FILED

18-0438
12/4/2019 1:33 PM
tex-38967096
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

No. 18-0438
In the Supreme Court of Texas
____________________

THE EPISCOPAL DIOCESE OF FORT WORTH,

Petitioners
v.
THE EPISCOPAL CHURCH,
Respondents
____________________

On Petition for Review from the Second Court of Appeals at Fort Worth, Texas
No. 02-15-00220-CV
____________________

CONDITIONAL CROSS-PETITIONERS’
ORAL ARGUMENT EXHIBITS
____________________
Frank Hill Thomas S. Leatherbury
State Bar No. 09632000 State Bar No. 12095275
Frank Gilstrap Robert P. Ritchie
State Bar No. 07964000 State Bar No. 24079213
HILL GILSTRAP, P.C. Stephen S. Gilstrap
1400 W. Abram Street State Bar No. 24078563
Arlington, Texas 76013-1705 R. Kent Piacenti
P: 817-261-2222 State Bar No. 24083660
F: 817-861-4685 VINSON & ELKINS LLP
2001 Ross Avenue, Suite 3900
Attorneys for Conditional Cross- Dallas, Texas 75201-2975
Petitioners the Local Episcopal P: 214-220-7700
Congregations F: 214-999-7792

Attorneys for Conditional Cross-

Petitioners the Local Episcopal Parties
(cont’d on next page)

December 4, 2019
Sandra Liser Daniel L. Tobey
State Bar No. 17072250 State Bar No. 24048842
NAMAN HOWELL SMITH & LEE, PLLC DLA PIPER LLP (US)
Fort Worth Club Building 1900 Pearl Street, Suite 2200
306 West 7th Street, Suite 405 Dallas, Texas 75201-2451
Fort Worth, Texas 76102-4911 P: 214-743-4500
P: 817-509-2025 F: 214-743-4545
F: 817-509-2060
Kathleen Wells
Mary E. Kostel* State Bar No. 02317300
THE EPISCOPAL CHURCH P.O. Box 101714
3737 Seminary Road, PMB 200 Fort Worth, Texas 76185-0174
Alexandria, VA 22304 P: 817-332-2580
P: 703-898-8413 F: 817-332-4740

William M. Jay* Attorneys for Conditional Cross-

David Booth Beers* Petitioners the Local Episcopal
GOODWIN | PROCTER LLP Parties
901 New York Ave., N.W.
Washington, D.C. 20001
P: 202-346-4000
F: 202-346-4444

Attorneys for Conditional Cross-

Petitioners The Episcopal Church
and The Most Rev. Katharine Jefferts
Schori

* Admitted pro hac vice

 TABLE OF CONTENTS FOR ORAL ARGUMENT EXHIBITS

Tab Document

1 The Deference on Ecclesiastical Questions Required by Neutral

Principles Under Masterson Is Distinct from Watson Deference
2 Timeline of Events: The General Convention of The Episcopal Church
Permits the Episcopal Diocese of Dallas to Divide and Approves the
Formation of the Episcopal Diocese of Fort Worth
3 The Polity of The Episcopal Church Does Not Permit a “Subordinate”
Middle-Tier Diocese To Break Away Unilaterally from the Larger
Hierarchical Church
4 Following Brown, Which Reflects the “Appropriate [Neutral Principles]
Method for Texas Courts,” Results in Judgment for Plaintiffs
5 To Rule for Defendants Would Violate the First Amendment in at Least
Four Ways
Tab 1
 The Deference on Ecclesiastical Questions Required by Neutral Principles
Under Masterson Is Distinct from Watson Deference

