Friday, January 30, 2009

Episcopal Church Asked to Pay for San Joaquin Lawsuit

The litigation in San Joaquin has entered a new phase with the filing of a cross-complaint against the Episcopal Church (USA) by the parties it initially sued last April. The cross-complaint, brought by Bishop Schofield and two diocesan investment entities which he heads (the Episcopal Foundation and the Diocesan Investment Trust), seeks an award against ECUSA for the amount of attorneys' fees those defendants are being called upon to expend in defending the suit instigated by Bishop Jerry A. Lamb and a group calling itself the "Episcopal Diocese of San Joaquin", and joined in by ECUSA.

The cross-complaint states two claims for relief. The first asserts that ECUSA in effect put Bishop Lamb and his followers up to bringing the lawsuit that was filed in Fresno County Superior Court on April 24, 2008, by making false representations to them that they could be plaintiffs because they were now a genuine diocese of the Episcopal Church who had met in a legitimate "special convention" the previous month and approved a bishop. The Presiding Bishop of the Episcopal Church, the Most Rev. Katharine Jefferts Schori, convened the special convention herself, and proposed the Rt. Rev. Jerry A. Lamb, the resigned (retired) bishop of the Diocese of Northern California, to be its "provisional bishop". After it concurred, the convention proceeded to adopt resolutions authorizing him to claim ownership of the corporation sole that holds title to diocesan real property, and to file the present lawsuit against Bishop Schofield and the investment entities, which manage the funds belonging to the diocese.

Bishop Schofield alone asserts the second claim for relief in the cross-complaint. It is a contingent claim, dependent on the outcome of the principal lawsuit against him. In essence, it asserts that Bishop Schofield simply followed the wishes of his employer, the Diocese of San Joaquin, in taking the steps for which he has been sued by the plaintiffs, and that he believed those steps were lawful. He has an agreement of indemnity with his employer, the cross-complaint alleges, whereby the Diocese is required to reimburse him for any legal expenses incurred as a result of his good-faith obedience to its decisions. Therefore, if the plaintiffs succeed in their lawsuit against him, and regain all the property and other assets of the diocese, he alleges that they will have to reimburse him for all his legal expenses under the provisions of California Labor Code section 2802 and the general indemnity statute, Civil Code section 2778 (4).    

The cross-complaint also names as a defendant the Domestic and Foreign Missionary Society of ECUSA, which it alleges is the alter ego of ECUSA, and is the entity that actually holds its funds and property. In order to be able to collect any judgment awarded against ECUSA, the cross-complaint alleges, judgment would have to be awarded against the Domestic and Foreign Missionary Society as well.

The filing of the cross-complaint raises the stakes considerably in what is already a very high-stakes game being played by ECUSA, as I explained in this earlier post. Essentially, ECUSA was risking everything on its bet that the Fresno court would accept the legitimacy of the "Remain Episcopal" group in San Joaquin as a lawfully constituted diocese of the Episcopal Church, with full standing to claim title to the assets of the actual diocese, which had voted to disaffiliate. By lending its authority and recognition to that group, by installing Bishop Lamb as their titular head, and by bankrolling both of them from the outset, ECUSA may fairly be said to have been the driving force behind the current litigation. 

Recently, ECUSA and its nominee plaintiffs added fuel to the fire by seeking leave of court to amend their complaint to go after a $500,000 retainer paid by the Diocese of San Joaquin to its attorneys in anticipation of having to defend any litigation that would be brought as a result of its vote to disaffiliate from the Church. Now with the cross-complaint against it, ECUSA will have to allow for the possibility that if its gamble loses, it could be stuck with the bill not only for the plaintiffs in the San Joaquin litigation, but also with the bill for the defendants and their attorneys as well.

The doctrine under which the cross-complaint proceeds is known as the "tort of another" theory in California law. It was discussed by the California Supreme Court in a case called Gray v. Don Miller & Associates, Inc., 35 Cal.3d 498 (1984), and described there as follows:
A fourth established exception, sometimes referred to as the "tort of another" or "third party tort" exception, allows a plaintiff attorney fees if he is required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant. (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620-621 [30 Cal.Rptr. 821, 381 P.2d 645].) This rule is embodied in the Restatement of Torts and is generally followed in the United States. (Rest.2d Torts, § 914, subd. (2), and appen.)
The lawsuit filed by ECUSA, Bishop Lamb and the unincorporated association which styles itself as "the Diocese of San Joaquin" in its complaint places directly into play the legitimacy of the moves used by Bishop Jefferts Schori to "prove" her assertion that "dioceses cannot leave the Church; only people can." The cross-complaint hones in on that assertion by charging her Church with the legal consequences of carrying it into effect.

Bishop Schofield had announced, prior to the December 2007 vote by the Diocesan Convention to disaffiliate, that any parish wishing to remain with ECUSA would be allowed to do so without rancor or legal consequences, so long as it did not owe any debt to the Diocese. Had ECUSA's Presiding Bishop not insisted on recruiting and financing the group that remained to serve as a plaintiff to sue Bishop Schofield, it is doubtful in the extreme that the group alone, which constituted around a third of the parishes in the Diocese before the vote, would have marshaled the resources (and the will) to maintain a lawsuit. 

In quite a few previous posts, I have gone into the manifold legal difficulties which I believe ECUSA will face in trying to make Bishop Jefferts Schori's claim stand up in court. The problem essentially is that there are two aspects to what Episcopalians understand as a "diocese": it is an entity that has a canonical status in the Church itself, and which is wholly apart from its legal status as an entity under a state's secular law. It is not possible to have one without the other, and still be a diocese of the Episcopal Church (USA). 

