Tuesday, October 6, 2009

Judge James Goes off the Deep End

Up until now, I have reserved judgment about the legal abilities of Judge Joseph M. James of the Court of Common Pleas of Allegheny County in Pennsylvania. Based on the transcripts of the arguments before him, he had seemed to maintain an open mind in the proceedings, which placed at issue the ability of the Diocese of Pittsburgh headed by the Rt. Rev. Robert W. Duncan to hold the assets it had acquired for the benefit of the parishes which made up its membership.

Now, unfortunately, Judge James has demonstrated that he is unequal to the task before him. He has issued a decision that entirely skips over the complex issues raised by 815's formation of a Potemkin diocese out of the parishes which did not agree with the vote of the Diocese to withdraw, and which were allowed to retain their property. He concludes, without any reasoning at all, that the Potemkin diocese is entitled to all of the property and assets of the one true diocese. Clergy in the former, led by the Rev. Dr. Jim Simons, have been gifted with a temporary victory won by unprincipled means -- and thereby have managed to demonstrate the wisdom in St. Paul's admonishment to Christians who would take their disputes to the secular courts for resolution.

Judge James claims to be enforcing the language of a stipulation entered into by the parties which was intended to settle the original lawsuit, which had been brought by Calvary Church and some individuals in 2003. The Stipulation provided in paragraph 1 as follows (I have added emphasis to stress the relevant parts):

1. 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. . . .
So now let us apply an objective lens to the quality of analysis which Judge James brings to the interpretation of this language. He seems to think that the issue was decided long before the Stipulation was signed in 2005, when he refused in March 2004 to grant the defendants' Motion to Dismiss (emphasis added):
After the filing of an answer and a number of other pleadings, on March 17, 2004, the court denied defendants' Motion to Dismiss and ordered the parties to go forward with discovery. At the hearing on that Motion to Dismiss, the court found that the Canons of the Episcopal Church of the United States of America imposed a constructive trust on parish property for the benefit of the Episcopal Church of the United States of America and the Pittsburgh Diocese of that church.
Maybe you did, Judge James, maybe you did so find. But even you characterize that earlier "ruling" as dealing only with parish property, and not diocesan property. The Dennis Canon, of course, addresses the former, but not the latter:
Sec. 4. All real and personal property held by or 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. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

Property held by a Diocese (a real one, at any rate) is not held "by or for the benefit of" any particular parish. To bring this point home, let us look at the rarely quoted second section of the Dennis Canon:
Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.
If the intent of the Dennis Canon were to apply to the property of dioceses as well as to the property of parishes, why would section 5 give dioceses the option of "further confirm[ing] the trust declared under the foregoing Section 4", but not give that same option to the parishes themselves? Such reasoning, of course escapes Judge James; he maintains he decided this case long ago, in March 2004, and is only now getting around, more than five years later, to informing the parties of that fact.

In the process of doing so, however, the honorable Judge shows that he has not mastered the basic underlying facts (emphasis added):
In fact, at the Diocesan Convention of October 4, 2008, a resolution to withdraw the Diocese from the Episcopal Church of the United States of America and align it with the Anglican Province of the Southern Cone received a majority of the votes cast.

After defendants took this action to withdraw from the Episcopal Church of the United States of America, the Episcopal Church of the United States of America removed Bishop Duncan as Bishop of Pittsburgh and named new members of the standing committee of the Diocese of Pittsburgh.
No, Judge James, the Episcopal Church of the United States of America claimed to have removed Bishop Duncan from his position before the Diocese of Pittsburgh held its vote to withdraw from the Church. But since your mind was made up in this matter in March 2004, why let the facts get in the way?
Those parishes that remained loyal to the Episcopal Church of the United States of America (including plaintiffs) are now recognized as the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.
As the Episcoleft is so fond of telling us, only General Convention can create dioceses. So what is this use of the passive voice about -- that the departing parishes "are now recognized" as a Diocese? Who did the recognizing? Again, to Judge James, the facts just do not matter.

Thus we come to the heart of the honorable Judge's decision. Notice the appeal to "clear and unambiguous language", instead of legal reasoning:
Many pages of the parties' briefs have been used to explain what Paragraph One means. However, I find that the language is clear and unambiguous and, therefore, requires no further explanation. The property is to be held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America. Regardless of what name defendants now call themselves, they are not the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.
"Many pages", Judge James? How about hundreds and hundreds? And over fifty separate exhibits? All to elucidate the meaning of a paragraph which you say is "clear and unambiguous" on its face?