Watson Deference Deference on Ecclesiastical Questions

Required by Neutral Principles
Under Masterson

• Under Watson Deference, a court • Under Brown, Masterson, and

first determines whether a church is
hierarchical.
• If the church is hierarchical, then the
court defers to and enforces the
decision of the highest tier of the
hierarchical church regarding the • Under Neutral Principles, a court may
property dispute.
• Under Watson Deference, a court
will defer regardless of whether an
ecclesiastical issue is the • But, if in applying those secular state
determining factor.
• While this method of resolving
church property disputes is
permitted by the First Amendment,
it is not required, and Texas has
chosen to adopt a neutral principles
approach instead.
EDFW, this Court confirmed that
Texas has adopted a Neutral
Principles approach (instead of the
Watson Deference approach) to
resolve church property disputes.
attempt to resolve church property
disputes by relying on secular
principles of state law.
law principles, the resolution of an
ecclesiastical dispute becomes
necessary, a court “must defer to
decisions of appropriate ecclesiastical
decision makers” because “[c]ourts
do not have jurisdiction to decide
questions of an ecclesiastical or
inherently religious nature.”
Masterson, 422 S.W.3d at 605–06.

• Deferring on such ecclesiastical

issues is “compulsory” even if
“deferring to decisions of
ecclesiastical bodies in matters
reserved to them by the First
Amendment . . . effectively
determine[s] the property rights in
question.” Masterson, 422 S.W.3d at
602, 606.
Tab 2
Timeline of Events: The General Convention of The Episcopal Church
Permits the Episcopal Diocese of Dallas to Divide and Approves the
Formation of the Episcopal Diocese of Fort Worth

• In June 1982, at a duly called Special Convention, the Dallas Diocese

petitioned The Episcopal Church to divide and form a new Fort Worth
Diocese. CR12:4586–87. In petitioning The Episcopal Church, the Dallas
Diocese affirmed that “the new diocese meets the Church’s constitutional
requirements” and authorized the Dallas Bishop to proceed only “[u]pon
ratification by the General Convention.” CR12:4587.
o Article V of the Church’s Constitution authorizes formation of new
dioceses “by the division of an existing diocese” only “with the consent
of the General Convention and under such conditions as the General
Convention shall prescribe.” CR12:4188.

• In September 1982, the “67th General Convention ratifie[d] the division” and
required evidence that “the Constitution and Canons of the General
Convention of the Episcopal Church in the USA . . . have been fully complied
with.” CR12:4589–90.

• In November 1982, the Fort Worth Diocese held its Primary Convention “in
order to fulfill the requirements of the National [Church] Constitution.”
CR12:4593.
o At that Primary Convention, the Fort Worth Diocese and every
Congregation within it signed a “Resolution for Accession to the
Constitution and Canons of the Episcopal Church in the United States
of America” in which they “unanimously” and “fully subscribe[d] to
and accede[d] to the Constitution and Canons of The Episcopal
Church.” CR17:6353–60 (emphasis added).

o Canon I.10.3(b), (f) of the Church’s Constitution and Canons in effect

at the time (adopted in 1979) only provided that Missionary Dioceses
could disaffiliate from the Church and required Missionary Dioceses to
obtain permission from the Presiding Bishop or the General
Convention. CR12:4205.

• In January 1983, having complied with these requirements, the Fort Worth
Diocese’s Constitution and Canons went into “full force and effect.”
CR17:6107.
 o That Constitution’s Preamble defines the Fort Worth Diocese as “the
Clergy and Laity of the Episcopal Church, resident in that portion of
the State of Texas.” CR17:6090. This was not purportedly changed by
Defendants until 2008, after this dispute erupted. CR17:6240.

o Article 1 affirms: “The Church in this Diocese accedes to the

Constitution and Canons of the Episcopal Church in the United States
of America, and recognizes the authority of the General
Convention . . . .” CR17:6090.

o Article 18 provides: “Canons not inconsistent with . . . the Constitution

and Canons of the General Convention, may be adopted.” CR17:6107.
This was not substantively changed by Defendants until 2008, after this
dispute erupted. CR17:6258.

• In 1984, to complete the Article V division, the Dallas Diocese and the Fort
Worth Diocese jointly brought a declaratory judgment action in the 95th
District Court of Dallas County. CR12:4520-38, 4594.
o In those pleadings, the Fort Worth Diocese reaffirmed that it was “duly
organized and established pursuant to the Constitution and Canons of
the Episcopal Church” and had adopted the Diocesan Trust (then,
Article 13; now, Article 14) at its Primary Convention, and requested
the court to “record and declare that legal title” to the property in the
region be placed in the Corporation of the Episcopal Diocese of Fort
Worth “for the use of the Church in the Diocese.” CR12:4524–26.

