The Issue Is Finally Joined in Pittsburgh (I)

Note to non-lawyers: I regret having to go into the degree of legal detail, argument, and technical terms that I have had to do in this post. Nevertheless, the issues are crucial to how the Church will govern itself (or be governed) in the years to come. So take it slowly, in little chunks, as you absorb the arguments on both sides---eventually there will be a court decision for one side or the other, and ECUSA will go forward from there. The more you can inform yourself as to the points of dispute, the better you will be able to prepare yourself for whatever is to come. The strategy that ECUSA is currently pursuing needs an almost 100% success rate to achieve its goals. Just one adverse decision declaring a diocese's free right to disassociate from the loose organization that is actually the Episcopal Church (USA), and the "winner take all" game being played by the leadership at 815 will be shown for the selfish, beggaring strategy that (in my view) it is. So read slowly on---take your time, and become educated as to just what is at stake. Remember that you may use A Guide to This Site to go into more detail on any of the topics covered here.

Note to lawyers: As you can see from the foregoing, I do not pretend to be an impartial judge or middleman in laying out the boundaries of this dispute. To me, certain principles follow inevitably from the facts as given, and I indicate clearly my view of what those are. If you take issue with my principles, then please articulate clearly in any comments you leave what you think should be the correct ones. In my advocacy below for the position I believe to be correct, I have tried to avoid any taint of ad hominem argument, or demonization, and I would ask that you keep to the same standard. Thank you. Now, on to the main post:

Yesterday, with the filing of an "Answer and New Matter to Complaint in Intervention", the issue of ECUSA's "hierarchical polity" has finally been joined in Pittsburgh. Please remember that this is an issue that has been left for a later day, and that the upcoming hearing on May 27 will be focused solely on the proper interpretation of paragraph 1 of the parties' October 2005 stipulation to settle the case, as I have explained in this post. If the court decides, as a result of the evidence offered at that hearing, that the language added by Calvary's attorney was merely descriptive in effect (even though in his heart he may have intended it to be prescriptive), then the Court will have to address the issues presented by ECUSA's complaint in intervention.

I have already addressed in detail the respective arguments about the meaning of the language in the stipulation. And in my most recent post, I criticized the authority and the thinking behind ECUSA's complaint in intervention. Well, now you do not have to listen to just my views on the matter anymore. One could not ask for a better framing of the issues than occurs in the pleadings which are now a matter of public record at the official site of the Court of Common Pleas of Allegheny County. (To see the full docket of the Pittsburgh case, enter the following text/numbers into the boxes provided for the "Standard Case ID": "GD" in the first box; "03" in the second box; and "020941" in the third box; then click on "OK" at the bottom. The complaint in intervention by ECUSA, and the response to it filed by Bishop Duncan and the diocese he represents, are the most recent filings, toward the top of the screen---Documents 134 and 135.)

So that you can follow the issues, I set out below in red type the allegations from ECUSA's complaint in intervention, and the corresponding response by Bishop Duncan's attorneys appears in purple type. The result reads like a textbook debate on the structure, polity and respective levels of authority within ECUSA. Not surprisingly, the defendants' first point of contention is the claimed authority of Bishop Buchanan to speak officially on behalf of ECUSA, and to be its official representative in court:

1. Plaintiff-in-Intervention is The Episcopal Church, also known as The Protestant Episcopal Church in the United States of America ("The Episcopal Church" or the "Church"), an unincorporated association, with its headquarters in New York, New York. The Episcopal Church brings this Complaint-in-Intervention through the Right Reverend John C. Buchanan, one of its Bishops and the Parliamentarian of the Church's House of Bishops, as Trustee Ad Litem. Bishop Buchanan resides in Mt. Pleasant, South Carolina.

1. It is specifically denied that the Right Reverend John C. Buchanan has the authority to act as Trustee Ad Litem on behalf of The Episcopal Church ("TEC") or is authorized to state the official position of TEC. It is specifically denied that TEC has "headquarters" in New York. After reasonable investigation, Defendants lack knowledge of the remainder of the averments, and therefore deny these allegations and demand strict proof thereof.

As I argued in my earlier post, all the proof anyone could ever wish that ECUSA is not a fully hierarchical Church flows from the fact that a bishop such as the Rt. Rev. John Buchanan, who formerly exercised jurisdiction in the Diocese of West Missouri, and whose only current undisputed position in the Church is Parliamentarian of the House of Bishops, can come into court and claim authority to speak on behalf of ECUSA itself.

If one thinks of a true hierarchy like the Roman Catholic Church, there would be no question as to who could authorize a bishop to speak for it in court: it would be the Pope, and nobody but the Pope. Since ECUSA, however, lacks any metropolitan archbishop (the Presiding Bishop is called a "Primate" without the word signifying anything other than that the Presiding Bishop represents ECUSA to the other Churches in the Anglican Communion), there is a very nice question as to just who has sufficient authority under its Constitution to represent it in a court of law. If it were a regular corporation, like General Motors, the matter would be clear: its Chief Executive Officer (or President, as the case may be) would be authorized by the Board of Directors to speak for the corporation in court; or the Board could give him the authority to delegate the task of spokesperson to some other officer of the Corporation.

Nothing like that, however, has happened here. General Convention, ECUSA's only legislative body, has not met since 2006, and has never (to my knowledge, at least) specifically authorized any official within the Church to file suit in its name and to speak for it in court. Even if it had purported to do so, there is no provision in the Constitution to which General Convention could point as granting it the authority from the member dioceses to designate a spokesperson to represent the views of all of the dioceses in court---as though they were one. Elementary common sense suggests that the members of a group have to vote on an issue in accordance with their procedures before the position of the group as a whole on that issue may be stated. Even then, there is usually provision made for some means by which any division of opinion can be exhibited: by a "minority report", or by a "statement of the views of the minority", which always accompanies any presentation of the views of the majority.

The recent publication of the Statement by the (Communion Partner) bishops is evidence that just such a minority viewpoint exists in ECUSA today. There ought to be a full debate in General Convention on how to represent, and just what can be represented as, the "views of ECUSA" in any lawsuit. (Imagine how such an allegation would look: "A majority of the dioceses of ECUSA view themselves as subordinate to the national Church, and bound accordingly. A minority disagrees with this position." At least it would put an end to the present practice of sending a deputy of the Presiding Bishop into court to testify that ECUSA is hierarchical beyond dispute, and as a matter of law.)

Instead, the Presiding Bishop apparently requested Bishop Buchanan informally, and without seeking approval from General Convention, to assist as an "advisor and testimonial agent" in court proceedings (emphasis added; see the evidence in this post). To be a testimonial agent, however, implies that there is somewhere a principal on whose behalf the agent acts. In the case of ECUSA, as I have argued on many occasions, there is no one principal in the organization; there are only the member dioceses---more than 100 of them. While they come together in General Convention to vote on resolutions and changes and amendments to the national Constitution and Canons, they still do so as individual dioceses. Without any agreed provision in the Constitution and Canons designating one person to represent the position of the Church as a whole in court, there is simply no way by which any individual could automatically assume such authority. So in the very first paragraph and response, ECUSA, Bishop Duncan and his diocese join issue on whether ECUSA's "complaint in intervention" may be said to have been properly filed at all.

The complaint continues with more ECUSA boilerplate, and Bishop Duncan's (and his diocese's) response:

2. The Episcopal Church is a hierarchical religious denomination, comprising 111 geographically-defined, subordinate entities known as "dioceses" and nearly 7,700 worshipping congregations, usually called "parishes," in the United States and other countries.