Judge James then justifies his conclusion with these words:
Credible evidence establishes that the entity now represented by Attorney Andrew Roman has been recognized as the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America. Defendants contend that this designation is invalid and that they are entitled to continue to hold and administer the subject property. There is no basis in law or fact for their position. The Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America did not cease to exist when the defendants chose to withdraw. The defendants could not extinguish an entity that was created and recognized by the intervenors. The action to designate a subsequent board of governance and appoint a successor to Bishop Duncan is further evidence that the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America never ceased to exist.
There's that passive voice again -- "has been recognized". By whom, Judge James? Not by General Convention enacting a resolution admitting the Potemkin group into union with it, that's for sure. If you take the word of the Church's expert, Dr. Bruce Mullin, that is the only "recognition" that counts. (Oh, wait -- Dr. Mullin did not testify in Pittsburgh; no need to, since the case was apparently resolved in March 2004, long before the Potemkin diocese was created.) And then we come to this startling statement:
The Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America did not cease to exist when the defendants chose to withdraw. The defendants could not extinguish an entity that was created and recognized by the intervenors.
Extinguish? Who said anything about extinguishing? I have used a word search on all of Bishop Duncan's legal briefs submitted to the court, and I did not find that word anywhere in them. This has all the appearance of ignoratio elenchi, the setting up of a straw man in order to show how he can be knocked down.

And what becomes of the Diocese headed up by Bishop Duncan? If the group that chose to leave the Convention after the vote remains "the Diocese" because it could not be "extinguished", then I guess the vote taken was not to amend the Diocesan Constitution, but instead to create an entirely new Diocese. Because that is the only way one can conclude that the group that walked out of the Convention suddenly became "the Diocese" (but only after it was "created and recognized by the intervenors", of course).

So let us try this reasoning on for size. Here are the steps which logically must have occurred, according to Judge James:

1. The Episcopal Diocese of Pittsburgh, a lawful entity under Pennsylvania law and a defendant in the Pittsburgh lawsuit, voted in October 2008 to amend its Constitution so as to remove the language which made it a constituent part of the Episcopal Church (USA). Certain delegations to the Convention walk out after the vote.

2. The same Diocese meets in a Special Convention two months later and elects the Rt. Rev. Robert W. Duncan as its bishop. Both it and he continue to be defendants in the lawsuit before Judge James. However, according to Judge James, they are not the same entities any more.

3. Thus, the vote in October did not amend the diocesan Constitution, despite the fact that everyone there thought that was what was happening. No, by some legal magic, what happened was that a new entity was instantly created and constituted under Pennsylvania law, and that new entity was the one who met in Special Convention a little later.

4. Because, you see, the group that walked out of the Convention, and who opposed the vote to amend, remained the original Diocese, which the group voting to amend could not "extinguish". So if they remained the original Diocese, then Bishop Duncan's group must somehow have instantly become a new legal entity which called itself a Diocese.

5. But there is no need to substitute that new entity into the lawsuit, as would normally be done when any new entity is formed in the place of an old one. No, instead, we will let that new entity continue as a defendant in the lawsuit, even though it is not the same entity it was before the vote to amend.

6. And the entity that remained in place, that was not "extinguished", must now be allowed, once it has first been "recognized" by those who "created" it originally, to intervene in the legal proceedings as an intervening plaintiff -- even though, before the vote to amend, that same entity was a defendant.

All perfectly clear? That settles that. Next case!


  1. Judge James Goes off the Deep End

    A curmudgeon once told me that "Logic *must* prevail in the end."

    So I assume that this is not the end of the case since Logic has not yet prevailed in the matter.

    (Jus' joshin' you, AC, jus' joshin)


  2. AC: As one who is legally trained and works as a research librarian in a law school, I have long believed that judges are not nearly as intelligent as most people seem to think, and I have little respect for their intellect unless they give me reason to.

    Having said that, what do you think are the chances for a successful appeal?

  3. What comes to mind is another comment I made in another setting:

    Pure Folderol.

  4. That being, of course, courtly folderol, not curmudgeonly folderol.

    Br_er Rabbit.

