Pittsburgh Exhibits Afford Window into ECUSA Tactics

The post-hearing briefing called for by Judge James in the Pittsburgh litigation is now complete, with opening briefs filed by ECUSA and the remnant group claiming to be the "Episcopal Diocese of Pittsburgh", a response by the actual Diocese of Pittsburgh, and a joint reply brief. For the most part, the parties repeat (albeit in greater detail) arguments I have already addressed in posts here, here and here. (Note to those in Pittsburgh: while I make my bias plain, it is not arbitrary. I base it on what I believe are the historical facts about the nature of (P)ECUSA when it was founded, and on long-established principles of law about voluntary associations. Thus I absolutely refuse to refer to the remnant groups as "dioceses" unless and until they each go through the proper steps to be readmitted as such. To engage in such terminology is to further ECUSA's strategy of Orwellian doublespeak, whereby the outcome it desires is simply brought about by speaking as though it were already a fact.)

The latest filings, however, have been accompanied by a set of findings of fact and conclusions of law proposed by ECUSA and its pseudo-diocese, together with some 58 exhibits which they introduced at the hearing held before Judge James on May 27. Some of the exhibits provide a unique window into ECUSA's current operations, and in this post I would like to call your attention to one of them. (The files themselves are humongous .pdf downloads of between 300 and nearly 450 pages, so be cautious when clicking on the following links: Vols. 1-2 [which are preceded by the proposed findings] may be downloaded here [309 pages]; Vols. 3-4 [which are simply copies of ECUSA's 2006 Constitution and Canons, and of the governing documents of the Diocese of Pittsburgh before it voted to leave ECUSA] may be downloaded here [389 pages]; and Vols. 5-7 [transcripts of various hearings] may be downloaded here [431 pages]. A set of Exhibits introduced by the defendant Diocese of Pittsburgh may be downloaded here [only ten pages].)

Before I do, however, I would add that the parties have now provided the fullest possible documentation of how the much-disputed Stipulation which supposedly ended the original Pittsburgh lawsuit came into being. Recall that the principal dispute now before the Court is the proper meaning and interpretation of these words in its first paragraph:

Property, whether real or personal . . . held 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 and administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. . . .

The plaintiffs and ECUSA want the Court to read this language prescriptively, to mean that the Diocese of Pittsburgh in October 2005 forever bound itself to remain in ECUSA ("the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America") if it wanted to continue to hold title to its diocesan property. The defendant Diocese argues that the language is merely descriptive, and refers to it as it was at the time of the stipulation: a member Diocese of ECUSA. In that sense, they say, there is nothing in the language which would imply a promise to remain in ECUSA, and that since it is still the same legal entity in the eyes of the law after it withdrew as it was before it voted to leave, and continues to hold all of its property as before, it is in full compliance with the terms of the Stipulation.

From the Exhibits included in Vols. 1-2 above, what emerges is that as it was originally conceived and proposed by Mr. DeForest, the attorney for the original Calvary Church plaintiffs, the language was much clearer in favor of the position which plaintiffs now take. Thus, Mr. Otto (the defendant's then counsel) wrote to Mr. DeForest on January 5, 2005 and proposed an initial paragraph 1 which did not even touch upon the issue of diocesan property, but only on the subject of parish property (Pl. Ex. 2):

In the event a Parish Church wishes to leave, or disaffiliate with ECUSA, a mutual agreement among the Parish Church, the Diocese and ECUSA shall be required with respect to the disposition of all property held by or for the use of the Parish Church; absent any mutual agreement, the Parish Church may appeal or apply to the civil courts for resolution of the issue.

It was Mr. DeForest who sent back to Mr. Otto a revised first paragraph which specified clearly that all property of the Diocese was to remain in ECUSA, regardless of what the individual parishes chose to do (Pl. Ex. 3, January 11, 2005; emphasis added):

Property, whether real or personal (hereinafter "Property"), held by or for use of the Episcopal Diocese of Pittsburgh (the "Diocese") shall remain in the Protestant Episcopal Church in the United States of America ("ECUSA") regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in ECUSA.

