Friday, January 30, 2015

Here's A Conundrum

From what I can see, the worst possible outcome for the elected vestry from the April 2015 trial would be for Lancaster to find a fatal defect in the August 6, 2012 election that would leave the parish in the ACA. I say "leave the parish in the ACA", because even if that were the case, the ACA would have very little practical control over the parish.

The court cases have already established (for the third time) that the parish both owns and controls its property irrespective of affiliation, and the elected vestry is its board of directors. Some ecclesiastical issues, like hiring a rector, would require a bishop's approval, but if (for instance) the elected vestry decides to retain Fr Kelley in his position (and he's been in that position since his hiring in 2007), there isn't much an ACA bishop can do about it, other than stand on the sidewalk and remonstrate.

If an ACA bishop demands a parish tithe, the elected vestry can simply itemize damages from the ACA's seizure of the parish and suggest he charge the tithe against the parish's account. And for that matter, nothing would prevent the elected vestry from calling a new parish election revising the bylaws again.

Nor would staying in the ACA prevent the elected vestry from suing the ACA and individuals for damages resulting from the seizure.

The problem for the ACA is that both Judge Linfield and the California appeals court have made findings of fact that the elected vestry is the vestry, period. My wife expects some type of motion during the April trial for the judge to issue an order restoring occupancy of the building to the elected vestry,

While that's the worst possible outcome, I've also got to rely on the adage that handsome is as handsome does: it's dangerous to underestimate any opponent, but in my view, Lancaster & Anastasia aren't set up to do new hard work at this stage of the case. Their response to the unemployment appeals decision was to use the same old argument, that it's an ecclesiastical issue, which isn't going to fly. I don't know what they'll do about the August 6, 2012 election, but given their record, I don't expect great things.

Thursday, January 29, 2015

A Closer Look At The Cases -- IV The Forcible Detainer Case

Forcible detainer is
A summary and expeditious statutory remedy used by a party entitled to actual possession of premises to secure its possession, where the occupant initially in lawful possession of it refuses to relinquish it when his or her right to possession ends.
Los Angeles Superior Court case BC487079 covers the opposing efforts by the St Mary's elected and ACA-appointed vestries to eject each other from the parish property. It reached the appeals court due to earlier errors by two judges. The first error, by Judge Jones in May 2012, was, as she expressed it, to involve herself in an ecclesiastical issue, which was the question of whether the Patrimony of the Primate had been properly dissolved. She reversed herself and dissolved the temporary restraining order she'd granted against the elected vestry. However, she then decided that she couldn't involve herself any further in the case, and she did not act to remove the ACA-appointed vestry from the property, since they refused to leave it voluntarily.

This resulted in the elected vestry's forcible detainer action, and this in turn raised the question of who was the lawful owner of the property. Los Angeles Superior Court Judge Michael Linfield attempted to resolve this during a summary judgment hearing on August 22, 2012, ruling that the control of the parish property, including who was rector and who was on the vestry, was an ecclesiastical issue in which the court could not involve itself. The practical result was to leave the ACA and its appointed vestry in control of the parish. Many observers, as well as the elected vestry's counsel, felt this was an absurd decision, and eventually the appeals court agreed.

The appeals court noted,

[I]n its most recent decision involving a church property dispute, the [US Supreme] court stated, ‘There can be little doubt about the general authority of civil courts to resolve this question. The State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively.’
It concluded,
[W]hile courts must avoid deciding questions of religious doctrine when presented with disputes between a local church and a national church, courts have a duty to examine the governing documents of the local and national churches to determine whether the dispute at issue may be resolved without reference to religious doctrine, and can instead be resolved by application of neutral principles of law.
The appeals court then went on to review the St Mary's articles of incorporation and bylaws, the composition of the vestry, and the vestry's eligibility to hold an election revising the bylaws. Although the elected vestry and Fr Kelley had argued that the ACA's chancellors had ruled the Patrimony was a separate jurisdiction, and in announcing the dissolution of the Patrimony, the ACA House of Bishops specifically said that parishes would need to apply to rejoin the ACA, the appeals court apparently agreed with Judge Jones in the initial action that this was an ecclesiastical issue in which the courts could not involve themselves.

As a result, the appeals court focused on the issue of the August 6, 2012 vote to amend the parish bylaws and leave the ACA. However, the court also affirmed Judge Linfield's factual finding of the vestry membership as determined by the February 5, 2012 election. It went beyond that finding to say that, following review of the ACA Canons and the parish bylaws, Anthony Morello and the ACA had no authority to remove or appoint vestry members. As a result, it determined that as of August 6, 2012, the vestry consisted of the members elected on February 5, with some changes due to resignations and reelections.

