Thursday, January 22, 2009

The Battle of Three Rivers

This will be an update on the Battle of Three Rivers, the name I have given to the epic encounter between two entities both claiming to be the "Episcopal Diocese of Pittsburgh" in a case that began more than five years ago in the Court of Common Pleas in Pittsburgh, Pennsylvania. In earlier posts on this subject, I found it useful to explain the issues in the conflict with the help of a nautical analogy, in which the two "dioceses" became ships, and their clash a naval engagement. (Hence the name Battle of Three Rivers: Pittsburgh is the location of the Forks of the Ohio, where the Monongahela and the Allegheny Rivers join to form the Ohio River.)

Those wishing to familiarize themselves with the background, and the events (and legal pleadings) leading up to the current encounter, may do so here and here. (See also the page on the Pittsburgh litigation which is part of A Guide to this Site.) Briefly, the suit started in October 2003 when Calvary Church and some individuals in the Episcopal Diocese of Pittsburgh took umbrage at some resolutions adopted by a special convention of the Diocese that month. Bishop Robert W. Duncan called the special meeting as a result of the ratification, at General Convention earlier that year, of the election of the Rt. Rev. V. Gene Robinson as Bishop of New Hampshire. Concerned that an exodus of parishes from the Diocese would result, and that Bishop Duncan would not be aggressive enough in keeping the parishes' assets in the Diocese, the plaintiffs asked the Court of Common Pleas for various rulings that the Diocese and its Bishop had no authority to allow parishes to leave with their property intact.

The lawsuit settled by stipulation in October 2005. The stipulation between the two sides set up procedures for handling procedures and property valuation in the event a parish elected to depart, and provided that the Diocese would at all times retain title to its own property, no matter how many parishes might leave. Approximately fourteen months later, however, the plaintiffs returned to court with a claim that the defendants were violating the stipulation. Nothing came of their allegations. Then in 2007, the diocesan convention passed measures designed to change their Constitution and Canons so as to disaffiliate ("withdraw its accession to ECUSA's Constitution and Canons", in canonical language) from the Episcopal Church (USA). The measures had to be passed at two successive annual conventions before they could take effect.

Before the second vote could be held, the House of Bishops, led further into unlawfulness (there is no other word for it) by its Presiding Bishop, claimed to depose Bishop Duncan from his see on charges that he had encompassed the death of the King committed thoughtcrimes indicated his own desire to leave ECUSA by telling his flock they could do so, and thus had "abandoned the communion of this Church". (Because there were not enough bishops voting in its favor, out of the "majority of the whole number" of those having a vote as the Canon requires, the resolution to depose actually failed to pass. That did not stop the Presiding Bishop from signing a "Certificate of Deposition" and compounding the multiple offenses against the Canons she has committed in her brief, and utterly disastrous, tenure in office.) From that one overweening act, all the subsequent complications have ensued.

The Marshall Plan saved Europe. The Schori Strategy, in contrast, destroys dioceses and further drives down attendance. Because the Bishops decided to "depose" Robert Duncan---based mostly on information supplied by Calvary Church and his other opponents in the Diocese---they made the decision at the second annual convention an easy one. The deputies voted to leave by majorities of 62% in the lay order, and 76% in the clergy order. The changes made to the diocesan Constitution and Canons resulted in a temporary affiliation with the Anglican Province of the Southern Cone. The dissenters left the convention, and with the support and encouragement of the Presiding Bishop, began to reorganize.

However, the reorganization proceeded according to the Schori Strategy, and not according to ECUSA's Constitution and Canons. This meant that the dissenters did not go through the necessary requirements to be a canonically and legally recognized Episcopal Diocese---that might take too long (until General Convention next meets, in July). Instead, what they did was gather the remaining Episcopalians together, vote to adopt the Constitution and Canons as they were before the Diocese changed them, elect a group as their Standing Committee, and announce that they were a "Diocese": not just any Diocese, mind you, but the (continuing) "Episcopal Diocese of Pittsburgh". Next, they wrote a letter to their opponents, to make a record that they could later produce in Court, demanding that all the Diocesan property be turned over to them---now. (Bishop Duncan and his Diocese respectfully rejected their demand, of course---that also went into their court record.) Then, with the complicity of the Presiding Bishop, with the record they have manufactured, and with funds and attorneys duly supplied through the kindness of the Executive Council, they go into Court, present themselves as the "rightful diocese", and demand (sorry, request) that the Court order their opponents to hand over all the diocesan funds and property.

