Saturday, August 9, 2008

Pittsburgh Fights Back

In a previous post, I described the Supplemental Petition filed by Calvary Church in Pittsbugh against the Diocese of Pittsburgh and its Bishop, the Rt. Rev. Robert Duncan. The Supplemental Petition, which was based on an earlier court-approved Stipulation between the parties, sought (among other things) the appointment of a monitor to oversee the use and expenditure of all diocesan funds, including specifically to see that no diocesan funds could be spent in defending itself against Calvary's lawsuit! (By requesting that the Monitor approve all Diocesan expenditures, the plaintiffs were also seeking a back-door injunction against the use of any funds to allow the vote, scheduled to be taken next October 4 at the annual Diocesan Convention, to amend the diocesan Constitution and Canons in order to remove the Diocese from Province III of The Episcopal Church.)

As expected, the Diocese and its Bishop have now responded to the Supplemental Petition, and pointed up the glaring unlawfulness of its requests. Their answer first quotes the various paragraphs of the Supplemental Petition, and either admits or denies the allegations in each paragraph. The meat of the response is contained in the answer given to the very first paragraph of the Supplemental Petition, which had alleged:
1. On October 14, 2005, this Court entered, pursuant to Stipulation of the Parties, an Order (the "Order") prohibiting Bishop Duncan and the other defendants from taking real and personal property ("Property") held, or administered, by the Diocese with them outside the jurisdiction and authority of the Episcopal Church in the United States of America ("The Episcopal Church"). (See Exhibit 1, Transcript of Hearing of March 17, 2004, pp. 60-63, where this court discussed this eventuality wherein Bishop Duncan has abandoned The Episcopal Church but continues to use the assets.) Property subject to the Order has an estimated value in excess of $23 million. Notwithstanding the Order, Bishop Duncan and his compatriots have openly and actively pursued their plan purportedly to separate the Diocese (and Property it holds or administers) from The Episcopal Church, and Bishop Duncan cannot now credibly contend otherwise.
Thus according to the petitioner Calvary Church, nearly three years ago Bishop Duncan and his Diocese entered voluntarily into a stipulation, approved by the court, that the Diocese would not remove any diocesan real or personal property "outside the jurisdiction and authority of the Episcopal Church." Let us look at paragraph 1 of the Stipulation and see what it says:
Property, whether real or personal (hereinafter "Property"), held or administered 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 or administered by the Diocese regardless of whether some or even a majority of the parishes of the Diocese might decide not to remain in the Episcopal Church of the United States of America. For purposes of this paragraph, Property as to which title is legitimately held in the name of a parish of the Diocese shall not be deemed Property held or administered by the Diocese.
Are we clear now? This paragraph simply provides that the Diocese of Pittsburgh, presently part of the Episcopal Church, shall continue to hold and administer Diocesan property on behalf of the Diocese regardless of the number of individual parishes that choose to leave the Episcopal Church. Is there anything in this paragraph about the Diocese itself agreeing not to leave the Episcopal Church? Not in so many words. Calvary Church, however, cites this exchange which took place on the record at a different hearing that was held more than a year after the Stipulation had been approved (see Exhibit A to the Supplemental Petition---hearing on December 22, 2006 on Request for Expedited Discovery):
Counsel for Diocese [addressing the Court]: . . . [Y]ou've indicated that you are not interested in engaging in ecclesiastical debates. And what we seem to have here based on the---

The Court: Not only am I not interested, I am not capable of entering into that ecclesiastical debate.

Counsel for Diocese: What we have here today entered into in October [2005] was a stipulation, court-approved, about the property. That's what we really should be talking about.

