The Issue Is Finally Joined in Pittsburgh (II)

In the first part of this post, I presented the allegations in the complaint in intervention filed by the Episcopal Church (USA) in parallel with the responses to those allegations by the Diocese of Pittsburgh and Bishop Duncan. Reading the two pleadings together in that fashion showed exactly how the question of a diocese's ability to withdraw from the unincorporated association of dioceses which is ECUSA itself has been placed at issue in the Pittsburgh litigation.

(As a lawyer, it continues to amaze me that there can even be an argument on this point. Associations are by definition voluntary. Being voluntary means that members are free to come and to go as they choose. There has never been a single reported case in the entire history of the common law, of which I am aware or which has ever been cited to any court, which holds that a member of an association is not free to choose to leave it at any time. But then I remember that it is the Episcopal Church we are dealing with, and ECUSA seems to have a knack for getting the common law---like the Statute of Frauds---put to one side when it wishes. So, back to the pleadings in Pitttsburgh.)

At the end of the answer filed by the Diocese to ECUSA's complaint, the Diocese alleged some paragraphs of what it identified as "new matter"---i.e., allegations made not just in response to those in the complaint, but additional facts and circumstances which the Diocese believes are relevant to the overall case, and which need to be added to those alleged by the plaintiff in intervention.

(For the non-lawyers: a "plaintiff in intervention" is not the original plaintiff who began the lawsuit [in the Pittsburgh litigation, that was Calvary Church and some individuals], but a new party who asks the court for permission to join the case ["intervene"] on the side of the plaintiff, because the outcome of the case will in some way affect that party's rights [in addition to affecting the rights of the original parties]. Thus ECUSA sought and was granted leave to intervene in order to present directly its claim to the assets and property of the Diocese, which theretofore had been presented and argued on its behalf by the Calvary plaintiffs---and, later, by the entity now claiming to be the "rightful" Episcopal Diocese of Pittsburgh. If you are in any way confused by this description, I urge you to read this post, then this one, next this one, and finally this one, to sort it all out before proceeding farther. And if you really want some background, you will find links to all of my preceding posts on the Pittsburgh situation conveniently grouped on this page.)

Now ECUSA has filed its Reply to [the] New Matter alleged by the Diocese in their answer. With that filing, it becomes possible to complete my parallel presentation of the allegations made by one side and the responses to those allegations made by the other. As in the first post, I present the allegations of the Complaint in Intervention in red; the Diocese's responses are in purple.

Recent Developments in the Diocese

41. At its November 2007 meeting, at the urging of defendant Bishop Duncan and other individual defendants described in Paragraph 45 who were dissatisfied with certain aspects of The Episcopal Church, the Annual Convention of the Diocese passed a resolution intended to amend the Diocese's Constitution to remove references to The Episcopal Church and to permit the Diocese to specify by canon the Province of the Anglican Communion of which it would be a member. According to the Diocese's Constitution, amendments to it must be passed by two successive Annual Conventions.

41. Admitted in part, denied in part. It is denied that the resolution was passed "at the urging of defendant Bishop Duncan and other individual defendants described in Paragraph 45." It is admitted only that the resolution was supported by Bishop Duncan, some members of the Standing Committee of the Diocese, and some members of the Board of Trustees. By way of further answer, the resolution was passed at the November 2007 Annual Convention of the Diocese by of a majority of each Order (Clergy 109-24; Lay Deputies 118-58) pursuant to the Constitution of the Diocese. The resolution is a written document, the contents of which speak for itself; any interpretation of said document is specifically denied. It is further denied that the resolution "intended" to amend the Diocese's Constitution as described. It is admitted that amendments to the Diocese's Constitution must be passed by two successive Annual Conventions.

What the Diocese is saying here is that it rejects any inference that Bishop Duncan was the motivator behind the vote taken by the two successive diocesan conventions to leave ECUSA. That vote was the collective act of the clergy and laity assembled in convention; they did not just "intend" to amend the diocesan Constitution, they in fact amended it. You can see where ECUSA's Complaint is going---just look at the next paragraphs:

42. Following the November 2007 meeting of the Diocese's Convention, under the Constitution and canons of The Episcopal Church, defendant Bishop Duncan was determined by a disciplinary Review Committee of the Church to have abandoned the Communion of the Church within the meaning of Church Canon IV.9 by an open renunciation of the Doctrine, Discipline, or Worship of the Church in attempting to remove the Diocese from the Church in contradiction to the Church's Constitution and canons. In September 2008, the Presiding Bishop of the Church, with the consent of the House of Bishops, deposed defendant Bishop Duncan from the ordained ministry of the Church pursuant to Church Canon IV.9, and he thereby ceased being a bishop of the Church or the Diocese.

42. Denied as stated. The purported "deposition" was illegal and invalid. Defendants incorporate Paragraphs 8 [and] 43 of this Answer as if set forth fully herein.

43. Following the deposition of Bishop Duncan, under the Constitutions and canons of the Church and the Diocese, the Diocese's Standing Committee became the Ecclesiastical Authority of the Diocese.

43. Denied. The purported "deposition" was illegal and invalid. Defendants incorporate Paragraph 8 of this Answer as if set forth fully herein. The House of Bishops did not "consent" to the "deposition" with the majority required by the Canons of TEC. Bishop Duncan voluntarily allowed the Standing Committee to become the Ecclesiastical Authority. By way of further answer, the Constitution and Canons of TEC and the Diocese are written documents, the contents of which speak for themselves. Any interpretation of said documents is specifically denied.

Allegations made in a complaint form part of the plaintiff's case, on which the plaintiff has the burden of proof in court. With these paragraphs, the Episcopal Church (USA) has placed into issue the legality of its "deposition" of Bishop Duncan. It will be interesting to see just how ECUSA can manage to tell Judge James in Pittsburgh that "a majority of the whole number of Bishops entitled to vote" means a majority of just those bishops who showed up to vote, while it was telling Judge Bellows in Virginia that the same language meant the exact opposite for the votes taken by the individual parishes there.

44. At an October 4, 2008 meeting of the Convention of the Diocese, at the urging of the individual defendants described in Paragraph 45, the November 2007 resolution intended to amend the Diocese's Constitution described in Paragraph 41 received a majority of the votes cast on its second reading, over an objection of a member of the Standing Committee of the Diocese. At that October meeting, the Convention purported to adopt a new canon declaring its membership in the Anglican Province of the Southern Cone.

44. Admitted in part, denied in part. It is denied that the resolution was passed "at the urging of the individual defendants described in Paragraph 45." It is admitted only that the resolution was supported by some members of the Standing Committee of the Diocese and some members of the Board of Trustees. By way of further answer, the resolution was passed at the October 2008 Annual Convention of the Diocese by a majority vote of each Order (Clergy 121-34; Lay Deputies 119-69) pursuant to the Constitution of the Diocese. The resolution is a written document, the contents of which speak for itself; any interpretation of said document is specifically denied. It is denied that the resolution "intended" to amend the Diocese's Constitution as described. It is further denied that the "Convention purported to adopt a new canon declaring its membership in the Anglican Province of the Southern Cone." To the contrary, the constitutional amendment and canon were properly adopted in accordance with the Constitution and Canons of the Diocese. By way of further answer, Defendants incorporate Paragraph 2 of this Answer as if set forth fully herein.

"Purported", of course, is ECUSA's signal that it claims the actions of the Convention in amending its Constitution were null and void. The Diocese quite properly replies that it exactly followed the procedures in the Constitution required to amend it. There were no written limitations in the Constitution on how it could be amended, so ECUSA's argument has to depend on some implied, or unwritten, understanding between the association of dioceses and its members that they would not ever do anything to withdraw once they had joined it. As I said at the outset, such an entity would not be a voluntary association---it would be an indissoluble union, like the States of the United States. Such unions, however, are formed by independent, sovereign governments, who in turn make the laws for everyone else---including churches. Churches are not independent, sovereign governments, but have to observe the law just as does any other citizen of this country. And that law, as I said, recognizes only voluntary associations, in which members are free to come and go. (That freedom is the essence of the "freedom of association" protected under our Constitution by the First Amendment---except, as the article just linked notes, in the case of labor unions, by a special statutory exception upheld by the Supreme Court.) Since it is most definitely not a "labor union", the "involuntary association" which ECUSA claims to be is not only a contradiction in terms, but would also be illegal under the First Amendment.

45. Those individuals comprising the former leadership of the Diocese who supported the purported withdrawal of the Diocese from The Episcopal Church and the purported affiliation of the Diocese with the Anglican Province of the Southern Cone by those acts left The Episcopal Church, violated their obligations under the Church's Declaration of Conformity and/or Canon 1.17(8), and were not eligible to hold any office in The Episcopal Church, the Diocese, or any of its other subordinate units, and thus, their offices became vacant.

45. Denied. Those voting for withdrawal did not violate any provision of the Constitution or Canons of TEC. After the vote, the Constitution and Canons of TEC had no application to them or to the Diocese. By way of further answer, Defendants incorporate Paragraphs I, 2 and 14 of this Answer as if set forth fully herein.

This is a blatant attempt at legal legerdemain. The Canon to which the Complaint refers is one that applies to laity holding "any office in this Church" (emphasis added). The additional words of the Complaint --- "the Diocese, or any of its other subordinate units" --- do not appear in that Canon. The deputies to a diocesan Convention do not, by any stretch of the imagination, hold any "office" in the Episcopal Church. Moreover, half of the deputies are ordained clergy. The Complaint implies that those clergy violated the Declaration of Conformity (see Article VIII) which they took upon ordination when they voted, as deputies, to amend their diocesan Constitution. Even if that argument were conceivably plausible (i.e., that it is a violation of your oath to conform to the "discipline of this Church" by casting a vote to allow a diocese to leave it), it does not follow that the clergy's positions thereupon immediately became vacant. Under Title IV of the Canons, there have to be first a presentment for violating the oath, and next a trial, before any clergy can be removed from their position, which result then would make them ineligible to serve as deputies to any diocesan Convention. It by no means happens "automatically", as the Complaint implies.

What you are seeing here is that the successes which ECUSA to date has had in the courts, in cases involving departing parishes, have gone to its head. In such cases, like the one I discussed in this post (as well as in the latest unreported California case, dealing with St. Luke's Anglican Church), the Diocese and ECUSA have been able to argue that diocesan canons which require that all vestry members be communicants "in good standing" mean that they become ineligible to hold office as vestry members once they vote to withdraw from the Diocese. In some cases, the courts have also referred to Canon I.17.8 to bolster the argument, and have assumed (without actually taking evidence on the issue) that the office of a vestry member is an "office in this Church". Having succeeded in getting its nose under the tent in that fashion, ECUSA in its Pittsburgh complaint now tries to apply the same reasoning to the position of diocesan deputies. It should not work, for the reasons given in the preceding paragraph.

46. The Diocese held a special meeting of its Convention in December 2008. At that meeting, the remaining vacant offices in the leadership of the Diocese, including the Standing Committee, were filled; resolutions were passed declaring the Constitutional and canonical amendments described in Paragraphs 41 and 44 void and of no effect; and clergy and lay deputies to the Church's 2009 meeting of the General Convention were elected.

46. Denied. It is specifically denied that the Diocese had a special meeting of its Convention in December 2008. To the contrary, no notice was given of this purported meeting to the members of the Diocese as required by the Constitution and Canons of the Diocese. By way of further answer, no valid action was taken at this alleged convention and those acting at this alleged convention had no authority to so act.

47. Following the special meeting of the Diocese's Convention described in Paragraph 46 above, the Standing Committee of the Diocese appointed an Assisting Bishop to provide interim episcopal oversight for the Diocese.

47. Denied. It is specifically denied that the "Standing Committee" referred to in this Paragraph was the Standing Committee of the Diocese or had any authority to act on behalf of the Diocese.

These paragraphs place into issue whether or not the "special convention" called in December 2008 was noticed and convened in conformity with the Diocesan Constitution and canons. If notice was not properly given (unlike the case in San Joaquin, Article V, Section 1 of Pittsburgh's Diocesan Constitution does not impose any minimum quorum requirement), then the meeting was invalid to accomplish anything such as electing members of a new Standing Committee, and that Committee in turn had no authority to appoint an Assisting Bishop.

48. The Church has recognized the Assistant Bishop described in Paragraph 47 above as the Bishop with episcopal oversight of the Diocese; the members of the Standing Committee described in Paragraph 46 as the Ecclesiastical Authority of the Diocese; and the persons described in Paragraph 46 as the elected deputies or representatives of the Diocese to the Church's General Convention.

48. Denied. All that occurred is that the Presiding Bishop sent a letter stating her opinion as to what had occurred. By way of further answer, Defendants incorporate Paragraphs 1, 2 and 14 of this Answer as if set forth fully herein.

49. The Episcopal Church is informed and believes that defendant former Bishop Duncan, as well as the other individual defendants described in Paragraph 45 who were formerly part of the leadership of the Diocese, control an entity of unknown form that uses the name "Episcopal Diocese of Pittsburgh," and hold that entity out as the Diocese; have asserted authority over Episcopal parishes, congregations, and other organizations in the Diocese; and have exclusive possession and control of substantially all of the real and personal property of the Diocese.

49. Denied. By way of further answer, Bishop Duncan is the Bishop of the Diocese. The Diocese continued to exercise the same authority it had prior to the vote.

"The Episcopal Church is informed and believes . . .": how quaint. This is the language attorneys use when they want to avoid any type of legally binding admission in their pleadings. ECUSA cannot stand to admit that Bishop Duncan actually heads up the "Episcopal Diocese of Pittsburgh (Anglican)", so it claims only to believe that this is the case, based on information from some unspecified source. Now the Complaint moves on to set up what it calls "The Current Dispute", over the meaning of the stipulation entered into in October 2005 that was supposed to have ended the Pittsburgh litigation. As you will see, the case is far from over. The first few allegations are not disputed:

The Current Dispute

50. In October 2005, this Court entered an Order pursuant to a Stipulation by Counsel intended to settle and resolve certain claims at issue in the present suit (the "Stipulation and Order").

50. Admitted.

51. In December 2006, plaintiffs filed a Petition for Enforcement of Settlement and Order, which reopened the proceedings in this action.

51. Admitted.

52. In July 2008, plaintiffs filed a Supplement to their December 2006 Petition for Enforcement of Stipulation and Order described in Paragraph 51, including a Request for Appointment of a Monitor to Inventory and Oversee Property Held or Administered by the Episcopal Diocese of Pittsburgh to Assure Compliance with This Court's Order of October 14, 2005.

52. Admitted.

53. In September 2008, this Court ordered the appointment of Masters to prepare an inventory ofthe real and personal property of the Diocese, file periodic reports with the Court, and report any alleged violations of the October 14, 2005 Stipulation and Order.

53. Admitted.

Now we start the fun and games: will the "real Episcopal Diocese of Pittsburgh" please stand up? (See this post if you want some background to this particular dispute.)

54. On October 10, 2008, the Chancellor of the Diocese wrote to a lawyer for defendant Bishop Duncan and the group claiming to be aligned with the Anglican Province of the Southern Cone and requested that his clients effect an "orderly transition of control of the assets and property of the Diocese] to the rightful Standing Committee or their designees." The Episcopal Church is informed and believes that neither defendant Bishop Duncan nor any of the other individual defendants described in Paragraph 45 has complied with this request.

54. Admitted in part, denied in part. It is denied that the October 10, 2008 letter was written by "the Chancellor of the Diocese[.]" To the contrary, the letter was written by Andrew Roman, who purports to be the Chancellor for an entity claiming to be the Diocese of Pittsburgh (the "New Diocese"). However, this New Diocese has not been organized or admitted into union with TEC in accordance with the Constitution and Canons of TEC.


55. In January 2009, plaintiffs filed a Request to Special Master, requesting the "immediate termination of any use by Robert Duncan and his followers of the Property subject to Paragraph 1 of the Stipulation and Court Order of October 14,2005; and [t]he provision of immediate access to and control by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America of the endowments, checking accounts, and other Property subject to Paragraph 1 of the Stipulation and Court Order of October 14,2005."

55. The Request to Special Master is a written document, the content of which speaks for itself. Any interpretation of said document is specifically denied.

56. In January 2009, defendants filed motions directed to issues raised by plaintiffs' Request to Special Master, in which they contend, inter alia, that they continue to comprise the leadership of the Diocese and that they have withdrawn the Diocese from The Episcopal Church to join the Anglican Province of the Southern Cone.

56. The filings submitted by Defendants are written documents, the contents of which speak for themselves. Any interpretation of said documents is specifically denied.

57. The Episcopal Church takes the position that the actions described in Paragraphs 41, 44, and 49 are contrary to the Constitution and canons of The Episcopal Church and are otherwise contrary to law and without any effect; that all property held by or for the Diocese is held and may only be used for the mission of the Church and the Diocese subject to the Constitutions and canons of the Church and the Diocese; that the Diocese remains a subordinate part of the Church for all purposes including application of Paragraph 1 of the Stipulation and Order; and that the persons now in the leadership of the Diocese, as recognized by the Church, are the proper authorities entitled to the use and control of the real and personal property of the Diocese.

57. Denied. Defendants incorporate Paragraphs 1, 2, 14 and 22 of this Answer as if set forth fully herein.

58. The Church is informed and believes that defendant Bishop Duncan and the other individual defendants described in Paragraph 45 take the position that they are properly in control of the governance of the Diocese; that they have withdrawn the Diocese from The Episcopal Church to join the Anglican Province ofthe Southern Cone; that they are thus entitled to the use and control of the real and personal property of the Diocese; and that their actions are not in conflict with Paragraph 1 of the Stipulation and Order.

58. Admitted.

59. An actual controversy exists, therefore, between the parties regarding the legal issues identified in Paragraphs 57 and 58 above. A declaratory judgment is therefore necessary and proper to determine the parties' rights and duties with respect to those issues.

59. Denied. Defendants incorporate by reference Paragraphs 1 and 2 of this Answer as if fully set forth herein.

And so the issue has been joined on the complaint in intervention for the Court of Common Pleas in Pittsburgh. Now we come to the "new matter" alleged in the Diocese's Answer, and we will contrast ECUSA's responses to those added allegations. The colors identifying the parties will remain the same, but their order will be reversed. The Diocese's new allegations come first, in purple; then follow ECUSA's responses, in red:

New Matter

. . .

Lack of Authority of Plaintiff-In-Intervention

61. Bishop Buchanan (and his counsel) have no authority to assert claims on behalf of TEC or present TEC's "official" position with regard to the issues in this litigation. Bishop Buchanan has not properly been appointed as Trustee Ad Litem of TEC.

61. It is specifically denied that Bishop Buchanan and his counsel have no authority to assert claims on behalf of The Episcopal Church or to present the “official” position of The Episcopal Church with respect to the issues in this litigation. By way of further answer, The Episcopal Church avers that allegations the first sentence of paragraph 61 are vague and ambiguous, because it is unclear what “the ‘official’ position of [The Episcopal Church]” means, and because it is unclear to what “issues in this litigation” defendants refer. It is specifically denied that Bishop Buchanan has not been properly appointed as Trustee Ad Litem of The Episcopal Church, and by way of further answer, The Episcopal Church avers that defendants have no standing to challenge the propriety of Bishop Buchanan’s appointment as Trustee Ad Litem in this case or the authority of Bishop Buchanan or his counsel to assert the claims of The Episcopal Church.

ECUSA here is trying evasive pleading tactics; it is a party who asked for leave to join the lawsuit because it believed "the issues" involved affected it---but now it claims not to know what are "the issues in this litigation", or what its "official position" on those issues is! And the sad irony is that ECUSA is right: as an unincorporated association of dioceses, ECUSA has no mind of its own---there are instead only the "minds" of (now just) 106 separate dioceses, which themselves are mostly unincorporated associations as well. Nor can ECUSA have an "official position" on any matter until it has been debated and a resolution adopted by both Houses in General Convention. The "new matter" continues to strike at the heart of ECUSA's difficulty in claiming to be a single entity for purposes of litigation, with a single authoritative head person designated to speak on its behalf, and it continues to have to be evasive in its responses:

62. The Presiding Bishop of TEC has no authority to state the position of TEC with respect to the issues in this litigation.

