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.

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.

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.

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.

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.

"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.

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.

I'm Beginning To Get A Clearer Picture Of The ACA's Case

What Lancaster is doing is making allegations and then supporting them by attaching a copy of the ACA's own unsupported charges against Kelley as evidence. The problem is that in an ordinary court of law, they aren't even admissible, since they're hearsay. "Someone says Fr Kelley engaged in criminal or immoral acts, and we agree."

I had been wondering for over a year what evidence the ACA had against Fr Kelley in the civil theft charges, and it's becoming more and more clear that when they get to trial, they're going to do what they did in contesting the unemployment claim: submit a copy of the unsupported hearsay in the ecclesiastical trial and claim it's a "declaration". This isn't going to fly.

I very much doubt that they're going to provide anything else to contest the August 6, 2012 election, either. A major difficulty is that none of the Bush vestry has been willing to provide declarations or depositions, so its doubtful we will get any sort of new testimony from their side. I can only speculate as to why they won't testify or provide declarations -- either they just don't want to be bothered and think things will go their way without any effort, or they don't want to be sworn or cross-examined.

What I'm beginning to see is that Lancaster doesn't have a case. His clients will probably be thrown out of court for lack of standing in the civil theft case, but if they aren't, the evidence they seem to want to present will be inadmissible. The same may well apply to any efforts on their part to contest the forcible detainer action.

Lancaster simply hasn't been working very hard. His clients, both the Bush group and the ACA, appear to be living in a dream world. I'm starting to wonder just what it is that's impairing everyone's judgment here. If there are any adults left in the ACA, they should be asking the same question.

More Information On The Unemployment Insurance Trial

I mentioned on Monday that the Bush appointed "vestry" is appealing the California Unemployment Insurance Board's February 2014 ruling that the Bush group must pay unemployment benefits to Fr Kelley, since the appeals board's finding was that Bush et al had not proven misconduct on Fr Kelley's part. Following this ruling, which is final for the unemployment appeals process, their only option is to sue the Unemployment Insurance Appeals Board in superior court.

They had six months after the date of mailing to do this. The notice of the appeals board decision was mailed on May 20, 2014.They filed suit via Lancaster & Anastasia on November 17, 2014, just under the wire. Of course, it was on November 12, 2014 that the California Supreme Court refused to hear the Bush group's appeal of the appeals court's decision. Among other things, this says Lancaster & Anastasia are in reactive mode, trying to plug leaks in the dike as they pop up. And there have been a lot of leaks.

My wife used to practice employment law, and she notes that collateral administrative findings, such as the unemployment appeals board's finding that there was no proof of Fr Kelley's misconduct, can damage an employer's court case. Thus it's critical for Lancaster & Anastasia to get the administrative finding out of the record. Fr Kelley in this case isn't the defendant, it's the state unemployment appeals board. It isn't the money here, as far as Bush et al are concerned, it's the administrative record, which they absolutely must get rid of prior to the trial for civil theft against Fr Kelley.

(Actually, I'm not sure there's time for that, given that the February 25 hearing on the unemployment case is only a pretrial conference, which will schedule the actual trial for a later date -- but the "theft" trial will be part of the Rector, Wardens, and Vestry cases coming up in April, probably sooner than the unemployment trial. More bad news for Bush.)

My wife still has an account to get court documents, so we pulled the petition in this case (BS152017). Here's the crux of Lancaster's response to the administrative finding:

Kelley was not, however, "wrongfully terminated" as he stated, the matter of his termination being an ecclesiastical question reserved to the highest ecclesiastical authority of the Anglican Church in America. . .

Lancaster & Anastasia then reiterate the record of Fr Kelley's kangaroo proceeding, including the various unfounded and defamatory allegations of "illegal or immoral conduct". Their complaint is that the administrative board erred in applying ordinary rules of evidence in determining that the allegations of misconduct were unfounded -- what they should have done was take the bishop's word for what had happened. (I'm not kidding.)

Unfortunately, what they did was just copy their "highest ecclesiastical authority" arguments in front of Judge Linfield in the original trial and in front of the appeals court, and those arguments were rejected at the appellate level. My wife thinks Lancaster wrote the petition before the appeals court ruling and simply filed what he'd already written.

