"I Have Not Yet Begun to Fight!"

"I have not yet begun to fight!"

With these immortal words, Captain John Paul Jones rebuffed the invitation from the British frigate Serapis to strike his colors on September 23, 1779, and surrender. A little more than three hours later, after a grenade thrown in the close infighting blew up her powder magazines, it was the Serapis that struck her colors.

I could easily imagine Bishop Robert William Duncan responding with the words of John Paul Jones when he was served with the latest addition to the Pittsburgh lawsuit (CAUTION: 52-page download) against him and his diocese: a demand that the special master appointed by the court order him to turn over all the bank accounts and other assets of the Diocese of Pittsburgh to the "Standing Committee" headed up by the Rev. Dr. James Simons, who recently joined the lawsuit. For the truth is that up until now in that lawsuit, there have been only maneuvers akin to those of frigates that try to bring their guns to bear for a withering broadside on an opponent's ship. Now events have overtaken the Pittsburgh supporters of Presiding Bishop Jefferts Schori, led by Dr. Simons and Dr. Harold Lewis of Calvary Church (the original plaintiff in the suit). Partly through their own puny efforts, but aided mightily by the uncanonical machinations of the House of Bishops, they find themselves in the very situation that Dr. Lewis and his church most wanted to have happen when they filed suit more than five long years ago.

Bishop Duncan has been de facto (and not de jure) deposed as a Bishop of the Episcopal Church (USA). According to the standard ALFOIL* strategy, there is still an Episcopal Diocese of Pittsburgh, but it is without a current leader (apart from its soi-disant "Standing Committee"). In the eyes of Drs. Simons and Lewis, this gives them grounds to go into court and pretend that they need to have possession and control of all of the Diocese's assets, now. It is an un-Christian and despicable effort by a 25% minority to seize 100% of the assets, and deserves to be put under the microscope here to see of what stuff it is made.

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*ALFOIL: Autocratically-Led Funding Organization for Internecine Litigation

[UPDATE 01/21/2009: Make sure to read the new facts reported by Nevin in the comments to this post below. The documents he references (153 pages and 171 pages, respectively) may be downloaded already. See also this pleading, which is a motion to strike the appearance entered on behalf of the pseudo-"Diocese of Pittsburgh" (see the discussion that follows). As promised, I will have an updated post after I have digested the contents of these pleadings, which were just filed yesterday. Thanks, Nevin!]


In order to follow the shifting positions they have taken in court, you will need a playbook. Take things as they were on October 3, 2008. There was an unincorporated association under Pennsylvania law that was known by the legal name of the "Episcopal Diocese of Pittsburgh." In order to avoid confusion, and to enable us to keep track of the game, let us agree to call that unincorporated association, using the nautical analogy from my previous post, the good ship Pittsburgh. Just a few weeks earlier, the Episcopal House of Bishops had pretended that a majority of the whole number of Bishops entitled to vote in the House had voted to depose its Captain (Bishop), the Rt. Rev. Robert W. Duncan. Rather than contest the matter, Bishop Duncan bided his time until the crew of Pittsburgh (i.e., the deputies elected by its parishes, along with all the clergy) could meet for its annual convention, the date of which had earlier been moved up to October 4.

On October 4, at the Pittsburgh's convention, the crew voted overwhelmingly to amend the diocesan constitution and canons. The changes caused Pittsburgh to leave the Episcopal fleet, and to join with the fleet from the Anglican Province of the Southern Cone. (To understand what follows, I want you literally to imagine the ship Pittsburgh sailing off and joining the other fleet, so that she is no longer part of the ECUSA fleet. And to distinguish her from this point forward, she shall be called "SCS Pittsburgh"---where, thanks to the suggestion in the comments by Martial Artist, USN (Ret.), "SCS" stands for "Southern Cone Ship".) Once that occurred, the Admiral (Primate) of the Southern Cone, the Most Reverend Gregory Venables, announced that he had appointed Captain Duncan as his Episcopal Commissary (a deputy who acts locally with authority from the primate) to SCS Pittsburgh. At the same time, the first mate of SCS Pittsburgh (there was for the time being no Captain, remember) announced that a special convention of her crew would be held in one month's time for the purpose of electing a new Captain. That convention was duly held, and---you already know this---the crew unanimously elected the Rt. Rev. Robert W. Duncan, now a bishop in the House of Bishops of the Southern Cone, as its Captain (diocesan bishop).