Oh, wait---I forgot one step in the Schori Strategy. After they wrote the letter to their opponents demanding that they turn over all their funds, they had their attorneys send out another letter, addressed to their opponents' banker. Once again, I am indebted to the Pittsburgh Episcopalians' Website for an explanation of the tactic (the emphases, of course, are all mine):
Our Chancellor had written a letter to Morgan Stanley on November 20, 2008, to make sure they were aware of the dispute involving the Diocesan funds under their management, to request information regarding the accounts, and to request that they not make any distributions to anyone claiming to be the Episcopal Diocese of Pittsburgh without first informing us. This letter did not ask that the funds be frozen, but it did point out the need for safeguards to ensure that all Diocesan assets are preserved and protected to the greatest extent possible until the disputes among the parties are resolved. Morgan Stanley’s decision to freeze these accounts, of course, provides such a safeguard.
So all the dissenters did was write a letter to make sure the bankers "were aware" of their dispute with the majority, and that they did not honor any checks written by the majority---who were the signatories on the accounts---without notifying the minority first. Then, when Morgan Stanley acted on their letter and put a freeze on the diocesan accounts, and when their opponents as a result filed a motion with the Court asking for a return to the status quo ante, they are able to disclaim all responsibility (emphases again mine):
This motion was evidently prompted by the decision of Morgan Stanley, the investment manager of the Diocesan endowment funds, to refrain from permitting any further distributions from the Diocesan accounts until the Court decides who is entitled to ownership and control of the accounts. This decision by Morgan Stanley, which was apparently communicated to the Southern Cone group on January 13, 2009, and which our Diocesan leaders were not aware of until the Southern Cone motions were served on January 20, 2009, is a common response of a third party asset manager when there is a bona fide dispute as to ownership and control of the assets under their management.
Yes, it is all the fault of that nasty Morgan Stanley--- "They made the decision to freeze the accounts, and they didn't even tell us!" Does anyone else notice the gap in accountability here? That is, the Pittsburgh Episcopalians are accusing the Southern Cone group of theft and improper ethics (the link is just one example, and could be multiplied many times over), while they themselves are completely innocent of any attempt to interfere with the ongoing operations of the majority, who (unlike the minority, which refuses to go by its own Canons) actually do have a diocese to run. It is not a little disingenuous, in my book, for them to strike the posture of blameless bystanders in this sorry affair while accusing their opponents of all manner of nefariousness. At the same time, they have rejected out of hand the offer, first made by Bishop Duncan following the vote to disaffiliate on October 4, to "negotiate fairly with congregations for what's best and right, considering that stake the diocese has and what stake they have." (Italics supplied, to emphasize that the majority was prepared to share the assets.) For the minority, the offer is inadequate because they, the ones who disagreed with the lawful vote, are entitled to all of the assets. Why? Because (as they state in a press release) "the Presiding Bishop and the Executive Council of the Episcopal Church have determined that we, and not they, are the continuation of the Diocese."

The previous Episcopal Diocese of Pittsburgh was an unincorporated association, and so is the new one. (Only it doesn't consider itself the "new one"; it claims, as you can read from the previous link, to be the only real one.) Any two or more people can join together and form an unincorporated association; they do not even have to file papers with the State in most states. Thus I and five other like-minded friends could come together and call ourselves a diocese; that is not the point. The only thing that gives this ploy any credence at all is that, as the group proudly states twice on its Website, "Both the Presiding Bishop and the Executive Council of the Episcopal Church have determined that our Diocese is the rightful continuation of the Episcopal Diocese of Pittsburgh" (emphasis added).

There is, of course, no provision in the Constitution and Canons of ECUSA that gives either the Presiding Bishop or the Executive Council the power to make such a determination with respect to a Diocese. And Article V of the Constitution speaks only of the creation and admission of new dioceses, not the recognition of old ones. So what is going on here?

What is going on is some posturing for legal advantage. It's all about the Calvary lawsuit. The dissenters want the Episcopal Church (USA) to be considered by the Pennsylvania courts as a "hierarchical church." In the 1872 decision in Watson v. Jones, 80 U.S. [13 Wall.] 679, the Supreme Court explained why the secular courts have to defer to such an institution (80 U.S. at 728-29):

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.
(Emphasis added.) So one of the hallmarks of a hierarchical church, according to the Supreme Court in Watson, is that the church has established tribunals (sometimes called "judicatories"), in order to resolve disputed "questions of faith . . . and . . . ecclesiastical government", to which a member of the association may appeal in accordance with such provisions as the body may make. Thus, the Presiding Bishop and the Executive Council are scrambling to cover their tracks, and to make it appear as though they are the very "tribunals" which the Court in Watson contemplated. The only trouble is, the Constitution and Canons of ECUSA do not give them the power to resolve disputes within the Church as to which is the "rightful continuation" of the Episcopal Diocese of Pittsburgh.