2. Denied. It is specifically denied that TEC is a hierarchical religious denomination or that dioceses are "subordinate entities." TEC is a confederation of equals formed by the joining in association of existing dioceses. As noted by the official commentary on the Constitution and Canons of TEC, "[b]efore their adherence to the Constitution united the Churches in the several states into a national body, each was completely independent." It goes on to note that the body created was "a federation of equal and independent Churches in the several states." Because TEC was created by existing dioceses, its Constitution is controlled and limited by the power conferred on it by those dioceses. Power not specifically delegated by the dioceses and enumerated in the Constitution of TEC was, and is, retained by the dioceses. TEC's Constitution and Canons have no provisions of hierarchical language manifesting supremacy, subordination, exclusivity, preemption or finality over its constituent dioceses. Significantly, TEC's Constitution and Canons contain no limitation on the right or power of a diocese to amend its constitution to withdraw from the voluntary, unincorporated association. Nor do TEe's Constitution and Canons require that any amendment to a diocese's constitution or canons be submitted to TEC for approval.

Dioceses are not subordinate units of TEC; they are constituent members of a voluntary association that meet in a convention known as the "General Convention." The General Convention is not designated as the highest branch of TEC, nor as having hierarchical authority over a diocese. There is no requirement in TEC's Constitution or Canons that diocesan legislative enactments be consistent with those of the General Convention or receive any prior approval from any source outside the diocese. Dioceses are constitutionally and canonically free to nullify any legislative enactment by the General Convention with which they disagree.

The General Convention had nothing whatsoever to do with the creation of the founding dioceses; it was the founding dioceses that created the General Convention in 1789. This pattern continues. Dioceses self-organize by adopting a constitution and canons. and thereafter are admitted into "union" with the General Convention. Specifically:

• State churches were independent legal entities prior to their organization of TEC.
• New dioceses are duly constituted entities with distinct legal existence prior to admission to TEC.
• Dioceses retain their distinct legal existence as defined by their constitutions, and the laws of their respective states, when they join TEC.
• The constituent members of General Convention are the dioceses; it is the dioceses that are "represented" and vote as equals.
• The most important matters decided at General Convention - amendments to the Constitution and Book of Common Prayer - are referred to diocesan conventions for consideration prior to action by General Convention, and the final vote is taken at General Convention with voting by dioceses. TEC Constitution at Article XII (requiring that any constitutional amendment be "proposed" at one General Convention and that the proposal then be "sent to the Secretary of the Convention of every Diocese, to be made known to the Diocesan Convention at its next meeting," and then the amendment must be "adopted" at a second General Convention by "the whole number of Bishops entitled to vote in the House of Bishops" and an "affirmative vote in each order by a majority of the Dioceses entitled to representation in the House of Deputies.").

TEC's Constitution has no internal procedure to resolve a constitutional dispute with a diocese. Nor does TEC's Constitution provide for the establishment of a church court to resolve such a dispute. The General Convention also lacks the authority to establish a court to resolve a constitutional dispute with a diocese. The General Convention is authorized to establish a national court only for one purpose: for the review of the determination of any Court of Review on questions doctrine, faith, or worship. (Const., Art. IX.) No such national court has been established by the General Convention.

It is further denied that TEC currently has III geographically-defined dioceses or 7,700 worshipping congregations. By way of further answer, several dioceses, including the Diocese of Pittsburgh, the Diocese of San Joaquin, the Diocese of Quincy and the Diocese of Forth Worth have withdrawn from TEC, and no new dioceses have been properly formed to replace them in accordance with the procedures set forth in the TEC Constitution and Canons. A number of individual parishes have also withdrawn from TEC. Upon information and belief: the numbers referred to in this Paragraph include the dioceses and parishes that have withdrawn from TEC and are therefore inaccurate and denied.

Paragraph 2 of the Answer by Bishop Duncan et al. is the very heart of the defense against ECUSA's complaint. As you will see in what follows, the defendants invoke its language again and again.