  5. Very sad indeed. It will be interesting to see what the rump "Diocese" of Pittsburg (ECUSA) does with over 50 empty properties. Sure, they "won" and probably will have a victory party paid for by hers truely, Madam Katie "Shoria Law" Shori, but after the celebrations end, they will have to face the fact that the Diocese of Pittsburgh is near broke already and now will have to find a "used church" realtor. Good luck, Katie!!

  6. Appeal? I would guess that +Duncan and associates can.

  7. A.S. - can this ruling be appealed at another level?

  8. Dear Mr. Haley,

    I agree with your post and write to add the following.

    My understanding is that Section 1 of the Stipulation prohibits property transfers , i.e. the parties agreed that property would not be deeded to others and would continue to be held for the beneficial interest of the parishes. Since then Bp. Duncan, the Diocese, and the parishes transferred no property, and therefore did not violate the Stipulation. The title deeds to the various parcels remain unchanged from what was recorded before the Stipulation was signed.

    To reach the results contained in this order, the learned trial judge actually adopted TEC's "ejector seat" theory and administered steroids to it. Consider the remarkable results:

    First, the judge enforced TEC's theory that if a Diocesan delegate voted in a certain way on certain resolutions, he automatically is removed from his office. Second, if the Diocesan convention adopted a certain resolution, solely as a result of that vote the Diocesan Bishop automatically abandoned Communion and can be summarily removed from office by the Presiding Bishop, whether or not that removal complies with TEC's canons relevant thereto. Third, the vote also triggered operation of TEC's "dinghy" theory of Diocesan existence, whereby the dinghy became the flagship, solely as a result of the vote and without the trouble of obtaining a ocrporate charter from the Pennsylvania authorities. Fourth, the vote also triggered operation of TEC's Dennis canon, ejecting the Pittsburgh parishioners from their property, even though those parishes did not actually sign deeds transferring any property. Finally, the judge ruled that the Dennis canon applies to Diocesan property, even though its text states that it does not.

    Wow. I don't know where to begin with such an incoherant decision. I can only hope that the appeals courts in Pennsylvania will set this decision right.

  9. TU&D, even in jest you are right -- the case is not over. Deck, and DavidJ, yes, Judge James's ruling can be appealed. The only question is when and how. His order (following the decision) provides for further procedures to identify the property that is subject to the Stipulation, so it is not yet a final order. That will come when, after the property has been identified, he enters an order that it be turned over by a date certain. At that point, Bishop Duncan's attorneys can ask that he stay enforcement of his order pending its appeal.

    The appeal will go to the Commonwealth Court, which is the first level; and could go higher, to the Pennsylvania Supreme Court, if that court agrees to take the case. Either of those courts could grant a stay of Judge James's order if he refuses to stay it.

  10. Publius, that is a great comment. And the more I think about Judge James's ruling, the more inconsistencies and logical impossibilities I find. Take just this point: Judge James says that the Diocese formerly headed by Bishop Duncan could not be "extinguished" by the vote to leave. OK, fine -- it was not extinguished. But that was the same Diocese that agreed to the 2005 Stipulation. No property has changed hands since.

    So why, all of a sudden, does the court need to order a transfer of property from the entity that agreed to the stipulation to a different entity, if that second entity is all along the first entity which never went out of existence?

    The decision simply defies any common sense. James pointed this out as well, in an excellent recent comment over at StandFirm.

  11. AC: But what is the standard for review? What can an appellate court review in this case? What is deemed to be a matter of fact and what is deemed to be a matter of law?

    It seems to me that the judge made some major decisions of law without offering any justification for them (i.e. what you point out in terms of WHO recognizes the rump group) and that these unsupported decisions of law drive the overall decision.

    The judge seems to say that he recognizes the validity of the diocese's withdrawal, then makes directly contradictory statements just a short time later by effectively declaring that a diocese cannot validly leave (though he doesn't support this claim either).

    Yet the judge bases his decision on the stipulation and again offers no justification other then to make the astonishing claim that it is self-evident. So what is fact and what is law?

    The more I read this decision, the crazier it seems to me. And it surely reduces my confidence in the courts even more (and I never had great faith in the judiciary before!).

  12. James, the interpretation of the plain meaning of the stipulation as a contract presents a question of law, which an appellate court reviews de novo on appeal.

