Wednesday, September 29, 2010

The Broken Window Fallacy

There is a lesson which, apparently, every new generation needs to relearn. The need for the lesson presents itself in ever new and updated guises, but it is still the same lesson. What is more, our ability to forget how to apply the lesson seems to afflict more and more of us faster and faster, with each successive generation.

This is how a meme (by analogy to "gene", a core idea or concept that forms a thread, running through the generations) which is essential to a free society can devolve, over time. Our forefathers had it so inbred into them that they did not even have to think about it. Put yourself back in 1789, in the role of an imaginary newspaper reporter asking the newly inaugurated President of the United States, "Mr. Washington, sir, what will be your administration's program to create jobs after the Revolutionary War for all those soldiers who have returned to the economy?"

In that context, the question shows its idiocy: it could never have been conceived as a question to ask President Washington, let alone conceive of a way that his mind could have grasped the premise inherent in it. "What -- the government create jobs? Are you daft, sir? That is not the proper function of government. Nor do I perceive any means -- even it if could be assigned that task -- by which it could accomplish such an impossibility."

The logic behind Washington's imaginary response to this imaginary question is irrefutable. The number of people which government requires to perform its proper functions is (or should be) fairly constant over time, on a per capita basis. (Jobs may increase to service more citizens as population increases, but jobs per capita should decrease with increasing productivity, as well.) Moreover, since government does not manufacture goods for commerce, the only new jobs it could "create" would be for people performing more government services. And in a declining economy, there is less and less need for more postal workers, or for more health and safety inspectors.

Even more important, the only way by which government could create new jobs out of thin air is by spending money. (For example, it could, as Napoleon suggested, put people "to work" by paying them to dig holes and then to fill them up again.) But think -- where does that money come from? From our taxes, of course -- which is to say, from our money. Once we have given it to the government, we have that much less to spend on the goods and services that keep everyone employed.

A private business uses its revenues to pay its employees, but those revenues come from selling goods and services that people value, and for which they are willing -- voluntarily -- to pay the prices which the business asks for them. The customers of the business then put those goods and services to use in their own lives.

Now think what it would be like if government operated that way. How much would you be willing to pay for that new aircraft carrier (suggested subscription price: $4,500.00, if at least one million people subscribe)? Oh, yes, that approach certainly would work as a means of providing for the common defense: "Try the next guy down the street; I'll pass, thank you." And that is why taxes are coerced, rather than voluntary.

These facts are obvious; one could scarcely believe that anyone needs to be instructed about them. But now listen to this excerpt from a recent column by Time magazine's Joe Klein, who is on a tour through middle America, sounding out its employed and unemployed:

Ten days into my cross-country road trip and I'm not finding much of the fist-shaking, Tea Party anger that you see on television. People are freaked out, though. They're frustrated and anxious. They're not too thrilled with Barack Obama's policies — although even his detractors see him as sincere and trying his best to turn things around — and they're not at all convinced that the Republicans are prepared to offer anything better, but the anti-incumbent, anti-Establishment mood is palpable. They can diagnose the problems, but they don't have any strong ideas about solutions. Most of the people at brunch say the government is spending too much, but when I ask whether they'd rather see the government closing the deficit or spending money to create jobs, most of them say jobs. There are ideological contradictions aplenty, which leads me to conclude that the notion of America as a conservative or moderate or liberal country is a fiction created by those of us who sit on top of Mount Opinion. More than a few voters I've met seem to be conservative, moderate and liberal all at once. Pat Moll, a police officer who doesn't like Obama at all, thinks the government should spend money to "put people to work in real jobs that last."
Note the false choice which the economically illiterate Mr. Klein put to his equally economically overwhelmed interviewees: should your Government spend less, or should it create jobs? That is like asking whether the government should stop Saturday mail deliveries, or spend more to put a chicken into everyone's pot. It is talk such as this that pervades the discussions of people who have been thrown out of work, and when the country is in a depression. The sentiment may be understandable, but it has to be shot down for what it is: terrible economics.

My imaginary reporter's interview with a new President, so inconceivable in the context of George Washington, would be much more believable if we shift the context to 1933, just after the election of Franklin Delano Roosevelt. For he actually believed that by spending more money, the government could put people back to work. As we all know in hindsight, he was dead wrong. Unemployment grew still worse in the 1930's despite massively increased government spending.

Some people (such as the economically illiterate Paul Krugman -- see below) say that it took World War II to take us out of the Great Depression, but that is not accurate, either. The War put people to work in factories, making bombs which blew things up, and planes and ships which only the government could use. People got paid, to be sure, but wartime goods were rationed, because they were so scarce. The economy did not return to normal until well after the war, when business was free to compete for labor and resources, and goods were plentiful once again.

The fallacy that government can put people to work by spending tax revenues (or, still worse, borrowed money) has a name that is convenient to remember, given to it long ago by economist Henry Hazlitt, in a chapter entitled "The Broken Window" in his classic book, Economics in One Lesson. Here is a graphic presentation of "The Broken Window Fallacy" (note the prominence of the New York Times's Paul Krugman, one of the leading advocates of the fallacy, at its outset):

Oh, and Henry Hazlitt's "One Lesson"? It is this:

"The whole of economics can be reduced to a single lesson, and that lesson can be reduced to a single sentence. The art of economics consists in looking not merely at the immediate but the longer effects of any act or policy; it consists in tracing the consequences of that policy not merely for one group but for all groups."

"Economics is haunted by more fallacies than any other science known to man."
-- Henry Hazlitt in Economics in One Lesson


Saturday, September 25, 2010

The Constitutional Crisis in ECUSA (I)

This will be the start of a new series of posts, to be called The Constitutional Crisis in ECUSA. Recent changes made by General Convention 2009 to the Canons, in combination with some in the Church who want to establish a strong central authority under the Presiding Bishop, and the ego of the current occupant of that office, have pushed ECUSA to the brink of a crisis, from which it cannot emerge unscathed. Presiding Bishop Katharine Jefferts Schori has already seized authority over the affairs of the Church which is unprecedented -- and her usurpation of authority to date has for the most part not been challenged, or questioned. