Wednesday, January 21, 2009

"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.
*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 voilĂ ! 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:

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!"

*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.


  1. +Duncan and co. continually point to the C&C as not prohibiting a diocese from leaving TEC. However, the C&C does provide a mechanism whereby dioceses outside the US may leave. These dioceses are all termed Missionary Dioceses - the only definition of which in the C&C is:

    "Missionary Dioceses...shall constitute jurisdictions for which this Church as a whole assumes a special responsibility."

    In all other respects, however, these dioceses are formed, structured and function just as any other domestic diocese:

    - They are admitted into union with General Convention via acknowledging the TEC C&C
    - They have a Diocesan Convention and Standing Committee
    - They are governed by Diocesan Constitution and Canons
    - They elect a bishop by Diocesan Convention
    - They elect Deputies to General Convention
    - They elect Deputies to Provincial Synod
    - They adopt an annual budget and program, and provide for its administration

    Structurally, Missionary Dioceses are identical to a domestic diocese. The only difference is that they exist outside of the US, but they are, to all intents and purposes, 'dioceses' of TEC.

    If a Missionary Diocese wishes to leave the Episcopal Church for another neighbouring (nb) province, it must:
    - pass such a motion at its Diocesan Convention and then forward that request to the General Convention
    - undergo a 3 year trial period between conventions
    - the next Convention may either grant or deny the request, or extend the trial period

    From this we could conclude a number of things:
    - that it is an unwritten assumption in the C&C that only non-domestic dioceses may leave TEC, therefore only they are provided with a mechanism to do so. If TEC had contemplated the possibility of a domestic diocese leaving they would have provided a mechanism. Provision is provided for domestic dioceses to revert to Area Mission status, or be subsumed into or unite with a neighbouring diocese, but not leave. The explicit granting of such provision to non-domestic dioceses, while only providing for Area Mission/uniting for domestic ones shows that the C&C does not make it possible. It is unwritten but explicitly assumed.
    - However, if we generously grant the possibility that a domestic diocese may leave TEC, then why should their process for leaving be any different from that of a Missionary Diocese? What is different about them that does not require a similar process? Why did the dioceses that are now part of the provinces of Mexico, Central America and the Philippines require permission from General Convention to leave, but those dioceses who now claim to be part of the Southern Cone did not?

    It appears clear that the lack of provision in the C&C for a domestic diocese to leave is not affirming that any such diocese may leave at any time without approval by GC. It is a sign that it was not envisaged that a diocese could do so, and so no mechanism was provided. If, however, we grant that a domestic diocese may leave, then it is clear that such a leaving process could not be along lines different from non-domestic dioceses who are formed, structured, and governed identically to domestic ones.

    Secular courts have shown a propensity to defer to the authority of TEC in interpreting its own Constitution. Such will be the case here too.

  2. Anglican, thank you for that detailed comment. However, I think that you and I must be dealing with different versions of the Constitution and Canons of the Episcopal Church.

    You state (as though the Canons so provide) that:

    "If a Missionary Diocese wishes to leave the Episcopal Church for another neighbouring (nb) province, it must:
    - pass such a motion at its Diocesan Convention and then forward that request to the General Convention
    - undergo a 3 year trial period between conventions
    - the next Convention may either grant or deny the request, or extend the trial period."

    Here, however, is what the 2006 version of Canon I.9.2(b) says:

    "By mutual agreement between the Synods of two adjoining Provinces, a Diocese or Area Mission may transfer itself from one of such Provinces to the other, such transfer to be considered complete upon approval thereof by the General Convention. Following such approval, Canon I.9.1 shall be appropriately amended."

    That is in the case where the neighboring province in question is still a province of the Episcopal Church. And for cases where the neighboring province is a foreign one, Canon I.11.3(b) provides:

    "In the event a Missionary Diocese beyond the territory of the United States of America is incapable of functioning as a jurisdiction in union with the Episcopal Church, and the Bishop, or if there be none the Ecclesiastical Authority, of such Diocese, after consultation with appropriate diocesan authorities and the Presiding Bishop agree that continuation in union with this Church is no longer feasible, the Presiding Bishop is authorized, after consultation with the appropriate authorities in the Anglican Communion, to take such action as needed for such Diocese to become a constituent part of another Province or Regional Council in communion with this Church."

