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.