The Court: There's more in the stipulation than that. There's discussions of withdrawal and how parish churches can withdraw, how they go about it, delivering notice. There's lots of things, terms of any disaffiliations. All these things are delineated here. Recognizing that creating---as I said in the transcript, you create a parallel organization and stay in the church, in the buildings. Mr. DeForest's clients [Calvary Church] are concerned that you are using their facilities [sic---no one is claiming, as far as I can tell, that the Diocesan facilities belong to Calvary Church!] without having formally transferred them in title and are not affiliated with the Episcopal Church in North America which has title to the property. So, yeah, they are intertwined. The rightness and the wrongness of who's withdrawing and who's staying is irrelevant to me, but the fact that somebody is withdrawing is relevant because now you are in the facility that belongs to the Episcopal Church of North America and you are no longer affiliated with the Episcopal Church of North America. If that is discovered to be true, then you violated the terms of the consent order and there's a question whether the churches are evicted, will have to pay rent or some other remedy which Mr. DeForest's clients would have. Simply passing title is not the only thing that violates the intent of this stipulation.
This is a good example of how a court's remarks should never be lifted out of context---in this case, from a hearing held on a motion to expedite discovery. I have bolded the parts of the court's remarks on which Calvary Church and its attorneys are relying. In them, the Court seems to have decided already that it will apply the Dennis Canon to the question of  who owns the parishes' property. (Remember that the Dennis Canon says nothing about ownership of Diocesan property.) Then the Court jumps to the conclusion that because of the Dennis Canon, the property belongs to the national Church---a conclusion that would surely come as a surprise to the parishes in question. And from that conclusion, the court leaps to yet a further unsupported assertion---that a transfer of parish property would violate the terms of the Stipulation. Thus it is no wonder that to support their reading of the Stipulation, Calvary's attorneys cite no language from the Stipulation itself, but only the interpretation of it given in another context by the Judge hearing the case.

To be fair, it does not appear that the Judge had the language of the Stipulation in front of him when he made these remarks, although he certainly evidenced a familiarity with its subject-matter. But if you look back at the actual language of paragraph 1 quoted above, you will see that it quite plainly does not address the issue of the departure of the Diocese from The Episcopal Church. The only way for such an interpretation to be implied would be if one read the descriptive language "held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America" to be actually prescriptive in intent---that is, such property shall not only continue to be held or administered by that Diocese, but that the Diocese itself shall not act so to change its status as a Diocese of the Episcopal Church.

If the latter interpretation is what Calvary Church's attorneys are really arguing, then it is plain to this attorney that they do not appreciate the limitations imposed by the First Amendment on any such contention.  In the first place, neither Bishop Duncan nor the Diocese's attorneys could properly agree on behalf of the Diocese itself to any such limitation on its powers freely to amend and change its Constitution and canons. (The Stipulation shows that it was entered into only by the respective attorneys; neither Bishop Duncan nor anyone else connected with the Diocese signed it.) To impose such a limitation would itself have required that amendments be duly passed at two successive Diocesan conventions, and that simply did not occur.

But in the second place, any such limitation on the power of a Diocese to choose with which organization it shall affiliate would, even if properly adopted, violate the group's freedom of association under the First Amendment. It would be saying that this group of Christians known as the Diocese of Pittsburgh shall never be free to associate with any entity other than The Episcopal Church, and given the fact that the Church is a creation of the original colonial dioceses who came together to organize it, and the dioceses are not the creation of the Church, the contradiction inherent in any such limitation should be manifest. 

Needless to say, therefore, if this is the basis on which Calvary Church intends to argue that its "Stipulation" prevents the Diocese from enacting the proposed changes to its Constitution and canons on October 4, I cannot see how its argument could carry the day. And if Calvary intends to invoke the Dennis Canon, then apart from the fact that the Canon does not even apply to Diocesan property, the problem is that Calvary itself has no standing to invoke it: the Dennis Canon benefits the Diocese of Pittsburgh and TEC itself, not individual parishes. TEC is not a party to Calvary's lawsuit, and so there is no one before the Court with standing to invoke a violation of the Dennis Canon, even if an individual parish (also not before the Court) were to vote to leave TEC along with the Diocese. 