    In either instance, I find no "three-year trial period" such as you mention. Indeed, in the latter case, the consent of General Convention is not even required; the Presiding Bishop handles the details. In any event, though, missionary dioceses are treated differently under the Constitution from regular dioceses---as you quote Article VI, they are "jurisdictions for which this Church as a whole assumes a special responsibility." Such is not the case with regular dioceses, which are fully autonomous under the C&C 's, as Canon I.9.8 indirectly makes clear. Speaking of Provincial Synods, that Canon states that they have the power:

    "to deal with all matters within the Province; Provided, however, that no Provincial Synod shall have power to regulate or control the internal policy or affairs of any constituent Diocese; and Provided, further, that all actions and proceedings of the Synod shall be subject to and in conformity with the provisions of the Constitution and the Canons for the government of this Church . . ."

    So while the Constitution expressly provides that the national Constitution and Canons are superior to provincial actions and proceedings, there is no comparable provision with regard to diocesan actions and proceedings; and the provinces are expressly forbidden from regulating or controlling the internal affairs of any Diocese (while General Convention has never pretended it had any such power).

    Given these facts and these provisions, I cannot agree either with your analogy or your conclusion.

  3. The Diocese of Pittsburgh has responded with a motion to strike the request to Special Master and Notice to Plead. It is brilliantly written in my non lawyer opinion and I believe, given statements made in the past by Judge James, will be striken. There is simply no way that Judge James will let the Special Master make the determination who gets the assets, he has made it clear that is not the job of the Special Master. I also don't believe that that he will view the departure of the Diocese of Pittsburgh from TEC as a violation of the Stipulation. Judge James has made it clear that he prefers the two sides would amicably and equitably divide the assets of the diocese through some sort of arbitration. He seemed pleased that the Diocese of Pittsburgh wanted to take that approach, although the Calvary/Simons lawyers were horrified by the thought. But if it must be decided by the courts, Judge James will do it at trial, not by a Special Master. In addition the Diocese of Pittsburgh also filed a motion to have their assets unfrozen. Despite Judge James explicit statements that he did not want to see bank accounts frozen the Calvary/Simons litigants went behind his back and coerced Morgan Stanley into freezing all the bank accounts of the Diocese of Pittsburgh, ala San Joaquin. I can't help but think that Judge James will be pissed off at this end run around him.

  4. Nevin, thank you for adding that news! I have updated the post with links to the documents filed, and will be updating the post further once I have digested them. That is great news, and I hope that your reading of Judge James is correct!

  5. Mr Haley

    I'm afraid you are mistaken.

    Canon I.11.3(f) states:

    "At the request of the Convention of a Missionary Diocese, supported by the presentation of relevant facts and a reasonable plan, the General Convention may by joint Resolution (1) permit the Diocese seeking autonomy to unite with another Province, or Regional Council having metropolitical authority, of the Anglican Communion,..."

    The process for this is outlined in Resolution A-235 of GC 1991, which requires:
    - a request to GC
    - a 3 year trial period
    - the approval of GC (or rejection or extended trial period)

    The process can be followed in GC resolutions for e.g. dioceses that now form Central America.

    The only definition of a Missionary Diocese in the C&C is:

    "jurisdictions for which this Church as a whole assumes a special responsibility."

    A special responsibility. It is not, as you infer, that the Church as a whole has no responsibility for other dioceses, otherwise it would simply have read:

    "jurisdictions for which this Church as a whole assumes a responsibility."

    It therefore indicates that the Church as a whole assumes responsibility for domestic dioceses, but it has a special responsibility for Missionary Dioceses. The manner of that responsibility is never spelled out, but it does not involve any less autonomy than a regular diocese. Missionary Dioceses are fully-functioning dioceses:

    - They are admitted into union with General Convention via acknowledging the TEC C&C
    - They have a Diocesan Convention and Standing Committee
    - They are governed by Diocesan Constitution and Canons
    - They elect a bishop by Diocesan Convention
    - They elect Deputies to General Convention
    - They elect Deputies to Provincial Synod
    - They adopt an annual budget and program, and provide for its administration

    As regards their 'autonomy', Article XI of the C&C states

    "Whenever the term "Diocese" is used without qualification in this Constitution, it shall be understood to refer both to Dioceses and to Missionary Dioceses..."