What observers of the case think needs to happen is for this case to be moved from Department 86 (not a good number for that case anyhow!) to Department 32, where the other Rector, Wardens, and Vestry cases are being tried. In addition, the state's attorney defending the unemployment appeals board needs to be made aware of the appellate ruling on the Rector, Wardens, and Vestry cases, where the same argument was rejected.

Efforts are being made to identify and contact the state's attorney handling the case, although he or she may well be conscientious enough to find the appellate ruling independently. The judge in Department 32 will probably not be pleased to see this argument wandering around like the undead.

The petition strongly suggests to me that Lancaster is basically out of gas and has no other arguments to support his case. My guess is that, if the civil theft case isn't thrown out on the basis that the Bush group lacks standing to sue, Lancaster will have to argue the same thing he argues in the petition -- ordinary rules of evidence can't apply; the court must defer to the bishop and the ACA kangaroo as the finders of fact. I don't think that's going to play well before this judge.

An Open Letter To Presiding Bishop Grundorf Of The APA

Bishop Grundorf, I notice belatedly that you very generously provided a Christmas message to the ACA Diocese of the West on their web site. This is particularly generous of you, since Presiding Bishop Marsh doesn't appear to have given an equivalent message to any ACA jurisdiction. I certainly hope Bishop Marsh continues in good health, and that he is not so preoccupied with other matters that he has been somehow less in a position to perform his own pastoral obligations.

However, as generous as this gesture is, I can't help remembering the old proverb, he who sups with the devil should have a long spoon. Under your name on your Christmas message, an ACA webmaster has added the notation, "The APA and ACA are affiliated with each other." I assume this refers to the intercommunion agreement between the ACA and the APA and the so far inconclusive discussions regarding merger between the denominations.

I assume I don't need to remind you that the Standing Committer of the APA Diocese of Mid-America (DMA) says it cannot proceed with merger talks with the ACA because of "grave concerns" about the present leadership of the ACA. I'm very sorry to say that, as a former parishioner at St Mary of the Angels Los Angeles, a parish which the ACA's present leadership insists is under its jurisdiction, the concerns of your DMA Standing Committee appear to be fully justified.

I would like to warn you about the consequences of giving ACA bishops any impression that they might be entitled to take any sort of action over an APA parish. I'm sure this is reflected in the APA-DMA Standing Committee's concerns. Every indication we have from the ACA House of Bishops' conduct is that it will not hesitate to take actions which clearly violate the denomination's canons, from resorting to lawsuits to removing entire vestries to naming individuals to non-existent offices like "Vicar General" and then giving them unspecified but apparently unlimited authority to act on their behalf.

Let me suggest to you a potential set of actions that ACA bishops have already made not once, but twice, which have been endorsed by the full ACA House of Bishops, and which could very credibly happen again:.

• An APA parish, let's call it St Ipsydipsy in Daisy Grove, Kansas, has a small group of dissidents.
• The APA Bishop of Mid-America carefully reviews the controversy and supports St Ipsydipsy's current Rector, doing as much as he can to reconcile the parties.
• The Kansas dissidents still aren't satisfied, and indeed are angry with their APA bishop.
• They decide an ACA bishop will give them a more sympathetic hearing, and in fact they contact the ACA Bishop of the Missouri Valley. He listens to their grievances and decides to rectify an obvious injustice.
• The dissidents work with the ACA bishop, hire an attorney, find a judge who isn't giving the matter full attention, and arrive at St Ipsydipsy parish on a holiday weekend armed with a court order to seize the parish.
• The ACA bishop announces that since the denominations are more or less about to merge, he has just as much authority over St Ipsydipsy as any APA bishop, appoints a new vestry in violation of canons, excommunicates large numbers of APA parishioners, appoints a new priest-in-charge, and puts the whole thing under a "Vicar General" who has unspecified duties and authority.
• The ACA House of Bishops unanimously endorses this action.
• Years of litigation ensue, which depletes the resources of both the ACA and APA and eventually destroys both denominations.