    Had Judge James found the language ambiguous, so that external evidence was needed to interpret it, then the standard of review would be different -- in California, it is what is called the "substantial evidence" standard, meaning if there is substantial evidence to support the judge's decision, then it will not be overturned on appeal, even if the appellate court might have reached a different conclusion.

    Judge James, however, used no external evidence, and found the language of the Stipulation to be "clear and unambiguous" on its face. (It is not, of course; that is why the parties offered so much argument and exhibits to support their respective interpretations of it.) Since the Judge ruled the language was clear on its face, the appellate court will take a fresh look at it on its own, and make up its own mind on the question, as though Judge James were not in the picture.

  13. This post is surprising and disturbing. I would think an attorney would be hesitant to personalize a legal decision and attack a judge as inadequate and having "go[ne] off the Deep End." Disagree with a decision. Attack conclusions or findings in it if you must. But more respect is in order from members of the bar.

    And neither the post nor James and Publius's comments accurately summarizes or characterizes the decision.

    I've largely said what I have to say about the substantive matter on StandFirm, not that it really matters.

  14. DavidH, we shall just have to disagree, as we so often do. When a judge publishes an opinion such as this one, which is logically incoherent, and which ignores volumes of contradictory evidence to find there is "no ambiguity" in something that both sides have spent the last four years arguing over, I say he is unequal to the task of deciding the issues at stake -- because he did not "decide" them; he simply emoted his feelings on them.

    "Gone off the deep end" is, I note in passing, a phrase to which you have resorted to describe another member of our profession over at StandFirm. The pot should not be calling the kettle black.

    As for your evaluation of the ruling in your posts elsewhere, I will, as you know, always stand ready to engage your substantive comments here. Argument by proxy and innuendo, however, carries no weight on this blog, as you appear to recognize with your final words.

  15. Mr. Haley, if I have said that a judge has gone off the deep end, I am happy to admit the intemperate-ness of my remarks and rephrase them. But I don't think I have -- you appear to be referring to a comment in which I made a conditional statement about other commenters, which I think is different than a blog post about a judge.

    To get back on point, I do not claim to know whether this legal principle applies in Pennsylvania or not, but in Virginia, the fact that the parties disagree over the meaning of a contractual provision (something your 12:37 am comment focuses on in arguing ambiguity) is not evidence that it is ambiguous.

    I do have a couple of related questions. You and others have focused on canonical compliance and charge that the +Johnson Group cannot be a diocese because it has not applied for and been accepted by General Convention as such. Where do you think the Constitution and Canons of TEC address the procedural requirements of reorganization when a bishop and majority of a Standing Committee and diocese have left? And why do you think General Convention's decision to seat representatives from the reorganized dioceses is not adequate recognition/acceptance of them?

    By the way, you occasionally post on SF as Chancellor, do you not? (You need not answer that if you don't want to -- I just found myself confused a while back by whether Chancellor was a different nom de plume for the same person.)

  16. I have addressed the applicable provisions in ECUSA's Constitution that allow those remaining to reorganize as a new Diocese in this post, DavidH, and also in this earlier one, which was the concluding part of a series in which I discussed what had been done wrong in San Joaquin, what the consequences would be, and how to follow the Canons there to allow each group canonically to go their own separate ways. This matter of reorganization after a Diocese departs has been a recurring theme on this blog.

    As for the ambiguity of the Stipulation, look at the language from Paragraph 1 which I quoted in the post. The first thirty-five words of that quote are purely descriptive, and provide no mandate of any kind. The mandate comes after that, and the only mandate directly expressed is that the previously described entity continue to hold the previously described property as it has been holding it.

    That would be the ordinary common-sense reading of the language. It is only if one ascribes a prescriptive element to the descriptive language that you can come up with the "clear and unambiguous" reading of the honorable Judge James.

    Two senses of the same words. I do not say that the words cannot be read in the second sense; they certainly can. That's what makes them ambiguous. And if you review all of the submitted exhibits which show how the Stipulation evolved to its final form, the only conclusion (I submit) one can reach is that the second sense (the one Judge James says is "clear") is precisely the sense of the earliest drafts, which Bishop Duncan and his attorneys had refused to sign. Over a period of nine months, the two sides jockeyed for an acceptable phrasing, and finally settled on the language which divided the descriptive from the prescriptive. To read it as the Judge now does is to make nine months of negotiations meaningless.

