Monday, March 21, 2011

The Object All Sublime

On March 5, the rump Diocese of San Joaquin authorized the Rt. Rev. Chester Talton, resigned (i.e., retired), to be its new provisional bishop to replace the outgoing Jerry A. Lamb, who is retiring to his home in New Mexico. Bishop Talton, who had been residing in Pasadena, has given an interview to the Modesto Bee (H/T: Titus OneNine) about his hopes and expectations for the rump diocese. While he has a reputation as an excellent pastor, he also exudes an honesty and frankness which is refreshing. At the same time, one can only be astounded by the lack of doubt, or even of the slightest tendency to question, the purpose of the diocese's current litigation program, which has led it to file nine additional lawsuits against individual parishes -- on top of its original lawsuit against Bishop John-David Schofield.

I shall be very careful here not to draw unjustified inferences or conclusions, and not to put words into anybody's mouth. I will let the good bishop's words speak for themselves. But if at the end you are as dismayed as I am by the lack of questioning of the national leadership of ECUSA which appears so evident, I will not be surprised. And I certainly give credit to the Bee's reporter for asking all the right questions.

Let us start with Bishop Talton's reasons for taking the job:
Q: What made you come out of retirement to come here?

A: I had only been retired for six months when the presiding bishop asked me to consider having my name go forward. There are only certain bishops who can serve as provisional bishops. You have to be either retired or a bishop of another diocese. It's pretty difficult to find. And I was living in Pasadena, which was relatively close. There was a need here, so I did allow my name to go forward. I was elected at a special convention on March 5.
"There was a need here" -- not just a need, but many. For next we learn:
Q: What are your priorities as you take on this role of provisional bishop?

A: The diocese has been through a very serious rupture and is focusing more now on ministry and mission. I want to be a part of helping the diocese continue to move in that direction. We have small congregations spread out over large area, some of them very small. We've got clergy serving more than one congregation, which is very difficult. At the same time, we are strengthening the diocese itself, the infrastructure, so we can more effectively service our parishes. If I can be a part of leading a stronger outreach and mission-minded diocese when I leave in two or three years, I would feel as if I'd done some good here.
There can be no quarrel with these priorities which Bishop Talton identifies: ministry and mission, and strengthening the diocese's infrastructure so it can be of more assistance to parishes and their clergy, who are spread rather thin across a large area. All well and good. And then the reporter gets to the nub of the matter:
Q: The Episcopal San Joaquin Diocese owes the national church several hundred thousand dollars for legal fees related to the Anglican diocese moving away and the resulting lawsuits. How will you pay for these costs?

A: The national church is supporting the diocese to a considerable extent. We expect the diocese will regain its assets and property and that will assist in paying back those costs.
This is the astounding part. Forget that Sue Nowicki, the reporter, has it wrong when she talks of "the Anglican diocese moving away" -- it never went anywhere, but is still in Fresno where it has always been since its formation. It has nearly three times the number of parishes and congregations of the rump diocese, and so dwarfs its rump opponent. And forget, too, that "several hundred thousand dollars" does not begin to describe the indebtedness of the rump diocese to the national Church. The real number is closer to one million, and will probably be well in excess of that amount before all the litigation is over.

No, as I say, put aside the reporter's naïve errors of fact. What is astounding is the utter simplicity of the Bishop's answer. He does not deny that hundreds of thousands of dollars are owed. He simply expects to pay it back by selling the properties to be won in the lawsuits.

Now at this stage of his experience, no one can fault Bishop Talton for simply repeating what he has been told is the situation in San Joaquin. He was not there when Bishop Lamb accepted a $420,000 gift from the Executive Council in 2008 to float his initial administration of the diocese, and to get the lawsuit against Bishop Schofield on file as soon as possible. Nor was Bishop Talton there when the Executive Council met in Stockton and agreed to back a new legal strategy to up the ante against Bishop Schofield, by suing all of his incorporated parishes individually. This strategy has been funded to date by placing the rump diocese on the hook for approximately $975,000 in "loans" and "lines of credit advanced by the national Church (actually, by the DFMS, which holds all the money).

But mightn't Bishop Talton at least be expected to express some doubt as to the wisdom of the current program? Let me spell it out, in plain English:

1. Bishop Talton will be replacing Bishop Lamb as the plaintiff in ten lawsuits currently pending in the counties which make up the area of the diocese.

2. The object of the first lawsuit was to recover all the property and money held by the Anglican diocese itself. The object of the other nine lawsuits is to recover all the real property, money and other personal property held separately by the nine separate parishes.

3. Bishop Talton says that when all this property and money has been recovered, it will "assist" the rump diocese in repaying the national Church the money it lent to finance all the lawsuits.

First Conclusion: the property and money it seeks is of primary use to the rump diocese in order to repay loans, which have been taken out to fund the expenses of recovering all the money and property.

The principal component of those "expenses of asset recovery", of course, are the fees paid to the rump diocese's attorneys for all the legal work involved.

Second Conclusion: the attorneys are being paid now, out of the loan proceeds, because the rump diocese cannot raise funds enough on its own to pay them. When and if the loans are ever repaid, the national Church will also have its money back. So the attorneys and the national Church will be taken care of; what about the needs of the rump diocese?

Answer: It has no need of the properties, since it does not have the parish members who can make use of them. And while it could always use the money, it has to pay back all its loans first.

What the good Bishop has frankly admitted is that there is a litigation mill churning away in San Joaquin, which can only be fed by money. The national Church has reached the limit of what it is willing to donate to the mill, and is holding the rump diocese to account for every cent borrowed as grist for the mill from 2009 forward. (The loans are due at the end of 2012 -- but what if the litigation is still dragging on by then? Apparently the parties will cross that bridge when they come to it.)