At least one ACA diocesan bishop has engaged in this pattern of activity, not once, but twice, with the full support of the ACA House of Bishops. It's worth reminding you that this ACA bishop, despite a ruling from the ACA's chancellors that the TAC Patrimony of the Primate was a separate jurisdiction from any ACA diocese, nevertheless interfered with a Patrimony parish, while that jurisdiction was still in existence, and over the objections of that jurisdiction's bishop.

You simply have no assurance that, should an ACA bishop decide, as one already has, to ignore jurisdiction boundaries and seize an APA parish, Bishop Marsh or the ACA House of Bishops would resolve the matter in the interest of justice.

Bishop Grundorf, I caution you that your willingness to create any sort of appearance that the ACA and APA are somehow not separate jurisdictions is going to have unanticipated and disastrous consequences.

There'a Been A Big Change In The Case,

and it's only been sinking in for the last few days. To some extent, I'm only seeing implications of the change, which is at basis the elected vestry's successful appeal on the jurisdiction issue. However, I'm beginning to recognize that in addition to the jurisdiction question -- does the ACA have ecclesiastical authority over St Mary's, and did it ever have authority after early 2011 -- the successful appeal has also brought to light a separate employment law case, which isn't dependent on jurisdiction.

Let's repeat: legal strategies are confidential. I'm a non-attorney observer of these cases. Fr Kelley and the elected vestry share such information on their cases as they feel is appropriate with their friends and supporters. I have met Ms Greer, Fr Kelley's new counsel, only very briefly and have not discussed the cases with her. My remarks below reflect surmise from a friendly lay observer of the cases, and may not reflect the actual strategies or understanding of the facts motivating the parties or their counsel.

First, TroyGould PC, a highly competent prestige law firm, represented Fr Kelley and the elected vestry pro bono in the Rector, Wardens, and Vestry cases. With the successful appeal, they have withdrawn from the cases. Fr Kelley is now represented pro bono by Greer & Rineer LLP, which specializes in part in employment law. It's worth a quick comparison of the Greer & Rineer web site with that of Lancaster & Anastasia LLP. Mr Lancaster, I fear, strikes me as an old, lumbering whale, while Ms Greer, a petite lady, is nevertheless a hungry shark.

I said above that the California appeals court opened an entirely new door to the cases, the question of the Bush vestry's standing. As the judge in the post-remittitur conference observed on Friday, there are actually two issues: the jurisdiction issue, of whether the August 6, 2012 vote to leave the ACA was valid, but also the issue of whether the Bush vestry, whose members were appointed by the ACA, has any authority to act as the corporate board of directors. Whether or not the 2012 vote was valid, there is a separate question of whether any expenditures, contractual obligations, or representations to courts or other bodies like the unemployment insurance board, were valid. This problem exists irrespective of affiliation with the ACA, and is quite possibly worse for the ACA if the court finds it's still in charge.

My best guess is that Ms Greer is going to move for summary judgment on the question of standing in both the civil theft case, scheduled for trial in April, and the unemployment benefit case, scheduled for some type of hearing in February. In both cases, she will cite the California appeals court decision noting that the Bush vestry is not the valid corporate board and does not have authority to act on behalf of the corporation. The elected vestry, she will argue, is the valid vestry, since it was constituted following the procedures in the corporate bylaws, and nobody has ever challenged the validity of the election.

So the Bush vestry not only lacks standing to sue, but isn't even the employer, and this opens a whole new can of worms for Mrs Bush. Fr Kelley was employed by the valid parish vestry under a contract. The Bush group, claiming to have terminated Fr Kelley but without authority to do so, is a third party interfering with a valid employment contract, and it has the additional problem that they've been claiming to the unemployment board that they're the employer, when they aren't. Not only that, but while falsely claiming to be Fr Kelley's employer, they've made false allegations of misconduct against Fr Kelley.

So right off the top of my head, I can see several issues as a non-attorney observer of the case. One is tortious interference with an employment contract, which carries with it the potential for punitive damages in addition to consequential damages. Another is defamation, especially since, as she isn't the actual employer, any adverse statements Mrs Bush made against Fr Kelley are not privileged. Plus, since they aren't the valid vestry, you've got a major question of whether the parish's insurance would cover her acts, or those of any appointed vestry member.

