The Pirates of Pittsburgh

With all the Disneyfication of pirates in recent years, does anyone still remember what pirates of yore actually did? The genteel Somalian pirates of today simply hold the ship and its cargo for ransom, since it is a little difficult to take the oil from a supertanker. But the pirates of old dealt with ships and cargo that were much more manageable. They saw it as their mission to interrupt a ship in its voyage, to plunder it of all its goods and stores, and to strip its passengers of their wealth and property.

Pittsburgh, of course, is known for harboring another kind of pirate---the kind that competes for the World Series. They, however, are not my subject. In this post, I want to review the litigation that was brought by Calvary Episcopal Church and others against the Rt. Rev. Robert Duncan, bishop of the Diocese of Pittsburgh, as well as against the directors and the standing committee of the Diocese. After I have reviewed all the steps in this tortuous saga, I would like you to consider whether Pittsburgh may be home to more than one kind of pirate---and if you find that judgment a little harsh, then just follow me as I lead you through a veritable thicket of argument, contention, and attempts to jockey for advantage.

Indeed, the Pittsburgh lawsuit is a microcosm of all the strife and turmoil that has beset the Episcopal Church (USA) since the election and consecration of V. Gene Robinson as the Bishop of New Hampshire in 2003. By reviewing it in all its sordid detail, both Episcopalians and dissenters alike have much to learn, and much of which to be ashamed. In keeping with my piratical theme, I shall use a nautical analogy to set the scene.

Begin by thinking of the Diocese of Pittsburgh as a frigate, a ship of the line afloat on the Anglican sea, and part of the Episcopal fleet. She is captained by Bishop Duncan and a stalwart crew, and leads a flotilla of smaller vessels, of various sizes and importance, that keep close to her for protection. A hundred other frigates, each with their own flotillas, comprise the total Episcopal fleet, which is headed by Admiral Griswold.

In due course the frigate New Hampshire loses her captain, and her crew votes to have one of its own, V. Gene Robinson, take the helm. The election, however, needs to be ratified by all the officers of the fleet---and there is a slight problem. For Captain-elect Robinson has no wife waiting for him ashore, having divorced her some years earlier. He has a new "wife" who keeps him company, but it is a he, not a she. Captain Duncan and a number of others like him are greatly upset. It is a violation of the Rules of the Anglican Main for a Captain to have a wife who is not a woman. Nevertheless, at a gathering of all the fleet in July 2003, the officers vote to approve Robinson's captaincy, over the objections of Captain Duncan and those who join him in trying to uphold the Rules.

Captain Duncan and his crew are upset by this, and call a special meeting of their flotilla to decide what to do. But at the meeting, where six resolutions are adopted, it is discovered that some of the officers are sympathetic to Robinson. This happens in the vote on the first resolution, which declares the fleet's action in violation of the Rules to be ultra vires (beyond its powers), and says that Robinson will not be regarded as a Captain, or be welcome aboard the Pittsburgh. The second and third resolutions adopted at the meeting appeal to the Admirals' Privy Council---the highest level of the Anglican Navy---to intervene in the emergency, and to provide oversight for those who refuse to recognize Robinson's rank. The fourth resolution declares that the good ship Pittsburgh will no longer send its collections for widows and orphans to the flagship of the fleet for distribution, while the fifth seeks to assuage the dissenters by allowing them to have some say in where their own collections will go, and to ask the Admiral for someone besides Captain Duncan to inspect their ships.

The sixth resolution, however, is a real depth charge. It declares no less than that the entire flotilla of vessels attached to the Pittsburgh is free and clear of any claim of belonging to the fleet as a whole, notwithstanding the fleet's own rules. The crew of one of those vessels, the escort Calvary, believe that Captain Duncan is preparing to lead a mutiny, and they depart the meeting muttering among themselves that once ships join the fleet, they are never permitted to leave it.

Shortly after this, the Lord High Admiral of the Anglican Navy summons Admiral Griswold to explain the fleet's decision to the Admirals' Privy Council in October 2003. There the assembled admirals issue a warning to the Episcopal fleet not to give Robinson his stripes, or else there will be serious, but unforeseeable consequences for the Navy as a whole, and for the Episcopal fleet in particular. Together with all the other members, Admiral Griswold signs a communiqué of the Privy Council that expresses their mutual concern for the Rules, and prays the Episcopalians not to go forward with the investiture. Then he goes back to his fleet and promptly heads up the ceremony in which Robinson is made Captain of the New Hampshire.

The ink is scarcely dry on the Privy Council's communiqué, however, when the crew of the Calvary, led by Commander Harold Lewis, bring charges against Captain Duncan for dereliction of duty, conversion of Navy property, and breach of the terms of his commission. (Note that as of this point, all that has happened is that the assembled Pittsburgh flotilla, and not Captain Duncan individually, has adopted some resolutions.) To add to the expense of the proceedings, they also hale into court on the same charges all the officers of the Pittsburgh, as well as the individual members of the Captain's Council, which includes officers and crew from some of the other ships in the flotilla. Finally, they claim to be acting on behalf of the good ship Pittsburgh herself, and they ask the admiralty court to put them in charge of the entire vessel and everything in its wake.

