Saturday, February 27, 2010

Appeal Filed in Pittsburgh Litigation

The one, true and thus far only Episcopal Diocese of Pittsburgh in the Anglican Communion has now filed an appeal to the Pennsylvania Commonwealth Court from a number of orders entered by Judge James in the lawsuit I have described in the series of posts linked at this page. You can download the notice of appeal from this link, but I can tell you the gist of what it says by quoting this language from it:
Notice is hereby given that the defendants The Episcopal Diocese of Pittsburgh, The Right Reverend Robert William Duncan, The Right Reverend Henry Scriven, Babatunde Fapohunda, Robert Manson, Kathleen Marks, The Rev. J. Douglas McGlynn, James Moore, John Morgan, Lynn Patterson, Donald Pepler, Thomas Rampy, William Roemer, Bruce G. Seiling, John Stevenson, Richard Thomas, and Douglas Wicker hereby appeal to the Commonwealth Court of Pennsylvania from the order entered January 29, 2010 (Docket Nos. 150, 151 and 152), the opinion and order entered October 6, 2009 (Docket No. 148), the order entered April 21, 2009 (dated April 17, 2009) denying Defendants' Motion to Strike Praecipe for Entry of Appearance (Docket No. 129) and the order entered on May 9, 2007 (dated May 8, 2007) denying Defendants' Motion to Dismiss or Strike Petition (Docket No. 85).
You might well wonder why so many individuals are named in the Notice of Appeal. The explanation is simple: they were all people whom Calvary Church, its rector (Dr. Lewis) and its senior warden (Philip Roberts) sued in their original complaint filed October 24, 2003. And only God Himself knows at this point why the plaintiffs named them; the plaintiffs certainly do not. Back in 2003, the individuals were members of either the Standing Committee of the Diocese, or of the board of directors of the religious corporation formed to hold title to the property of the Diocese. (As an unincorporated association, the Diocese itself is unable to take or hold title to property under Pennsylvania law.)

The problem is that the case is now on appeal -- meaning that there is no longer any jurisdiction in the trial court. And many of those members of the board of directors and the Standing Committee named in 2003 are no longer serving on those bodies, having been replaced through elections held regularly in the intervening seven years. The plaintiffs, however, never saw fit, during the entire seven years the suit was pending in the Court of Common Pleas, to substitute the current members in place of the old ones. That fact leads to the conclusion that the plaintiffs were not intending to sue the Standing Committee or the board of directors as such, but only the individuals they chose to name. Which makes it entirely doubtful whether they knew what they were doing at the time, because there is nothing any of those individuals did in an individual capacity that could make them liable on any of the claims made in the plaintiffs' lawsuit.

That is a problem, however, for the plaintiffs -- and I respectfully decline to advise them on how to manage their lawsuit; I note simply that in its current stance, it is as incomprehensible as is the order which Judge James entered last October (as I explained in this previous post), as well as his most recent one (discussed in this post). The Commonwealth Court has its work cut out for it, and it will not be an easy job to make sense of what has supposedly been decided against whom in the trial court.

As you can determine from the quotation above, the appeal is taken first and foremost from the judge's "turnover" order (which in fact did not order that anything be turned over, but only that certain persons -- who were not parties to the lawsuit, and over whom the court therefore had no jurisdiction -- "take instructions" as to the assets they held only from the non-diocese and its non-diocesan bishop, whom Judge James had conceived, under the terms of the earlier stipulation which had "settled" the lawsuit in October 2005, was the only person now qualified to give those instructions). And if that parenthetical explanation of the order appealed from confuses you, it is the fault of Judge James, and not of your trusty Curmudgeon. I am simply reporting what the Judge purported to decide.

The "turnover" order which does not actually order that anything be turned over is based in its own turn on Judge James's decision of October 6, 2009, which held that the stipulation settling the case which he had approved four years earlier had been violated. And that order came in response to a "petition to enforce settlement and order" which Calvary and its related plaintiffs had filed with the court on December 19, 2006. When they filed their petition for enforcement, the plaintiffs gave it the same case number as the case they had brought in 2003. This had the effect of seeking to continue the proceedings in that old case, rather than starting a new one.

The defendants objected that the plaintiffs had to file their petition in a new case, since the court had not reserved jurisdiction over the old case in approving its settlement. One look at that stipulation will convince anyone with a legal mind that the defendants were correct about this. It is titled "Stipulation by Counsel", and begins and ends with these words:
In amicable resolution of the above litigation, the undersigned counsel, respectively on behalf of the Plaintiffs, Defendants and the Intervenors, hereby stipulate as follows . . .
. . .
Approved and So Ordered:

/s/President Judge Joseph M. James
There is no language reserving the court's jurisdiction to enforce the terms of its order. Without that language, the court's "order" was like any other judgment: binding on the parties involved, and requiring them to do certain things -- in this case, to continue to hold title to their property as they had held it before. Any breach of such a judgment requires the filing of a new lawsuit, because once a judgment becomes final, the court loses jurisdiction over the parties to it, and has to re-acquire such jurisdiction by means of a new lawsuit.