As soon as the vote to sail away from the Episcopal fleet was announced aboard SCS Pittsburgh on October 4, the dissenters left the ship in a longboat, contacted the press, and made a statement announcing they would have nothing further to do with the renegade ship and her crew. They rowed over to the escort ship ECS Calvary (where "ECS"= Episcopal Church (USA) Ship), commanded by their good friend Dr. Harold T. Lewis, and announced that they would reorganize under the shelter of that vessel. In due course, they rechristened their longboat the ECS Pittsburgh, to take the place of the frigate that had left the fleet.

Now anybody but a landlubber knows that a longboat does not a frigate make, no matter how much you deck her out. Staying with our nautical analogy here, frigates are commissioned and christened only by the entire fleet, in this case, the Episcopal fleet. And the fleet was not scheduled to assemble until July 2009, when they would all come together in the port of Anaheim, in Southern California. (What's that? You say Anaheim is not a port? Begone, ye scurvy knave! This is my analogy, and in it, Anaheim is a port. There's even an island in the middle of it, called Tom Sawyer's Island---and the waters abound with Caribbean pirates, too [as opposed to the Pittsburgh variety, I mean---thanks again, MA].)

But not a problem for the Fleet Admiral, the Most Rev. Katharine Jefferts Schori, or her loyal followers in Pittsburgh. Longboat or no, they would call the vessel "ECS Pittsburgh", and treat her as though she were a frigate. First mate became Dr. Simons, since he was the only one of the real Pittsburgh's former officers who jumped ship. He was allowed to pick the rest of his crew. They painted on the name, hoisted a flag of the fleet, and voilà! the longboat ECS Pittsburgh was launched as a frigate.

All right, with that as background, you are now in a better position to understand the various moves in the latest proceedings in admiralty court. (Actually, it's a landlubber's court, the Pennsylvania Court of Common Pleas, but this is my analogy, remember?) First, a brief refresher. In my previous post, I traced the history and background that led up to the filing of the lawsuit. I showed how its allegations were of no substance whatsoever---the legal equivalent of tinted cotton candy. I also quoted their prayer for relief, and showed just what it was the plaintiffs were asking for from the court. You can go back and review those again, if you wish, or you can simply take my word for it: with these latest developments in October-November 2008, all of the relief requested in the original suit became moot. The reason is that the argument is all over the booty that goes with whoever owns the good ship Pittsburgh.

In essence, the dispute comes down to this. As of October 3, the date before the vote to leave the fleet, frigate Pittsburgh had a sizeable treasure chest filled with gold doubloons in her hold. The crew of Pittsburgh, even without Captain Duncan at her helm, were of the opinion that the treasure chest belonged to the ship, and so they sailed off with the chest to join the Southern Cone fleet. But for Commander Simons and his crew, the entire chest was to be used for the benefit of the Episcopal fleet, and not for the individual ship as such once she left the fleet. And since they had assumed the name Pittsburgh in the context of the Episcopal fleet, they were of the mind that the chest rightfully belonged to them.

Now there was already a pending suit; the problem is that the relief it sought all had to do with getting a judgment against Captain Duncan and his ship, and besides, the suit was supposedly settled in October 2005. This is now 2008. In the eyes of the Episcopal fleet and its Admiral, they removed the stripes from Captain Duncan's uniform, so he cannot any longer be called by his rank. (Notice how, in the pleading first linked above, they refer to him as just "Mr. Duncan.") And his ship (in their eyes) is no longer "ECS Pittsburgh" that once belonged to the Episcopal fleet, because that fleet still has an ECS Pittsburgh (even though we all know it is not the same ship). Whatever ship Mr. Duncan now heads is some other fleet's ship, but they cannot even recognize her as a ship---they talk only of "Mr. Duncan and his followers".

