Unfortunately like any report on The Episcopal Church property dispute in Virginia, that takes a rehearsal of the back story before launching into the latest development. What you know about Episcopal property disputes in other states is not sufficient for understanding the situation in Virginia.

Church property disputes in the state of Virginia are unique, and can involve a statute, 57-9, different from any other in the country. A circuit court had ruled in favor of the nine dissenting parishes of the Anglican District of Virginia that left the Episcopal Diocese of Virginia, saying 57-9 applied, was constitutional, and in its application 57-9 assigned the property to the departing congregations. The diocese appealed and last month the Virginia Supreme Court in its opinion agreed with the diocese that the nine parishes were not a "branch" of The Episcopal Church and therefore 57-9 did not apply. The result of the ruling was that the court sent the cases back to the circuit court for rehearing, hearings that would fit the mold of other Episcopal Church property cases across the country, none of which have a 57-9. In essence, though the congregation left several years ago, the case was at square one.

However, the Virginia Supreme Court can agree to hear appeals of its own decisions. On Saturday the Anglican District of Virginia filed a motion of appeal to the court. (Note: The court does not take briefs from the other side in these appeal motions, in this case, the diocese and The Episcopal Church.) If any of the judges who voted with the (unanimous) majority want to hear the motion that is sufficient. And, note well, if in a rehearing of the case just one of the judges is swayed that's sufficient for the ADV to win this case; that's because, due to recusals, although its decision was unanimous the number of judges impaneled was the minimum possible for the diocese to have prevailed.

ADV in its press release Saturday said,

“Today we filed a motion asking the Virginia Supreme Court to rehear a portion of its June 10 ruling that addressed whether CANA and ADV are in fact branches that divided from The Episcopal Church and Diocese of Virginia,” said ADV Chairman Jim Oakes. “We are not challenging the Court’s legal interpretation of the relevant statute, but we are pointing out that the Court overlooked critical evidence showing that, even under that interpretation, the congregations have satisfied the statute.”

“CANA and ADV came about as a direct result of the division within the Church. In fact, ADV in particular was established because of the desire of the orthodox Virginia churches to stick together. It has become a diverse group of churches all working together for the Gospel. Even when ADV was formed, it was not limited to churches that were affiliated with the Convocation of Anglicans in North America and also included congregations that had established a connection with the Church of Uganda,” Oakes said.

Looking back to the court's opinion you can see where the ADV lost its case, and hopes to change the court's mind:

When it was initially formed, CANA was a mission of the Church of Nigeria designed to minister to expatriate members of that church in North America. The subsequent expanding of the mission to allow dissident congregations of TEC and the Diocese to affiliate with CANA, and the formation of the ADV, unquestionably occurred in response to the disputes that had occurred within TEC. However, it is equally clear that the revision of CANA’s mission and the formation of the ADV did not occur as a result of the division within TEC and the Diocese. Indeed, the dissenting congregations maintained that they had “determined to disaffiliate from TEC and the Diocese” in order to join CANA, a pre-existing polity within the Church of Nigeria. Thus, while CANA is an “alternative polity” to which the congregations could and did attach themselves, we hold that, within the meaning of Code § 57-9(A), CANA is not a “branch” of either TEC or the Diocese to which the congregations could vote to join following the “division” in TEC and the Diocese as contemplated by Code § 57-9(A).

In summary, we conclude that the evidence does not establish that there was a division in the Anglican Communion for purposes of the application of Code § 57-9(A). We further conclude that a proper construction of Code § 57-9(A) requires a petitioning congregation to establish both that there has been a division within the church or religious society to which it is attached and that subsequent to that division the congregation seeks to affiliate with a branch derived from that same church or religious society. While the branch joined may operate as a separate polity from the branch to which the congregation formerly was attached, the statute requires that each branch proceed from the same polity, and not merely a shared tradition of faith. The record in these cases shows that the CANA Congregations satisfied the first of these requirements in that there was a division within TEC and the Diocese, but not the second, as CANA clearly is not a branch of either TEC or the Diocese. Accordingly, we hold that the circuit court erred in ruling that the CANA Congregations’ petitions were properly before the court under Code § 57-9(A).

[Emphasis in the original.]

I. The Court misapprehended the facts as to the creation of CANA, which unambiguously show that it was formed to minister to former TEC clergy and congregations, as a result of the division in TEC

II. Regardless of CANA's status, ADV is not a "preexisting polity" that descended the Church of Nigeria, but is an independent legal entity established at the time of the congregation's votes

This is where it gets interesting for the judges of the Virginia Supreme Court (and the Archbishop of Canterbury in his new self-delegated role of judge and jury). ADV said in its own press release concerning the court's June 10th decision:

06-10-10
Anglican Congregations Disappointed in Virginia Supreme Court Decision
...
The Anglican District of Virginia (www.anglicandistrictofvirginia.org) is an association of Anglican congregations in Virginia. Its members are in full communion with constituent members of the Anglican Communion through its affiliation with the Convocation of Anglicans in North America (CANA), a missionary branch of the Church of Nigeria and other Anglican Archbishops. ADV members are a part of the worldwide Anglican Communion, a community of 77 million people. ...

You cannot make this stuff up.

The 9 CANA congregations shot themselves in the foot by arguing that they had attached to the Church of Nigeria. It seemed to make sense -- to use 57-9 a branch was needed and CANA was available. Trouble was that's not the way the court saw it -- yes, CANA was a branch, but it descended from the Church of Nigeria, not The Episcopal Church.