    Therefore, your assertion (based on the authority of internal provinces) that Canon I.9.8 does not include Missionary Dioceses is mistaken. It does. And yet they still do require the permission of GC to leave.

    It is clear that the C&C explicitly assumes that domestic dioceses may not leave TEC, by the fact that it has to explicitly include a method whereby a non-domestic diocese may leave.

    And even if a domestic diocese could leave, then the process for doing so should be no less than that for a Missionary Diocese.

    Both sides are arguing from silence, but the stronger argument is that of TEC. There is no mention in the Constitution of how a State may leave the US once in union - that does not mean that they can.

  6. I forgot also to add that in Resolutions A141 and A142 of GC 2003, the Convention passed the following in regard to admitting Puerto Rico and Venezuela as dioceses:

    "Resolved, That the Convention reaffirm the principle that dioceses of this church that are not located within the United States may seek autonomy according to the procedures set forth in Resolution [A]235a of the 1991 General Convention or may join other provinces of the Anglican Communion".

    It is quite clear from this that only non-domestic dioceses are explicitly granted the right to leave TEC for another Province. If all dioceses had that right there would be no need for a reaffirmation of this principle. No such principle is reaffirmed when any new domestic diocese is admitted following a division of dioceses.

    The norm is clear. Dioceses may not leave for another province except those located outside of the US, for which explicit sanction and method is given by GC.

  7. Dear Curmudgeon,

    Were the court guaranteed to be rational (i.e., ruled by the laws of reason), which unfortunately it is not, being a human institution, I would venture to state that this battle would go to SCS Pittsburgh (see item a, below).

    I am tempted to ask how it is that ratiocination so often fails to produce the sorts of decisions from the court that logic dictates? Is it that judges are, at least as often as not (in Jungian terms) Feeling, rather than Thinking, types?

    Also, intending neither disrespect nor criticism, as a retired Naval officer and former swabbie, please allow me to make a few minor suggestions concerning the wording of your analogy:

    a. Once having identified the vessel by name, she may (and typically would be) simply referred to by her name without the definite article, or by the feminine singular pronoun whose case is dictated by the usage in the sentence (she, her). Hence, references to the ship after the first identifying the frigate Pittsburgh would simply read, using the reference to the convention as an example, "On October 4, at Pittsburgh's convention, the crew …." If it is desired to use more formal terminology, the vessel's name may be preceded by the abbreviation for the naval organization in question, thus we might have the SCS Pittsburgh (the frigate) and the TECS Pittsburgh (the longboat), SCS representing Southern Cone Ship and TECS representing The Episcopal Church Ship, respectively. The great advantage of substituting the organizations designation for the definite article is that one can then easily and precisely distinguish SCS Pittsburgh from TECS Pittsburgh, without additional qualifying verbiage.

    b. If TEC's Fleet will be assembling (massing or rendezvousing would be more typical terminology) in Anaheim, I do hope they will be on the alert for pirates. I doubt that such would come from Tom Sawyer's Island, but my understanding is that the Pirates of the Caribbean are frequently active in the waters about Anaheim. ;-)

    c. While your description of "maneuvers akin to the moves by frigates to put themselves into a position where they could deliver a withering broadside …" is perfectly clear and in no way inapt or incorrect, this is more economically referred to as maneuvering "to gain the weather gauge" (at least for sailing ships), or "to bring her guns to bear." Of course, economy of language, taken too far, may lead to confusion in the reader not familiar with the world described in the analogy.

    Finally, allow me to observe that the behaviors of those in command of TECS Pittsburgh, and apparently of their Fleet Admiral (PB) as well, is to reply to Capt. Jones response with the full response of Capt. James Lawrence aboard USS Chesapeake in her 1813 battle with HMS Shannon off Boston, Massachusetts. Many Amereicans are familiar with the first half of Lawrence's order, few with the full text: "Don't give up the ship. Blow her up." (This would have been to prevent her being taken prize by the enemy.)

    Blessings and regards,
    Keith Toepfer

  8. Dear Martial Artist,

    I have been waiting for you to review my nautical terminology! (All the while I was writing, I asked myself: now how would Martial Artist say this?)