So how can the plaintiffs raise their new claim? Ay, there's the rub. For after some desultory skirmishing in the original lawsuit, the plaintiffs settled, as I mentioned, for a stipulation which supposedly ended the case. But it must not have, because plaintiffs are now back in court contending that the acts of "Mr. Duncan and his followers" violated the terms of the stipulation. Let us examine that claim a little more closely.

The stipulation begins innocuously enough: "In amicable resolution of the above litigation, the undersigned counsel . . . hereby stipulate as follows" (emphasis added). Then come eight numbered paragraphs, of which the key one for our present purposes is the first. I shall quote it twice: the first time as literally written, and the second time as translated into the terms in my nautical analogy (I have added bold where necessary to bring out the points needing emphasis):

1. Property, whether real or personal . . . held by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter "Diocese") for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held and administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. . . .

Now here is the same paragraph again, but cast in our nautical equivalents:

1. The treasure chest currently in the hold of the frigate Pittsburgh, of the Episcopal Fleet, shall remain in said hold and continue to be used by the ship as before, regardless of whether some or even a majority of the vessels in her wake, and forming part of her flotilla, decide to sail off for other waters . . .

If you are Dr. Lewis or Dr. Simons or one of their supporters, you should see a bit of a problem with reading the stipulation in that way. For if the frigate Pittsburgh is now in the fleet of the Southern Cone, then the stipulation accomplishes nothing. It allows that ship to continue to hold her treasure just as she always held it (remember---in joining the Southern Cone fleet, the ship did not change her name, but only her designation---from "ECS Pittsburgh" to "SCS Pittsburgh").

So naturally, Dr. Lewis et al. do not read the stipulation that way. Instead, they read it to mean that ECS Pittsburgh stipulated by its language that it would always remain a part "of the Episcopal Fleet". "Aha!" they say. "You, SCS Pittsburgh, agreed back in 2005 by that language that you would stay in the Episcopal Fleet! We've got you now---when you left the fleet to go to the Southern Cone, you are no longer able to call yourself "ECS Pittsburgh, and so you are no longer in compliance with the stipulation! That means the Special Master (the attorney specially appointed by the court to hear the evidence and make a report and recommendations) has to recommend that the court order the treasure chest be turned over to us."

Your position in this fray will doubtless be the result of whether or not you consider that to be a valid legal argument. I just gave you the argument pro; now here is the argument con.

"The phrase "of the Episcopal Fleet' (or, in the original, 'of the Episcopal Church of the United States of America') is descriptive, and not prescriptive. At the time the frigate entered into the stipulation, that was how one properly described that vessel; but since then, the frigate changed its flag, as it is by the general principles of admiralty law allowed to do. Since there is no provision in the Episcopal Fleet General Orders which says a ship may not choose to fly a different flag, there would have to be a specific agreement in the stipulation that this particular frigate would not do so. There is no such express agreement in the language of the stipulation, and you go too far when you try to read one into a mere phrase of description."

Those, as I say, are the arguments pro and con. But hold on just a minute. Something even more problematic, or fundamental, should have caught your attention by now. (If you want to go back and read all that I have written above, including the earlier introductory post, be my guest. I shall wait.)

. . .

. . .

Ready now? Did you spot the problem? Let me refresh your memory.

