The Anglican Communion Institute has published a major report questioning the authority of the Presiding Bishop of the Episcopal Church, Katheroine Jefferts Schori, to initiate litigation to seize church property and assets from orthodox Anglican parishes and Dioceses.
Entitled, Litigation against Disaffiliating Dioceses, is it Authorized and what does Fiduciary Duty Require? the paper exposes the moral as well as financial bankruptcy of this strategy.
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 The paper presents a case that the duties to dioceses include duties to those that have withdrawn because the claims against them are based on alleged consequences of their having been dioceses of TEC rather than the actions of an unaffiliated third party.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.”