A church itself has to have a legal existence, in order to be able to hold title to property and to have bank accounts, for one thing. In just the same way, a diocese has to have a legal existence as well. The flaw in ECUSA's theory in San Joaquin (as well as in Pittsburgh, Fort Worth and Quincy) is that an entity recognized as such in the law cannot be two entities at the same time, just as one person cannot be two people at the same time. Sam Jones, for example, may legally change his identity to Sam Smith, but the law will then cease to recognize Sam Smith as Sam Jones. 

And that is just what happened when the dissenters from the vote in San Joaquin left and formed their own unincorporated association under California law, with its headquarters in Stockton. They were not the association who had held the vote, because that association continued to exist and to have its headquarters where they had always been---in Fresno. They were a new association in the eyes of the secular law. They cannot, in the eyes of California law, be the same association as the one that disaffiliated---because the deputies who voted to disaffiliate all stayed with that group, and are still meeting and functioning as that same group under California law today. It was the dissenters who had to come together in a new group, elect new officers and committees, find new headquarters, start new minute books, order stationery, and attend to all the other myriad details of starting a new organization.

The next step is to ask: if they are a new association under California law, how did they get to be the same old Episcopal Diocese of San Joaquin in the eyes of ECUSA? For ECUSA spells out procedures by which an entity becomes one of its dioceses, and part of that procedure is a vote to accept the new diocese by ECUSA's General Convention. No such vote has been held, because General Convention does not even come into existence until next July.

But ECUSA wants the court, along with everyone else, to believe that the group is one of its dioceses because it held a supposedly legal convention at Lodi on March 29 under the old diocesan Constitution and Canons. Once it was assembled in convention, the group voted to adopt the following resolution (I have added the bold for emphasis):
Whereas, at previous meetings of this Convention, this Convention made the following purported amendments and additions to the Diocesan Constitution and Canons, which this Convention now recognizes are contrary and otherwise inconsistent with the Constitution and Canons of the General Convention of the Episcopal Church (hereinafter collectively referred to as the "Purported Modifications"):

[the changes approved at the last two annual conventions are set forth]

Whereas, this Convention finds that the Purported Modifications were invalid, ultra vires, and without effect;

Resolved, that this Convention hereby restates, ratifies, and confirms that the Constitution and Canons of the Diocese with the deletion of the Purported Modifications and reversion to the original provisions constitute the true, correct, and effective Constitution and Canons of this Diocese . . .
The resolution then offers the following partial explanation for what its function is:
As the effect of this resolution is merely acknowledges that the Purported Modifications were invalid, it is not an amendment and thus does not require two Convention votes as an amendment to the Constitution.
At the same meeting, the group voted to place themselves under the Rt. Rev. Jerry A. Lamb as their provisional Bishop.

Do you see the problem here? Look at the language I have put in bold above, and read again the explanation of the purpose of the resolution. With that language, the group is saying that it is a continuation of the prior Diocesan Conventions, and not a "new" group at all!

All right, let us take the group at its word, and pretend for a minute that it was the only true continuation of the group that voted by more than an 80% majority to amend the Constitution and Canons so as to leave ECUSA in December 2007. This is the same bunch that argues the Dennis Canon is legally binding on parishes who have never heard about it, because in the years since it was enacted they did not object to it. And it is also the group that argues that Bishops Cox and Schofield were validly deposed in March 2008, because again, no one objected to the fact that there were not enough bishops there to vote for the resolution at the time it passed by a simple shout of "Yeas" versus "Nays".

Let us therefore give them a little bit of their own medicine. They were also present at the Annual Convention in December 2006 when the same Constitutional changes were first passed (by another large majority). And before those changes, conventions in 2003, 2004 and 2005 adopted amendments which (in their final form) qualified the accession clause so that only those enactments of General Convention that were consistent with the Constitution and Canons of the Diocese of San Joaquin would be recognized as valid within the Diocese. But if the constitutional changes were "invalid" and ultra vires when they were enacted in 2007, were they not just as invalid in December 2006, or in October 2005, or in 2004, or in 2003? And if that is the case, why did not this same group that now calls itself the "Diocese of San Joaquin" call together a "special convention" then, back in 2003, and declare the measures invalid? Or why was there not a special convention called to do that in 2004, 2005, 2006, or 2007? Why are dissenters not bound by the "illegal acts" taken in December 2007, in the same way that Bishop Schofield is supposed to be "bound" by the illegal vote to depose him?

Moreover, after the first change to the Diocese's accession clause became effective in October 2005, the General Convention of ECUSA still seated the deputies from San Joaquin at GC 2006, and continued to recognize its bishop until March 2008. So under the liberals' way of arguing the matter, why is not ECUSA itself, as represented by its "highest authority" embodied in General Convention, bound by the changes that it did not object to from 2005 onward? There needs to be some consistency here, which perhaps it will take the courts to apply---so be it.

Oh, I know---logic is not the liberals' strong suit. They are as impervious to logic as a duck is to water, and they employ it the same way ducks employ water: to paddle around in when it suits them, but to ignore it when it does not. Just as water never kept a duck from going ashore, so logic never keeps a liberal from going for more. If they can get what they want through logic, well and good; but if logic would stop them from getting what they want, it is suddenly not important---or in other words, results outweigh logic every time. Now substitute the word "law" for "logic" in that last sentence, and you will understand the "refinement" (more correctly, the predicament) that the Presiding Bishop has brought to the Church that elected her. 

But now back to the convention that the Presiding Bishop convoked at Lodi on March 29, 2008. Since it purported to act as though it were a continuation of the previous diocesan conventions, and to pass a resolution declaring the actions of those prior conventions going back to 2003 null and void, it must have been meeting in conformity with the Diocesan Constitution and Canons, correct? (Because if it was not so meeting, then all of its actions would be "null and void".) 

In the next installment on this topic, I shall inquire more closely into the procedures used to call the meeting, and into who was actually there. Then I hope you will be able to understand why ECUSA's whole game is just a charade, trumped up just so a lawsuit could be quickly filed against those who left, in order to deter others who might be planning to do the same. In such a maneuver, the timing of the threat was more important than following the canons---just as it was with all of the other uncanonical moves of the Presiding Bishop, about which you may read at your leisure here

Strategies have consequences. Whether it happens next month, or six months or a year from now, those who have been relying so heavily on a strategy that trashes the canons for short-term advantage will find out just what those consequences are. 

[UPDATE 01/31/2001: In response to reminders from some of the people who are most affected by this litigation, I have revised the text above in order to point out that the dissenters did nothing about any of the constitutional changes qualifying the accession clause, which actually began at the diocesan convention in 2003 following the ratification of Bishop Robinson's election, and which then took concrete form at the convention in 2004, were enacted in 2005, and were subsequently changed further in 2006 and 2007.]   

Wednesday, January 28, 2009

The Case of the Missing Letters

The excuse machine is in high gear. Episcopalians throughout the Church are trying to cover the embarrassing mess of Inter-Communion relations made by the Primate of All ECUSA on the eve of her meeting with her fellow Primates in Egypt. It seems that she has claimed the power to deprive a Bishop in good standing in the Church of England of the "gifts and spiritual authority as a Minister of God's Holy Word and Sacraments conferred on him in Ordinations." (For more background, see this earlier post.)

Father Mark Harris has put up a new post to demonstrate how his understanding of the matter was correct all along: "The issue is as I have stated before: 'Orders in the Church themselves are indelible, but licensing is required to exercise them.'" Except that is not exactly what he said in his earlier post on the matter:

Bishop Scriven has been playing all sides: He has been part of the ministry of TEC, now part of the ministry of the Province of the Southern Cone and soon to be part of the ministry of the Church of England. The one thing he has clearly done is continue to serve in the Pittsburgh diocese related to the Southern Cone. My sense is he has been a hired assistant, under contract with the then Diocese of Pittsburgh and really didn't see much reason to think in a larger box. But there it is: He went with the Southern Cone and he is leaving for the CofE. He is not part of TEC and we hardly missed him.
"Voluntary renunciation" is about giving up standing as a bishop in TEC. The implications are clear: by not being a bishop in TEC nothing done or said by the person can be claimed as a ministry of TEC. Nada, nothing. There will be the usual wringing of hands that these two really did not renounce the ministry, that they are still bishops, that elsewhere they are recognized, etc. Right. But they did reject the exercise of episcopal office in The Episcopal Church and made it clear that they were no longer part of this church. It would appear that they voluntarily rejected, and renounced, their role as bishop in TEC. And that is what this is about. They have left, and did so having rejected TEC, and now TEC is agreeing with them. Having left they are no longer bishops of this Church.
Apparently this somewhat ungracious dismissal of the Bishop evidenced a little too much ingratitude for the dissenters in Pittsburgh, to whom Bishop Scriven continued to give his unstinting pastoral care even after the Diocese had left the Episcopal Church to affiliate with the Southern Cone. They issued the following statement on their Website:

An article that appeared on Episcopal Life Online on January 23, 2009 reported that Bishop Henry Scriven, the former Assistant Bishop for the Episcopal Diocese of Pittsburgh, had renounced his orders and that the Presiding Bishop of the Episcopal Church, Katharine Jefferts Schori, had accepted that renunciation. Although the article may suggest otherwise, the Standing Committee understands that this action was not in any sense a disciplinary action or an action taken because of Bishop Scriven’s support for the attempt to realign the Diocese with the Anglican Province of the Southern Cone.

Before he relocated to England, Bishop Scriven had submitted his resignation as a member of the House of Bishops of the Episcopal Church, inasmuch as he was planning to return to England and serve as Assistant to the Bishop of Oxford. In order to permit that, the Canons required that he be released from his orders in the Episcopal Church for reasons not affecting his moral character, which is what occurred. This is a routine way of permitting Bishop Scriven to continue his ministry. Orders in the Church themselves are indelible, but licensing is required to exercise them.

The Standing Committee gives thanks for the gracious way in which Bishop Scriven exercised his ministry in the Episcopal Church while he served here as Assistant Bishop and we hope he and his wife Catherine will visit us in the future.
And to give Father Harris credit, he no longer sounds ungracious, and recognizes that Bishop Scriven was a good man in a difficult situation not of his making. But all the apologizing---sorry, I cannot call it that; it is more akin to backtracking---serves only to bring out more detail in this sorry affair. And the more detail that emerges, the worse that the Primate of all ECUSA appears---to all, that is, except to her loyal supporters and followers, for whom she is incapable of ever violating a single canon.

The Standing Committee reports in its Statement just quoted, for example, that Bishop Scriven "had submitted his resignation as a member of the House of Bishops" to Bishop Jefferts Schori. That is a different step, a very different step, from renouncing one's ordination vows. Now I wish that Bishop Scriven, or someone else with access to it, would publish the actual letter that he wrote on October 16 to Bishop Jefferts Schori, because from another source, we learn that she first acknowledged that he was "resigning" his membership in the House, and not "renouncing his vows in the Church":
But on October 16, 2008, Bishop Scriven informed the Presiding Bishop, by letter copied to the Bishop of Oxford, that he was returning to the Church of England where he would become an Honorary Assistant Bishop of the Diocese of Oxford and be subject to the jurisdiction of the Bishop of Oxford. The Presiding Bishop clearly acknowledged this fact in her letter of response, dated November 12, 2008: “I understand your request to resign as a member of the House of Bishops to mean that you will become a bishop of the Church of England, serving as assistant to the Bishop of Oxford.”
So Bishop Scriven asked to resign from the House of Bishops of the Episcopal Church, to which he had belonged since becoming the Assistant Bishop in the Diocese of Pittsburgh in September 2002. And the Primate of all ECUSA acknowledged his request in a letter that has not yet been published by her office, dated November 12, 2008. 

