January 6, 2009 2:16 PM

Four Am Law 200 Firms on California Episcopal Church Case

Posted by Zach Lowe

When litigation is simmering nationwide, people tend to look to California for guidance. On Monday, that state's Supreme Court ruled that three breakaway Episcopal churches--offended by the parent church's 2003 decision to ordain a gay bishop--forfeited their property rights when they affiliated with a different parent church, according to the ruling and this recap from the Los Angeles Times. 

The ruling was a win for two Am Law 200 attorneys who argued the case: John Shiner of Holme, Roberts & Owen, representing the Los Angeles diocese, and Heather Anderson of Goodwin Procter, representing the U.S. Episcopal Church. (A team from Weil, Gotshal & Manges submitted an amicus brief on behalf of the U.S. Presbyterian Church--another parent church concerned about losing property to breakaway parishes.) 

On the other side, Mayer Brown--with an assist from its academic affiliate, UCLA's Eugene Volokh, namesake of the Volokh Conspiracy blog--wrote an amicus on behalf of the Presbyterian Lay Committee arguing that the property belongs to the breakaway churches.

Property deeds support that argument. But the deeds also include a clause (added in 1979) that parishes must hold the property in trust for the governing churches--and that they agree to be bound by the church's rules. The court, citing a California state law dealing only with religious property disputes, ruled that the parishes forfeited their property when they broke away. 

Donald Falk, a Mayer Brown partner who co-authored the brief, says the ruling does not follow the "neutral principles of law" doctrine, which would hold that the neutral documents (i.e., deeds and trusts) determine who owns property. California supreme court judge Joyce Kennard agreed, saying the California law giving preference to higher churches does not follow the "neutral principles" rule. (Kennard joined the unanimous verdict anyway, citing the California law).

"Neutral principles should be neutral," Falk says.

Falk declined to say how Mayer Brown came to represent the Lay Committee.

John Shiner of Holme Roberts and Heather Anderson of Goodwin Procter did not return messages seeking comment. Anderson's partner at Goodwin, David Beers, says the firm handles much of the U.S. Episcopal Church's litigation since he is general counsel to the presiding bishop of the church here and in 16 other countries. (Beers even has an official title--Chancellor).The firm represented the church in a similar property dispute in Virginia earlier this year, according to this piece from The American Lawyer's February 2008 issue.

Weil's Christopher Cox, handling the matter on a pro bono basis, authored the amicus brief on behalf of the U.S. Presbyterian Church, says Douglas Lumish, a Weil partner also working on the case. The firm has represented the church in matters for several years, ever since Douglas Nave, a Weil partner and active Presbyterian based in London, began working with the church on various matters, Lumish says. 

Nave did not immediately return a call seeking comment.

The issue is not going away anytime soon. As the Associated Press notes, there is pending litigation related to church property issues in several states--including an appeal of a recent decision in Virginia, where a state judge ruled in favor of 11 breakaway parishes. And last month, about 700 conservative Episcopal congregations moved to form their own church in North America. 

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