Let's return to dry land for a moment, and look at what the Pittsburgh lawsuit is all about. Calvary's complaint may be downloaded and read from this link (caution: because it attaches most of the 2003 Constitution and Canons, it is an 89-page document, and takes some time). After making their allegations on "information and belief" (sort of like saying, "We have heard it said that . . ."---it is the weakest form of pleading one can get away with), here is what they request from the court (I have added the bold to emphasize the parts I consider particularly overreaching, or dubious):

a. A declaratory judgment confirming Defendants' fiduciary duties to [PECUSA], the Episcopal Diocese of Pittsburgh and Calvary Episcopal Church . . . and the Individual Plaintiffs, and declaring the Sixth Resolution . . . invalid and lacking effectiveness under the laws of the Commonwealth of Pennsylvania;

b. A declaratory judgment that the real property, personal property, and other assets of [PECUSA] and The Episcopal Diocese of Pittsburgh may not be transferred to or held by congregations which are no longer part of [PECUSA];

c. An injunction preventing Defendants from taking any action . . . depriving [PECUSA], the Episcopal Diocese of Pittsburgh, Calvary Episcopal Church . . . and the Individual Plaintiffs of the beneficial use and control of property that has been, is, or will be subject to the control of the Diocese or Defendants as representatives of [PECUSA] or the . . . Diocese . . .;

d. An injunction requiring Defendants to take all action necessary to vest in the . . . Diocese of Pittsburgh title to all property and assets of any parish which is or becomes no longer a part of [PECUSA];

e. An injunction requiring Defendants to take . . . actions to preserve and protect the interests of [PECUSA], the . . . Diocese . . ., Calvary Episcopal Church and the Individual Plaintiffs in all property subject to the Constitution and Canons of [PECUSA] . . . and/or the Constitution and Canons of the Diocese;

f. An accounting and restitution of any . . . property . . . sold, [or] diverted . . . by any Defendant from [PECUSA] or used for purposes contrary to the interests of [PECUSA]; and

g. Costs, attorney fees and such further relief as the Court deems just and proper.

I know that there are a number of loyal Episcopalians, including some from the Pittsburgh area, who might read this post. To them I say, as a lifelong Episcopalian myself: I would be embarrassed to be a party to such a complaint. It is based on fluff, on nothing substantial whatsoever that had occurred as of September 2003, after the Special Convention of the Diocese had enacted the six resolutions. Listen to the utter inanity of these allegations from the complaint:

. . . On information and belief, Defendants, through public statements, actions and failures to act, have demonstrated their willingness to participate in the improper sale, diversion, disposition or other transfer, from The Episcopal Church . . . property and other assets under Defendants' control as officials of The Episcopal Church . . .

"Willingness to participate?" So now it is a breach of Church law to show a simple disposition to do something? (Oh, wait---I forgot: just last September the Church deposed Bishop Duncan for expressing his willingness to leave it , before he had actually done so.)

What happened to the notion that the law can deal only with deeds, and not thoughts? I am reminded of the story, told by my criminal law professor, of a man who was arrested by the police while walking along the sidewalk at night, carrying a satchel that contained tools for breaking and entering into houses. He was charged with "attempted burglary." When asked by the judge how he wanted to plead, he replied: "Not guilty, your Honor. But if carrying my tools means I could be found guilty of attempted burglary, then since I am also equipped for one more thing, I plead not guilty to attempted rape as well!" In just the same manner, all the Diocese had voted to do was to equip itself with the measures needed to be independent of ECUSA, if matters came to that. But try telling that to Dr. Lewis and his cohorts in October 2003.

Another thing that strikes me about the complaint is the repeated allegations that the defendants are trying to convey property away from the Episcopal Church, or PECUSA (since this was 2003). The complaint constantly speaks of property rights or interests belonging to PECUSA, without ever specifying that they are only contingent interests under the Dennis Canon, assuming that it validly created such interests under Pennsylvania law. (Even if the Canon is valid, ECUSA's equitable interest is contingent because the parishes have free and full use of their property while they remain in the Church.) In a most bizarre statement, the complaint alleges in paragraph 13 that defendants have acted "in disregard of the [PECUSA] Constitution and Canons that granted them authority over such property and assets." What Canon did that? I want to ask. When did the parishes ever convey their properties to ECUSA, so that it could grant the properties back to them "in trust"? Moreover, note how the complaint simply assumes that, without elaborating how, individuals have an enforceable interest in church property as well (look at paragraphs c and e of the Prayer for Relief quoted above).

In sum, the complaint as filed was an act of overreaching in the extreme. And please note the sequence of events here, for it is very important in assessing blame for what has ensued. The followers of Gene Robinson---including Dr. Lewis of Calvary Church and the other Pittsburgh plaintiffs---were the first to break the rules. General Convention 2003 ratified +Robinson's election in defiance of Lambeth Resolution 1.10 of 1998 well before Bishop Duncan and his Diocese took any action toward leaving. No doubt the deputies to General Convention believed that they were presenting the dissenters with a fait accompli, and that those who disagreed with them would just have to swallow it. What they failed to realize was that their ratification of +Robinson's election, in defiance of the rest of the Anglican Communion, was for many back home the last straw. When some of those folk began to think about withdrawing, the liberals immediately went to Court and accused the dissenters of breaking the rules! In what follows, therefore, it is well to watch just who was pushing whom out of the Church.