With these remarks as background, now let us have a closer look at the Diocese's response to paragraph 1 of the Petition:
ANSWER: Admitted in part and denied in part. Defendants admit the Court entered an Order approving the Stipulation on October 14, 2005 (the "Stipulation and Order"). Defendants specifically deny Plaintiffs' characterization of Bishop Duncan's actions, and state that no action has been taken contrary to or in violation of the Stipulation and Order of Court by or on behalf of the Episcopal Diocese of Pittsburgh (hereinafter "Diocese") with respect to the estate, real and personal, which it holds or administers for the beneficial use of the institutions and parishes in the Diocese (hereinafter "Property").

With respect to "the jurisdiction and authority of the Episcopal Church" and Exhibits 1 and 2:
     a. The Episcopal Church ("TEC") is a federation of Dioceses. The Diocese of Pennsylvania (of which the Diocese is a part) existed before TEC. . . .
     b. The members of TEC are the Dioceses, not parishes or individuals. The parishes of the Dioceses are members of the Diocese, and individuals are members of parishes.
     c. The TEC Constitution does not prohibit withdrawal of a Diocese (and its property) from TEC.
     d. The Diocesan Constitution does not prohibit withdrawal of the Diocese (and its property) from TEC.
     e. There is no requirement in the Constitution or Canons of TEC that any change in the Constitution of the Diocese be approved by TEC.
     f. The so-called Dennis Canon, by its explicit terms, does not apply to Diocesan property.
It is indubitably true that "no action has been taken contrary to or in violation of the Stipulation": the controversial vote will not occur until October 4. And for the reasons given above, the First Amendment, as well as the lack of restrictions in TEC's Constitution and in Pittsburgh's Constitution, mean that the Court cannot lawfully prohibit the Diocesan Convention from voting on the changes. The Answer goes on to make the point that the real dispute is not between Calvary and the Diocese of Pittsburgh, but between TEC and the Diocese:
     e. If the Resolution passes, as previously stated by counsel for Plaintiff, it is expected that TEC will: 1) challenge the validity of the Resolution; 2) challenge the right of the Diocese to leave TEC; 3) create a competing "Diocese" to claim the property; 4) challenge the right of the Diocese to call itself the Episcopal Diocese of Pittsburgh; and 5) challenge the status of Bishop Duncan as Bishop of the Diocese. (Indeed, TEC has done this following the withdrawal of another Diocese [San Joaquin] from TEC. That litigation is pending.)

     f. The "real" dispute is not between the Diocese and Calvary. The real dispute is between TEC and the Diocese. The Diocese has attempted to negotiate a settlement with TEC, but TEC has instead insisted on an "all or nothing" approach. Litigation by TEC is the proper forum to determine all of these questions and any property claims of TEC. In the interim, Defendants are willing to enter into a standstill agreement that there will be no transfer of any real property and that all expenses will be in the normal course of business, including counsel fees. [Footnote omitted.] 

     g. The Stipulation and Order does not refer to these many issues, now being litigated by TEC against another Diocese. Rather, the Stipulation and Order is directed to individual actions by parishes, such as disaffiliation from the Diocese. In particular, and without limitation, the Stipulation and Order does not (nor could it) adjudicate the right of the 400 lay deputies and clergy at the Diocesan Convention to exercise the right of the Diocese to leave TEC for theological reasons.
I have bolded the portions of this Response that (a) raise the defenses mentioned above, and (b) tell us something new, namely, that the Diocese has offered to negotiate a settlement with TEC, but has been met with a response of "It's all or nothing." (TEC is playing the same high-stakes game in San Joaquin.) It is also news that the Diocese is willing to stipulate to a standstill agreement---which to be effective, however, would require TEC's joinder in the lawsuit.

