Sunday, February 8, 2009

Machiavelli Ritornato

While I was away from blogging, the Episcopal Church (USA) has been busy planning (and financing) its litigation strategy. (Although I have practiced law for almost forty years, and have been an Episcopalian for half again as long as that, I have to say that even as recently as ten years ago, I could never have conceived that I would be writing such an opening sentence---and I'm not talking about "blogging". The idea that a church has to have a national litigation strategy is, frankly, rather bizarre, and calls into question the definition of what a church is about.) And its leaders are so confident of its success that they have all but published it for the whole world to see.

The Presiding Bishop of ECUSA now has so many lawsuits to track that she has hired a "special counsel" to advise her on what is happening. What is unusual about this hiring is not only the fact that the Presiding Bishop needs a "special counsel for property litigation and discipline" beyond her own Chancellor---who otherwise would be expected to advise her on such matters. No, what is even more unusual (to this chancellor, at least) is that the person hired comes from the same law firm as the Presiding Bishop's Chancellor. As the news story which mentions this fact notes, "Mary Kostel [for that is her name] . . . has worked closely with David Beers, who is chancellor to the Presiding Bishop." (The italics are mine. You may read more about Ms. Kostel at BabyBlueOnline.)

Now consider these points objectively for a moment---even (and maybe especially) if you strongly support the Presiding Bishop in her endeavors to reclaim property from, and to impose discipline on, those who depart:
  • There is no other major national church in the world who has seen fit to employ such a "special counsel"---not even the Catholic Church, in defending the numerous lawsuits against it, hired such a person.
  • For an employer to engage an attorney for such a specialized purpose would normally mean that the employer could not get the necessary advice from their regular attorney, and wanted a second opinion.
  • The last person to give such an unbiased second opinion would normally be an attorney who has been "working closely" with the regular attorney. Otherwise, what would be wrong with asking that associate attorney directly for their opinion?
Were I on the Executive Council (thankfully, I am not---and I am sure Father Harris agrees), I would want to inquire very closely into the use of Church funds for the purpose stated. There is more here than is being disclosed, because the story as given superficially by Episcopal Life Online does not make sense. But let us soldier on; the main point is the advice that has been given.

The advice apparently takes the form of an eight-and-half-page memo Ms. Kostel wrote to the Presiding Bishop, and which the Presiding Bishop shared with the Executive Council. Normally such a memo would be stamped all over: "Attorney / Client Privilege - - Confidential". But in another departure from the norm, the ELO story appears to quote from it verbatim. And so we lowly pewsitters are given a small glimpse into how our contributions are being spent.

They apparently are being spent on the devising of a common strategy to deal with the four dioceses whose annual conventions have each voted to leave ECUSA:
While the situations in San Joaquin, Fort Worth, Pittsburgh and Quincy are all different, there are similarities in their experiences and in the way Jefferts Schori has worked with them, Kostel wrote. Those efforts usually begin with the Presiding Bishop encouraging the formation of a steering committee of Episcopalians from across the diocese who are committed to remaining in the church "and who represent a broad spectrum of views in the diocese on issues such as human sexuality and the ordination of women."
Ah, yes---the "formation" of a "steering committee" is necessary, because those cantankerous committees that were elected at the last conventions have all been summarily charged, tried and found guilty of a failure to "well and faithfully perform the duties of that office in accordance with the Constitutions and Canons of this Church", as required by Canon I.17.8. Never mind that half of the members of the typical steering committee are ordained clergy, and that Canon I.17 is entitled "Of Regulations Respecting the Laity"---if a Canon can be brought around to fire, it will be fired, no matter at whom it was aimed from the first. Those steering committees are simply derecognized under this Canon, clergy and all, and that is that. We see precisely in this next sentence of the news story the degree to which the Supreme Executive is calling the shots:
Jefferts Schori's office "has offered extensive guidance to the steering committees on the necessary steps for the reorganization of the diocese," including the protection of diocesan assets.
Yes, once a puppet steering committee has been installed, it receives appropriate instructions for "the protection of diocesan assets." And can you guess what the first such instruction is? (Hint: think Merrill Lynch, Morgan Stanley . . .):

Calling litigation over church assets "the biggest step," Kostel wrote that the first step taken is to notify financial institutions such as brokerage firms holding "significant diocesan funds" that the Episcopal Church believes the departing bishop and other leaders "have no claim to such funds." The institutions are warned that the church will hold them "accountable for any disposition of the funds to or by those persons." Kostel wrote that the "practical effect" of that communication has been that the institutions "have frozen or nearly frozen the diocesan accounts until a court can decide who is the rightful owner."
Sorry for adding all the italics and bolding, but I think they are necessary in order to pierce through the almost Olympian detachment of the description of what is nothing other than a scorched-earth policy that is being systematically pursued here. The ordinary, non-litigating Christian may be forgiven for any ignorance on this point, but it is not normal for banks to freeze your accounts when you have been sued---and just on someone's say-so, to boot. No, normally in order to freeze a defendant's funds, the Constitution of this country requires what is euphemistically described as "due process of the law." To do that requires 1) notice of an adversary's claim on your assets, 2) an opportunity to be heard and to present evidence, and 3) a bond be posted to secure against any harm ensuing if the court-ordered freeze (called an "attachment" in the law) should turn out to have been wrongful.