62. It is specifically denied that the Presiding Bishop of The Episcopal Church has no authority to state the position of The Episcopal Church with respect to issues in this litigation. By way of further answer, The Episcopal Church avers that the allegations of paragraph 62 are vague and ambiguous, because it is unclear what the “authority to state the position of [The Episcopal Church]” means, and because it is unclear to what “issues in this litigation” defendants refer. The Episcopal Church further avers that defendants have no standing to challenge the authority of the Presiding Bishop to state a position of the Church.

63. The Executive Council of TEC has no authority to state the position of TEC with respect to the issues in this litigation.

63. It is specifically denied that the Executive Council of The Episcopal Church has no authority to state the position of The Episcopal Church with respect to issues in this litigation. By way of further answer, The Episcopal Church avers that allegations of paragraph 63 are vague and ambiguous, because it is unclear what the “authority to state the position of [The Episcopal Church]” means, and because it is unclear to what “issues in this litigation” defendants refer. The Episcopal Church further avers that defendants have no standing to challenge the authority of the Executive Council to state a position of the Church.

64. Plaintiffs have previously successfully argued that they were "members" and "representatives" of TEC and were adequately representing TEC's interest regarding the issues in the instant litigation. In fact, Plaintiffs successfully opposed adding TEC as a party to this litigation on these grounds. See Plaintiffs' Reply in Opposition to Defendants' Motion to Dismiss or Strike Petition, ¶ 20; Order of Court dated May 8, 2007. As such, TEC is bound by the admissions and positions previously taken by Plaintiffs as its representatives.

64. It is specifically denied that plaintiffs have previously argued that as “members” and “representatives” of The Episcopal Church they were adequately representing The Episcopal Church’s interest regarding the issues in the instant litigation. It is specifically denied that plaintiffs successfully opposed adding The Episcopal Church as a party to this litigation on those grounds. By way of further answer, The Episcopal Church avers that the record in the instant litigation speaks for itself. It is specifically denied that The Episcopal Church is bound by the admissions and positions previously taken by plaintiffs, and by way of further answer, The Episcopal Church avers that defendants have failed to properly allege an agency relationship between The Episcopal Church and plaintiffs sufficient to bind The Episcopal Church by the admissions and positions taken by plaintiffs.

Aha! Plaintiffs and ECUSA have been caught in a trap of their own making! Earlier in the Pittsburgh litigation, the plaintiffs Calvary Church and some individual members had responded to a claim that they had failed to join ECUSA as a necessary party by asserting that they "adequately represented" ECUSA's interests, so it was not necessary for them to join ECUSA itself. ECUSA now disputes that representation, and denies that it is bound by anything which Calvary pled on its behalf. But this is just ECUSA's problem as a voluntary association of 106 dioceses: just who is authorized to speak on its behalf, and how does it decide that question? The Diocese of Pittsburgh continues to hit at ECUSA's points of vulnerability:

The Diocese's Withdrawal From TEC Was Valid

65. Before the Diocese withdrew from TEC, the Diocese's Constitution and Canons did not require its members or officers to remain members of TEC.

65. It is specifically denied that the Episcopal Diocese of Pittsburgh (the “Diocese”) withdrew from The Episcopal Church. It is specifically denied that the Constitution and canons of the Diocese did not and does not require that the Diocese’s members or officers be members of The Episcopal Church.

Oh really, ECUSA? Could you please cite chapter and verse in the Diocesan Constitution and canons to that effect? (No, not that Constitution and canons; you have to use the ones as the Diocese amended them in 2008, otherwise you are arguing in circles.)

66. Neither the Diocese's Constitution and Canons, nor those of TEC, required TEC's consent, approval or review of amendments to the Diocese's Constitution and Canons.

66. It is specifically denied that neither the Constitution and canons of The Episcopal Church nor those of the Diocese required The Episcopal Church’s consent, approval, or review of amendments to the Diocese’s Constitution and canons.

67. Neither the Diocese's Constitution and Canons, nor those of TEC, prohibited the Diocese from withdrawing from TEC.

67. It is specifically denied that neither the Constitution and canons of The Episcopal Church nor those of the Diocese prohibited the Diocese from withdrawing from The Episcopal Church.

68. Neither the Diocese's Constitution and Canons, nor those of TEC, required the Diocese to always accede to the Constitution and Canons of TEC.