And the little rump diocese, the David which is taking on the storied Goliath, is bravely shouldering hundreds and hundreds of thousands of dollars in debt which it has no means of ever repaying should its lawsuits prove unsuccessful. How is that for a "mission" worthy of a church? The lawyers will have been paid; the rump diocese could be left holding the bag.

The good Bishop wishes things were not so, but he sees no other alternative to the litigation mill, because it is official policy never to sell any of the property to the realigners:
Q: The philosophy of the Episcopal Church so far has been: "We are not interested in negotiating over property. We want the entire property returned, and if we then have to sell it, we're not selling it back to the congregations who left the Episcopal Church." Do you agree with that philosophy?

A: That's the position of the church at the present time. Yes, I agree with that. I see it as the only recourse that we really have. I think it's unfortunate that we're in the courts over this matter, but there's no other way to recover property and assets. The recovery part continues, but our focus is on serving the Lord and reaching out to the world with the good news we have to offer.
But as you admitted earlier, Bishop Talton, the final object of the lawsuits is not "to recover property and assets", but to repay loans for legal fees spent in the attempt at recovery. The recovery of property and assets is just the means, and not the end. And precisely what is the ultimate object of all this litigating -- the "object all sublime", so to speak? Manifestly, it is to deprive Bishop Schofield's diocese and parishes of their assets, so they can be sacrificed to the attorneys rather than be used for the mission to which they are currently being put.

To recap: ECUSA's contention in the Era of Jefferts Schori has been that there is a fiduciary obligation to recover and preserve assets of "the Church" for the benefit of future generations. We now see, however, that the contention is so much flimflam and folderol. The very process of "recovering" the assets results in consuming them, so that neither side can enjoy their benefits. In the final analysis, the lawyers collect their fees, the salable properties are razed or converted to other uses, and the church goes on, poorer than it was before. It may readily be said that where "fiduciary duty" may be fulfilled only by the destruction of the church's ability to accomplish its mission, then it becomes ludicrous to argue that a fiduciary has no choice but to accept such an outcome, if he is to fulfill his duties. The only winners in such a demolition derby are those who would rather see the church halt, than advance.

As it digs itself ever deeper into a hole, the rump diocese at least has a cheerful and forthright leader. It is thus the more lamentable to have to observe that "good news" is very hard to hear when it has to be shouted from the bottom of a deep, black pit.


  1. As someone hand picked by the Presiding Bishop, this new Bishop is exactly what one would expect. It looks like the litigations will drag on under his leadership.

  2. If they lose the lawsuits, they can always sell their properties, starting with St. Paul's in Modesto.
    Liked your reference to Gilbert & Sullivan's The Mikado. Don't know if this bishop will turn out like Pooh-Bah or Ko-Ko.

  3. I suppose it's a moot point, but why do the legal costs have to be so high? It's too much to expect lawyers (on both sides) to do this pro bono - although most of them are churchmen - but surely they need not approach this with the profit motive primarily in mind?

    I guess I'm just a little irked by the hourly rate my counterpart expert witness commands for his services. I have no problem conceding that he has more years of scholarship behind him, but he does draw a salary and benefits from a seminary that was founded to serve the whole Church (GTS, that is).

  4. "let's rend this baby in two!" I don't see any mother instinct there at all.

  5. Underground Pewster,
    My understanding is that the PB approached him after attempts to ascertain the services of one or two others failed. He said in some interview or press release - hopefully with some humor - that he was not the first choice.

    Also, Mr Haley, regarding election, I believe somewhere Fr Rob Eaton has made the case that this is canonically not a matter of election. Whereas it used to be (back in the mid-1800's), it is no longer the case.

  6. amateurcanonist, you have a good memory -- Fr Eaton's explanation of the technical aspects of approving a provisional bishop was in a comment he left at StandFirm. In deference to your (and his) point, I have changed the word "elected" in the first sentence of the post to "authorized." We strive here for 100% accuracy, and I thank you for assisting toward that goal!

  7. Jeremy Bonner, one of the factors in the high cost of legal services is that (in the San Joaquin lawsuit) you have a major national law firm (Goodwin Procter) mixing it up with rural Central Valley law firms. The discrepancy in hourly rates is enormous, because the Washington DC office of GP has much, much more overhead to cover. Although ECUSA pays for GP's involvement, the very fact of their involvement means that the diocesan chancellor continually has to consult with them, and run all pleadings by them, etc. Moreover, the rump diocese has two law firms involved: the chancellor's law office, plus a local firm in Fresno. So all told, three different law firms and their lawyers have to coordinate in the litigation.

    On the other side, the legal bills are piling up too, but not as high. Bishop Schofield's lawyers do a lot of their work pro bono -- and have to, because ECUSA tied up all the diocesan funds with Merrill Lynch at the outset of their filing suit.

    ECUSA's paying Dr. Mullin such a substantial hourly rate also is par for the course -- there is virtually no limit to their litigation budget, and they spend accordingly. Just as is the case with athletes and movie stars, compensation is no index of worth.

  8. "our focus is on serving the Lord and reaching out to the world with the good news we have to offer."

    How does trying to legally steal properties from Christian churches **remotely** resemble serving the Lord? Is he implying that Anglican churches don't serve the Lord?

    ...and what "good news" is he referring to? The fact that anyone can be a member of, ordained by, or married in TEC, regardless of what they believe?