And now, another source adds more tantalizing details: Father George Conger was able to interview Bishop Scriven and to ask him about the international incident. According to what he says, in her response to him of November 12, Bishop Jefferts Schori not only acknowledged his request to resign from the House of Bishops, but indicated at that time her intentions to use the renunciation canon in response to that request. 
In her response of Nov 12, Bishop Schori acknowledged that Bishop Scriven was now a Bishop of the Church of England, and said she would “release you from your orders in this Church” for reasons “not effecting moral character.” Bishop Schori added that she believed “that subtlety was lost on some of our Communion partners” over her understanding of canon law, as her action would not undo the “indelible” mark of ordination, but was a housekeeping action that would end his licence to serve in the US Church.

Not only is Bishop Jefferts Schori already planning on November 12 to treat Bishop Scriven's innocuous request as a renunciation of his vows, but she acknowledges that the "subtlety" (??!) of what she proposes to do might be "lost on some of our Communion partners"! How about that for premeditated mayhem on the Anglican Communion? The only question now is: why did it take her two more months, until January 15, 2009, to make it official? And where are these missing letters? Why cannot the correspondence be published? 

Apparently they will not be published because from the standpoint of the Presiding Bishop, they would indelibly put the lie to what she certified to the world on January 15. For if produced, the exchange of letters would show:

1. Having accepted (as we know) a license from the Archbishop of the Province of the Southern Cone on October 4, 2008, and the diocese in which he was serving as Assistant Bishop having on the same day transferred its affiliation from ECUSA to the Province of the Southern Cone, Bishop Scriven was no longer eligible to hold a seat and a vote in the ECUSA House of Bishops; so

2. Like the very English gentleman that he is, he wrote to the Presiding Bishop of the House of Bishops, with a copy to his own Bishop in Oxford (for whom he would be working starting January 1), described his plans, and requested most politely that she accept his resignation from the ECUSA House of Bishops; and

3. Realizing the legal implications for the looming battle in Pittsburgh, the Presiding Bishop acknowledges that he is requesting to resign, but responds that she will of necessity be forced to release him from his orders---but "not to worry" if the "subtlety" of her move is "lost on some of our Communion partners"; and then

4. It takes her sixty more days to secure the consent of her "Council of Advice" to this nefarious plan---but in the end, they give in to perceived legal necessities, and allow her to inflame still further the relations between ECUSA and the rest of the Anglican Communion.

What her Chancellor and Council apparently did not advise her---or perhaps they did, but she was impervious to the advice---is how she herself would come off to the rest of the Anglican world in the affair.

Please compare these two statements by the Primate of all ECUSA, and please give me a rational explanation for them being made by one and the same person:

November 16, 2008:
“I understand your request to resign as a member of the House of Bishops to mean that you will become a bishop of the Church of England, serving as assistant to the Bishop of Oxford.”
January 15, 2009:
". . . I have accepted the renunciation of the Ordained Ministry of this Church, made in writing to me on October 16, 2008 by The Right Rev. Henry Scriven, Assistant Bishop of Pittsburgh . . ."

Let us Episcopalians, on both sides of the divide, all be candid and admit it: there is no rational explanation for the two statements, standing alone. In the first (and still private) statement, Bishop Jefferts Schori shows that she understands perfectly the nature of the request that Bishop Scriven made to her. And in the second, and public, statement, she spurns that same request, and transforms it into a voluntary renunciation of orders. Now listen to the Anglican Communion Institute's views on this travesty:

Defenders of the Presiding Bishop’s course of conduct attempt to soften the impact of these actions by claiming that all that is being done by these acceptances of “renunciation” is the removal of a license to act in TEC. But this is clearly erroneous. All bishops, including all TEC bishops, require a license to act outside the dioceses in which they are canonically resident. Indeed, the very canon the Presiding Bishop invokes in the case of Bishop Scriven provides that “No Bishop shall perform episcopal acts or officiate by preaching, ministering the sacraments, or holding any public service in a Diocese other than that in which the Bishop is canonically resident, without permission or a license to perform occasional public services from the Ecclesiastical Authority of the Diocese in which the Bishop desires to officiate or perform episcopal acts.” (III.12.3(e).) If all the Presiding Bishop accomplished in her Declaration of Removal of Bishop Scriven was to inform all the bishops of TEC and the other authorities to whom the declaration was sent that Bishop Scriven needs permission or a license to act in their dioceses, it was a waste of time. That was as true on January 14 as it was the next day after the declaration was issued.

What the Presiding Bishop clearly intended was not this trivial notification, but the more significant one of barring Bishop Scriven from receiving any such permission. And the sole reason for that debarment is that he returned to the Church of England, the church of his ordination and consecration to the episcopate, where he is now a bishop in good standing. The Presiding Bishop treated his return to the Church of England in precisely the same manner she treated Bishop Steenson’s move to the Church of Rome. Does the Presiding Bishop draw no distinction between the two? Has the Presiding Bishop now broken communion with the Church of England?

Thus, it appears that the Presiding Bishop has attempted to remove from the ministry—or at a minimum, bar from TEC– a bishop of the Church of England who is subject to the jurisdiction of the Bishop of Oxford and is working in England as director of a missionary society of the Church of England, the patron of which is the Archbishop of Canterbury. At this point, one must ask whether the Presiding Bishop is incapable of interpreting the canons or incapable instead of following them. Her abuse of the canons has now reached beyond TEC and into the Church of England itself.