However, Judge James denied the defendants' motion on those grounds to strike the "petition to enforce stipulation and order", and treated the matter exactly as though he had retained jurisdiction to enforce the terms of the settlement. That is the earliest order listed above (entered May 9, 2007) from which the current appeal is taken (and will probably be the easiest part of the case to reverse).

The final order involved in the appeal is the one in which Judge James allowed the newly created non-diocese to intervene in the proceedings, and refused to strike the appearance ("praecipe") entered by its attorney, claiming to represent the true, continuing "Episcopal Diocese of Pittsburgh." This attorney's client subsequently became the entity whose bishop Judge James recognized as the only person entitled to tell the non-party banks holding the diocesan funds, and the non-party religious corporation holding the diocesan real property, how to handle those funds and that real property.

What a mess! What I object to most in these proceedings is how the leftwing activists who run 815 Second Avenue (and also the non-diocese of Pittsburgh) care not one whit for what they are doing to the courts and the law as they pursue their destructive march towards complete temporal power over all diocesan and parish property everywhere. They have an organization which since its inception has always been a confederation of independent dioceses, associated to make certain rules of conduct uniform throughout the Church (hah! -- just look at so-called "open communion"), and to agree upon matters of common worship and liturgy (hah! again -- just look at same-sex marriages and blessings). When a diocese and its members balk at the introduction of such disrupting novelties and uncanonical acts, and refuse either to participate in or to support their practice and propagation, these activists go to the courts, who are completely unschooled in these matters, and sell them a bunch of untruths and hocus-pocus. "We are The Church," they say, "and you must accept as definitive anything we say about Our Church, because, you see, we are The Church."

It is so circular and ridiculous that it ought to be laughed out of court. But as you see, the entity historically known as "The Protestant Episcopal Church in the United States of America" carries a lot of historical momentum with it. Its members have more Presidents of the United States to their credit than do the members of any other religious denomination -- to say nothing of countless more Senators, Representatives -- and Supreme Court Justices. So the courts tend to defer to the Church in court, and not to look too closely at the balderdash it sells to them. And the result is the legal mishmash such as we currently have in the Pittsburgh litigation.

The activists not only create the messes, but they trumpet their results as though they were on a par with the Ten Commandments, and demand that all those on the losing side of their machinations -- the ones who try to follow the canons and the Book of Common Prayer as written -- immediately and unconditionally capitulate to their ill-begotten "victory." Witness Exhibit A: this statement in response to the appeal published by the Non-Episcopal and Non-Diocese of Pittsburgh. It is so arrogant and supercilious that I shall slice it and dice it, right here in front of your eyes (bold emphasis added; the sickly green color appears mysteriously whenever I stuff and mount a specimen of canonical absurdity, as I explained here):
Attorneys representing the former leaders of this diocese are seeking to appeal the decision of the Court of Common Pleas of Allegheny County . . .
Are seeking, my eye. They are not seeking to appeal, they have appealed the order of Judge James. Check the docket sheet, you nincompoops -- it's the latest entry. And what is this about "the former leaders of this diocese"? This diocese -- meaning the diocese which you formed and hastily organized, with the cooperation and connivance of Katharine Jefferts Schori and Bonnie Anderson behind the scenes, and without the slightest authority granted by General Convention -- has no "former leaders", because it did not exist before October 5, 2008. That kind of loaded claim is exactly what I have in mind when I assert that you are selling pure poppycock to the courts and to the public.
. . . that determined the rightful trustee of diocesan assets to be the continuing Episcopal Diocese of Pittsburgh of the Episcopal Church in the United States, which is currently led by Bishop Kenneth L. Price, Jr.
This is all the proof I need to show how you are spinning the fact that Judge James swallowed -- hook, line and sinker -- your fish story about how "people can leave the Church, but Dioceses cannot." You have derived the above language from the last paragraph of Judge James's decision and order of October 6, 2009 -- no doubt because you approve of his use of the word "rightful". But you could not rest content with that, could you? No, you had to improve on what Judge James said, and make it appear as though he ruled that the "rightful trustee" of the diocesan assets was the continuing Episcopal Diocese of Pittsburgh.

