decision sending the matter back to trial based on neutral principles of law means that both the February 5, 2011 and January 10, 2012 declarations will become part of the evidence before the court.

Thursday, December 4, 2014

Remittitur

On December 3, the California Court of Appeal issued a remittitur in the Rector, Wardens, and Vestry case, sending it back to the trial court for determination on neutral principles of law. (My creaky Latin says remittitur means "it is sent back". In California, this is the equivalent of a mandate in federal court.)

This is yet another piece of bad news for the dissidents and the ACA. It's fairly plain that Lancaster and Anastasia were never prepared to argue the case based on neutral principles of law, since the facts are all on the elected vestry's side. After January 2012, the ACA never had jurisdiction to inhibit or depose Fr Kelley, remove or appoint vestry members, or seize the parish building, since it had dissolved the Patrimony of the Primate, and the parish membership voted several times by required supermajorities to leave the ACA. (It never had legal or canonical authority to remove or appoint vestry at all.)

The problem for the ACA and the Bush "vestry" is that they have a tiger by the tail. I think it's a safe bet that whenever the elected vestry gains physical access to the building, it will immediately be plain that assets have been removed, and it will be a problematic issue ever to locate or recover them. Access to financial records will pose similar problems. The informed speculation by the Armchair Detective on the Freedom for St Mary site suggests a criminal conspiracy is not out of the question.

While it would normally be a prudent move for the dissidents and the ACA to begin looking toward a settlement, I don't think this can happen, because it's simply too late for them to put things back before anyone can ask the wrong sorts of questions. A settlement would be negotiated on the assumption that parish resources, less legal fees and ordinary expenses, have been conserved. I frankly don't think that's what's been done.

If I were Bishop Grundorf of the APA, I'd be slow-walking negotiations with the ACA over merger. Give it another year and Marsh and Strawn will be out of the picture, and a good many ACA parishes will simply go over to the APA of their own accord.