The Answer further discloses (in response to paragraph 3 of the Supplemental Petition) that Bishop Duncan's recent formation of a Pennsylvania corporation called "the Episcopal Diocese of Pittsburgh" had a pre-emptive purpose: it "was created in April 2008 (not for the transfer of any property but to protect the name of the Diocese from a competing claim to that name by any entity formed by TEC)." The news that such an entity had been formed had occasioned rumors that Bishop Duncan was up to some nefarious purpose; it turns out that he was simply several moves ahead of TEC in the chess game.

Continuing to misread their own Stipulation, Calvary's attorneys reiterate their allegations of wrongdoing in paragraph 5, and utterly without any shame, throw in the fact that TEC intends (illegally!) to depose Bishop Duncan in September for "abandonment of communion": 
5. Bishop Duncan's efforts to separate the Diocese (and the Property it holds or administers) from The Episcopal Church have continued not only in the face of this Court's Order, but in the face of ecclesiastical proceedings anticipated to occur this Fall to permanently remove him as a bishop of The Episcopal Church and head of the Diocese. As set forth more fully hereinafter, a Review Committee established by The Episcopal Church . . . has already certified to the Presiding Bishop of The Episcopal Church that Bishop Duncan has "abandoned the communion" of The Episcopal Church. . . .
Could any more than this paragraph alone be needed as proof of the deliberate falsification by TEC's liberals of its Canons? Given the plain text and history of Canon IV.9, these allegations are nothing short of astonishing. To begin with, Calvary's attorneys do not inform the Court that the Presiding Bishop did not obtain consent to inhibit Bishop Duncan, and that hence, under the plain text of the Canon, he is not liable to deposition. (Canon IV.9 reads in pertinent part: "Unless the inhibited Bishop [makes a satisfactory response to the Title IV Review Committee charges within 60 days], the Bishop will be liable to deposition.") Even worse, they predict to the Court that TEC's bishops will proceed to disregard the Canon's language entirely and illegally pronounce him deposed in September. (And see this report, which appears to bear out the attorneys' prediction of what the House of Bishops will in fact do, regardless of what objection is made, or what the Canons say.)

But worst of all is the allegation that Bishop Duncan was charged with "abandoning the communion of The Episcopal Church," based on charges (instigated again by the Calvary crowd) that he planned to have his Diocese withdraw from TEC. Forget the Anglican Communion of which TEC pretends to be a part; the only Communion that matters to TEC's liberals is its own. Never mind, yet once more, that this reading is directly contradicted by the language of Canon IV.9, which defines "abandonment of communion" as, among other things, "formal admission into any religious body not in communion with [this Church]." Thus, by definition, for the Diocese of Pittsburgh to join a province like the Southern Cone---with which TEC has never declared itself out of communion---cannot be "abandonment of the communion of this Church" under the Canon.   

But do Calvary or its attorneys care for what TEC canon law actually says? Are they being candid with the Court when they imply that the proceedings against Bishop Duncan are fully in accord with TEC's canons? Evidently not, and what is amazing is that they fully expect to get away with it.  

Bishop Duncan's response to these allegations is far more reasoned and moderate than mine (but then, can a curmudgeon do any less?):
ANSWER: Denied. This allegation is premature. If and when TEC takes action against Bishop Duncan, the Bishop will determine whether to challenge that act as in violation of the Canons of TEC and/or a denial of due process. . . . Moreover, TEC does not have a valid claim to "the Property." Plaintiffs are improperly construing the Stipulation and Order as giving TEC greater rights tha[n] it actually has. The alleged property rights of TEC are not referenced in the Stipulation and in any event, are not defined. Yet Plaintiffs now claim that TEC owns all Diocesan and parish property. Such construction of the Stipulation and Order would deprive the Diocese and the parishes of their right to have TEC's claim(s) adjudicated in a proceeding brought by TEC. . . . TEC is not a party to this litigation. The Stipulation and Order do not pertain to or in any way address the rights and obligations, if any, of TEC. . . .
I have barely scratched the surface of what is wrong with Calvary's Supplemental Petition. If you want more, look at how they deliberately misread Paragraph 2 of the Stipulation (dealing with the withdrawal of parishes from the Diocese) when they allege in paragraph 9 of their Petition that "Paragraph 2 of the Order precluded separation from The Episcopal Church of Property specifically held for or in the name of parishes within the Diocese . . .". (That sentence contradicts itself---it claims that property held by the Diocese for its parishes could not be conveyed away from TEC. If it is held by the Diocese, in trust for its parishes, then it cannot be held by TEC! The plaintiffs are confused about the Dennis Canon, which provides that property held by parishes shall be deemed to be held in trust for the diocese and for TEC. (Admittedly, the Canon purports to override existing trusts when it says that property "held for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located." Obviously TEC has no power by Canon or otherwise to amend a trust document to which it was not a party in the first place.) Finally, in paragraph 21 Calvary announces that they have cost the Diocese thus far $750,000 in legal fees in defending against their nonsensical claims, and then has the gall to allege that that money was wasted in being spent for that purpose!

