Anglican Congregations Ask Virginia Supreme Court to Reconsider a Portion of Its Church Property Ruling

via e-mail:

FAIRFAX, Va. (July 10, 2010) – The nine Anglican District of Virginia (ADV) congregations that are parties to the church property case brought by The Episcopal Church and the Episcopal Diocese of Virginia today asked the Virginia Supreme Court to reconsider a narrow, but critical portion of its ruling. Specifically, the churches asked the Court to reconsider whether CANA and ADV are branches of The Episcopal Church and Episcopal Diocese of Virginia under the governing statute.

“Today we filed a motion asking the Virginia Supreme Court to rehear a portion of its June 10 ruling that addressed whether CANA and ADV are in fact branches that divided from The Episcopal Church and Diocese of Virginia,” said ADV Chairman Jim Oakes.

“We are not challenging the Court’s legal interpretation of the relevant statute, but we are pointing out that the Court overlooked critical evidence showing that, even under that interpretation, the congregations have satisfied the statute.”

“CANA and ADV came about as a direct result of the division within the Church.  In fact, ADV in particular was established because of the desire of the orthodox Virginia churches to stick together. It has become a diverse group of churches all working together for the Gospel. Even when ADV was formed, it was not limited to churches that were affiliated with the Convocation of Anglicans in North America and also included congregations that had established a connection with the Church of Uganda,” Oakes said.

“We recognize that motions to rehear a case are not automatically granted, but we feel we have a strong case and that based on key evidence that the Court overlooked, CANA and ADV satisfy the ‘branch’ requirements of the Virginia Division Statute. We never sought these legal proceedings in the first place and look forward to the day when we can completely focus on our core mission of spreading the Good News of Christ. Ultimately, this court case is in the Lord’s hands and we will continue to welcome all who wish to worship with us regardless of the outcome,” Oakes concluded.

The Anglican District of Virginia (www.anglicandistrictofvirginia.org) is an association of Anglican congregations in Virginia.  Its members are in full communion with constituent members of the Anglican Communion through its affiliation with the Convocation of Anglicans in North America (CANA), a missionary branch of the Church of Nigeria and other Anglican Archbishops.  ADV members are a part of the worldwide Anglican Communion, a community of 77 million people.  ADV is dedicated to fulfilling Christ’s Great Commission to make disciples while actively serving in three main capacities: International Ministries, Evangelism, and Strengthening Families and Community.  ADV is currently comprised of 30 member congregations and six mission fellowships.

UPDATE: Anglican Curmudgeon weighs in on the brief filed with the Virginia Supreme Court by nine churches of the Anglican District of Virginia. Here's an excerpt:

The second argument of the application for rehearing concerns the Anglican District of Virginia itself, and is in my view even stronger than the one with regard to CANA. ADV, the brief points out, was not formed as a legal entity until the congregations in question had decided to follow the Protocol drawn up by the Diocese of Virginia for departing parishes. It was formed specifically as an entity to provide governance for those particular parishes, and was organized not under the Church of Nigeria, but under Virginia law. There is no requirement that its members belong to CANA, and some of them do not:

Rehearing is independently warranted because the record also forecloses the Court's branch analysis as to ADV. Unlike the Court's analysis of the statute's "church," "attached," and "division" prongs -- which considered the status of TEC and the Diocese separately -- the Court's "branch" analysis treated CANA and ADV as synonymous, overlooking critical facts establishing that ADV is a "branch" even if CANA is not. In fact, the Court's analysis of whether ADV was a "branch" consisted of one sentence: "Likewise the ADV, as a district of CANA, descends from the Church of Nigeria and CANA, not the Diocese or TEC." Op. 29. Respectfully, however, that statement cannot be squared with this record, even assuming, arguendo, that the Court properly reached a contrary conclusion as to CANA.

Once again, there was no dispute as to the underlying facts:

. . . As the Court noted, "in 2005 Bishop Lee created a new commission 'to give attention to this rising threat of division in the Diocese.'" Op. 7. In September 2006, this commission expressly recognized "the division which may cause some to 'walk apart'" (JA 3034) and "promulgated a 'Protocol for Departing Congregations'" to follow, including "procedures for congregations to conduct votes 'regarding possible departure from the Diocese.'" Op. 7.

The Congregations followed the Protocol, creating ADV days before their votes. JA 2991 (ADV articles dated 12/4/06). . . . And as ADV's articles state, ADV was incorporated as "an association of Virginia churches, together with their clergy and laity, who join together to realign traditional Anglicans in Virginia displaced by the election of The Episcopal Church to walk apart from the Anglican Communion." JA 2988 (emphasis added). ADV thus formed "as a result of the division." Op.29.

[Also], as the foregoing evidence shows, ADV is not a "pre-existing polity" that "descends from the Church of Nigeria" rather than "the Diocese." Id. ADV is separate and distinct from CANA: It is "a discrete ecclesiastical and legal structure" incorporated under "the Virginia Nonstock Corporation Act." JA 2988 (ADV articles). . . .

Nor was ADV formed by the Anglican Church of Nigeria. True, the incorporators of ADV chose to place it "provisionally . . . under the ecclesiastical jurisdiction of [CANA]" -- and thus to bring it "into full communion with the . . . constituent members of the Anglican Communion." JA 2988 (emphasis added). But ADV is legally independent and has its own board; only one sentence in ADV's articles refers to CANA; and the decision to affiliate with CANA and the Church of Nigeria was ADV's own (provisional) choice. Indeed, ADV's members include several congregations that disaffiliated from the Diocese but are not members of CANA -- further confirming that ADV is properly viewed as a descendant of the Diocese, not the Anglican Church of Nigeria. JA 2475-77 (Allison); JA 2175-77 (Minns).

The attorneys make another important point about the division statute, and the Supreme Court's interpretation of it, in an accompanying footnote:

Like others that disaffiliated from TEC but wished to remain "'a part of the worldwide [Anglican] church" (Op. 8), these congregations affiliated with another Anglican province. JA 2475-77 (Allison); JA 2175-77 (Minns). We do not read the Court's opinion to hold that the bare fact of affiliation with the Church of Nigeria disqualified CANA and ADV as "branches." If that were a proper reading of § 57-9, it would violate the First Amendment by expressly discriminating against disaffiliating congregations based on "denominational preference." Larson v. Valente, 456 U.S. 228, 244 (1982) ("one religious denomination cannot be officially preferred over another").

The brief closes by reiterating that findings based on facts that were undisputed below cannot be set aside by an appellate court:

. . . The Court's analysis turned on what it called an "erroneous" "finding." Op. 28. But any such finding was necessarily factual, and factual findings may be reversed only if "plainly wrong or without evidence to support them." Perel v. Brannan, 267 Va. 691,698, 594 S.E.2d 899, 903 (2004). That is not the case here.

Thus the application asks the Virginia Supreme Court to rehear the case in order to bring its conclusions into line with the undisputed facts as found below. At a minimum, the Court should clarify its instructions on remand to allow "for further factual findings as to whether ADV, CANA, or both are branches under the Court's new reading of § 57-9. That would be especially appropriate given that the Court's decision marks the first time in 143 years that the Court has addressed the statute's core requirements, and sets forth an analysis that the circuit court understandably had no opportunity to apply."

Read it all here. Well done, sir!