Archive for September, 2009
Written by: Mike Watson
Thursday, September 17th, 2009
This paper examines whether the Presiding Bishop is authorized to initiate and conduct recent property litigation and finds no source for such authority in the Constitution and Canons of the Episcopal Church. Arguments based on a presumed equivalence of the roles of the Presiding Bishop and Executive Council to those of a corporate CEO and board of directors are found not to be valid. The paper also examines claims that pursuit of litigation is necessitated by fiduciary duty. It concludes that no convincing case has been made that this is so. First, no person is under a fiduciary duty to undertake something that has not been authorized. Putting aside the issue of authorization, several factors relevant to a proper fiduciary duty analysis suggest refraining from litigation such as has been commenced against disaffiliating dioceses. In this connection, relevant fiduciary duties are not limited to those that may be owed to TEC as an organization, but also include duties owed to its member dioceses. Claims that a member diocese cannot disaffiliate and retain ownership of its property implicate the latter set of duties. The paper presents a case that the duties to dioceses include duties to those that have withdrawn because the claims against them are based on alleged consequences of their having been dioceses of TEC rather than the actions of an unaffiliated third party.
Presiding Bishop Katharine Jefferts Schori and others have maintained that pursuit by The Episcopal Church of property litigation is required by fiduciary duty. For example, in October 2007 the Presiding Bishop gave deposition testimony in the Virginia litigation against several congregations, saying, “I have a responsibility both in a fiduciary sense and an ecclesiastical sense to protect the assets of the Episcopal Church and to protect the integrity of the Episcopal Church” and also that “I believe I have a fiduciary responsibility to protect the assets of the Episcopal Church for the mission of the Episcopal Church.” In the same testimony, asked about her refusal to suspend litigation in response to the requests of the Anglican Communion Primates in the Dar es Salaam communiqué, she responded, “I cannot suspend what I have a fiduciary duty to protect.” In connection with the San Joaquin litigation, Bishop Jerry Lamb said the litigation was required by “a canonical, fiduciary and moral duty to protect the assets and property of the church for the church’s mission.”
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September 17 2009 | Articles
Written by: The Anglican Communion Institute, Inc.
Tuesday, September 8th, 2009
1. We address below issues related to the capacity of CP dioceses to sign the Anglican Covenant. We consider the text of Section 4 of the Ridley Cambridge draft, ACC Resolution 14.11, the unique polity of TEC and the ACC constitution and membership schedule. Although the final wording of Section 4 has not yet been agreed, the principles discussed below, particularly the constitutional integrity of member churches, are fundamental to Anglicanism and not in dispute.
Who Can Sign?
2. There are two paragraphs in Section 4 of the Ridley Cambridge text dealing with adoption of the Covenant by participating churches. Paragraph 4.1.4 invites “Every Church of the Anglican Communion, as recognised in accordance with the Constitution of the Anglican Consultative Council” to adopt the Covenant. Paragraph 4.1.5 provides “It shall be open to other Churches to adopt the Covenant.” These paragraphs treat the different kinds of adopting churches differently in terms of procedures and the effect of adoption by a particular church. Because CP dioceses are constituent parts of TEC, a member church of the ACC, they are covered under 4.1.4, but it should be noted that if this were disputed they would then come within the scope of 4.1.5.
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September 08 2009 | Articles
Written by: The Anglican Communion Institute, Inc.
Thursday, September 3rd, 2009
The approved text of the Anglican Covenant is already serving as a lens through which individual Anglican churches are inevitably and accurately being measured in terms of their character as “Communion churches.” Thus, in ways not yet properly noted by all, the text endorsed by the Anglican Consultative Council, the Archbishop of Canterbury and the Joint Standing Committee in May 2009 has already raised and to a large extent provisionally answered the question “who can adopt this Covenant?” It is the purpose of this paper to explain why and how this is so, and to do this in relation particularly to The Episcopal Church, although it should be noted that the Covenant’s defining substance can be applied analogously to other Anglican churches as well.
The substantive sections of the Anglican Covenant, Sections 1-3, are now in final form. They will be sent to the churches of the Communion for adoption within a few months. A fourth section containing procedural provisions will be added to the other three at that time, but it remains subject to further review and “possible revision.” Section 4, however, either as it now stands or as revised, will not change the fundamental substantive commitments given by the covenanting churches. The scope of the fourth section is purely procedural.
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September 03 2009 | Articles