68. It is specifically denied that neither Constitution and canons of The Episcopal Church nor those of the Diocese always required the Diocese to accede to the Constitution and canons of The Episcopal Church.

Once again, ECUSA is avoiding the issue by sticking to generalities, instead of citing the specific provisions in the diocesan and national governing instruments which it alleges prevent the Diocese of Pittsburgh from doing what it did.

69. The amendments to the Diocese's Constitution and Canons which effected the withdrawal of the Diocese from TEC were duly enacted by majority vote of each Order in accordance with the Constitution of the Diocese.

69. It is specifically denied that the Diocese withdrew from The Episcopal Church. It is specifically denied that the purported amendments to the Constitution and canons of the Diocese purporting to effect the Diocese’s withdrawal from The Episcopal Church were duly enacted in accordance with the Constitution of the Diocese.

70. The Stipulation and Order does not prohibit Diocesan withdrawal, and the Diocese's withdrawal did not violate the Stipulation and Order.

70. It is specifically denied that the actions purporting to effect the Diocese’s purported withdrawal from The Episcopal Church did not violate the Stipulation and Order. It is admitted that the Stipulation and Order does not independently prohibit the Diocese from withdrawing from The Episcopal Church, but it is specifically denied that the Stipulation and Order does not prohibit the withdrawal of Diocesan property from The Episcopal Church. By way of further answer, The Episcopal Church avers that the Constitution, canons, and polity of The Episcopal Church prohibit the unilateral withdrawal of one of its dioceses, and any attempt to unilaterally withdraw the Diocese from The Episcopal Church is without any effect under the rules of the Church or under Pennsylvania law.

ECUSA here adopts Calvary's position with regard to the 2005 Stipulation: that it does not "independently" prohibit the Diocese of Pittsburgh's withdrawal from the Church, but only requires that the Diocesan property remain with a diocese that is in ECUSA. There is a slight problem, however, as I discussed in this earlier post, with ECUSA and its so-called "Diocese" being able to show how it properly joined ECUSA. Before 2008, there was only one Episcopal Diocese of Pittsburgh; now there are two. The one that belonged to ECUSA in 2008 left. So how did the other one come into ECUSA as a member?

71. TEC was not (and is not) a party to the Stipulation and Order and its claims are not included or preserved in the Stipulation and Order (and could not have been included or preserved in the Stipulation and Order).

71. It is specifically denied that the claims of The Episcopal Church were not and could not have been included or preserved in the Stipulation and Order. By way of further answer, The Episcopal Church avers that the allegations of paragraph 71 are vague and ambiguous, because it is unclear what “claims” means. It is admitted that The Episcopal Church is not a party to the Stipulation and Order.

ECUSA is speaking with a forked tongue: on the one hand, it denies that the Calvary plaintiffs earlier represented its interests (such as in obtaining the Stipulation in 2005), yet here it says that its interests were included and preserved in the Stipulation. Isn't theology wonderful? Watch those angels dance!

72. The Stipulation and Order does not impose any duty upon Defendants with respect to TEC.

72. It is specifically denied that the Stipulation and Order does not impose any duty upon defendants with respect to The Episcopal Church.

72. (a) The Stipulation and Order does not refer to or implicate any property interest of TEC in any property.

72. (a) It is specifically denied that the Stipulation and Order does not refer to or implicate any property interest of The Episcopal Church in any property.

72. (b) The Stipulation and Order does not impose any duty upon the Diocese (or on other Defendants) to remain within TEC.

72. (b) It is admitted that the Stipulation and Order does not independently impose any duty upon the Diocese or on other defendants to remain within The Episcopal Church, but it is specifically denied that the Stipulation and Order does not prohibit the withdrawal of Diocesan property from The Episcopal Church. By way of further answer, The Episcopal Church avers that independent of the Stipulation and Order, the Constitution, canons, and polity of The Episcopal Church prohibit the unilateral withdrawal of one of its dioceses, and any attempt to unilaterally withdraw the Diocese from The Episcopal Church is without any effect under the rules of The Episcopal Church and under Pennsylvania law.

And there you have it: the issue is finally joined as to both sides in Pittsburgh.