An analysis of the case from an Anglican blogger

AS Haley a well known Anglican blogger and attorney thinks we might have a case. Here's his analysis of the motions we filed yesterday:

The Diocese of Central New York (and ECUSA) need the Dennis Canon to establish their case that a trust in their favor was imposed on the property of the Church of the Good Shepherd. (As Father Kennedy's declaration states, the Church preceded the creation of the Diocese by more than fifty years [para. 9], and the deed to the property is solely in its name [para. 19].) If the Dennis Canon was not properly enacted, then their case would fail.

The facts presented in the Conger affidavit, based upon a personal examination of the original records, are sufficient to raise a classic issue of disputed fact as to whether or not the Canon properly passed both Houses at General Convention 1979.

Therefore, even with my pre-announced bias, I have no difficulty in opining that the motion brought by the plaintiff Diocese should be denied on that basis. The plaintiff should be required to present its evidence of passage at a trial, and let the trier of fact decide whether it is good enough in light of all the evidence...more

Below you will find some of the documents we filed yesterday including our Cross Motion, an exhibit from a 1979 General Convention Jounal, and my affidavit. The Rev. George Conger's Affidavit may be found here. All are in PDF format:

The Cross Motion Filed on Behalf of the Church of the Good Shepherd (PDF)

43. This entry, when compared with C-150, the place it references, creates a problem as noted, supra: the Dennis Canon is nowhere to be found! The above-quoted entry does not contain the text of what they adopted in the House of Deputies on that date. Were amendments made? Did one or more committees alter the text of the resolution from the House of Bishops? What was the text of the resolutions from the House of Bishops? Was the language identical to what the House of Bishops adopted? What in fact did they adopt that day, if anything? The record is silent on these points. With no text of the resolution set forth in these printed minutes of the House of Deputies, and no summary of the resolution, all of these questions are left open, and we can only speculate as to the answers. But one thing is indisputable: when we look at the reference cited at D-154 “(See pg. C-150)” we find no Dennis Canon, but rather something quite different.

44. The quoted reference in parentheses to C-150 (the citation to the report of concurrent actions of both Houses) as indicated, supra, shows concurrent action only as to the technical correction amendment (HB # 78) which contains no trust provision, as mentioned. Only HB # 76 and HB# 75 had any reference to the trust provision of the Dennis Canon, and that is absent from the “concurrent actions” recorded at C-150 of the 1979 Journal.

45. The Dennis Canon placing a trust on church property is, for that matter, set forth nowhere else in the 1979 Journal except in the verbatim recitation of B-60. 46. Given the cross reference to the adoption of a wholly different amendment and the fact that the actual language before the House of Deputies is not quoted in the journal of the House of Deputies proceedings at D-154 or anywhere else, the official record of the General Convention of 1979 supports the conclusion that the House of Deputies never adopted the Dennis Canon.

...more (PDF)

General Convention Journal entries(PDF) regarding the Dennis Canon

My affidavit (PDF):

3. One of the many exhibits contained in the papers of the Diocese is Exhibit W attached to the affidavit of Bishop Gladstone Adams III is a resolution of the Diocesan Convention of the Diocese of Central New York adopted on November 15, 2008 which declared that the Church of the Good Shepherd is no longer in union with the convention and that our vestry no longer meets. Attached hereto is copy of that resolution of the Diocesan Convention of the Diocese of Central New York adopted on November 15, 2008 as Exhibit “A”

4. Our case here is different from the Court of Appeals case of Diocese of Rochester v. Harnish, because in that case the Convention of the Diocese of Rochester on November 19th, 2005, declared All Saints parish to be “extinct”.

5. The Diocese of Central New York by this resolution has indicated that the Church of the Good Shepherd continues to have existence even though we are no longer in union with them. Indeed the Church of the Good Shepherd is not in union with the Convention of the Diocese of Central New York, its bishop, or the Episcopal Church. But we most certainly continue to worship formally as a parish and we regularly hold official vestry meetings on the third Wednesday of every month and call special meetings when necessary.

6. Our most recent vestry meeting was held on Saturday December 6, 2008. At that meeting we adopted a resolution agreeing in part with the Diocesan Convention resolution adopted on November 15th, 2008 stating that the Church of the Good Shepherd is no longer “in union” with the Diocese of Central New York nor with the Episcopal Church. Attached hereto is copy of that resolution adopted on December 6, 2008 as Exhibit “B”

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12. Because the Diocese of Central New York by the action of its diocesan convention has declared itself to be no longer in union with us, we doubt that they have any standing to oppose this request of ours to amend our certificate of incorporation. But knowing that the Diocese of Central New York has sued us and is seeking to seize all of our property, we are here putting the plaintiff on notice of our amendment to our certificate of incorporation.

13. There is no issue that we were once affiliated with the Episcopal Church. There is no issue that this affiliation, by the actions of both the Diocese of Central New York and Church of the Good Shepherd, is now terminated. There should be no issue that we are an ongoing church, since we clearly are...more (PDF)