The appeals court decided that there were two issues in the August 2012 trial with Judge Linfield, first, whether the ACA's jurisdiction was an ecclesiastical matter in which the court could not involve itself, and second, whether the August 6, 2012 vote to leave the ACA was valid. Since Judge Linfield wrongly decided the case on the first issue, the trial never reached a decision on the second issue, and the appeals court sent the case back to trial on the second issue.

It will be up to the new trial in April 2015 to determine whether the August 6, 2012 vote was valid.

Wednesday, January 28, 2015

A Closer Look At The Cases -- III The Unemployment Case

I covered this case in some detail not long ago, and I won't repeat myself here. The only thing to point out is the context: from David Moyer to the first judge in the "initial action" to the unemployment appeals board, there is a consensus that there is simply no evidence to support any charges of misconduct against Fr Kelley. In other words, there was no reason for the ACA ever to involve itself in this matter.

The combination of what the first judge acknowledged was an error in granting the temporary restraining order that briefly gave the ACA possession of the parish in May 2012 and the persistence of the dissidents and the ACA in pursuing a non-existent case has led to injustice and an enormous waste of public and private resources. The detachment of the ACA House of Bishops in this matter is inexcusable.

Tuesday, January 27, 2015

A Closer Look At The Cases -- II The "Initial Action"

I've never seen a copy of the actual complaint in the "initial action", Los Angeles Superior Court case RC485402. According to both the court's ruling on June 13, 2012 and the California appeals court, the initial complaint filed by the ACA and its appointed vestry on May 25, 2012, alleged "ejectment, conversion, tortious interference and other allegations of jurisdictional impropriety". As far as I can tell, these allegations are basically fancy names for the same charges made in Bishop Strawn's letter of inhibition to Fr Kelley of April 2, 2012. These were
  1. Non-payment of taxes;
  2. Misuse of funds, transferred general funds to his discretionary account without an accounting.
  3. Appointed non-members to the Vestry.
  4. Forced resignation of the treasurer.
  5. Used discretionary funds for purposes of withholding taxes,
  6. Paid a dental bill from the general fund,
  7. Received a letter of no-confidence from a majority of the Vestry, but ignored it and constituted a new Vestry.
  8. When concerns of fraud were brought to his attention, he forced individuals to resign, and
  9. Refused to allow the auditor to discuss any issue with the vestry.
However, the California appeals court noted in its opinion that "the [original trial judge] found there was no competent evidence to support the claims that Father Kelley misappropriated church monies or otherwise engaged in improper financial behavior". A detailed analysis and refutation of the charges in the letter of inhibition can be found here.

The list of particulars in the letter of inhibition was developed, as far as I can surmise, over the course of 2011, by a group of six to eight parish dissidents. David Moyer, when he was TAC Bishop of the Patrimony and ordinary for the parish, made at least two trips to Hollywood during 2011 to investigate inchoate versions of this list and concluded that they were vague and unsubstantiated. Consequently, the group went shopping for a more sympathetic ear and found ACA Bishop of the Missouri Valley Strawn in late 2011 with their finalized list, notwithstanding Strawn had no jurisdiction.

Those familiar with the circumstances (and I am, with some of them) recognize that the allegations are either wildly counterfactual and easily disputed, or are simply impossible. Among other things, allegations like transferring general funds to a discretionary account simply can't happen in a parish in nearly any denomination unless at least three people collaborate. There is no evidence that any such thing ever took place.

That Stephen Strawn, who represents himself as a "bishop", would give credence to many of these charges suggests he's completely ignorant of how ordinary parish finances operate. As a sometime parish volunteer in both Episcopal and Anglican parishes, I seem to have acquired a better understanding of parish finances than Strawn, which is disturbing.

The rules for civil discovery in California make it impractical to move for discovery of the ACA's evidence until just before trial; at any earlier time, the plaintiff can simply say he doesn't have anything, and the defense's one shot at discovery is wasted. Every indication, however, is that the ACA and the elected vestry have not just weak or ambiguous evidence, but no evidence at all to support the allegations in their complaint.