An additional problem is that neither Anthony Morello nor his successor as "Rector and Priest in Charge" (whatever) Frederick Rivers was properly hired by the Bush vestry (and never hired at all by the elected vestry), meaning that none of their actions in those positions was valid, irrespective of affiliation with the ACA. I have the impression as well that it may have been Ms Greer who discovered that Anthony Morello's duties as "Vicar General" aren't covered by the ACA-DOW constitution and canons, which means that neither he nor Rivers may have been acting within the scope of their authority, and that raises interesting issues for the ACA's insurer. Bishop Marsh, where are your chancellors?

We're looking at a whole new abyss of catastrophe here for Mrs Bush and her heirs, not to mention the ACA.

Yet Another Lawsuit!

I was vaguely aware that there was an ongoing dispute regarding unemployment benefits resulting from Fr Kelley's constructive termination as Rector of St Mary's in April 2012. The final disposition of this case, at least as far as the California Unemployment Insurance Appeals Board was concerned, took place on February 2, 2014, in which the Board ruled that Fr Kelley was eligible for unemployment insurance benefits. The ACA appointed Bush vestry has filed suit against the Board in Los Angeles Superior Court in a further effort to appeal this verdict.

I was able to locate a copy of the appeals board decision at the Freedom for St Mary site. The whole story is remarkable and bizarre (as, for that matter, is what emerges from a perusal of the California appeals court's decision as well). The Bush vestry claimed that Fr Kelley was discharged for reasons of misconduct and was thus not eligible for unemployment benefits. The EDD originally agreed, but Fr Kelley appealed. The case seesawed back and forth for over a year, but the appeals board's final ruling was as follows:

"Misconduct connected with the work" is a substantial breach by the claimant of an important duty or obligation owed the employer, wilful or wanton in character, and tending to injure the employer. (Precedent Decision P-B-3, citing Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719.)

The employer has the burden of proving misconduct. (Prescod v. California Unemployment Insurance Appeals Board (1976) 57 Cal.App.3d 29.)

The employer did not produce a shred of evidence to support any of the allegations contained in the letter of inhibition which served as the notice of discharge. All evidence provided by the employer concerned activities which occurred after the claimant had already been discharged and thus could not serve as the basis for the discharge. Consequently we reverse the decision of the administrative law judge and find the claimant was discharged for reasons not amounting to misconduct for purposes of unemployment insurance benefits.

DECISION

The decision of the administrative law judge is reversed. The claimant is not disqualified for benefits under code section 1256. Benefits are payable provided the claimant is otherwise eligible. The employer's reserve account is not relieved of charges.

But this raises a very puzzling question. I assume Fr Kelley is eligible for 26 weeks of employer-paid unemployment, at about $450 per week, so the maximum St Mary's would have to pay him would be a little under $12,000. (It would not have to pay any federal supplement beyond that.) How much is the Bush vestry paying Lancaster & Anastasia LLP to pursue this matter in Los Angeles Superior Court? It's probably cheaper just to pay the claim.

My wife thinks the Bush vestry can't allow the factual finding of the appeals board, that there was not "a shred" of evidence of misconduct on Fr Kelley's part. Thus they're willing to spend any amount to try to suppress the record here, since they have a civil suit alleging theft against Fr Kelley that is still pending. As far as I can tell, the theft allegations in the civil suit are exactly the same as the misconduct allegations in the unemployment claim dispute.

However, the civil theft suit is on very shaky ground, given the problem of the Bush vestry's standing. The California Appeals Court has found that the Bush vestry is not valid. The standing issue would apply in this case as well.

A hearing is scheduled for February 25.

The ACA And The Alternate Universe

One of my favorite TV series is Fringe, which includes brilliant acting by John Noble, Leonard Nimoy, and many other very talented actors. (I keep wondering why Noble has never appeared as Lear or Macbeth.) The major premise behind the series plot is that there's an alternate universe just a little bit different from ours.

My wife and I are such Fringe fans that we're watching the whole series again from the start. Suddenly it dawned on me: the ACA is in an alternate universe. Brian Marsh is like William Bell/Leonard Nimoy: he travels between the two universes. Marsh can exploit the differences: the alternate ACA allows bishops to remove and appoint vestry members, for instance. When Marsh arrives in this universe, he simply applies the rules from the alternate.