But the Episcopal Church (USA) is not like any other litigant in this country (despite the name ECUSA---which I insist on now using, instead of what it wants to be called, because it is a creature born of America, and sustained only by American courts and laws). No, it is "the Episcopal Church", and the courts pretty much allow it to do as it likes (except, for the time being, in Virginia---which is, appropriately, the cradle of our country's liberties). In fact, ECUSA does not even have to resort to the courts to have diocesan accounts frozen: as the memo discloses, all it has to do is issue a "warning" to the banks and brokerage houses involved, and they stumble all over themselves in their embarrassment at having to be asked.

(Note to self: if you ever needed another good reason to stay away from anyone or anything having to do with Wall Street, ECUSA's current litigation strategy is it.)

But we are by no means done. Take a note, please, of the infinitive used in this next paragraph:
The memo said Jefferts Schori's role in litigation has varied in each diocese but "the approach has been the same: To craft a lawsuit that is trim and focused on the critical claims involving the ownership and possession of diocesan property, both real and personal, including records and objects of current and historical significance."
Let me give some dictionary synonyms for the verb "to craft": "to devise, fashion, or shape". Should a lawsuit be "crafted"? I suppose, as long as it is based on actual facts, that would mean that the lawsuit is well-pled. It is "trim and focused", it deals only with "critical claims", such as those involving "records and objects of current and historical significance." Really? It took three versions of the complaint and almost nine months before the San Joaquin lawsuit was at issue---and now they are asking the court for permission to amend it yet one more time. Ms. Kostel's own name was not on any of those pleadings, but her firm's name was, and she was "working closely" with Mr. Beers at the time. Do you begin to see the objective nature of the second opinion for which the Presiding Bishop is paying her special counsel?

The memo continues to ply the reader with completely unbiased and objective opinion when it says (according to the ELO story):

Kostel added that "allegations regarding the behavior of individuals are avoided." Her memo notes that the Presiding Bishop's office fields "numerous inquiries" about the protection of parish property and other issues. "These inquires have usually resulted from some sort of aggressive behavior by the former bishop regarding parish property," she wrote. "Her (the Presiding Bishop's) legal team has dealt with these concerns on a case-by-case basis, but typically has counseled in favor of forbearance from dramatic or inflammatory action, on the view that the disputes over parish property will ultimately be resolved in court … and although there may be temporary inconveniences if a congregation of loyal Episcopalians is forced to worship in a local home or school, for example, there is little to be gained from bitter fighting over the use of church buildings in the short run."
Let me have that again, please: although "there may be temporary inconveniences if a congregation of loyal Episcopalians is forced to worship in a local home or school . . . there is little to be gained from bitter fighting over the use of church buildings in the short run." In other words: "Hang in there, General Custer. For the short term, just stay away from any skirmishes with the Indians; Major Reno and his troops are on the way."

The objective advice continues, and notes that all information on which 815 is acting comes from those very useful, hand-picked steering committees:
The steering committees serve both as a "single point of contact" for the Presiding Bishop's office and as the organizers of special meetings of diocesan conventions or synods to reorganize the diocese and its leadership. They have also worked with Jefferts Schori's office to "get information about the larger church flowing back to the diocese," the memo said.
Now let me see: how was that committee picked again? Oh, yes---it has to be made up of those people who disagreed with their former bishop, the one who has left. So naturally, this "single point of contact" supplies objective information such as the following:
"In the months and years leading up to the vote in each diocese to 'leave' the church, the atmosphere was one of factionalism and mistrust; this was usually combined with a near blackout of communication from the wider church, chiefly orchestrated by the bishop," Kostel wrote. "The primary, and in some cases only, voice heard in these dioceses has been that of the bishop, who in each diocese has promulgated a largely or entirely negative view of the larger church, and encouraged divisiveness among Episcopalians in the diocese over emotionally-charged issues."
Oh, that nasty Bishop! It's a good thing he is gone, so that the former divisiveness can now be unified behind a lawsuit! Isn't litigation just wonderful how it brings people together? (Isn't the root of the word plaintiff from a word meaning "to be happy"? It isn't? Well, never mind.)

First, however, 815 has to see to it that there is a suitable replacement for that mean old father-figure:
The Presiding Bishop also begins to determine "what sort of episcopal oversight will ultimately be needed in the reorganized diocese" and who might provide that assistance. In San Joaquin, that work resulted in the remaining Episcopalians choosing retired Diocese of Northern California Bishop Jerry Lamb as their provisional bishop. In Pittsburgh, Diocese of Virginia Bishop Suffragan David Jones worked with the Standing Committee until it could name an assisting bishop, former Diocese of Western North Carolina Bishop Robert Johnson. In Fort Worth, a special convention on February 7 will consider appointing Diocese of Kentucky Bishop Edwin "Ted" Gulick as provisional bishop.
Note that at this point, even the reporter is having a little trouble keeping the objective message straight. The Presiding Bishop "begins to determine" who would be a suitable bishop, but it is the dioceses that "choose", "name", and "appoint" the ones she nominates. This language is worthy of Machiavelli's advice to his fictional prince.