If we can admit that there is no rational explanation for this Janus-like conduct, then the assessments of it by those on the receiving end begin to be more understandable, do they not? Bishop Wantland's perplexity at how the Presiding Bishop dealt with his similar request is now quite understandable (except, of course, to those whose hallmark is ad hominem attacks):
I can only conclude that either you (1) do not understand the plain and fairly simple language of either the Canons or my letter to you, or (2) have deliberately violated the Canons for your own purposes and contrary to your obligation as a Christian not to bear false witness.
Even if her official position was the result of the Presiding Bishop's talking to her Chancellor, it remains the fact that Bishop Wantland's two possibilities are not pleasant alternatives to contemplate, because the "subtleties" of the situation stand officially unexplained, warts and all, and no regular devotee of the Presiding Bishop requires any explanation. In consequence, we who simply watch and wonder are left with this: To any outside person, the official record makes it appear as though either (1) our Presiding Bishop cannot understand simple English---in which case, they will reasonably ask, how is she qualified to serve as Presiding Bishop? 

Or (2) she is deliberately certifying to all the Anglican world as a "fact", on her Chancellor's advice, that which she knows (because she does understand English, and has a Ph.D. degree) to be untrue---namely, that Bishop Wantland's statement that he was not renouncing his orders was a renunciation of his orders. In that case, we have a Presiding Bishop who blindly follows legal advice that is so bad that it requires the falsification of official statements in a desperate attempt to preserve what is seen as a legal "advantage". 

Either way, the person who is capable of such a thing should not be serving in a position of leadership. Is there a third alternative? Canon Gary L'Hommedieu believes so, but it is not pleasant to contemplate, either:
Conservatives have reacted with justifiable outrage, but their protests fall flat. They attributed Schori's action to duplicity and bad faith toward the Southern Cone, a sister Province of the Anglican Communion. Their accusations would have made sense in another time and would have carried at least some weight.

Today rationalists (those who believe that words mean what they say) must endure the scorn and ridicule once associated with the Flat Earth Society. Wantland's own written response to Schori contained no reasoned rebuttal but rather a string of insults (well deserved, in my view).

He accused her either of not understanding the plain meaning of English or else of deliberate malfeasance. He demonstrated the tragic naivete of a man who expected logic to define and delimit meaning, like a man flailing in the dark at an assailant whose footsteps he hears, whose breath warms the space in which he lunges and pivots, and yet, inexplicably, he is unable to land a blow. He is trapped in the nonsensical terror of a dream, desperately struggling to wake himself.

What's the moral of this latest misadventure of the TEC high command? That words mean what Power says they mean -- neither more nor less. It's a worn-out theme of postmodernists and the whole rabble of self-proclaimed malcontents, but coming from them it comes across as theater, not philosophy.
This "theater", however, is not playing only off-Broadway, at 815 Second Avenue. As the Anglican Communion Institute reminds us, there are issues at stake here for its namesake, as well: 
The Presiding Bishop of The Episcopal Church, in seeking to deal with what is regarded as a problem within her own province, has so misused the canons that it is no longer clear if The Episcopal Church understands what ordination and interchangeability of ministry in a Communion entails. Has The Episcopal Church de facto ceased to view itself and its Constitution and Canons as meaningfully related to the life of catholic Anglicanism at the most basic level and instead sees them as laws governing (it might be hoped) a national denomination and really nothing more? If so, we call on those Bishops of TEC who wish this church to remain “a constituent member of the Anglican Communion, in communion with the See of Canterbury” to call a halt to this conduct or to request that the Presiding Bishop clarify what her understanding is of the place of The Episcopal Church within the Anglican Communion.
I predicted, in my previous post, that any explanation or attempted justification for Bishop Jefferts Schori's newest abuse of the canons, on the ground that she "had to do this" in order to remove Bishops Scriven and Wantland from the rolls of the Episcopal Church (USA) for pension purposes, if for no other reason, would fall flat. Using the "renunciation of ministry" canon to accomplish such a purpose is like using a flamethrower to remove a thistle from your garden: it does the job, to be sure, but there are far less drastic methods. 

Why could our Presiding Bishop not use those less drastic methods? She was in a quandary of her own making, as I explained in my previous post. Neither she nor the Standing Committee of the pretender "Diocese of Pittsburgh" (I am being blunt, but then what do you expect from a curmudgeon?) could afford, given the current lawsuit pending in the Pennsylvania Court of Common Pleas, to admit (a) that the Diocese of Pittsburgh---the only one ECUSA ever had, and the only true diocese that exists both legally and canonically in the Pittsburgh area right now---actually left the Church; or (b) that its Bishop, the Rt. Rev. Robert W. Duncan, had any authority whatsoever to transfer to the Province of the Southern Cone. 

For as the ACI reminds us, under ECUSA's view, Bishop Duncan ceased being a bishop when a "majority of the whole number of bishops entitled to vote in the House of Bishops"---interpreted as 50% +1 of those bishops who actually show up for a meeting---voted to depose him on September 18. And under the Canons, when he ceased being a bishop, his Assistant, Bishop Scriven, ceased being a Bishop as well (remember, this is ECUSA's view of the matter). But if Bishop Scriven's position terminated on September 18, then why the need to make his termination terminal---that is, permanent? Ah, well, that is because he essayed to write her and resign, don't you see? Had he simply gone about his business, he would have made it a little more difficult, but she would have found a way to treat his departure as a "renunciation". For it now must be crystal clear to all: one does not simply leave the ECUSA of this Presiding Bishop; one can only renounce one's ordination vows if one elects to leave by asking, and if one does not deign to request permission, then one has abandoned the communion of this Church. Joining ECUSA is meant to be permanent, so when you leave, departure has to be permanent.  