• In August 1984, the 95th District Court of Dallas County (Hecht, J.) signed a
judgment, finding that:

o The Fort Worth Diocese was “organized pursuant to the Constitution

and Canons of the Protestant Episcopal Church in the United States of
America”;

o The Corporation of the Episcopal Diocese of Fort Worth had been “duly
organized under the Constitution and Canons of the Episcopal Diocese
of Fort Worth”; and

o The court was facilitating the “division of the Diocese of Dallas into
two separate dioceses as permitted by Article V of the Constitution of
the Episcopal Church.” CR17:5990–91, 5993.
Tab 3
The Polity of The Episcopal Church Does Not Permit a “Subordinate” Middle-
Tier Diocese To Break Away Unilaterally from the Larger Hierarchical Church
The Episcopal Church’s Constitutions and Canons Do Not Permit a Diocese to Break
Away Unilaterally from the Larger Hierarchical Church.
• That Constitution permits only missionary dioceses (that is, noncontiguous
dioceses in foreign countries) to depart the Church, but even then, only upon
petition and advance consent from the General Convention or the Presiding
Bishop. CR12:4296–97.
• There is no rule permitting disaffiliation of U.S. regional dioceses.
Record Evidence Confirms That a Diocese Cannot Break Away Unilaterally from
the Larger Hierarchical Church.
• “[D]ioceses and parishes of the Church, as opposed to their individual leaders,
may not, consistent with the Church’s polity, articulated in its Constitution,
canons, and Book of Common Prayer, unilaterally withdraw or disaffiliate
from the Church and its governing body, the General Convention . . . .”
CR1:248 (Mullin Affidavit).
• “Under Church law . . . dioceses cannot ‘secede,’ ‘withdraw’ or ‘disaffiliate’
from The Episcopal Church.” CR31:11258 (Buchanan Affidavit).
• Defendants left the Church as “individuals only,” because withdrawal of the
Diocese itself (or its constituent Congregations) was “beyond the scope of
their powers as members of the Convention” of the Diocese. CR31:11259
(Buchanan Affidavit).
For More Than a Century, Commentators Have Explained That a Diocese Cannot
Break Away Unilaterally from the Larger Hierarchical Church.
• CR(3dSupp.)1:286—Contributions to the Ecclesiastical History of the United
States of America (1841) (explaining that dioceses “surrender” “[s]uch an
exercise of independency as would permit them to withdraw from the union
at their own pleasure, and without the assent of the other dioceses”).
• CR(3dSupp.)1:281—A Treatise on the Law of the Protestant Episcopal
Church in the United States (1850) (explaining that the General Convention
of the Church did not “establish a fugitive coalition, but a perpetual union”).
• CR(3dSupp.)1:284—A Manual Commentary on the General Canon Law and
the Constitution of the Protestant Episcopal Church in the United States
(1870) (explaining that the act of acceding to the Constitution of The
Episcopal Church does not “imply the right of any Diocese to secede from the
union established by the Constitution”).
Tab 4
 Following Brown, Which Reflects the “Appropriate [Neutral Principles]
Method for Texas Courts,” Results in Judgment for Plaintiffs
Brown
Title Instrument: analyzed “The deed for the property
under neutral principles. was made to the trustees of
the Cumberland Presbyterian
Masterson, 422 S.W.3d at 605; Church at Jefferson, Tex.”
Brown, 116 S.W. at 364–65. Brown, 116 S.W. at 364.
Does Enforcement of the Yes. Determining which
Title Instrument Require party was authorized to act as
Resolving An Ecclesiastical the trustees turned on
Question? whether a denominational
reunion was allowed under
Church law.
Ecclesiastical Question at the “Did the General Assembly
Heart of the Case: outside this of the Cumberland Church
Court’s jurisdiction. have authority to
consummate the reunion and
Masterson, 422 S.W.3d at 605; union of that church with the
Brown, 116 S.W. at 364. Presbyterian Church?”
Brown, 116 S.W. at 363.
Answer to the Ecclesiastical Yes. The highest authority of
Question: entrusted to highest the hierarchical Church ruled
authority within the the reunion was authorized
hierarchical Church to which it under Church law. Brown,
has been submitted. 116 S.W. at 364.
Masterson, 422 S.W.3d at 607;
Brown, 116 S.W. at 363–64.
EDFW
The Diocesan Trust provides
that the “Corporation of the
Episcopal Diocese of Fort
Worth shall hold real property
acquired for the use of a
particular Parish or Mission in
trust for the use and benefit of
such Parish or Mission.”
CR17:6175.
Yes. Determining which
parties are authorized to act as
the Diocese and its Parishes
and Missions turns on whether
a Diocesan disaffiliation is
allowed under Church law.
Did the Convention of the
Episcopal Diocese of Fort
Worth have authority to
remove the Diocese and its
Parishes and Missions from
The Episcopal Church?
No. The highest authority of
the hierarchical Church ruled
that the unilateral
disaffiliation was not
authorized under Church law.
CR1:248, 311; CR20:6962;
CR31:11256–60; see also
CR2:656 (Executive Council
Resolution); CR2:654,
CR5:1630–39 (Deposition of
Bishop of Pittsburgh);
CR5:1615–24, 1626
(Deposition of Bishop of San
Joaquin).
 Brown
The Remaining Secular “What effect did the
Question: over which the [effective] union between the
Court has jurisdiction. two churches have upon the
property which is here in
EDFW, 422 S.W.3d at 650–51; controversy?” Brown, 116
Brown, 116 S.W. at 364. S.W. at 364.
Result Required Under “[T]he church to which the
Neutral Principles: deed was made still owns the
property . . . . [T]hose
Masterson, 422 S.W.3d at members who recognize the
604–06; Brown, 116 S.W. at authority of the Presbyterian
364–65. Church . . . are entitled to the
[property].” Brown, 116
S.W. at 364–65.
EDFW
What effect did the
ineffective, purported
disaffiliation of the Diocese
and its Congregations from
The Episcopal Church have
upon the property which is
here in controversy?
The Congregations made
beneficiaries of the Diocesan
Trust still beneficially own the
property. Those members who
recognize the authority of The
Episcopal Church are entitled
to the possession and use of
the property.
Tab 5
To Rule for Defendants Would Violate the First Amendment in at Least Four
Ways
Defendants invite the Court to violate the First Amendment in the following