3. The Episcopal Diocese of Pittsburgh (the "Diocese") is an unincorporated association and one of The Episcopal Church's subordinate units. It encompasses eleven Pennsylvania counties, including Allegheny County, and is headquartered in Pittsburgh, Pennsylvania. The original complaint in this action named the Diocese as a plaintiff acting through plaintiff Calvary Episcopal Church as Trustee Ad Litem. The Diocese was permitted to intervene as a defendant by order of this Court dated March 5, 2004.

3. It is specifically denied that the Diocese is "one of [TEC's] subordinate units." Defendants incorporate Paragraph 2 of this Answer as if set forth fully herein. The geographic boundaries of the Diocese are also specifically denied. The remainder of this Paragraph is admitted.

4. Plaintiff Calvary Episcopal Church is a non-profit corporation located in Pittsburgh, Pennsylvania, and is a parish of The Episcopal Church and the Diocese.

4. It is admitted only that Plaintiff Calvary Episcopal Church ("Calvary") is a non-profit corporation located in Pittsburgh, Pennsylvania. As a result of the vote at the Diocesan Convention in October 2008, the Diocese withdrew from TEC.

Defendants are responding here as they must. The simple allegation that the plaintiff Calvary Church "is a parish of the Diocese" cannot be accepted as given, and it has to be alleged that in fact, the Diocese itself left the Church in 2008. I skip over the next few paragraphs, which contain allegations about individual defendants that are admitted, and are not in dispute. Then we come to ECUSA's allegations about Bishop Robert Duncan:

8. Defendant the Right Reverend Robert W. Duncan is a resident of Pittsburgh, Pennsylvania. He was formerly an ordained member of the clergy of The Episcopal Church and Bishop of the Diocese.

8. It is specifically denied that Robert W. Duncan ("Bishop Duncan") was formerly Bishop of the Diocese. To the contrary, Bishop Duncan is the current Bishop of the Diocese. By way of further answer, the purported "deposition" of Bishop Duncan was illegal and invalid. Moreover, the purported "deposition" was not accomplished in accordance with the Canons of TEC and was not undertaken for an ecclesiastical purpose. To the contrary, the "deposition" was accomplished pursuant to a fraudulent interpretation of the canons for the purpose of strengthening "TEe's" position in an anticipated property dispute.

There follow more undisputed allegations, and then things start to get interesting, as ECUSA tries to lay out its "standard line" about its polity (structure). Using the detailed response they first laid out in answer to paragraph 2 quoted above, Bishop Duncan and his supporters refuse to give them an inch:

Structure of The Episcopal Church

12. The Episcopal Church has a three-tiered structure and representative form of government prescribed by its Constitution and bylaws known as "canons."

12. Defendants incorporate by reference their Answer to Paragraph 2 [above] as if fully set forth herein.

13. At the highest level, the Church is governed by a legislative body called its "General Convention," which is comprised of a "House of Bishops" and a "House of Deputies" consisting of clergy and lay persons elected by the Church's subordinate dioceses. The General Convention is the supreme legislative authority of the Church and has adopted and from time to time amends a Constitution and canons, which are binding upon all units and members of the Church. The General Convention has adopted and from time to time amends The Book of Common Prayer of the Church, which contains the forms of worship generally to be used in all congregations of the Church and whose "directions" are binding on all units and members of the Church.

13. It is admitted only that TEC has a legislative body called its "General Convention," which is comprised of a "House of Bishops" and a "House of Deputies" consisting of clergy and lay persons elected by the dioceses which comprise the General Convention. It is specifically denied that the dioceses are subordinate units. By way of further answer, Defendants incorporate Paragraph 2 of this Answer as if set forth fully herein. It is further denied that the General Convention is the "highest level" of TEC. It is further denied that the amendments that the General Convention purports to enact are "binding upon all units and members of the Church." This statement constitutes a legal conclusion which is specifically denied.

14. The "Presiding Bishop" is the "Chief Pastor and Primate" of the Church and is elected by the General Convention. The Presiding Bishop is charged with leadership in initiating and developing Church policy, strategy, and programs; speaking for the Church on such matters; and carrying out appointive and disciplinary functions prescribed by the General Convention.

