tag:blogger.com,1999:blog-759178030677978044.post2339959923998052948..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: Judge James Goes off the Deep EndA. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger24125tag:blogger.com,1999:blog-759178030677978044.post-2201450759553852782009-10-10T18:58:12.219-07:002009-10-10T18:58:12.219-07:00What we really need from Judge James is a descript...What we really need from Judge James is a description of what an invalid realignment looks like. According to his ruling, a valid realignment is unable to separate a diocese from TEC, that is to say, it fails its only purpose. Proof that a valid realignment was ineffective in separating the diocese from TEC, and only succeeding in removing individual persons from TEC, was the fact that Bishop Duncan was deposed (although in an embarrassing gaffe Judge James confirmed he paid scant attention to the arguments by botching the timeline) and that KJS recognized a real TEC diocese that was there all along. Of course this view is exactly what TEC argues is the result of an invalid realignment. So, again we are left wondering what an invalid realignment looks like?AeroAnglicanhttps://www.blogger.com/profile/05834933191277128184noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-91702212232765279692009-10-09T16:01:04.093-07:002009-10-09T16:01:04.093-07:00Here is the way the argument works, Fr. Wainwright...Here is the way the argument works, Fr. Wainwright.<br /><br />1. The Dennis Canon has no language in it that could be read to apply to property held by a Diocese for that Diocese, or for its parishes in general. The language of the Dennis Canon applies only to property held by or for individual parishes.<br /><br />2. If a Court were to say that it reads the Dennis Canon as applying also to the property of Dioceses, then the question arises: why enact section 5, which gives <i>the Diocese</i> the option of enacting its own Dennis Canon equivalent, but not a parish?<br /><br />3. In other words, if you think you have created a trust in the Diocese's property by enacting section 4, how can the Diocese's enacting a canon saying the same thing help you?<br /><br />4. And if you think giving a Diocese the option of doing that will strengthen the chance that you have an enforceable trust, then why not give the parishes the same option you gave the dioceses?<br /><br />It is far more logical to conclude that section 5 was enacted to give dioceses the option of strengthening any trust in the <i>parishes'</i> property by repeating the Dennis Canon at the local level. But that only supports your original conclusion: that the purpose of the Dennis Canon was to impose a trust on parish property, and not on the property of any diocese.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-79999520263792733382009-10-09T15:26:27.554-07:002009-10-09T15:26:27.554-07:00"If the intent of the Dennis Canon were to ap..."If the intent of the Dennis Canon were to apply to the property of dioceses as well as to the property of parishes, why would section 5 give dioceses the option of 'further confirm[ing] the trust declared under the foregoing Section 4', but not give that same option to the parishes themselves? Such reasoning, of course escapes Judge James". I'm afraid it escapes me too; can you spell out the connection here?Philip Wainwrighthttps://www.blogger.com/profile/06812784198885239502noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-82350494433673698202009-10-08T13:43:34.757-07:002009-10-08T13:43:34.757-07:00Fr. Weir:
The judge, wisely, did not consider the ...Fr. Weir:<br />The judge, wisely, did not consider the question of the canonical standing of the Diocese that does belong to ECUSA, only that Bp Duncan's did not.<br /><br />How then did the judge award the property of "Bp Duncan's" diocese to another entity? He declared that the other entity is indeed the Episcopal Diocese of Pittsburgh of TEC, and therefore entitled to 100% of the property. That sounds very much like he established the "canonical standing" of the TEC DioPgh.SometimesWisehttps://www.blogger.com/profile/18174877906545481652noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-27228556936110364822009-10-08T13:00:24.013-07:002009-10-08T13:00:24.013-07:00The more I think about this ruling the more inclin...The more I think about this ruling the more inclined I am to think an appeal is in order. The judge clearly betrayed the agreed upon assumption of a <i> valid </i> realignment. A valid realignment means 1) the <i> same </i> diocese which held the assets before realignment still