(If you do read the entire Answer, be sure to read the New Matter beginning at page 19. Here Bishop Duncan and the Diocese set out the objections to Calvary's position that I have sketched in my introductory observations above, as well as even more grounds that I have not mentioned.)

I do not know which makes for more desultory reading: the Supplemental Petition itself, or the comments on the Diocese's response at Lionel Deimel's blog, which he titles "Lies and Dodges." He evidences the mindset of Calvary's Petition when he takes it for granted that the original Stipulation was a commitment by the Diocese not to leave TEC, and does not even ask how such a commitment could be binding on an entire group governed by its own Constitution. Listen to him complain:
Throughout this section, defendants argue that the stipulation is not relevant. In the following section of the defendants’ filing, they suggest that it was defectively drawn. It was, of course, the agreement that Calvary was able to extract from the defendants. The defendants also assert repeatedly that no offenses have yet been committed by the defendants. Calvary, on the other hand, points out the statements Duncan has made and the steps he has implemented to effect his plan to take the diocese outside TEC. What an irony it is that a bishop so fond of referring to the “plain meaning” of scripture insists that the court ignore the plain meaning of his own statements and actions! Repeatedly, the answers given by the defendants begin with: “Admitted in part and denied in part.” In many cases, this simply means that they admit that a statement was made and is properly quoted, while they deny the obvious implications of the text.

A worrisome statement appears on page 6: “If and when TEC takes action against Bishop Duncan, the Bishop will determine whether to challenge that act as a violation of the Canons of TEC and/or a denial of due process.” The House of Bishops should take note.
Apparently, the idea that Bishop Duncan might actually challenge the legality of the proceedings against him is "worrisome." And well it ought to be, Mr. Deimel. But then you conclude with this confession:
As an intelligent, rational human being, I find the defendant’s filing to be mostly nonsense. It is impressive, however, that one can argue for the indefensible with such sincerity and surface credibility. So many of the arguments made are defective, but establishing the fact requires a long chain of reasoning. Just how judges keep trac[k] of such logic I do not know. I hope Judge James is good at it. That said, I have to repeat that I am not a lawyer, and there are certainly legal arguments here that legitimately may carry weight.
So here we have an ultracrepidarian admission, of sorts, that Mr. Deimel might possibly be out of his league. I would urge him to get the advice of a good, disinterested attorney who is knowledgeable both about First Amendment law and about TEC's canons. If he is supporting Calvary's lawsuit with his wallet as well as with his blog, Mr. Deimel might just be in for a surprise. However, now comes my caveat:

I see, from reviewing the docket in this matter, that the issues raised in this latest round of pleadings are not new. In December 2006, the Calvary plaintiffs filed a 315-page Petition for Enforcement of Settlement and Order. (Expect to wait a while for the download if you click on the link---the Petition itself is just sixteen pages, but attached as an Exhibit are the complete 270-page edition of TEC's Constitution, Canons and Rules of Order, with index!). This Petition argued many of the same points as does the Supplemental Petition, but is based on events just through the end of 2006. The Defendants answered and pled additional New Matter, just as they have done in their current filing. They also demanded a trial by jury, which the plaintiffs subsequently moved to strike, on the grounds that the demand came too late and that jury trial had been waived in the original round of pleadings filed in 2003. In February 2007, Bishop Duncan and the Diocese filed a motion to dismiss the Petition; after full briefing, which again raised many of the same issues being argued today, the Court on May 8, 2007 denied the motion in a one-sentence order giving no reasons (look at the second page of the link). Afterwards the defendants were granted leave to file an amended New Matter to their prior answer, to which the plaintiffs responded in July 2007.  There the matter sat until the plaintiffs filed their Supplemental Petition in July of this year.

The Court has now scheduled a hearing in the case for September 8,
to resolve issues raised in the above pleadings, including but not limited to: 

1. Request for appointment of a Monitor;

2. Request for creation of escrow accounts;

3. Plaintiffs' motion to strike request for a jury trial [filed January 29, 2007!].
Given this extensive prior history of the case, and the fact that no new legal issues are raised in the latest round which were not already before the Court on the earlier motion to dismiss, the denial of that motion without any reasons being given has to be troubling to the defendants. That denial, plus the Court's apparent buy-in to the plaintiffs' argument based on the Dennis Canon as quoted in the excerpts of oral argument above, may indicate that the Court is genuinely of the belief that it can rule on TEC's claimed beneficiary interest in the Diocesan assets without (a) TEC being a party to the case, and (b) any language in the Dennis Canon itself properly giving TEC such an interest in any diocesan property. If such is in fact the case, I can only shake my head, and remember the response a wise old federal District Court Judge gave to me when I objected that if he ruled as he indicated he would in my case, it would force me to take an appeal: "Counsel," he said, "I just get paid to make decisions. The Ninth Circuit gets paid to make them right!" 


  1. Two questions:

    In contract law, one party can't just unilaterally change the terms of the contract. But isn't this just what the Dennis Canon does?

    The Dennis Canon states that all parish property is held in trust for the diocese AND the national church. Now, if those parties disagree, who wins? It seems like the name on the title would be pretty important in deciding that.

  2. robroy, good questions.

    1) The Dennis Canon tries to exploit the latitude the courts give to so-called "hierarchical churches," as I have explained in more detail in this post. (See also the articles on the Canon at Mike Watson's site, which is linked in the comments to the article I just cited.) It does so, as you point out, by unilaterally setting up a trust arrangement, done in much the way banks unilaterally change the terms of your credit cards: if you don't want to accept the new arrangement, you are supposed to "opt out" (by leaving TEC in 1979, when the Canon was adopted; it's a little late now). Some courts are offended by the Canon and what it tries to do; others implement it fully. It depends on how much precedent in the given State supports a ruling that TEC is "hierarchical."

    2) Since the Dennis Canon does not contemplate any disagreement between a diocese and TEC, it cannot govern a case when there is one. The true "hierarchy" within TEC consists of the relation between the diocese and its parishes, or more strictly, between the bishop and his clergy. There is no hierarchy between TEC and its dioceses, because (a) TEC did not create the dioceses, but the dioceses created TEC; and (b)there is no hierarchical language in TEC's Constitution making General Convention the supreme authority in the Church, just as there is no Supremacy Clause in TEC's Canons. My guess, therefore, is that so long as a diocese is upholding the Dennis Canon, a court would not step in to say that the national church takes precedence over the diocese---especially in Pittsburgh, where TEC is not even a party to the lawsuit.

  3. ... they have cost the Diocese thus far $750,000 in legal fees in defending against their nonsensical claims, and then has the gall to allege that that money was wasted in being spent for that purpose!

    I seem to remember hearing of someone who killed his parents and then asked for the court's mercy on the grounds he was an orphan...