The snippets from the memorandum to which the article treats us are indeed, in the whole, what a twenty-first century Machiavelli might write in the language and strategy of today. Through its disclosure of that strategy, ECUSA has laid bare its litigious soul. The article ends by quoting what almost amounts to a cynical self-parody:
In addition, Kostel's memo said that many Episcopalians in the dioceses "have questions about the church's theology and mission" and others are "conflicted over their desire to stay in the church while remaining loyal to their bishop, while others struggle with the church's position on the protection of church assets."

"Each of these issues demands a pastoral response," Kostel wrote, explaining that the response begins with Jefferts Schori appointing a priest to provide "interim pastoral assistance." She also recently named former Diocese of Bethlehem Archdeacon Richard Cluett as "pastoral assistant to reorganizing dioceses."
"Demands a pastoral response . . ."---as a litigator, I am not surprised. A strategy that has litigation at its core means that the bridges are burned, the ground is scorched, and there are no prisoners taken. People who are asked to underwrite that kind of strategy will need pastoral counseling. Because, as the Wikipedia article on Machiavelli aptly sums up his greatest work, The Prince:

The Prince is a guide to acquiring and keeping power. In contrast with Plato and Aristotle, the ideal society is not the aim.


  1. At least now there is a name to put on Rule 11 applications.

  2. Spot on, traditionalanglican!

    (Note for laypersons: Rule 11 of the Federal Rules of Civil Procedure allows a court to sanction attorneys who sign their names to abusive pleadings and other papers filed with the court, either on the court's own initiative, or upon a motion ["application"] made by an opposing party.)

  3. it looks like the ECUSA has its own set of Louisville Papers from the PCUSA.

    Or in this case I'd call them the New York Papers

  4. Thank you for that reminder, Reformed Catholic. The Louisville Papers of the Presbyterian Church are indeed a good reminder of what happens when Church leadership puts staying in power ahead of all else.

    BTW, the link to the Papers in the story is no longer valid. The actual Louisville Papers may be read from this link.

  5. Having observed the biased reports from sanctioned conduits of information about the "wider" church such as Episcopal Life On-line, and the HOB/D listserve, it is a good thing for Bishops to not promulgate those corrupting messages as you cite,

    "In the months and years leading up to the vote in each diocese to 'leave' the church, the atmosphere was one of factionalism and mistrust; this was usually combined with a near blackout of communication from the wider church, chiefly orchestrated by the bishop,"

    Remaining Bishops should look forward to pressure to have their priests utilize the craftily worded bulletin inserts and other messages from the "wider" church (read 815). These Bishops would do well to review all such materials before feeding them to the sheep.

  6. If I may borrow from your opening parenthetical, Although I have practiced law for almost forty years, and have been an Episcopalian for twenty-seven more years, I have to say sir, with every post you print, you give greater credence to your brilliance. thank you and keep on keepin' on.

  7. One question I have is, who is this woman's client? The PB? Executive Council? Where does the privilege attach?

    One thing I do know is this: When the client (whoever it is) turns an 8 page memo over to a reporter, who quotes from it extensively in an online news article, the attorney client privilege has been waived.

    --NBS, lawyer for 8 years, Episcopalian for 35.

  8. Perhaps the Tradition Angilcans should form a team of lawyers or even just one to follow the national litigation to: 1. insure that the claims meet rule 11 requirements; and
    2. make sure that all those traditionalists understand and can learn from the legal stragies being employed in various places around the country by ECUSA.

  9. N B & S, I agree with you---privilege has been waived. Watch for a discovery dispute to erupt in one of the pending lawsuits.

    W.J. Lovett, the reference to Rule 11 was apt as a rhetorical point, but alas---it remains rhetorical. Most of the lawsuits in which ECUSA is involved are in State courts. That being said, many State courts have their own counterparts to Rule 11, but it would indeed take a team of 50 or more lawyers to monitor the ongoing violations.

    JMoss and Perpetua, you are too kind---thank you.

  10. A little hard on Machiavelli, I think. He doesn't recommend verbal or rhetorical strategies -- such as blurring the meanings of "begins to determine," "choose", "name", and "appoint." As I remember, at least, his advice is to use flattery first, then intimidation, deceit and force, all of them without concern for the moral questions they may raise. (On the assumption that the end -- a secure Florence, in his case -- justifies the means).

    To the extent that the PB's legal strategy is "Machiavellian" -- and I don't entirely agree that it is -- it comes in this assumption, and also in the fact of the leaked memo on strategy. It seems likely that it was leaked in an effort to intimidate.

  11. I do agree with you, Father---Machiavelli might not recognize our post-modern manipulations of language, but at the same time I believe he would quickly adapt. As you say, flattery was his first approach, and Orwellian double-speak is TEC's official public dialect. The deceit and force follow afterward, just as they did with Machiavelli, but they are not as subtle---see my post on TEC's "tangled web" in San Joaquin.