However, there is an additional problem with the ACA-appointed vestry's case. The California appeals court's opinion says,

Members of the Vestry can only be elected – by the Parish members at an annual meeting, or by the Vestry itself if there is a vacancy between annual meetings. (St. Mary’s Bylaws, Art. VI, §§ 2, 4.) There is no provision in the bylaws, or in the ACA Constitution and Canons that allows the Rector to appoint members to the Vestry. Thus, to the extent Canon Morello purported to appoint anyone to the Vestry, that appointment was invalid. Accordingly, at the time of the vote to amend the articles and bylaws, the remaining members of the Vestry were Hawkins, Jones, Pouncey, Levin, Yeager, and Bush, and possibly Merrill
In other words, those are the valid vestry and constitute that part of the "Rector, Wardens, and Vestry" of the parish. There is a serious question as to whether the APA-appointed group representing itself as rector, wardens, and vestry has standing to bring its suit. It appears that, even without going to the question of evidence, the elected vestry's counsel is going to move for summary judgment on the basis that the plaintiffs do not have standing to sue. My impression of Judge Strobel's remarks in the January 16 post-remittitur conference suggests that she was inviting such a motion.

I don't believe the ACA has much of a chance in the "initial action". We'll have to see what happens in April.

Monday, January 26, 2015

A Closer Look At The Cases -- I

This has been a long and multifaceted saga. I've looked at various aspects of the story as they've drawn my interest, up to now especially the precise nature and deeply troubled history of the "Anglican continuum" and what we can discover from the public record about the generally disreputable people connected with the Anglican Church in America. But recently, more has been coming to light about the nature of the legal cases against Fr Kelley and the elected vestry. I want to take a closer look at those cases, naturally from my own non-attorney perspective.

There are basically three cases (strictly speaking, more, but we'll group them into a set of three). The first, Los Angeles Superior Court case RC485402, is what the California appeals court refers to as the "initial action" and what I've been calling the civil theft case against Fr Kelley. The second, Los Angeles Superior Court case BC487079, is the "unlawful detainer case", actually a suit and countersuit, in which the elected and ACA-appointed vestries each claim ownership of the parish property. This is the case that the elected vestry successfully appealed in 2014, which was sent back for retrial. The third, Los Angeles Superior Court case BS152017, is the unemployment insurance case, in which, the ACA-appointed vestry having exhausted its appeals with the California unemployment compensation board, is suing the board to overturn its ruling that Fr Kelley is entitled to unemployment benefits.

It's worth pointing out that only in the "unlawful detainer case" has Fr Kelley until recently had pro bono legal assistance. Until December 2014, he was fighting the "initial action" and the unemployment case in pro per, representing himself, although he had the very able and conscientious assistance of his senior warden, Dr Allan Trimpi. Representing himself, he has been able to succeed in arguing his administrative case with the unemployment commission, and on the "initial action", he has fought the ACA and the Bush vestry to a standstill, even though they are represented by Lancaster & Anastasia LLP. The successful administrative case is significant beyond the money involved, since it establishes a factual record that is damaging to the ACA-appointed vestry's position in the "initial action". This is a remarkable achievement and speaks well of both Fr Kelley and Dr Trimpi. In the "unlawful detainer case", the elected vestry was represented until December 2014 pro bono by TroyGould PC. With the successful appeal, they withdrew from the case.

At the start of the appeals process in the "unlawful detainer case", the California appeals court declared that the "initial action" and the "unlawful detainer case" were related. With the elected vestry's successful appeal of its case, the appeals court sent the two cases back for trial/retrial together. This trial will begin on April 14, 2015. Fr Kelley and the elected vestry will have pro bono representation from Greer & Rineer LLP in both cases at issue during this trial. A pre-trial conference in the unemployment insurance case is scheduled for February 25, 2015. However, the defendant in this case is the California unemployment board, not Fr Kelley, although he is a "party of interest". He will not be arguing any case in this trial and will not need representation, since a state's attorney will represent the state.

I think this record alone goes some distance to correct the defamatory impression that the ACA has tried to create about Fr Kelley and his case.

In forthcoming posts, I will discuss these cases in detail.

Sunday, January 25, 2015

"Why St Mary Of The Angels Is Important"

This was the title of a post on one of the Anglo-Catholic current-events blogs that flourished in the wake of the Portsmouth Petition and Anglicanorum coetibus. Its thrust was that St Mary of the Angels, harbinger of the "continuum", early aspirant to Anglican Use within the Roman Catholic fold, would, after decades of frustration, see its vindication as a jewel of the forthcoming US Ordinariate and take its rightful place as an exemplar of everything Anglo-Catholicism would become.

I did a search on that string, and variations of it, this morning, and nothing now appears. I don't know if that blog still exists, although if it does, it's probably inactive, and that post may wisely have been taken down during some subsequent time of mature reflection. Nearly all of those triumphalist Anglo-Catholic blogs are inactive or gone altogether; only a few persist, although they've drifted off into triviality. They avoid the subject of St Mary of the Angels like the plague: the parish, among the few bloggers still willing to call themselves Anglo-Catholic at all, is like the figures airbrushed from photos of the Stalinist Politburo.