Had Mr. DeForest retained throughout the subsequent negotiations the language I have put in bold above, there would be no argument today over the meaning of the Stipulation. But as events turned out, negotiations stalled over Mr. DeForest's language, which he continued to insist on for the next several months. Finally, In July 2005, Mr. Otto sent Mr. DeForest a revised paragraph 1, which read as follows (Pl. Ex. 7):

Property, whether real or personal (hereinafter "Property"), held or administered by the Diocese of Pittsburgh (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 in the Diocese might decide not to remain in ECUSA.

And as you can see from the final October 2005 version quoted above, this essentially was the language settled upon, with only Mr. DeForest's descriptive term "of the Episcopal Church of the United States of America" added in after the word "Pittsburgh". I may be able to devote a fuller post to this later, but from the foregoing you can see why I think Mr. DeForest and his clients have the laboring oar to convince the court that this language:

Property, whether real or personal . . . held 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 and administered by the Diocese . . .

is the functional equivalent of this:

Property, whether real or personal (hereinafter "Property"), held by or for use of the Episcopal Diocese of Pittsburgh (the "Diocese") shall remain in the Protestant Episcopal Church in the United States of America ("ECUSA") . . .

Now, on to the other exhibits, which might have gone unnoticed in the many hundreds of pages filed with the Court. First, there is a very telling example of the way that ECUSA's leadership carefully choreographs the outcomes that it wants, regardless of what the other bishops or deputies to General Convention might decide. A little background chronology will set the stage:

September 12, 2008: The Presiding Bishop telegraphs her intention to bring a resolution before the House of Bishops at its September meeting to effect the deposition of the Rt. Rev. Robert A. Duncan, diocesan Bishop of Pittsburgh, in advance of the Diocese's planned October annual convention, at which it will vote on a measure to remove itself from ECUSA.

September 18, 2008: The House of Bishops votes to "depose" Bishop Duncan, in the process violating Canon IV.9 three times.

October 4, 2008: Without Bishop Duncan to lead it, the Diocese of Pittsburgh votes (116 to 69 in the lay order; 121 to 33 in the clergy) to amend its Constitution and Canons so as to withdraw from ECUSA.

October 4, 2008: The Rev. Dr. James B. Simons of Pittsburgh announces that he disagrees with the vote, and that as a member of the Diocese's Standing Committee, he will organize the dissenters as a continuing "diocese".

All right, that sets the stage for the following chronology, which is derived solely from Exhibits included in the first link (Vols. 1-2) given earlier. The first, from the documents which make up Pl. Ex. 34, is as follows:

October 6, 2008: On the Monday following the Convention, the Rev. Dr. Simons sends letters to each of the other members of the Standing Committee of the Diocese of Pittsburgh, in which he states:

I am sure you are aware that I did not support Saturday's actions of the Convention of the Diocese of Pittsburgh of the Episcopal Church in amending the diocesan Constitution to remove the "accession" clause and in accepting the invitation of the Archbishop of the Southern Cone to "join" that Province. On the other hand, it is my understanding that you did support those measures. If I am wrong in that understanding and you are in a position to demonstrate to me that you opposed and publicly repudiated those actions, I would appreciate you letting me know promptly. I shall assume that I am correct if you do not communicate to me a contradiction of my understanding by 5 p.m. on Wednesday, October 8th.

Please note the Orwellian inversion that is taking place here. A lone member of the Diocesan Standing Committee, who disagrees with the decision taken by the Diocese which elected him to that Committee, pretends that he remains its only valid member as a result of the vote, and demands that the other members, who retain the position to which they were elected, must "demonstrate" to him that they are still on the Committee. In reality, of course, he is the one who no longer remains on that Committee, since he refuses to go with the Diocese to which it belongs, and which created it. He should now have to await the organization of a new diocese, which can then organize its own Standing Committee, before he may function in any such role again. But this is no ordinary real world --- this is ECUSA! Now watch the prestidigitation that unfolds before your eyes:

October 8, 2008, 6:32 pm: Attorney Andrew Roman of the Pittsburgh law firm of Cohen & Grigsby addresses an email to the Presiding Bishop, enclosing a two-page letter written the same day (but presumably after 5:01 p.m.) by the Rev. Dr. Simons, in which he states:

As the only member of the Standing Committee to oppose amending the Diocesan Constitution to remove the "accession" clause and to oppose accepting the invitation of the Archbishop of the Southern Cone to "join" that Province, I have invoked the authority contained in Article IX, Section 5 of the Constitution of the Episcopal Diocese of Pittsburgh, and I have appointed the Reverend Jeff Murph and Ms. Mary Roehrich to join me on the Standing Committee, filling the vacancies created by the clergy and lay members, respectively, whose terms would expire on December 31, 2011.

Episcopal Church Canon I.2.4(a)(3) provides in part that the Presiding Bishop shall:

In the event of an Episcopal vacancy within a Diocese, consult with the Ecclesiastical Authority to ensure that adequate interim Episcopal Services are provided.

I am therefore requesting that you, in your capacity as the Presiding Bishop of The Episcopal Chmch, recognize the Standing Committee of the Episcopal Diocese of Pittsburgh (myself, the Reverend Jeff Murph and Ms. Mary Roehrich) as the Ecclesiastical Authority of the Episcopal Diocese of Pittsburgh. so that we may begin the consultation process provided for in Canon 1.2.4(a)(3).

Note: never mind that, in the eyes of the Presiding Bishop and her loyal followers, there had been an "Episcopal vacancy" in the Diocese of Pittsburgh ever since September 18. And never mind that there is no procedure under ECUSA's Constitution and Canons for "recognizing" a Standing Committee of a Diocese. This puts the cart before the horse. Under its Constitution and Canons, ECUSA must first "recognize" a Diocese, by admitting it into union with its General Convention. Then, and only then, does the newly recognized Diocese elect (or confirm, if previously elected) a Standing Committee, which needs no separate recognition, because it follows from the recognition of the Diocese which creates it. But remember --- this is the inverted world of ECUSA under its current Presiding Bishop and her Chancellor.

The chronology continues; remember that the email from Andrew Roman was sent at 6:32 p.m. EST on October 8:

October 9, 2008, 9:50 a.m.: The Presiding Bishop responds to Mr. Roman by email, acknowledging that she does "recognize" Dr. Simons and his two cohorts as "the rightful" Standing Committee of the Diocese of Pittsburgh, and will send a letter to that effect when she returns to her office. (NB: The word "rightful" implies that there is also a "wrongful" Standing Committee of the same Diocese, which she does not "recognize". But if there is only one Diocese, what gives her the power to choose between Standing Committees, and to decide which is "rightful"? Which group elected Dr. Simons to the original Standing Committee? Are not they the ones with the authority to decide which Committee is the rightful one?)

Later that same day - October 9, 2008: The Presiding Bishop sends her promised letter, addressed "Dear Jim".

October 10, 2008: Armed by the receipt of the Presiding Bishop's letter, attorney Andrew Roman encloses it in a letter he writes to Bishop Duncan's Chancellor, Robert G. Devlin, Esq., in which he states:

You and the group [sic] that you represent are requested to take no action that is inconsistent with this determination [by the Presiding Bishop], and to preserve and protect all assets and property of the Episcopal Diocese of Pittsburgh until you complete an orderly transition of control to the rightful [sic] Standing Committee or their designees. I trust that you will comply with this request and not make it necessary to seek the court's intervention.

We are still not a week away from the vote at the Annual Convention, and the minority who lost the vote is demanding that all of the Diocesan assets be handed over to it! To bolster its case, the Presiding Bishop and her Chancellor arrange for the Executive Council to adopt a resolution recognizing Dr. Simons' committee at its meeting held in Helena, Montana, from October 20-23, 2008 (Pl. Ex. 35, about which more later).

Months now pass, and the "recognition" process is still not complete. The Presiding Bishop, working in conjunction with Dr. Simons, designates the Rt. Rev. Robert H. Johnson, resigned Bishop of Western North Carolina, as her liaison with Dr. Simons' committee, and he agrees to serve as assisting Bishop until July 2009 (later extended to the next annual convention in October 2009). The House of Bishops gathers at Kanuga for its Spring 2009 meeting, and on April 24 its Secretary, the Rt. Rev. Kenneth Price, addresses a letter to his colleague as follows (Pl. Ex. 36):

We the bishops of the Episcopal Church meeting in North Carolina send you our deepest and heartfelt greetings. We thank God for the power and constancy of your faith as you pray and work to rebuild the Diocese of Pittsburgh. We are aware of the challenges laid upon you and we pledge ourselves in prayer a partnership for the task which you have begun.