14. It is admitted only that the Presiding Bishop has limited duties as set forth In the Constitution and Canons of TEC, which are written documents which speak for themselves. By way of further answer, TEC does not have an executive department, and the Office of Presiding Bishop is primarily a ceremonial office. The Presiding Bishop does not have a see and does not exercise ordinary power, but only the limited authority delegated by the Constitution and duly enacted Canons of TEC. The remaining allegations of this Paragraph are denied.

15. The Episcopal Church has an Executive Council comprised of elected bishops, priests, and lay persons who manage the fiscal and programmatic affairs of the Church between meetings of the General Convention under the leadership of the Presiding Bishop.

15. It is admitted only that the Executive Council is an elected body of bishops, priests, and lay persons that has only the limited authority granted by the Constitution and Canons of TEC, which written documents which speak for themselves. Any interpretation of said documents is specifically denied. TEC does not have an executive department.

ECUSA's complaint then turns to what it calls the "next level" of the Church, by which it means the autonomous Dioceses who come together in the triennial convention which is called "General Convention." The defendants are having none of ECUSA's allegations here, either:

16. The next level of the Church's organization and governance is the diocese. A diocese may be formed only by action of the General Convention, and only with an unqualified accession to The Episcopal Church's Constitution and canons. The governing body of each diocese, generally called its "Convention," is a legislative body comprised of clergy of the diocese and laity elected by their congregations. Each diocesan Convention adopts and from time to time amends its own diocesan Constitution and canons that supplement and may not conflict with the Church's Constitution or canons.

16. It is specifically denied that the diocese is the "next level" of "organization and governance" in TEC. By way of further answer, Defendants incorporate Paragraph 2 of this Answer as if set forth fully herein. It is further denied that diocesan constitutions and canons may only supplement and may not conflict with TEC's Constitution or Canons. It is also specifically denied that a diocese "may be formed only by action of the General Convention, and only with an unqualified accession to [TEC's] Constitution and canons." To the contrary, as stated above, a diocese is fonned by diocesan convention and is an existing legal entity before coming into union with TEC. Dioceses self-organize by adopting a constitution and canons, and thereafter are admitted into "union" with the General Convention. Moreover, upon information and belief, the requirement that a new diocese's constitution must contain an "unqualified" accession clause has only been in the TEC Constitution since 1982, well after the Diocese entered into "union" with the General Convention.

From the dioceses down to the parishes, as ECUSA describes what it thinks it can prove is its "hierarchical structure":

18. At the third level of governance, the 111 dioceses contain and exercise ecclesiastical and temporal authority over the Church's nearly 7,700 worshipping congregations, generally called parishes.

18. Denied. It is specifically denied that parishes are the "third level of governance" in TEC. By way of further answer, Defendants incorporate Paragraph 2 of this Answer as if set forth fully herein.

. . .

20. The Episcopal Church's hierarchical structure provides for representative participation in each level of governance. Parishes send representatives to the diocesan Convention, and dioceses send bishops, other clergy, and lay representatives to the Church's General Convention.

20. It is specifically denied that TEC has a hierarchical structure. By way of further answer, Defendants incorporate Paragraph 2 of this Answer as if set forth fully herein.

Having set out what it claims is its structure, ECUSA next begins to set the stage for how it regards Bishop Duncan and the Diocese of Pittsburgh which he heads. First it tries to establish that the vote by the Diocese in 2008 to disaffiliate from the church was ultra vires ("beyond the powers" of a group to enact) and hence void. It does this by using what has come to be called the "ejector seat" reading of Canon I.17.8, and proceeds by summary legal conclusions from there:

21. Canon 1.17(8) of The Episcopal Church applies to all officers at each level of governance and requires that "[a ]ny person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised."