And that is just the problem: because the word "continuing" was not in Judge James's lexicon that day. Here are the words he used instead: "The defendants [meaning Bishop Duncan and his Diocese] could not extinguish an entity that was created and recognized by the intervenors [meaning ECUSA -- bold added for emphasis]." And he was correct to say that your entity -- the new non-Episcopal non-Diocese of Pittsburgh -- was "created and [then] recognized by ECUSA" -- in the days following the vote by the Diocesan Convention on October 4, 2008 to realign. For ECUSA, despite your fish story, did not "create" the original Diocese of Pittsburgh; it merely recognized it, and accepted it into union with General Convention, after it had been created by its organizers out of the Diocese of Pennsylvania, which had preexisted (P)ECUSA. But ECUSA most certainly did "create and recognize" you -- which is why you are not the continuing Diocese of Pittsburgh.
We are disappointed that those leaders have chosen to continue legal action on a matter that Judge Joseph James of the Common Pleas Court determined last October was settled long ago, in an October 14, 2005 Stipulation and Court Order that was "clear and unambiguous."
In other words, having sold Judge James on your poppycock and balderdash, you expect to have the same success in the Commonwealth Court, and that your "former leaders" had just better throw in the towel right now? The only proper response to such overweening arrogance is that made by John Paul Jones, long ago: "I have not yet begun to fight!"
The 2005 Stipulation and Court Order was a court-approved agreement stating an “amicable resolution” to litigation over the control of property in the event of a separation from the Episcopal Church. . . .
What a concoction of spin! Yes, the October 2005 "amicable resolution" of your lawsuit was fashioned so as to deal with property issues in the event of "a separation from the Episcopal Church" -- but it was the anticipated (in 2005) separation of individual parishes, and not the separation of the Diocese itself. Look at the text of the Stipulation again.
The undisputed evidence shows that the former diocesan leaders who are now seeking to appeal agreed in 2005, through their attorneys, that the property would remain with the Episcopal Diocese “regardless of what circumstances might arise.”
Undisputed evidence!!?? Undisputed?? Is that why the parties offered over sixty exhibits to the court, and spent a full day arguing over what they meant? More of your despicable spin.
The parties agreed in the 2005 Stipulation that “their claims in this action have been settled and resolved” and Judge James has ruled the Stipulation means what it says. . . .
No, he did not rule that "the Stipulation means what it says." He ruled that the Stipulation -- which is ambiguous, and susceptible of at least two different meanings, meant what you claimed it said -- even though, when it was drafted, the only concern on the part of Calvary's attorneys was that other parishes might leave the Diocese. (You -- meaning you, the non-Episcopal, non-Diocese of Pittsburgh responsible for this statement, were not even around back then, remember? You were not even a gleam in Dr. Simons' eye.)
We will continue to enforce the 2005 agreement, and will respond with an appropriate defense within the courts.
No you won't. The one thing the appeal means is that the order to enforce the 2005 agreement is suspended pending the outcome of the appeal. And good luck trying to tell the banks and other non-parties to the lawsuit what the court "ordered" them to do.

I should apologize for being so testy with my fellow Christians in Pittsburgh. It's just that when they take off their collars and go into the law courts, they become -- well, so un-Christian. It is impossible for me to see any Christian charity and goodwill in a position that makes a mockery of the Constitution and Canons of ECUSA -- all so that they can argue that those documents mean something which they expressly do not say (just like the October 2005 stipulation). They are denying the heritage that gave them birth, and nothing good can come of it in the long run. Their only success -- and it can be called a "success" only in an ironical sense -- will be to transform ECUSA into a monolithic and metropolitical church, under one supremely arrogant and arbitrary metropolitan bishop to rule over all its clergy, and an equally arrogant and arbitrary leader to decree how its laity must conform themselves in every parish across the country. It will then have turned into the precise opposite of what it started out to be.

Sic transit gloria ecclesiae . . .


  1. You know Katie's shock troops are just dying to follow up with a declaration that all parish and diocesan property is not only "theirs", but is held in allodial title to boot!

    The way they run roughshod over the law pertaining to unincorporated associations and the "Statute of Frauds" implies that their lead counsel is the Father of Lies. I can't see where else such a spirit of confusion is coming from to befog the courts.

    Thanks for being a fresh wind and a legal light in these matters.


  2. I am wondering what the gist of the pro-Duncan side is in this. Is it that the diocese (as a group of churches) had a right to affiliate with PECUSA if it wanted, and not to, if it also wanted?

    Is it a free association argument>

    The Pennsylvania judges, heavily influenced by Roman Catholicism, are not going to adopt a specific set of rules for the hierarchy in the E-Church. No matter whether Pittsburgh can establish this or no.

    They are going to look to how such a resolution would be resolved in the Roman Catholic Church, and then proceed accordingly.

    And know your judge: Judge James was featured in a 2003 news article, quoted as such: ""You make your best call."

    If you don't know the intricacies of different religious systems, what do you think that call will be?

    it is a shame that the defendants can't structure their defense in terms of eminent domain, if the article tells us anything . . .