Bishops in the Anglican Communion are invited to ECUSA dioceses all the time. When they come, the diocesan host usually invites them to celebrate a mass, or perhaps to preach a sermon---indeed, the retired Archbishop of Canterbury, George Carey, has done so on more than one occasion. But as Father Harris and the ACI happen to agree on this occasion, Bishop Henry Scriven---a Bishop in as good a standing with the Church of England as is Lord Carey---will not be able either to assist with a mass, or to preach a sermon in his episcopal vestments, in any loyal church in all of ECUSA. And why should that be? Given the fact of his debarment from ECUSA, the hope expressed by the Pittsburgh Standing Committee---that "he and his wife Catherine will visit us in the future"---rings just a bit hollow. Yes, Standing Committee members, he may visit, but he cannot co-celebrate, or officiate in his vestments, and all because he happened to get caught in a crossfire not of his making. Yet he may do so in every other province of the Anglican Communion---and he also may do so even in those ECUSA dioceses that do not recognize the validity of the "deposition" of Bishop Duncan. (No doubt if he does, however, the occasion will furnish a basis to depose yet one more hapless ECUSA bishop.)

No, there will be no apology from 815. Nor will 815 ever publish the actual exchange of letters between the Presiding Bishop and Bishop Scriven. As another commenter explained, over at another blog:
. . . Everything I have seen suggests that she fully believes in all her acts and that therefore, she is incapable of acting unlawfully, since she sees herself as fully lawful. We don’t run across a Schori very often, but one sees them in the sciences if you look for them. That is, her intelligence is not leavened with even a small shred of imagination. That is, she is unable to imagine herself doing wrong, and if you cannot imagine such a state, you cannot do it. What we see, what we know, is of no consequence to her because she is what we would call a fanatic, if we could imagine a fanatic without fanaticism. Such is Schori. She is simply a True Believer in herself.
In short, she is unbreakable. Others will break on her because they are capable of being of two minds. She is not. She may lead all around her to destruction, but we will find that she is herself indestructible.

Oh, it's a fine gallimaufry that Bishop Jefferts Schori has served up to those who elected her. As more and more bits and pieces are added to the stew, it becomes harder and harder to unmake it, and put things to right again. All that is left, as the last soupçon of ECUSA's dignity vanishes in the vapor, are pathetic little pleas like this one (slightly edited, for clarity's sake):
It may be TOO MUCH but it is all we have. The trick is that those who move to some other (Non-Anglican) church go through a process. For us, TEC, [in] the Anglican Communion, not only was there no real process (I do not count magic wand waving), but we are the same communion, and as such ought to be observant of each of our depositions/accepted renunciations.

As they say (over on their side): enough said.


Saturday, January 24, 2009

The Bandit Bishop Strikes Again

In a display of now unparalleled and unprecedented lawlessness for an ordained bishop, the Primate of All the Episcopal Church (USA) has thrown down the gauntlet to the Archbishop of Canterbury and the Anglican Communion as a whole. She has declared that on the basis of a letter written to her by the Rt. Rev. Henry Scriven, the former Assistant Bishop of Pittsburgh, on October 16, 2008, she has "accepted [his] renunciation of the Ordained Ministry of this Church . . . [and that he] is, therefore, removed from the Ordained Ministry of this Church and released from the obligations of all Ministerial offices, and is deprived of the right to exercise the gifts and spiritual authority as a Minister of God's Word and Sacraments conferred on him in Ordinations."

What makes this move on the Primate's part so outlandish is that Bishop Scriven has not been canonically resident in the Diocese of Pittsburgh in the Episcopal Church (USA) since October 4, 2008, when the Diocese voted by a sizeable majority to withdraw from ECUSA and affiliate temporarily with the Anglican Province of the Southern Cone. Details are not clear at this writing, but if events happened as they should have, Bishop Scriven would have received at that point a license from the Most Reverend Gregory Venables. (It is not known whether Bishop Duncan gave Letters Dimissory to Bishop Scriven before the former's "deposition" by the ECUSA House of Bishops on September 18, 2008.) At any rate, Bishop Scriven became for the time being a member of the House of Bishops of the Province of the Southern Cone, and in that capacity continued to assist in the Diocese of Pittsburgh through December 2008. He conducted, for example, an ordination of the Rev. Aaron Carpenter at St. Philip's Church in Moon Township, Pittsburgh, on December 9.

On January 1, 2009, Bishop Scriven, having moved back to England, took up new duties with the South American Mission Society (SAMS) as it began a new phase of joint operations with the Church Missionary Society in South America. Bishop Scriven had formerly been a missionary with SAMS in Argentina and then in Spain, before becoming the Suffragan Bishop of the Diocese of Gibraltar in Europe. He also served on the board of directors for SAMS (USA), which has its headquarters in Pittsburgh. Once again, if standard procedures were followed, Bishop Duncan as his reinstated diocesan would have issued him Letters Dimissory, and Bishop Scriven would have transferred his canonical residency back to England in order to take up his duties there. (Conceivably he might also choose to remain canonically resident under Bishop Duncan in the Southern Cone; it would be his decision.)

There are two things, nevertheless, that are certain in this episode. The first is that there is no possible way that Bishop Scriven was still subject to the jurisdiction of the American Primate on January 15, when she signed her Notice of Renunciation. The second is that there was no language of renunciation of orders in the letter that Bishop Scriven wrote to her, informing her of his transfer, on October 16---just twelve days after the Diocese voted to affiliate with the Southern Cone.

I assume that the problem here is self-inflicted on the part of ECUSA and its Primate. When Bishop Scriven assumed his duties in the Diocese of Pittsburgh in September 2002, he transferred his canonical residency there from England, and thus became subject to the jurisdiction of ECUSA. He also became a member of ECUSA's House of Bishops. Relationships became strained in the House after its ratification of the election of V. Gene Robinson in July 2003, followed by his consecration in November. (At the 2006 General Convention, Bishop Scriven reported that he considered himself "not in communion with" those bishops who had taken part in Bishop Robinson's consecration.) By 2008, neither Bishop Duncan nor Bishop Scriven was attending meetings of the House of Bishops. Nevertheless, both were still on the rolls of the House, and also enrolled in the Church Pension Fund. 