The fact is that Anglo-Catholicism has become a dead letter. The reason is 2012. The Ordinariate of the Chair of St Peter was erected on January 1, but as of this morning, if I google the words "ordinariate disappointment", I get 85,900 results. The same year marked the collapse in scandal of the Traditional Anglican Communion, which had considerable prestige following the Portsmouth Petition, but was soon enough revealed to be a pretentious front verging on the fraudulent.

2012 was also the start of the period in St Mary's history marked by the Third Lawsuit. My own view is that the events and people surrounding the Third Lawsuit are just as important as those surrounding the First and Second Lawsuits, and they tell us something important about the state of Christianity now. I don't believe for an instant that Pope Benedict meant Anglicanorum coetibus as a mere put-up-or-shut-up gesture, but insofar as we can very dimly discern the purposes of the Almighty, perhaps that's what He Himself may have had in mind. Anglo-Catholics have, in response to the implicit challenge, shut up.

St Mary of the Angels has been involved, sometimes indirectly but more often directly, with most of the major figures connected with where Anglo-Catholicism now finds itself. The names include Louis Falk, David Moyer, William Stetson, and Jeffrey Steenson; and at only slightly farther remove, John Hepworh and John-David Schofield, as well as the more comical figures of Andrew Bartus, Anthony Morello, Owen Rhys Williams, Stephen Strawn, and Brian Marsh. Anglo-Catholics, as far as I can see, would prefer not to think of nearly all these people.

Anglo-Catholics, if the movement is going to survive as a wing of conservative Christianity (it's doing well in the very liberal Anglican fold) are going to have to do some serious re-examination. So far, I'm not seeing it. An unwillingness to address the subject of St Mary of the Angels Hollywood and the responsibilities of both the "continuum" and the Ordinariate in creating the disaster of the Third Lawsuit is a major symptom.

Saturday, January 24, 2015

Beyond Impaired Judgment

Over the past several months, I've been trying to work out, both for myself and for the record, a theory of what's going on here. A closer look at court documents, both recent and from earlier hearings, is giving me a better picture. A filing by Fr Kelley from October 18, 2013 in case BC485402 (which as far as I can determine is the case I've been referring to as the civil theft case) covers two major issues.

The first is the apparent effort by Lancaster & Anastasia to avoid making proper service of court papers to Fr Kelley. (They appear to have done this by sending them with metered postage, giving a postmark under their control, but delaying mailing until days later, or not mailing the material at all.)

The second issue is an enumeration of the worst acts by the parish dissidents following the ACA's attempt to seize the parish. I was generally aware of many of the ones enumerated, but not all of them, and the list altogether is something astonishing (scroll to Exhibit C-1 in the link):

  • Placing a phone message impersonating an emergency room nurse at a local hospital, falsely informing a vestry member's elderly relative that the member had died in a car crash
  • Verbal and telephone threats of arson and vehicle sabotage
  • Physical assaults against two parishioners
  • What appears to have been a vehicular assault on a member of the elected vestry
  • Unsubstantiated complaints of child and elder abuse against elected vestry members, determined after investigation to have been unfounded.
The picture here is something beyond ordinary parish factionalism, which might normally involve verbal put-downs, whispering campaigns, snubbing, or even occasional angry outbursts -- but would not reach the level of assault, telephone harassment, telephone hacking, serious threats of property damage, and other potentially criminal conduct. The counsel for the dissidents, despite repeated requests, was unwilling or unable to exercise any restraint on their clients. Worse, it appears that ACA bishops have tacitly encouraged this behavior and never done anything to speak against it, moderate it, or disavow it.

I'm beginning to conclude from this sort of record that counsel's judgment is seriously impaired -- one explanation for using an office postage meter to mislead about a mailing date might be to disadvantage the defendant by denying timely service. Another might be a need to conceal that the paperwork had not in fact been prepared in a timely fashion. I'm inclined to think either explanation could be equally valid, and neither, if true, speaks well for counsel.

I'm beginning to wonder if the ACA bishops' judgment is seriously impaired as well. The ACA bishops, given the record of the past several years, have been behaving recklessly through remarkable detachment, endangering their reputations and effectively doubling down on the future of their denomination. This simply isn't pastoral conduct. Whether this can be explained by ordinary obstinacy and obtuseness, or whether some other condition facilitates it, is a matter for speculation.

My wife wondered the other day what motivated some of the parish dissidents in some of their own remarkably reckless conduct. "Maybe it's some sort of feeling that they're exalted or omnipotent," she said. I noted that there are certainly ways you can get to feel exalted and omnipotent, depending on what you ingest. I can only conclude that we're beyond explanations derived from ordinary inadvertency.