holds them and shouldn't lose them because of a valid vote to realign 2)a valid realignment means that the moment the convention voted to realign there was no diocese of Pittsburgh that was a part of TEC 3) if there is now a TEC diocese of Pittsburgh it is a newly formed entity and not entitled to any of the assests. Judge James has completely ignored what a valid realignment means. His claim that that a TEC diocese never ceased to exist, and that such a diocese must now get the assets, can only be made under the assumption that the realignment was not valid. Of course I am only restating what others here have already pointed out... It is obvious that all the arguments simply went over his head and he fixated on the words "Episcopal Church".AeroAnglicanhttps://www.blogger.com/profile/05834933191277128184noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-89492376966791681132009-10-08T12:02:27.328-07:002009-10-08T12:02:27.328-07:00If a priest and lay person wanted to set themselve...If a priest and lay person wanted to set themselves up as the 3rd Diocese of Pittsburgh, and got 2 bishops in TEC to recognize them, could they sue the Rump Dio Pitt for the property?Lee Andersonhttps://www.blogger.com/profile/07570324582866209899noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-83497372191829210982009-10-08T09:43:18.733-07:002009-10-08T09:43:18.733-07:00I read the judge's ruling, which was, blessedl...I read the judge's ruling, which was, blessedly, much shorter than your post. It seems to my non-lawyerly mind that a major issue was that the Diocese headed by Bp Duncan is not the Diocese that belongs to ECUSA and that was the language of the stipulation. The judge, wisely, did not consider the question of the canonical standing of the Diocese that does belong to ECUSA, only that Bp Duncan's did not.Daniel Weirhttps://www.blogger.com/profile/11430381764138066595noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-57299312165370038392009-10-08T09:28:41.763-07:002009-10-08T09:28:41.763-07:00Examining the briefs, the real diocese also argued...Examining the briefs, the real diocese also argued that the wording was "clear and unambiguous", in order to invoke the parol evidence rule and prevent the introduction of background evidence about the course of the negotiations.<br /><br />Lionel Deimel attended the hearing. Judge James may not have openly used external evidence, but he certainly heard a lot of it. An attorney-negotiator for TEC was allowed to testify at length about his thinking during the negotiations -- an obvious advantage for anyone trying to persuade a court that his interpretation of the final document is correct.Alan Stewarthttps://www.blogger.com/profile/00413914847275660133noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-63866776021959929202009-10-08T08:00:56.023-07:002009-10-08T08:00:56.023-07:00I have addressed the applicable provisions in ECUS...I have addressed the applicable provisions in ECUSA's Constitution that allow those remaining to reorganize as a new Diocese <a href="http://accurmudgeon.blogspot.com/2008/09/making-proper-plans-to-remain-episcopal.html" rel="nofollow">in this post</a>, DavidH, and also in <a href="http://accurmudgeon.blogspot.com/2008/05/remaking-san-joaquin-following-canons.html" rel="nofollow">this earlier one</a>, which was the concluding part of a series in which I discussed what had been done wrong in San Joaquin, what the consequences would be, and how to follow the Canons there to allow each group canonically to go their own separate ways. This matter of reorganization after a Diocese departs has been a recurring theme on this blog.<br /><br />As for the ambiguity of the Stipulation, look at the language from Paragraph 1 which I quoted in the post. The first thirty-five words of that quote are purely descriptive, and provide no mandate of any kind. The mandate comes after that, and the only mandate directly expressed is that the previously described entity continue to hold the previously described property as it has been holding it.<br /><br />That would be the ordinary common-sense reading of the language. It is only if one ascribes a <i>prescriptive</i> element to the descriptive language that you can come up with the "clear and unambiguous" reading of the honorable Judge James. <br /><br />Two senses of the same words. I do not say that the words cannot be read in the second sense; they certainly can. That's what makes them ambiguous. And if you review all of the submitted exhibits which show how the Stipulation evolved to its final form, the only conclusion (I submit) one can reach is that the second sense (the one Judge James says is "clear") is precisely the sense of the <b>earliest</b> drafts, which Bishop Duncan and his attorneys had refused to sign. Over a period of nine months, the two sides jockeyed for an acceptable phrasing, and finally settled on the language which divided the descriptive from the prescriptive. To read it as the Judge now does is to make nine months of negotiations meaningless.