By pushing ahead with their illegal deposition of Bishop Duncan on September 18, the Bishops created a bit of a housekeeping problem. Their "deposition" of Bishop Duncan had removed him from the rolls, and notice of his deposition was sent to the Church Pension Fund, so that it could stop accruing his pension. However, it also had removed the ability of Bishop Duncan to certify to the Church in accordance with the provisions of Canon I.1.6 (b) (6) that his assistant, Bishop Scriven, had transferred to the Southern Cone. And when the Diocese voted to withdraw two weeks later, its Standing Committee could no longer perform that function either, in the eyes of ECUSA. 

Thus when Bishop Scriven himself wrote to the Primate on October 16 to inform her of the transfer (he was not "resigning", since he was staying on as Assistant Bishop to the Diocese), she was faced with a bureaucratic quandary of ECUSA's own making. Under the Church Canons, Bishop Scriven could not accrue any pension rights once he was no longer canonically resident in a Diocese of ECUSA. However, some official way was needed to inform the Church Pension Fund of that fact. One would think that simply forwarding to them a copy of Bishop Scriven's letter would accomplish that task. But no: this is a Primate who on random occasions takes her Canons very seriously, and interprets them to the letter. This was one of those occasions. 

Canon I.1.6 is very clear that the notification of the transfer has to come from either the Diocesan Bishop or, if there is no such person, from the Standing Committee of the Diocese. Now the Primate of all ECUSA eventually announced, after the events of October 4, that she was bestowing her gracious Primatial recognition upon the Reverend Dr. James Simons, and two other persons he nominated, as the successor to the Standing Committee affiliated with "Mr. Duncan and his followers". (You see, ECUSA was stymied---they could not even admit that a "diocese" had left it, so they could scarcely recognize that there even was a "Diocese of Pittsburgh of the Anglican Province of the Southern Cone", let alone a diocese of that name which had retained the word "Episcopal" in its name.) But Dr. Simons or his Committee could scarcely certify the transfer, since they had not signed the Letters Dimissory. So what to do?

The Primate of all ECUSA had received Bishop Scriven's letter shortly after October 16, 2008. She signed the certificate of his "renunciation" on January 15, 2009---some three months later. We have to presume that she spent the ninety days consulting with the members of her Council of Advice, along with her Chancellor (who also advises the Council of Advice---now there's independent advice for you!). And in this same 90-day period there happened to occur an event which furnished a precedent for what the Primate of all ECUSA wanted to do: her decision to accept the "renunciation" of the Rt. Rev. Jack Leo Iker of Fort Worth.

You see, Bishop Iker had not even written the Primate of all ECUSA a letter; the only thing he had done was issue a press release in response to her attempt to declare him "inhibited" from performing his episcopal functions---after he had already transferred to the Province of the Southern Cone. But the Primate declared that the press release, in which Bishop Iker made the simple observation that the Primate had "no jurisdiction" over him, constituted a declaration, "in writing, to the Presiding Bishop of the renunciation of the ordained Ministry of this Church, and a desire to be removed therefrom", and so satisfied the express language of Canon III.12.7 (a). Accordingly, she signed a certificate of his renunciation, published it, and circulated it to all of the Church authorities, as required and specified by Canon III.12.7 (c), including the Church Pension Fund. (Notably, she did not say in the certificate that the renunciation had been made to her---only that it was "in writing". From this example alone you can begin to see her selective interpretation of the Canons when it suits her purposes.)

So that took care of Bishop Iker, and got him off the rolls. The thought must then have occurred to the Primate of all ECUSA (or was perhaps suggested to her by her Chancellor): why can she not follow the same procedure with Bishop Scriven? He actually sent her a letter---that's more than Bishop Iker did. And he says he is going to another Province, so that amounts to a "renunciation of the ordained Ministry of this Church"---problem solved!

However, as I mentioned, this particular Primate decides on random occasions, and even as she is wildly interpreting the Canons to achieve her desired ends (of removing, in this instance, unwanted clergy from the Church Pension Fund rolls), to follow the canons to the letter. Canon III.12.7 (a) spells out the exact language to be used in a declaration or certificate of renunciation, as follows:

The Presiding Bishop, being satisfied that the person so declaring is not subject to the provisions of Canon IV.8 but is acting voluntarily and for causes, assigned or known, which do not affect the person's moral character, shall lay the matter before the Advisory Council to the Presiding Bishop, and with the advice and consent of a majority of the members of the Advisory Council the Presiding Bishop may pronounce that such renunciation is accepted, and that the Bishop is released from the obligations of all Ministerial offices, and is deprived of the right to exercise the gifts and spiritual authority as a Minister of God's Word and Sacraments conferred in Ordinations.
So that is exactly what the Primate put in her certificate of "renunciation." What does it matter to her if the language makes it appear that a person who has decided only to transfer their Ministry to another Province of the Anglican Communion has actually given up ever again acting as a Minister of God's Word and Sacraments in the one, holy, catholic and apostolic Church into which they were ordained? "They left our Church, so that is their problem," appears to be her attitude. "I am only following the Canons." (Father Mark Harris, a member of the Executive Council, would seem to agree with her.)

It is arrogant enough of a gesture in the case of Bishop Scriven, who was ordained in the Church of England and could in no conceivable way be deprived of his ordained Ministry by an act of ECUSA's Primate after he left ECUSA's jurisdiction. After all, the news of the sweeping pronouncement, which assumes on its face an extraprovincial jurisdiction that does not and could never exist in the Anglican Communion, comes just one week before a gathering of all of the Communion's Primates in Egypt. There the Primate of all ECUSA will have to look her colleagues in the eye and explain: "It was something I had to do---otherwise there was no way to remove him from our pension rolls. The times are tight, you know." 