As I mentioned in my nautical analogy, the plaintiffs also filed suit in the name of the Diocese. That is, Calvary alleged that it was filing suit as the "trustee ad litem" for the Diocese (as an unincorporated association, the Diocese could not appear on its own behalf in court under Pennsylvania law). But no one asked it to do so, and certainly the Diocese itself gave no authorization to Calvary to act on its behalf. Thus eventually the Diocese, acting through its elected officers, filed a Petition to Intervene, which Calvary vigorously opposed.

Now for the uninitiated, here is what was really at stake in this jockeying to represent the Diocese: attorneys' fees. Had Calvary stayed on as the Diocese's "Trustee", it could have presented its bills for attorneys' fees to the Diocese for reimbursement. (At the same time, Calvary had immediately asked the Court for an order relieving it of its obligation to pay diocesan assessments to the Diocese pending the lawsuit; in conference with the Judge, the parties so stipulated.) So that was a pretty nifty strategy, don't you think? File suit against all the officers of the Diocese, but make it pay your attorneys' fees, all the while that you withhold your contributions from it.

Unfortunately for Calvary, as I mentioned, the court granted the Diocese's petition over its strenuous objections. So its little strategy to push off its legal expenses onto the Diocese, all the while it was costing the Diocese a small fortune by naming all of its individual directors and its Standing Committee, did not work. But that does not stop Calvary's apologists from accusing Bishop Duncan and his attorneys of "shifting all legal expenses to the Diocese". In other words, they were unhappy that after they had named every possible diocesan official, those people would not have to pay for their defense out of their own pockets! "Shifting all legal expenses" is an incredibly myopic way of viewing the natural consequence of suing someone who works for an organization: the law says that in such a case, the organization has to pay for your representation, if all you did was obey what the organization itself voted to do. Here, Bishop Duncan, the diocesan directors, and the members of the Standing Committee were sued for the actions of all the members of the Diocese taken in Convention, and not because they themselves had done anything. Blaming them for having to defend themselves when you sue them is a little like complaining that your ailing rich uncle was ungrateful, and cut you out of his will, after you graciously agreed to take your foot off his oxygen tube.

The complaint, therefore, was at one and the same time a pure power play and a Christian disgrace, filed in violation of every precept laid down by St. Paul. Worse, it was a knee-jerk, surprise attempt to gain a quick advantage, by quashing and making murderously expensive the least sign of rebellion against the advancing of "gay rights" in the Church---as though anyone could have any "civil rights" to demand of God. (Just try asserting your "civil rights" at the Last Judgment.) Its result was, in retrospect, highly predictable. If you push someone hard, their instinct is to push back---especially when, like pirates, they catch you by surprise. They appear out of the clear blue sky, grapple with your ship, and seek to board it, so that they can, as I said at the outset, interrupt the voyage, plunder the ship of all its goods and stores, and strip the passengers of all their wealth and property. And they should be surprised when you fight back?

The formation of an "outside strategy", the meeting with the Archbishop of Canterbury, the organization of the Anglican Communion Network, the drafting of the Chapman Memo---all those things were in the future in October 2003 when Calvary filed its lawsuit. With its overreaching and sweeping allegations of "control" and "fiduciary duty", the complaint served to confirm the dissenters' worst fears: "Question our authority to set the agenda and you will be squashed like a bug; moreover, you will pay and pay and pay, and in the end we will win, because we have already rigged the game. The Dennis Canon trumps everything---a Diocese's right to withdraw, a bishop's fiduciary duty to his Diocese, and a parish's right to stay with its own property. We cannot lose."

Now it is 2008, and there is a whole lot of water that has passed under the bridge. The lawsuit was once thought settled---only to be revived again as events pushed more and more parishes to leave. In November 2006 a new Admiral came to the helm of the Episcopal fleet, and the discipline meted out for even the slightest act of disobedience came swiftly, as the "Abandonment of Communion" canon was pressed into service to obviate the need for lengthy trial and appellate proceedings. The oldest living Captain in the fleet was the first to be forced to walk the plank, under the new Admiral's determination to set a new course and tone for the Episcopal fleet. With the course thus made clear, the frigate Pittsburgh made plans in earnest to set its own compass. In response, the escort ship Calvary hoisted the black flag once again, grappled with Captain Duncan's ship, and prepared to board her---this time for keeps.

For now, this nautical saga must end on a note of suspense. Perhaps the most remarkable achievement to date under the new Admiral is that, for all the allegations in Calvary's complaint about the interests held by ECUSA in the Pittsburgh's property, she has refrained from joining the fray in Pittsburgh, while aggressively doing so in Virginia and in San Joaquin. I believe there is a strategic reason for this, which I shall explain in my next post---tentatively titled:

"I have not yet begun to fight!"