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-12943369903510499892009-10-08T02:40:20.624-07:002009-10-08T02:40:20.624-07:00Mr. Haley, if I have said that a judge has gone of...Mr. Haley, if I have said that a judge has gone off the deep end, I am happy to admit the intemperate-ness of my remarks and rephrase them. But I don't think I have -- you appear to be referring to <a href="http://www.standfirminfaith.com/?/sf/page/15557#269009" rel="nofollow">a comment</a> in which I made a conditional statement about other commenters, which I think is different than a blog post about a judge.<br /><br />To get back on point, I do not claim to know whether this legal principle applies in Pennsylvania or not, but in Virginia, the fact that the parties disagree over the meaning of a contractual provision (something your 12:37 am comment focuses on in arguing ambiguity) is not evidence that it is ambiguous.<br /><br />I do have a couple of related questions. You and others have focused on canonical compliance and charge that the +Johnson Group cannot be a diocese because it has not applied for and been accepted by General Convention as such. Where do you think the Constitution and Canons of TEC address the procedural requirements of reorganization when a bishop and majority of a Standing Committee and diocese have left? And why do you think General Convention's decision to seat representatives from the reorganized dioceses is not adequate recognition/acceptance of them?<br /><br />By the way, you occasionally post on SF as Chancellor, do you not? (You need not answer that if you don't want to -- I just found myself confused a while back by whether Chancellor was a different nom de plume for the same person.)DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-30394834079132042972009-10-08T00:37:27.164-07:002009-10-08T00:37:27.164-07:00DavidH, we shall just have to disagree, as we so o...DavidH, we shall just have to disagree, as we so often do. When a judge publishes an opinion such as this one, which is logically incoherent, and which ignores volumes of contradictory evidence to find there is "no ambiguity" in something that both sides have spent the last four years arguing over, I say he is unequal to the task of deciding the issues at stake -- because he did not "decide" them; he simply emoted his feelings on them. <br /><br />"Gone off the deep end" is, I note in passing, a phrase to which you have resorted to describe another member of our profession over at StandFirm. The pot should not be calling the kettle black.<br /><br />As for your evaluation of the ruling in your posts elsewhere, I will, as you know, always stand ready to engage your substantive comments here. Argument by proxy and innuendo, however, carries no weight on this blog, as you appear to recognize with your final words.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-30653685994550014072009-10-07T18:41:34.068-07:002009-10-07T18:41:34.068-07:00This post is surprising and disturbing. I would t...This post is surprising and disturbing. I would think an attorney would be hesitant to personalize a legal decision and attack a judge as inadequate and having "go[ne] off the Deep End." Disagree with a decision. Attack conclusions or findings in it if you must. But more respect is in order from members of the bar.<br /><br />And neither the post nor James and Publius's comments accurately summarizes or characterizes the decision.<br /><br />I've largely said what I have to say about the substantive matter on StandFirm, not that it really matters.DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-7292355873412138222009-10-07T16:29:13.457-07:002009-10-07T16:29:13.457-07:00James, the interpretation of the plain meaning of ...James, the interpretation of the plain meaning of the stipulation as a contract presents a question of law, which an appellate court reviews <i>de novo</i> on appeal.<br /><br />Had Judge James found the language ambiguous, so that external evidence was needed to interpret it, then the standard of review would be different -- in California, it is what is called the "substantial evidence" standard, meaning if there is substantial evidence to support the judge's decision, then it will not be overturned on appeal, even if the appellate court might have reached a different conclusion.