Tuesday, May 06, 2008

We've Always Done It That Way Before

This just in from the Anglican Communion Institute re the mysterious memo made public last week asserting a case for presentment against the Presiding Bishop for violation of the constitution and canons of the Episcopal Church:

Addendum in light of the Presiding Bishop’s April 30, 2008 Letter to the House of Bishops: Print E-mail
Written by Confidential to ACI
Tuesday, 06 May 2008

A defense now proffered by the Presiding Bishop and her supporters is that the same procedures were followed in the recent cases of Bishops Davies and Moreno. Past violations of the canon’s clear provisions are said to justify current ones. In considering this defense, it is necessary to distinguish three senses of “precedent” in legal usage. One is the well-known sense of precedent as a formal ruling on a legal issue by a competent juridical body. This is clearly not the case here as no one has suggested that the prior cases were determined to be canonical by any body reviewing the canonical issues. These cases are not offered as reasoned legal rulings, but as a fait accompli.

A second sense of precedent is that in which the actions of parties to a contract are used to interpret terms that are vague or ambiguous. In civil law this concept is referred to as “course of performance,” and this type of precedent is often used as an aid to interpretation for vague or ambiguous contractual terms such as those relating to timeliness or quality. For example, terms like “promptly” or “standard grade” are ones that can sometimes be interpreted by the parties’ performance. The applicability of this principle can be seen in the present context by noting that the meaning of the vague term “forthwith” in Canon IV.9 is given meaning by the Presiding Bishop’s own action in giving notice to Bishop Schofield within 48 hours of receiving the certification from the Review Committee. But the requirements of inhibition in IV.9 and for consent by a majority of the whole number of bishops entitled to vote are not vague or ambiguous terms. They are expressed in mandatory language using precise terms that are clearly defined and used elsewhere in the canons. Express terms control when in conflict with arguable interpretations based on prior actions.

The third type of precedent is one that is often encountered in commercial litigation and corporate law. This is when clear contractual or legal duties are repeatedly violated. Here the past misconduct is to no avail absent an explicit waiver. Especially relevant to the current context is a pattern familiar to any corporate lawyer: that of a closely-held corporation that does not follow its own bylaws. Such corporations, owned by one or a small number of shareholders, have many of the same duties in terms of corporate formalities and procedural regularity as public corporations traded on national stock exchanges. Corporate law requires that proper procedures be followed in order for an enterprise to receive legal recognition and protection as a corporation. Often the sole shareholder of a corporation pays no attention to these formalities or the requirements of the corporate bylaws. The business is simply run as the shareholder sees fit.

But when the litigation arises and a hostile party asks the court to disregard the corporate form and permit a suit directly against the shareholder, those past “precedents” of ignoring the corporate rules are to no avail. In fact, the naked “we’ve done it this way before” becomes evidence for the other side, the primary evidence that the corporate form is a sham. The frequent result in such cases is that the law disregards the corporate form --it “pierces the corporate veil”-- and the shareholder’s assets are no longer protected as intended by the corporation. Corporations that seek the law’s recognition must follow the legal requirements and their own rules. Past malfeasance is not a defense; to the contrary it is proof of a pattern of abuse that exacerbates the current violation. It is a supreme irony that Bishop Lamb is now petitioning the California courts to defer to TEC’s polity and recognize him as the bishop of San Joaquin when the clear provisions of TEC’s canons indicate Bishop Schofield has not been lawfully deposed.

What you see above is the entire addendum, but here's the link to the source. The original memorandum can be seen here.


Anonymous said...

After reading the whole article I find myself in amazement! Because for all the accusing from te liberal north of us about how bad our Bishop, John-David, supposedly has been to them in lies, and property grabbing, etc... Ifind it alot like the pot calling the kettle black! The laundry list with living, walking, breathing proof on the violations from KJS and the HoB is long. All I can say is "speck and log!"
One Day Closer

Perpetua said...

So the precedent that has been set, from a legal point of view, is that the TEC corporation doesn't bother to follow its by-laws. And that will only serve to support the arguments against TEC's claims to property.

Anonymous said...

The last two paragraphs have to hit pretty close to home for ECUSA sycophants.

Malcolm+ said...

This all depends, of course, on a finding that the process was wrong on all counts.

Clearly, from Dan's writing and others, there is a primae facie case to be answered. But the existence of a primae facie case to be answered is not the same as an establishment of fact.

My understanding, based on a quick consult with a lawyer very dear to me, is that "this is the way it has always been done in the past" is one item that can be considered in determining if the presenting process was or was not propoer - but cannot, on its own, be taken as binding proof. If it had been done that way and no one said boo (as seems to be the case wrt Davies and Moreno), then that strengthens the case. The more cases, and the farther back they go, the stronger the case.

Notes with the proviso that US and Canadian common law may well differ on this score.

Jon said...

I posted this question over at Covenant as well, but perhaps I'll get an answer faster here.

Does corporate law require that a company follow its bylaws, or is it just establishing what some of (or all?) those bylaws must be? It makes sense to me that a court would treat the corporation as not existing if it wasn't behaving as the State said it must in order to be a corporation, but I don't see that that would neccesarily extend to actions on which the state had no expressed opinion. For example, if a corporation’s by-laws specified that the the CEO must be Episcopalian (assuming that the by-law didn't get struck down as being discriminatory), but the CEOs hadn’t been Episcopalian for the last two or three CEOs, could a court ”pierce the corporate veil” because the CEO wasn’t Episcopalian?


Malcolm+ said...

A slightly different example.

I understand that in some US states, conditions could be attached to the transfer of a real estate title to the effect that no "negro" would live in the house unless as a servant, and that the same condition would have to be attached to any subsequent resale of the house.

I first read of this in a newspaper column by an African American journailst (whose name escapes me), who had precisely this condition on the house he owned and in which he lived. The condition was still attached to the title, and would continue attached when / if the house was sold. It was just ignored and had been for years.

In such a case, what is the status of that legal condition?

Anonymous said...

Malcolm, I believe contract provisions that violate the law (as that one would) are held to be of no effect. You and I cannot contract to break the (secular) law. But, I don't see the applicability of that example to property disputes within ECUSA.

Malcolm+ said...

Yeah. That was really thread drift riffing on Jon's post.

Further chat with that lawyer who is dear to me. Her take is that "we've always done it this way and nobody ever said boo before" would actually be a pretty strong contribution to the case. It would not prove the case outright, but it would place the onus on those claiming that the current practice is wrong. The point would not be as strong if it were "we've always done it this way, but there has always been a handful of people whinging that we weren't doing it right."

In any event, all there is at this point is competing legal opinions. There is no absolute assurance that either one is correct - though at the moment the onus is on those arguing that the past practice was always wrong.

The article Dan has posted is really just another legal opinion. And like any legal opinion, it is designed to advance the client's case. It is not an objective analysis of the legal principles involved.

Jon said...

Yeah, Malcolm, I noticed that it wasn't an objective analysis of the legal principles involved. I'd still like to know who defines "proper proceedure." If it is the State, then seperation of Church and State might prevent the court from peircing the corporate veil.


Malcolm+ said...

There's the rub, Jon. If the parties cannot agree on what the rules say, who adjudicates?

I think, in part, the longing some conservatives have for an Anglican Covenant is about wanting to establish an Anglican Supreme Court. But then, who would decide if there were disagreements about its processes?