But that explanation has its priorities backwards: to save face with her Pension Fund, the Primate has to declare the Bishop of another Church deprived of the right to exercise his gifts and spiritual authority?  I don't think it passes even the smell test; in fact, as an explanation it stinks. And as a demonstration of comity with the rest of the Communion, it is completely beyond the pale. Why does she want to do this? Others have speculated that she simply wants to poke the Archbishop of Canterbury in the eye with a sharp stick, but I think that reads far too much into the situation. No, what I see is a low-class manipulator who simply finds nothing wrong with twisting the Canons to her purpose as and when she perceives the need to do so, and who is surprised that anyone might ever call her out about it. Hypocrisy? Never heard of it---no more than has her Chancellor.

But we have saved the best of this story for last. For at the same time she purported to accept Bishop Scriven's "renunciation", she also decided she could use the same method to dispose of another knotty problem. Following the vote by the Diocese of Ft. Worth in November 2008 to leave the Church, its Assistant Bishop, the Rt. Rev. William Wantland (Ret.), who is a canon lawyer of high ability, wrote a very carefully worded letter to the Presiding Bishop. It said, in pertinent part (with emphasis added):

I am not resigning my Orders, nor am I abandoning the communion of The Episcopal Church, being a member of a sister Province of the Anglican Communion, in compliance with the provisions of Canon IV.9. However, because I am no longer a member of The Episcopal Church, although residing within its jurisdiction in Oklahoma, I am no longer eligible to be a regular member of its House of Bishops. I therefore request that I be admitted as an honorary member of the (TEC) House of Bishops [pursuant to House of Bishops Rule XXIV].
So how did the Primate of all ECUSA read this letter? As saying the exact opposite of what it says. To her bizarre way of thinking, it read: "I am resigning my Orders, and I am abandoning the communion of The Episcopal Church. So there!" What is more, she got her Council of Advice to agree with that reading! On January 15, the same day as she signed Bishop Scriven's certificate of "renunciation", she signed an identical certificate as to Bishop Wantland. Here is her incredible explanation for that inexplicable act, with appropriate emphases added:
In a letter to me of November 15, 2008, the Rt. Rev. William Wantland stated that as a result of the Diocese of Ft. Worth's recent attempt to realign with the Province of the Southern Cone, "I am . . . now canonically affiliated with the Southern Cone and its Primate, The Most Rev. Gregory Venables." Bishop Wantland then declared that "I am no longer a member of the Episcopal Church." These statements make clear that Bishop Wantland has chosen to leave the Episcopal Church and that he no longer wishes to carry out the responsibilities of ordained ministry in this Church. Accordingly, I have, with the consent of my Council of Advice, chosen this day to accept Bishop Wantland's voluntary renunciation of his Orders in the Episcopal Church and have removed and released him from our ordained ministry.
Truly an unbelievable performance; ECUSA cannot pay anyone enough to come up with such 1984-style doublespeak. She takes Bishop Wantland's actual language ("I am not resigning my orders . . .  However, because I am no longer a member of the Episcopal Church . . .") and selectively quotes from it to imply that what it says is: "I am no longer a member of the Episcopal Church, and therefore I renounce my Orders." This is the stuff of which legends are made.

More legendary still, however, will be Bishop Wantland's cursory reply to this outrage. It bids fair, in fact to go down in history with German composer Max Reger's famous reply to an equally unfortunate provocation, from a music critic: "I am sitting in the smallest room in my house. I have your review before me. Soon it will be behind me . . .".

Here, as a fitting close to this post, is Bishop Wantland's unforgettable riposte to the insult emailed (!) to him by the Primate of all ECUSA. The invoking of the Ninth Commandment is indelibly apt in this situation, while the last paragraph alone is priceless:

Dr. Schori:

This will acknowledge electronic receipt on this date of a letter apparently not mailed to me, but dated January 15, 2009, purporting to "accept" my letter to you dated November 15, 2008 as a Renunciation of my Orders.

As you must know, my letter specifically declared that "I am not resigning my Orders". Nowhere do I renounce or resign my Orders. My letter to you in no way comports with the provisions of Canon III. 12. 7. Further, I specifically requested status in the House of Bishops of The Episcopal Church in conformity with Rule XXIV of the House of Bishops. This request has been totally ignored by you.

I can only conclude that either you (1) do not understand the plain and fairly simple language of either the Canons or my letter to you, or (2) have deliberately violated the Canons for your own purposes and contrary to your obligation as a Christian not to bear false witness. Further, as you acknowledge in your cover letter that I have transferred to another Province of the Anglican Communion, you therefore have absolutely no jurisdiction over me or my ministry, and your purported action of January 15, 2009, is simply null and void.

I would request a response, indicating whether you lack a basic understanding of the English language, or choose to engage in illegal activities. There is no other possible rational interpretation of your actions.


The Rt. Rev. William C. Wantland


UPDATE 01/24/2009: Another canon law specialist (and a good friend), suggests the following perfect solution for our Perplexed Primate. 
Since she takes the position that she has the power as Presiding Bishop to assume control of Dioceses whose leadership she has decapitated, the solution is obvious: as "the Ecclesiastical Authority" of the now vacated Diocese, she can simply sign Letters Dimissory for the departed clergy and make the required report to the authorities under Canon I.1.6 herself. In fact, she is being inconsistent with her own position on the matter when she neglects to do so. End of problem.
Of course, she might not like the next logical step in that solution, but if she can't bring herself to it, then she really is on a pure play for power, for its own sake. For the truth is that if she could sign Letters Dimissory for the departing clergy, then there would be no need for her to depose them, or to make believe she is accepting their "renunciations", in the first place. She would simply recognize (she is good at that) that they have left the Diocese in question, assume the Ecclesiastical Authority for the time being, and sign the necessary Letters Dimissory. What would be wrong with that? A win-win for everyone concerned.

There you go, 815---solid and sound legal advice, free of charge. (In the spirit of getting things back on track, canonically speaking, it is offered as a pro bono service to my Church.)

Thursday, January 22, 2009

The Battle of Three Rivers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 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:

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.