Know that the bishops of the Episcopal Church stand shoulder to shoulder with you. We encourage you as you seek in thegenerosity and grace of Christ Jesus to revitalize the life and mission of your diocese for the sake of God's Kingdom.

We rejoice in the mission and fellowship we share with you in this Church. And we pray for every blessing in Christ among you as we seek together to serve Christ and bring the gospel news to all people.

Notice that this letter, however, stops short of a statement of "recognition" of the pseudo-diocese by the House of Bishops. (At least they appear to have better legal advice than does their presiding officer.) Indeed, that is not the function of the House of Bishops, nor of the Executive Council, nor of the Presiding Bishop alone, but only of ECUSA's General Convention.

General Convention is due to assemble in Anaheim in just three more months. Will that event, accordingly, be the platform at which the final act of "recognition" occurs? Answer: No, it won't, because if General Convention were to do so, that would constitute an implied admission that the upside-down game being played by Dr. Simons and ECUSA's leaders had been a sham. So the result is that we have every possible branch of ECUSA but the rightful and authorized one jumping through hoops to do what only the latter lawfully can.

First, however, there is a small matter to be taken care of: the seating at General Convention of the Potemkin diocese's "deputation." For Canon I.1.4 (a) of ECUSA provides:

All jurisdictions of this Church entitled by the Constitution or Canons to choose Deputies to the General Convention shall be required to do so not later than twelve months preceding the opening date of the General Convention for which they are chosen. Deputies of jurisdictions failing so to elect may not be seated unless permitted by ruling of the Presiding Officer.

Is this a problem? After all, the dissenters were not able to organize, as we have seen, until after the vote was taken on October 4, which was nine months before the start of General Convention. But of course it's not a problem --- watch how the skids are greased whenever it would serve ECUSA's legal position to do so. On January 7, 2009, Dr. Simons sends the President of the House of Deputies an email, as follows:

Dear Bonnie:

I am writing to formally request that the elected deputation from the Diocese of Pittsburgh be seated at the 2009 general Convention. As you are aware the recent turmoil in the diocese prevented us from electing our deputies in a timely manner. I have previously sent you a copy of the deputies and alternates and registered them with the general Convention Office.

Now that email (Pl. Ex. 37) was sent at 12:38 p.m. on January 9, as mentioned. Barely two hours later, Dr. Simons is sent this reply:

Dear Deputy Simons,
It is with great pleasure that I receive and accept your request that the duly elected deputies from the Diocese of Pittsburgh be seated at the 76th General Convention. By this response, which I forward to The Rev. Dr. Gregory Straub, Secretary, your request is joyfully granted.
I look forward to welcoming you and the entire deputation to the House of Deputies.

In peace,

Bonnie Anderson, D.D.
President, The House of Deputies

Remember that Canon I.1.4 (a), quoted above, grants the Presiding Officer the power to make a ruling to seat a deputation elected after the twelve-month deadline. But "ruling" is a word which Roberts' Rules of Order normally ascribes to what the Presiding Officer of a legislative body does in connection with a "question" that arises while that officer is presiding --- i.e., when the House of Deputies is in session. The reason for doing so is so that any such ruling may be appealed, as provided in House of Deputies Rule X 39. And in connection with such appeals, Rule VIII 27 (a) of those HoD Rules provides:

(a) Appeal from Decision of Chair

(1) Must be made immediately after decision. Mover need not be recognized, but requires a second.
(2) Debatable for two minutes by each speaker, each speaking once.
(3) Not amendable.
(4) May be laid on table.
(5) Majority vote. A tie vote sustains Chair.
(6) Cannot be renewed.

So exactly how could any Deputy challenge President Anderson's "joyful" ruling in favor of seating the deputation from Pittsburgh, "immediately after [the] decision [is made]", when that ruling was made in January and the Convention would not open until July?

And there you have it --- a little window into how the insiders at ECUSA get things done.

[Note: I will follow up this post with another look into the insides of ECUSA later, which will address the revelations discernible from Plaintiffs' Exhibit 35, and concerning the murky world of ECUSA's hundreds of millions in trust funds.]