<br /><br />Judge James, however, used no external evidence, and found the language of the Stipulation to be "clear and unambiguous" on its face. (It is not, of course; that is why the parties offered so much argument and exhibits to support their respective interpretations of it.) Since the Judge ruled the language was clear on its face, the appellate court will take a fresh look at it on its own, and make up its own mind on the question, as though Judge James were not in the picture.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-88698708923852993342009-10-07T16:10:11.293-07:002009-10-07T16:10:11.293-07:00AC: But what is the standard for review? What ca...AC: But what is the standard for review? What can an appellate court review in this case? What is deemed to be a matter of fact and what is deemed to be a matter of law?<br /><br />It seems to me that the judge made some major decisions of law without offering any justification for them (i.e. what you point out in terms of WHO recognizes the rump group) and that these unsupported decisions of law drive the overall decision.<br /><br />The judge seems to say that he recognizes the validity of the diocese's withdrawal, then makes directly contradictory statements just a short time later by effectively declaring that a diocese cannot validly leave (though he doesn't support this claim either).<br /><br />Yet the judge bases his decision on the stipulation and again offers no justification other then to make the astonishing claim that it is self-evident. So what is fact and what is law?<br /><br />The more I read this decision, the crazier it seems to me. And it surely reduces my confidence in the courts even more (and I never had great faith in the judiciary before!).Jameshttps://www.blogger.com/profile/11350108716366727511noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-9818181329574781922009-10-07T13:41:53.291-07:002009-10-07T13:41:53.291-07:00Publius, that is a great comment. And the more I t...Publius, that is a great comment. And the more I think about Judge James's ruling, the more inconsistencies and logical impossibilities I find. Take just this point: Judge James says that the Diocese formerly headed by Bishop Duncan could not be "extinguished" by the vote to leave. OK, fine -- it was not extinguished. But that was the same Diocese that agreed to the 2005 Stipulation. No property has changed hands since. <br /><br />So why, all of a sudden, does the court need to <b>order</b> a transfer of property from the entity that agreed to the stipulation to a different entity, if that second entity is all along the first entity which <i>never went out of existence</i>? <br /><br />The decision simply defies any common sense. James pointed this out as well, in <a href="http://www.standfirminfaith.com/?/sf/page/24788#401538" rel="nofollow">an excellent recent comment</a> over at StandFirm.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-41720108237801920262009-10-07T13:24:47.566-07:002009-10-07T13:24:47.566-07:00TU&D, even in jest you are right -- the case i...TU&D, even in jest you are right -- the case is not over. Deck, and DavidJ, yes, Judge James's ruling can be appealed. The only question is when and how. His order (following the decision) provides for further procedures to identify the property that is subject to the Stipulation, so it is not yet a final order. That will come when, after the property has been identified, he enters an order that it be turned over by a date certain. At that point, Bishop Duncan's attorneys can ask that he stay enforcement of his order pending its appeal. <br /><br />The appeal will go to the Commonwealth Court, which is the first level; and could go higher, to the Pennsylvania Supreme Court, if that court agrees to take the case. Either of those courts could grant a stay of Judge James's order if he refuses to stay it.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-10096200463873604972009-10-07T13:14:50.749-07:002009-10-07T13:14:50.749-07:00Dear Mr. Haley,