    Thank you for those corrections and emendations, which I shall, as I have the time, both incorporate into the text and in future posts---I think the nautical analogy has a lot going for it, because then people can understand the principle of how a diocese leaves the fleet.

    But I would like some additional assistance, if I might ask. The analogy, with its Fleet Admirals, Captains, Commanders, first mates, and so forth, implies a certain Navy chain of command which we know does not exist in ECUSA. The only "fleet" I might think of in history that had a similar loose command structure to that of ECUSA is the fleet at Dunkirk. Can you think of any other examples?

    Thanks again, as always.

  9. Anglican, thank you for that detailed response. Your argument from silence remains an argument from silence, and when parties depend on enforcing a silent (i.e., unwritten) agreement, they have to back it up with custom and practice in the past. And that is where your argument breaks down, because you can cite past practice only with respect to foreign Missionary Dioceses, while I can cite the practice with respect to Southern Domestic Dioceses, as I did in this post.

    Furthermore, you cite past resolutions of General Convention as though they somehow took precedence over the current Canons---they do not; they are simply expressions of the mind of that particular Convention. Thus with regard to foreign missionary dioceses, no future General Convention would be bound by the terms of Resolution A-235 of GC 1991, and could follow an entirely different procedure in interpreting Canon I.11.3 (f) if it chose.

    And notice, please, that in inviting foreign dioceses either to seek autonomy or to join any other Anglican province, the 2003 Resolutions recognize that in the case of the latter choice, no conditions whatsoever restrict their decision to do so.

    Thus were I in a court case involving the issue, I would cite the latter part of the 2003 Resolutions you mention as recognizing the general principle that autonomous dioceses are free to leave ECUSA and join any other province of the Anglican Communion whenever they wish to do so, with no restraints of any kind upon that decision.

    Note also, please, that the first option mentioned by the 2003 resolutions, namely to "seek autonomy according to the procedures set forth in Resolution [A235] of the General Convention of 1991" is a reference only to foreign missionary dioceses, and not to foreign autonomous ones, because Resolution 1991-A235 itself applies only to the former---it begins by stating that it is enacted "under the authority of Title I, Canon 11, section 3(f)".

    I conclude with your preferred syllogism:

    A. Foreign autonomous Dioceses are generally fully equivalent under the ECUSA C&C 's to domestic autonomous Dioceses---a principle expressly recognized in resolutions 2003-A141 and 2003A-142, admitting Puerto Rico and Venezuela, respectively, to ECUSA.

    B. In connection with those two resolutions admitting the same to ECUSA, GC 2003 recognized that foreign autonomous dioceses are free at any time to join another Anglican province, without condition.

    C. Therefore, domestic autonomous dioceses must have the same freedom to leave ECUSA without condition.

  10. Dear Curmudgeon,

    First, allow me to say I agree with the particular aptness of the naval analogy, even absent a close correspondence in formal organizational structures between navies and ECUSA.

    In reply to your specific query, allow me to remark that, although we (you and I, and others of our acquaintance) know that the sort of chain of command that exists in the Navy has no actual counterpart in ECUSA, it would appear that a majority of the leadership in ECUSA is quite thoroughly, and apparently irremediably, oblivious to that fact.

    That having been said, I can not recall any major naval engagements other than Dunkirk which had, as you so aptly put it, "such a loose command structure" as has ECUSA. And I would even think that Dunkirk had a significantly more hierarchical structure than ECUSA does, despite the former's incorporation of a very large number of small non-naval vessels.

    Historically, there has been enough confusion engendered by the fog of war in major naval engagemetns that the absence of a reasonably tightly structured chain of command has been a virtual necessity throughout history. The best naval commanders, Admiral Lord Nelson as but one example, invested considerable time with their subordinates explaining their approach to engagement with the enemy, their philosophy of battle if you will. This was partly necessitated by the difficulty in communicating between units in combat prior to secure radio, but still needed today owing to both the possibility of loss of immediate communications and the frequent need to remain undetected until the moment of engagement. But it did allow such simple flag hoists as Nelson's commands to engage the enemy fleet at Trafalgar. Recognizing the momentousness of the engagement he added, via flag hoist, the injunction that "England expects that every man will do his duty."