Indeed, apart from the courts for ecclesiastical discipline of clergy, there are no judicatories of any kind within ECUSA. To be sure, the Constitution in Article IX gives General Convention the power to create "an ultimate Court of Appeal, solely for the review of the determination of any Court of Review on questions of Doctrine, Faith, or Worship", but it has never chosen to do so. Moreover, any such Court would be confined by the language of Article IX to decisions just on matters of "doctrine, faith, or worship" that arise in the context of disciplinary proceedings, and which would come to it from either the provincial Courts of Review, or from the Court of Review for the Trial of a Bishop. Thus there is simply no court of any kind within the structure of the Episcopal Church (USA) that has the authority to decide which is the real diocese of Pittsburgh. The actions, such as they are, of the Presiding Bishop and the Executive Council are nothing more than window-dressing, and they should not fool a court of law required to decide the matter in accordance with the "neutral principles" doctrine which is followed in Pennsylvania.

And what could General Convention do, assuming that it were properly advised in July 2009? Again, the answer is found in the Constitution: the most it could do is to accept a properly presented application from the Episcopalians in Pittsburgh to be recognized as either a Missionary Diocese for the time being, or as a full-fledged Diocese of Pittsburgh (once some other canonical changes were made as well). What it could not do, because it is a legislative and not a judicial body, is adjudicate definitively the issue of whether Bishop Duncan's diocese had the authority to withdraw from the Church. (It might enact a Canon, or a Constitutional provision on the subject, but that would take effect only with respect to future events, and could not be retroactively applied to the current dispute. Indeed, its very enactment would be an admission of the fact that there is no current rule applicable to the situation, and that is why such an enactment at GC 2009 is highly unlikely.)

For these reasons, I do not see any merit in the position taken by the group represented by Dr. Simons that they are the "true Diocese". I have gone over the arguments that such a position requires in this post, and there is no point to repeating them here. The Diocese of Bishop Duncan has filed a motion to strike the request filed by the dissenters to have all the property turned over to them, on the chief ground that the dissenters are an entity different from the "Diocese of Pittsburgh" that made the 2005 stipulation to settle the case. That being the case, they should first make a motion to intervene in the case, in order to be capable of being recognized by the Court as a party with a stake in its outcome. As I just explained, I think that ground is well taken.

Bishop Duncan's diocese has also filed a motion to restore the status quo that existed before the dissenters sent their innocent letter to Morgan Stanley. This also should not cause the court any great difficulty. Morgan Stanley wants a court order, and the court should give them one---telling them in no uncertain terms that when a client deposits money with them, the client has every reason to expect that Morgan Stanley will not listen to the allegations of anybody who wants to say that they have some claim on the funds. The proper response to the November letter from Dr. Simons' group would have been for Morgan Stanley to say: "What you say may very well be true, but we have no way of telling whether that is so. You should make your case to the Court, not to us, and get a proper order restraining us from releasing any funds." I trust that Bishop Duncan and his financial people have learned their lesson about the loyalties of Morgan Stanley.

However, the matter will first have to be addressed to the Court, and not to the Special Master, who was appointed just to take an inventory of the diocesan assets as of the date of the stipulation, and to "advise the Court as to any alleged violations of the Stipulation . . ." (see the Motion to Strike, paragraph 13). Advising the Court as to "alleged violations" is not the same thing as making findings and recommendations as to turning over assets, so the request made to the Special Master would seem to be beyond the scope for which he was appointed.

Finally, for the dissenters to claim that Bishop Duncan and his Diocese actually stipulated in October 2005 to remain in ECUSA on penalty of forfeiture of all of their assets sounds like an argument more commonly ascribed, at least among the laity, to "Philadelphia lawyers" than to ones from Pittsburgh. It is an awfully weak reed on which to lean, since it would mean that the defendants knowingly threw in the towel. And if that were really the case, why would the parties still be fighting about what the stipulation says more than three years afterward?

As I finish writing this, I see that things are heating up in Fort Worth. There will be no rest for the weary this weekend. To understand the issues at stake there, you might want to read this post.


  1. The new mantra:

    "People can leave the Episcopal Church, but money cannot."

  2. Money can and does leave the Episcopal Church - and lots of others - as people take themselves and their pledges elsewhere. However, money that was left to the Episcopal Church - its congrgeations and Dioceses - remains with the Episcopal Church.
    I would note here that Jesus talked a lot about money and seemed to think that how we used it - our stewardship of it - was very important. As unpleasant as it may seem, the responsibility of the leadership of the Episcopal Church includes stewardship of these tools for mission - real property and money.