I agree with your post and write ...Dear Mr. Haley,<br /><br />I agree with your post and write to add the following. <br /><br />My understanding is that Section 1 of the Stipulation prohibits property <i>transfers </i>, i.e. the parties agreed that property would not be deeded to others and would continue to be held for the beneficial interest of the parishes. Since then Bp. Duncan, the Diocese, and the parishes transferred no property, and therefore did not violate the Stipulation. The title deeds to the various parcels remain unchanged from what was recorded before the Stipulation was signed.<br /><br />To reach the results contained in this order, the learned trial judge actually adopted TEC's "ejector seat" theory and administered steroids to it. Consider the remarkable results: <br /><br />First, the judge enforced TEC's theory that if a Diocesan delegate voted in a certain way on certain resolutions, he automatically is removed from his office. Second, if the Diocesan convention adopted a certain resolution, solely as a result of that vote the Diocesan Bishop automatically abandoned Communion and can be summarily removed from office by the Presiding Bishop, whether or not that removal complies with TEC's canons relevant thereto. Third, the vote also triggered operation of TEC's "dinghy" theory of Diocesan existence, whereby the dinghy became the flagship, solely as a result of the vote and without the trouble of obtaining a ocrporate charter from the Pennsylvania authorities. Fourth, the vote also triggered operation of TEC's Dennis canon, ejecting the Pittsburgh parishioners from their property, even though those parishes did not actually sign deeds transferring any property. Finally, the judge ruled that the Dennis canon applies to Diocesan property, even though its text states that it does not.<br /><br />Wow. I don't know where to begin with such an incoherant decision. I can only hope that the appeals courts in Pennsylvania will set this decision right.Publiushttps://www.blogger.com/profile/00397698158382967962noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-68549258404269304182009-10-07T12:37:36.961-07:002009-10-07T12:37:36.961-07:00A.S. - can this ruling be appealed at another leve...A.S. - can this ruling be appealed at another level?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-43463502089992439822009-10-07T12:35:55.396-07:002009-10-07T12:35:55.396-07:00Appeal? I would guess that +Duncan and associates...Appeal? I would guess that +Duncan and associates can.BillBhttps://www.blogger.com/profile/17593147581583316765noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-56863956287021476042009-10-07T12:35:18.024-07:002009-10-07T12:35:18.024-07:00Very sad indeed. It will be interesting to see wh...Very sad indeed. It will be interesting to see what the rump "Diocese" of Pittsburg (ECUSA) does with over 50 empty properties. Sure, they "won" and probably will have a victory party paid for by hers truely, Madam Katie "Shoria Law" Shori, but after the celebrations end, they will have to face the fact that the Diocese of Pittsburgh is near broke already and now will have to find a "used church" realtor. Good luck, Katie!!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-55891223140449297442009-10-07T12:11:07.834-07:002009-10-07T12:11:07.834-07:00That being, of course, courtly folderol, not curmu...That being, of course, courtly folderol, not curmudgeonly folderol.<br /><br />Br_er Rabbit.Rolinhttps://www.blogger.com/profile/13251910335736110149noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-35450110559967750282009-10-07T12:06:08.657-07:002009-10-07T12:06:08.657-07:00What comes to mind is another comment I made in an...What comes to mind is another comment I made in another setting:<br /><br />Pure Folderol.Rolinhttps://www.blogger.com/profile/13251910335736110149noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-60226283040694971662009-10-07T11:59:26.721-07:002009-10-07T11:59:26.721-07:00AC: As one who is legally trained and works as a ...AC: As one who is legally trained and works as a research librarian in a law school, I have long believed that judges are not nearly as intelligent as most people seem to think, and I have little respect for their intellect unless they give me reason to.<br /><br />Having said that, what do you think are the chances for a successful appeal?Jameshttps://www.blogger.com/profile/11350108716366727511noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-48247676762144413462009-10-07T11:55:55.326-07:002009-10-07T11:55:55.326-07:00Judge James Goes off the Deep End
A curmudgeon on...<b>Judge James Goes off the Deep End</b><br /><br />A curmudgeon once told me that "Logic *must* prevail in the end."<br /><br />So I assume that this is not the end of the case since Logic has not yet prevailed in the matter.<br /><br />(Jus' joshin' you, AC, jus' joshin)<br /><br />;-)Truth Unites... and Divideshttps://www.blogger.com/profile/08891402278361538353noreply@blogger.com