  11. As always, very informative. As Dr. Toon always says "Press on!"

  12. BTW of course I am not privy to any inside information on the thinking of Judge James. My take on him comes solely from reading the transcripts of the various hearings since this all started in '03. There are a couple of reasons why I think he does not view the separation of the Diocese of Pittsburgh from TEC as a violation of the Stipulation.

    One, he has stated reasonably clearly that it was his understanding that the Stipulation was all about the orderly separation of parishes from the diocese without alienating any diocesan property and assets (at that time obviously part of TEC), not about the possible separation of the diocese from TEC. I don't think he understood the Stipulation as an agreement that the diocese would forfeit all property and assets should they choose to separate. And frankly, who really thinks that Bishop Duncan and his legal team would ever have agreed to a Stipulation with such an understanding?

    Two, he has actually already ruled on this issue. After the first vote to realign in 2007 the Calvary/Lewis litigants filed a motion asking Judge James to find the diocese in violation of the Stipulation. And further they requested that Bishop Duncan, the Standing Committee and Trustees be removed from control of diocesan finances and that Lewis and his fellow litigants be appointed trustees of all diocesan assets. Judge James declined to do so, suggesting his thinking on the Stipulation does not mirror the claims of the Calvary/Lewis/Simons litigants.

    Third, Judge James has clearly indicated that he expects the case to come to trial if sides cannot come to an amicable settlement (which he would like to see). Why on earth would he be expecting the case to come to trial if the Stipulation already settled the issue?

  13. The TEC loyal diocese has posted their view of the Diocese of Pittsburgh motions on their website. The only thing of interest is their comical assertion that the leadership of the TEC loyal diocese was unaware that Morgan Stanley had frozen the bank accounts. Then they blame it on Morgan Stanley and claim their attorneys had nothing to do with it... yea, right...

  14. Those are three excellent points, Nevin, along with a good rejoinder. Please feel free to add your perspective at any time, as one who is much closer to the situation, and who has access to the hearing transcripts.

    While I do not hide my bias in favor of Bishop Duncan's position in this litigation, I want to make it clear that my bias stems from a sincere belief, based on my analysis of everything I could read online, that they have the superior legal position in this dispute. As one who has not left the Episcopal Church, I grieve to see other Episcopalians wasting their precious funds and everyone else's time for inadequate (or even contrived) legal reasons. Thus if anyone supporting Dr. Lewis or Dr. Simons sees this analysis, I hope they will realize that their support is sadly misplaced. And they will come to that realization only if the arguments presented here are soundly based on the facts, and on the law and the canons fairly applied to those facts.

    So that is why I especially welcome your contributions, Nevin. I thank you once again for your insights, and look forward to more of them.

  15. I appreciate Anglican's making an argument that I have made elsewhere. Anglican and Mr Haley have cited two differnt sections of Canon I.11.3. The one which Mr. Haley cites, as I read it, addresses a critical situation and grants the Presiding Bishop authority to transfer a Missionary Diocese to another Church in the Communion when the Diocese "is incapable of functioning as a jurisdiction in union with the Episcopal Church...." The other, cited by Anglican, as I read it, addresses situations which are not critical and, thus, requires General Convention action. Neither section of Canon I.11.3 applies to domestic Dioceses, but, if we were to allow them to be applied in the case of Pittsburgh, then the appropriate action of Bishop Duncan and the Diocesan Convenetion would have been to make a request to the PB.
    While I take note of Mr. Haley's opinion about arguments from silence, I agree with Anglican that the evidence in the Canons supports the conclusion that Diocese cannot unilaterally leave ECUSA. I find Mr. Haley's citing of the situation of Dioceses within the Conferacy unconvincing. As Dioceses of the Episcopal Church in the USA, those Dioceses found themselves for a time outside the USA and, for good reason, organized themselves accordingly. When the Union was preserved, they all returned to ECUSA. However serious the situation we are in, it is clearly not at all like the situation during the War Between the States.

    It seems to me, as an avowed and unapologetic revisionist, that those who support secession, in the face of fairly convincing arguments against it, will look for any thread to support it and will, sadly, resort to name-calling in the process, e.g., The Bandit Bishop.

  16. Father Weir, I love having an "avowed and unapologetic revisionist" here with whom to have a dialogue, but that does not mean that I do not get frustrated with your selective textual arguments. It was Anglican, not I, who cited Canon I.11.3 (f); I was citing no canon at all when I pointed out that the language of Resolutions 2003A-141 and -142 recognized the fact that autonomous dioceses were free to leave to join another province at any time.