In my first post on this subject, when I was talking about the original complaint filed by the plaintiffs, I mentioned that in addition to bringing suit on behalf of Calvary Church and the individual plaintiffs, they filed suit in the name of the Diocese (ECS Pittsburgh, in my analogy), claiming to be acting on its behalf---since under the Pennsylvania Rules of Court, an action for an unincorporated association has to be brought by one of its members as "trustee ad litem" for the association. ECS Pittsburgh itself (as she was then), however, challenged their ability to do this. She filed a motion to intervene on her own behalf, and to be represented in court by her own officers.

The court granted Pittsburgh's motion. Subsequent pleadings filed by the plaintiffs no longer claimed to be filed on behalf of ECS Pittsburgh.

Until the most recent filing.

The "Request to Special Master", filed on January 8, 2009 (version without exhibits is here), states on its cover sheet:

ALSO FILED ON BEHALF OF:

The Episcopal Diocese of Pittsburgh of the

Episcopal Church of the United States of America

But how can they do this? you ask. It is a very good question. Remember that the Court Rules simply say that an association has to appear in court through one of its members. Now recall that Commander Simons and his crew are claiming that in reality they are in command of the only true and lawful vessel named ECS Pittsburgh in the Episcopal Fleet (never mind that it is a longboat, and not a frigate). So they have simply acted on that position. Apparently their attorney appeared at a hearing in Court held shortly after the vote to disaffiliate was taken and stated that he represented the crew of ECS (longboat) Pittsburgh. The court allowed him to do this at the hearing (without, of course, making an evidentiary finding as to the status of his ship). And so the plaintiffs took that as a license to file their papers representing "ECS Pittsburgh" ---without disclosing that it is a longboat, and making it look as though they were filed "on behalf of" the actual frigate which once bore that same name.

Their Request dredges up all the old bogeymen from the past five years, in an attempt to justify their claim that the change of flag from Episcopal to Southern Cone violated the stipulation. No answer has been filed yet on behalf of the real Pittsburgh to the Request; one will be shortly. You can bet that it will make for very interesting reading, and I will provide an updated post at that time.

Now, perhaps, you may comprehend some of the task facing the special master. He will not only have to decide whether SCS Pittsburgh can retain her treasure chest, but he will also have to decide whether ECS (longboat) Pittsburgh can really in law claim to be a full-fledged frigate. And there is one, and only one, way in which he could reach that conclusion: he would have to find that the changes voted by the crew of the frigate at her annual Convention on October 4, 2008 were legally beyond their powers to make, or, in other words, ultra vires. In that case---and in that case only---the special master would recommend to the court that Commander Simons and his crew be allowed to take back the actual frigate Pittsburgh, along with all the contents of her hold, and all the other vessels in her flotilla.

Given the absence of any express language in the Fleet's General Orders ("Constitution and Canons"), that is a very tall order, as I have previously discussed in this post. (See also my exchanges with commenter "Anglican" below.) Commanders Simons and Lewis may wave their hands and jump up and down all they want about the Fleet being "hierarchical" and all that, but the Pennsylvania Supreme Court decided in 1985 to follow a strict "neutral principles" approach, and the lower courts have since applied that doctrine to other church disputes. That should mean, in this case, that the Special Master will look at the actual language of the Constitution and Canons, and see what they say, rather than accept a characterization of them as "hierarchical". We shall see.

In summary, the Special Master is about to be presented, for the first time in any court anywhere, squarely with the question of whether a Diocese can leave the Episcopal Church. After five desultory years of jockeying for position, the vessels on each side (including escort ECS Calvary) are engaged, the cannon are loaded, and the broadsides are about to be fired. Thus my title for this piece, which uses the words of John Paul Jones to express the sentiments of those who are now facing this decisive battle. However, as several commenters have reminded me, I could also have used the brave words of Captain James Lawrence, as he lay dying on the deck of the USS Chesapeake just outside of Boston Harbor, in June 1813*:

"Don't give up the ship!"

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*The account of this incident is in a favorite book of mine, with the all-time great title of When a Loose Cannon Flogs a Dead Horse There's the Devil to Pay: Seafaring Words in Everyday Speech, by Olivia A. Isil.