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December 10, 2008

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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...

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