four ways:

• First, to determine that Defendants’ purported removal of the Diocese and its
Congregations from the Church was effective, overriding the Church on the
“ecclesiastical matter” of “what happens to the relationship between [the]
local [church bodies] that [are] part of a hierarchical religious organization
and the higher organization when members of the local [church bodies] vote
to disassociate.” Masterson, 422 S.W.3d at 607; CR39:14026 (trial court
judgment declaring that “[Defendant t]he Episcopal Diocese of Fort Worth
and the Defendant Congregations in union with that Diocese hold beneficial
title to all [disputed property]”);

• Second, to determine that Defendant Iker is the Bishop of the Episcopal

Diocese of Fort Worth, overriding the Church on “the ecclesiastical and
church polity issue[]” of “whether to remove a bishop,” EDFW, 422 S.W.3d
at 650; CR39:14026 (trial court judgment declaring that Defendant Iker, as
Bishop, “is, and has been since 2005, the proper Chairman of the board and
one of the Trustees of the Corporation for the Episcopal Diocese of Fort
Worth”);

• Third, to accept Defendants’ interpretation of the “Diocesan and Mother

Church constitutions” over the Church’s interpretation, although the “First
and Fourteenth Amendments forbid” it, Milivojevich, 426 U.S. at 721;
CR39:14026 (trial court judgment declaring that “Defendants are the proper
representatives of the Episcopal Diocese of Fort Worth”); and