Recently someone pointed out another difference in our two universes: in late 2012, the ACA House of Bishops named Anthony Morello Vicar General of the Diocese of the West. But Vicar General is not a post named in the Diocese of the West's constitution and canons -- so Morello (and his successor, Frederick Rivers) has no authority or duties in that post. I'm told that one ACA-DOW priest simply never returned Morello's phone calls. Sounds about right, at least in this universe.

But this raises the question -- what set of rules and assumptions governs the ACA House of Bishops? If they can create a Vicar General out of thin air, what else can they do? Elect a Pope? Name a Grand Inquisitor? Crown a Holy Roman Emperor?

The APA is rightly proceeding with extreme caution over giving this crowd any potential access to their own parishes.

A Couple Of Other Observations

on the post-remittitur conference. The judge in her preliminary remarks appeared to signal that she would look favorably on a motion for summary judgment over the civil theft charges against Fr Kelley, on the basis that the ACA-appointed "Rector, Wardens, and Vestry" are not valid, and thus don't have standing to sue. This is for the judge to decide at the appropriate time, but she seemed inclined to take the appeals court's interpretation, that in fact the dissident "vestry" is not valid. My wife noted that Ms Greer, the counsel for Fr Kelley and the elected vestry, was persistent in getting the judge to set the date when she would hear such a motion.

This would be the first set of wheels to start coming off the case. It appears that the judge is looking at the validity of the ACA-appointed vestry as a separate issue, but my wife thinks a finding that the ACA vestry is not valid would be significant in questions arising from the August 6, 2012 parish vote to leave the ACA. After all, if the ACA vestry isn't valid, who is this group occupying the building, and why are they entitled to stay there?

My wife observed that Mr Lancaster is doing the best he can with a very bad case. The appeals court, after all, decided to look at the facts, and the facts are not very good for the ACA. The judge made it plain yesterday that the upcoming trial would also be a trial of fact, and the judge clearly thought this was an interesting case. (We sat through a couple of other cases on the calendar before the St Mary's cases came up, mainly people representing themselves on vaguely formulated complaints against former employers. This is not that sort of case, and the judge seems to have found it worth her time.)

The problem with the ACA's case has always been the facts. Mr Lancaster's strategy has had to be to do whatever he can to make the facts irrelevant -- first, to assert that this is an ecclesiastical issue, and when that failed, to insist that the only relevant question is a particular parish election, where he will quibble, years after the fact, with the status of each and every voter. If someone tries to point out the several other elections that went the same way, he'll say they're irrelevant. That will be a very, very tough sell to this judge.

Post-Remittitur Conference

This morning, my wife and I attended the post-remittitur conference over the Rector, Wardens, and Vestry cases at the Los Angeles Superior Court. The takeaway was that the cases will be tried together in April. The question of the ACA's standing to sue Fr Kelley for civil theft will also be reviewed then.

Messrs Lancaster and Anastasia provided some insight into the ACA's strategy following the elected vestry's successful appeal. I would say that it's basically to try to define the issue as narrowly as possible and then quibble on the narrow issue.

Thus Lancaster's basic arguments were, first that the whole issue of the case (now that the ecclesiastical question has been thrown out) is the validity of the August 6, 2012 vote by the parish to leave the ACA. The judge simply didn't buy that; she said the vote was one issue, but the appeals court's opinion raised other issues, including the ACA's authority to remove and appoint vestry members.

Lancaster then argued that, since the parish did take a vote on August 6, 2012 to leave the ACA, the parish was thereby acknowledging the ACA's jurisdiction over it prior to that date.

This struck me as an interesting strategy, and now I regret I didn't become a lawyer. If, by Mr Lancaster's reasoning, I'm being raped and keep on saying "no", by repeating "no", I'm acknowledging that every action the rapist took prior to each repeated "no" had my consent. Otherwise, why would I have to repeat myself? The parish, of course, took repeated votes to leave the ACA and join the US Ordinariate. The August 6 vote was a "what part of 'no' do you not understand?" vote.

My wife and I both noted again a tendency Mr Lancaster has to talk down to judges. It didn't play any better with this judge than it did with the appeals court judges. And I got the same sense with this judge that I had with the appeals court: Lancaster's arguments aren't playing well.

We'll see how things play out in April.