21. It is admitted only that Canon I.I7(8) is correctly reproduced in this Paragraph.

22. Under the Church's Constitution, canons, and polity, no diocese or parish may unilaterally divide, separate, or otherwise disaffiliate from the Church.

22. Denied. By way of further answer, Defendants incorporate Paragraph 2 of this Answer as if set forth fully herein. Neither the TEC Constitution nor Canons prohibit withdrawal of a diocese (and its property) from TEC. There is no requirement in the Constitution or Canons of TEC that any change in the constitution or canons of a diocese be approved by TEC. The so-called Dennis Canon, by its explicit tenns, does not apply to diocesan property.

Next, ECUSA tries to establish that the Diocese's act of temporarily affiliating with the Anglican Province of the Southern Cone was likewise illegal---or, at least, against "historic tradition":

The Anglican Communion

23. The Anglican Communion is a worldwide fellowship of 38 autonomous, independent regional churches generally known as "Provinces." The Episcopal Church is a member Province of the Anglican Communion.

23. It is specifically denied that the Anglican Communion is comprised of 38 churches known as provinces. By way of further answer, upon information and belief, the Anglican Communion is comprised of 44 member churches including 34 provinces, 4 United Churches and 6 other churches. It is also denied that TEC is currently considered by all other members of the Anglican Communion as a member Province in good standing; 22 Provinces have declared themselves either no longer in communion with TEC, or in impaired communion with TEC.

24. The Anglican Province of the Southern Cone, encompassing Argentina, Bolivia, Chile, Paraguay, Peru, and Uruguay, is a member Province of the Anglican Communion.

24. Admitted in part, denied in part. The geographic description of the Anglican Province of the Southern Cone is specifically denied. The remaining allegations of this Paragraph are admitted.

25. It is a historic tradition of the Anglican Communion that each Province exercises jurisdiction within its own distinct geographic territory and not in any other Province.

25. Denied.

Returning to its own structure, ECUSA sets outs its claims why General Convention is paramount to everything. Ignoring the history of how it began as an association of ten autonomous branches of the Church of England, ECUSA claims that dioceses can come into being only by action of General Convention:

Dioceses of The Episcopal Church

26. The Episcopal Church Constitution and canons prescribe the methods by which a new diocese of the Church may be formed. Since its founding, The Episcopal Church has required that a new diocese of the Church be formed only with the consent of the General Convention and only if the new diocese accedes to the legislative authority of the General Convention as expressed in the Constitution, canons, or both.

26. Denied. By way of further answer, Defendants incorporate Paragraphs 2 and 16 of this answer as if set forth fully herein.

27. Once formed, a diocese of the Church is a subordinate unit of the Church, bound by the provisions ofthe Church's Constitution and canons, which govern both temporal and ecclesiastical matters, and by The Book of Common Prayer of the Church. The Constitution and canons, as well as in some instances The Book of Common Prayer,

a. Govern the ordination, installation, spiritual and temporal duties, discipline, and retirement of bishops;

b. Require dioceses and parishes to adopt prescribed business methods, including submission of annual reports with the Church's Executive Council, annual audits by certified public accountants, and adequate insurance of all buildings and their contents;

c. Set forth requirements and conditions for the formation and operation of parishes and other worshipping congregations under the oversight of the dioceses;

d. Provide requirements for the care, control, use, and disposition of Church property; and

e. Provide rules under which dioceses may select, train, ordain, deploy, and supervise the clergy of parishes and other worshipping congregations.

27. Denied. The Constitution, Canons and the Book of Common Prayer are written documents, the contents of which speak for themselves. Any interpretation of said documents is specifically denied. By way of further answer, Defendants incorporate Paragraphs 2, 13 and 16 of this Answer as if set forth fully herein.

This is enough to ask anyone to absorb in one sitting. I shall return to the rest of the allegations in ECUSA's complaint in Pittsburgh, and the responses made thereto by Bishop Duncan and the Diocese, in Part II of this post.