Was the Dennis Canon in fact never duly adopted? Here's why a court might not care.

In a property lawsuit between the Episcopal Diocese of Central New York and one of its secessionist groups, evidently the secessionists are claiming that the Dennis Canon — which provides that all parish property is held in trust for the diocese and the national church (see Canon I.7.4-5) — was never duly adopted by General Convention, and therefore isn't controlling. In opposing a motion for summary judgment by the diocese, the secessionists have filed an affidavit by someone who examined the church archives and did not find proof positive one way or another. Some commentators are saying that as a result, the court cannot render summary judgment in favor of the diocese because there are disputed issues of fact that must be tried.

In deciding the Dennis-Canon issue, there's a Gordian-knot approach that the court could easily use to rule summarily in favor of the diocese without a trial:

     • There can be no dispute that for years, the Standing Commission on Constitution and Canons, acting pursuant to Canon I.1.2(n)(3)(iv), has at least implicitly approved inclusion of the Dennis Canon, putatively adopted in 1979, in successive triennial official publications of TEC's constitution and canons. 

     • Since that time, various GCs have approved many other amendments to the church's constitution and canons; perhaps most notable for our purpose, because of its controversial nature, was the 1994 amendment prohibiting discrimination in ordination on the basis of sexual orientation, among other things. 

Why do these facts matter? Because, even when the canons were amended in ways that surely triggered talk of possible secession and property disputes, at no time did any GC deputy or group of deputies ever propose overruling the standing commission (so far as I know, without researching the question) to make it clear that the Dennis Canon was not 'the law' in the Episcopal Church.

Here's an analogy from secular cases: Suppose that: • certain language in a federal statute were susceptible to different interpretations; • for years, the courts have adopted a particular interpretation of the statutory language; and • during that time, Congress has otherwise amended the statute, but has never changed the particular language in question.

In cases like that, the courts will very often reason thusly: If Congress had disapproved of the interpretation adopted by the courts, presumably it would have overruled that interpretation legislatively, while they were enacting other amendments to the statute. Congress has not done so; it follows, therefore, that Congress has implicitly approved the courts' interpretation.

Thus the analogy: Successive General Conventions have amended the constitution and canons in many respects, but have never amended the canons to repudiate the official publication of the Dennis Canon as part of the constitution and canons. This suggests that the Dennis Canon is indeed part of 'the law' of the Episcopal Church.

Comments

[R Eric Sawyer]

I suspect you are right. I am certainly not a lawyer, and have no real ground for an opinion. But as a layman, I sort of figured some concept analogous to “adverse possession” might figure in, and that is what you have described.

If a regulation purports to have been passed, and a sufficient time period has passed where all parties act as if the measure was duly enacted and is in force, it does seem reasonable for the court to presume that all parties are in agreement about its validity and desirability. As an example, if I were charged with violating some municipal ordinance from say, 1920, it would seem an unreasonable burden to require the city to go back and prove that the ordinance was truly and legally enacted. I may have another defense, but I shouldn’t be able to question the roll call vote after all these years.

I wish it weren’t true, but I will be quite surprised if this attack succeeds.

[Savanarola]

Whether the "Dennis Canon" may (or may not) have been properly adopted (records are notoriously sloppy at 815, so it's hard to tell) and may (or may not) be part of the "law" of the Episcopal Church will probably prove to be much less determinative in the courts than whether the adoption of such a "law" by the majority vote of delegates from dioceses around the country could be sufficient for a traditionally non-hierarchical national church like the Episcopal Church to perfect a real property interest in any specific diocesan/parish property.

I highly doubt that the courts will find the "Dennis Canon" to be nearly as compelling a basis for asserting an ownership interest in church real property (that's where the big bucks are) as actually being named on the deed.

There's a boatload of money about to be wasted in this litigation...