    As for the Civil War dioceses, when I point them out as a precedent against the argument from silence that you and Anglican both urge, you dismiss them with another argument from silence: "Well, that was the Civil War, and this is now. Everyone agrees (silently, of course) that those do not count as a precedent, because we are not in a Civil War now."

    Finally, please believe me when I say I take no pleasure whatsoever in labeling our PB as a "banidt bishop". However, I do not flinch from charging her with repeated and flagrant violations of the canons, which not even you deny. I have suggested what her fellow bishops can do about the situation, in this post. No bishop has to date had the courage to take me up on my suggestion. As a result, I prod more and more, and one of the ways in which I hope I get under her supporters' skin is by using labels that are accurate, and not euphemistic evasions. One who violates the law on a repeated ands flagrant basis is an outlaw, or a bandit. And if they are at the same time a bishop, well, that in my eyes is so much the worse.

    I submit that the ones who will not admit to themselves that they have a lawbreaker for a presiding bishop are taking the worse course.

  17. Mr. Haley,
    Let me set the record straight on one point. You wrote, "However, I do not flinch from charging her with repeated and flagrant violations of the canons, which not even you deny." That statement might be constued as indicating that I agree that the Presiding Bishop could be fairly charged "with repeated and flagrant violations of the canons...." That is certainly not true. I have stated that the PB might have been wiser to take a different course in dealing with separatists, but I think that I have been clear that I do not believe that the PB has violated the canons, and certainly repeatedly and flagrantly.

    On another matter, you are quite right that Anglican's comments were the first to cite a section of Canon I.11.3. However, in responding to his citing of I.11.13(f), you cited I.11.13(b), a section Anglican had not cited. I thought that I was clear in my comments that the two of you were citing different sections of I.11.13, and was not at all concerned with who was first. This reminds me of the oft-repeated cry by one of my children: "He (or she) started it.
    I agree that "that was then and this is now" arguments are suspect. However, precedents are only valid insofar as the circumstances are similar. My contention is that the circumstances now are not at all similar to those of the Dioceses in the Confederacy. If you want to assert that they are, beyond the obvious fact of secession, I would be glad to hear that argument. As I pointed out, my opinion is that the temporary separation of those Dioceses from ECUSA was precipitated by the secession of the southern states and was not the result of the kinds of disagreemnents that we have experienced.

  18. No, Father Weir, the "temporary separation", as you refer to it, was not precipitated by the secession of the States. A minority of the Southern bishops (one or two, as I recall) made that argument, but the others did not accept it, and did not consider themselves removed from PECUSA until their diocesan conventions voted the changes necessary to make it so. (Even those who thought the fact that the States in which they were situated had withdrawn also resulted in a withdrawal ipso facto of their dioceses still went along with the others, and passed changes in their constitutions to effect the withdrawal.)

    Moreover, there were two southern States---Louisiana and Tennessee---who never managed to be able to assemble diocesan conventions during the War. As a result, their constitutions were never amended, so they never withdrew from PECUSA, and so they did not have to do anything to rejoin once the War was over; the others all did.

    I regret having thought from some of your earlier comments that you understood that our Presiding Bishop is a canon-violator; indeed, a violator on a level that is without precedent in the annals of our church. If you do not see even these acts as violations, then a good part of this Website must seem like senseless hallucinations to you. Nevertheless, I appreciate your coming here.

  19. Dear Mr. Haley,

    If "a good part of this Website must seem like senseless hallucinations to" Rev. Weir, I can only remark that I am experiencing a reciprocal reaction to the Rev. Weir's forensic gymnastics. Such being the case I am forced to wonder if "reasoning together" has any hope of proving fruitful.

    Blessings and regards,
    Keith Toepfer

  20. Mr. Haley,
    I appreciate the clarification about the process that led to the secession of southern Dioceses from PCUSA, but my comment was not about process, but about the reasons that those Diocesan Conventions voted to leave. Unless I am mistaken, the secession of the states was a - or even the - major reason. Perhaps we have no way of knowing the reasons, but unless there is some proof that the secession of the states was not a reason, I will stand by my original assertion.