  17. Examining the briefs, the real diocese also argued that the wording was "clear and unambiguous", in order to invoke the parol evidence rule and prevent the introduction of background evidence about the course of the negotiations.

    Lionel Deimel attended the hearing. Judge James may not have openly used external evidence, but he certainly heard a lot of it. An attorney-negotiator for TEC was allowed to testify at length about his thinking during the negotiations -- an obvious advantage for anyone trying to persuade a court that his interpretation of the final document is correct.

  18. I read the judge's ruling, which was, blessedly, much shorter than your post. It seems to my non-lawyerly mind that a major issue was that the Diocese headed by Bp Duncan is not the Diocese that belongs to ECUSA and that was the language of the stipulation. The judge, wisely, did not consider the question of the canonical standing of the Diocese that does belong to ECUSA, only that Bp Duncan's did not.

  19. If a priest and lay person wanted to set themselves up as the 3rd Diocese of Pittsburgh, and got 2 bishops in TEC to recognize them, could they sue the Rump Dio Pitt for the property?

  20. The more I think about this ruling the more inclined I am to think an appeal is in order. The judge clearly betrayed the agreed upon assumption of a valid realignment. A valid realignment means 1) the same diocese which held the assets before realignment still holds them and shouldn't lose them because of a valid vote to realign 2)a valid realignment means that the moment the convention voted to realign there was no diocese of Pittsburgh that was a part of TEC 3) if there is now a TEC diocese of Pittsburgh it is a newly formed entity and not entitled to any of the assests. Judge James has completely ignored what a valid realignment means. His claim that that a TEC diocese never ceased to exist, and that such a diocese must now get the assets, can only be made under the assumption that the realignment was not valid. Of course I am only restating what others here have already pointed out... It is obvious that all the arguments simply went over his head and he fixated on the words "Episcopal Church".

  21. Fr. Weir:
    The judge, wisely, did not consider the question of the canonical standing of the Diocese that does belong to ECUSA, only that Bp Duncan's did not.

    How then did the judge award the property of "Bp Duncan's" diocese to another entity? He declared that the other entity is indeed the Episcopal Diocese of Pittsburgh of TEC, and therefore entitled to 100% of the property. That sounds very much like he established the "canonical standing" of the TEC DioPgh.

  22. "If the intent of the Dennis Canon were to apply to the property of dioceses as well as to the property of parishes, why would section 5 give dioceses the option of 'further confirm[ing] the trust declared under the foregoing Section 4', but not give that same option to the parishes themselves? Such reasoning, of course escapes Judge James". I'm afraid it escapes me too; can you spell out the connection here?

  23. Here is the way the argument works, Fr. Wainwright.

    1. The Dennis Canon has no language in it that could be read to apply to property held by a Diocese for that Diocese, or for its parishes in general. The language of the Dennis Canon applies only to property held by or for individual parishes.

    2. If a Court were to say that it reads the Dennis Canon as applying also to the property of Dioceses, then the question arises: why enact section 5, which gives the Diocese the option of enacting its own Dennis Canon equivalent, but not a parish?

    3. In other words, if you think you have created a trust in the Diocese's property by enacting section 4, how can the Diocese's enacting a canon saying the same thing help you?

    4. And if you think giving a Diocese the option of doing that will strengthen the chance that you have an enforceable trust, then why not give the parishes the same option you gave the dioceses?

    It is far more logical to conclude that section 5 was enacted to give dioceses the option of strengthening any trust in the parishes' property by repeating the Dennis Canon at the local level. But that only supports your original conclusion: that the purpose of the Dennis Canon was to impose a trust on parish property, and not on the property of any diocese.

  24. What we really need from Judge James is a description of what an invalid realignment looks like. According to his ruling, a valid realignment is unable to separate a diocese from TEC, that is to say, it fails its only purpose. Proof that a valid realignment was ineffective in separating the diocese from TEC, and only succeeding in removing individual persons from TEC, was the fact that Bishop Duncan was deposed (although in an embarrassing gaffe Judge James confirmed he paid scant attention to the arguments by botching the timeline) and that KJS recognized a real TEC diocese that was there all along. Of course this view is exactly what TEC argues is the result of an invalid realignment. So, again we are left wondering what an invalid realignment looks like?