• Fourth, to dictate who the leaders and members of multiple unincorporated

religious associations are by adopting for the first time a presumption of
majority rule—contrary to the determinations of The Episcopal Church and
the local Episcopalians (who remained loyal to the hierarchical Church and
who are leading the continuing Diocese), and in violation of the First
Amendment, Brown, 116 S.W. at 364–65; CR39:14026 (trial court judgment
declaring that “Defendants are the proper representatives of the Episcopal
Diocese of Fort Worth”).
 Respectfully submitted,

/s/ Frank Hill (with permission) /s/ Thomas S. Leatherbury

Frank Hill Thomas S. Leatherbury
State Bar No. 09632000 State Bar No. 12095275
Frank Gilstrap Robert P. Ritchie
State Bar No. 07964000 State Bar No. 24079213
HILL GILSTRAP, P.C. Stephen S. Gilstrap
1400 W. Abram Street State Bar No. 24078563
Arlington, Texas 76013-1705 R. Kent Piacenti
P: 817-261-2222 State Bar No. 24083660
F: 817-861-4685 VINSON & ELKINS LLP
fhill@hillgilstrap.com 2001 Ross Avenue, Suite 3900
fgilstrap@hillgilstrap.com Dallas, Texas 75201-2975
P: 214-220-7700
Attorneys for Conditional Cross- F: 214-999-7792
Petitioners the Local Episcopal tleatherbury@velaw.com
Congregations rritchie@velaw.com
sgilstrap@velaw.com
/s/ Sandra Liser (with permission) kpiacenti@velaw.com
Sandra Liser
State Bar No. 17072250 Daniel L. Tobey
NAMAN HOWELL SMITH & LEE, PLLC State Bar No. 24048842
Fort Worth Club Building DLA PIPER LLP (US)
306 West 7th Street, Suite 405 1900 Pearl Street, Suite 2200
Fort Worth, Texas 76102-4911 Dallas, Texas 75201-2451
P: 817-509-2025 P: 214-743-4500
F: 817-509-2060 F: 214-743-4545
sliser@namanhowell.com danny.tobey@dlapiper.com

Attorneys for Conditional Cross- Kathleen Wells

Petitioners The Episcopal Church State Bar No. 02317300
and The Most Rev. Katharine Jefferts P.O. Box 101714
Schori (cont’d on next page) Fort Worth, Texas 76185-0174
P: 817-332-2580
F: 817-332-4740
kathleen@kwellslaw.com

Attorneys for Conditional Cross-

Petitioners the Local Episcopal Parties
Mary E. Kostel*
THE EPISCOPAL CHURCH
3737 Seminary Road, PMB 200
Alexandria, VA 22304
P: 703-898-8413
mkostel@episcopalchurch.org

William M. Jay*
David Booth Beers*
GOODWIN | PROCTER LLP
901 New York Ave., N.W.
Washington, D.C. 20001
P: 202-346-4000
F: 202-346-4444
wjay@goodwinlaw.com
dbeers@goodwinlaw.com

Attorneys for Conditional Cross-

Petitioners The Episcopal Church
and The Most Rev. Katharine Jefferts
Schori

* Admitted pro hac vice

 CERTIFICATE OF SERVICE

I certify that, on December 4, 2019, the foregoing oral argument exhibits were

served on the counsel of record listed below via electronic filing:

J. Shelby Sharpe, Esq.

Sharpe & Rector, P.C.
6100 Western Place, Suite 1000
Fort Worth, TX 76107
utlawman@aol.com

R. David Weaver, Esq.

Weaver Law, PLLC
1601 E. Lamar Blvd., Suite 102
Arlington, TX 76011
rdweaver@arlingtonlawfirm.com

Scott A. Brister
Hunton Andrews Kurth L.L.P.
111 Congress Avenue, Suite 1700
Austin, Texas 78701
ScottBrister@HuntonAK.com

/s/ Thomas S. Leatherbury

Thomas S. Leatherbury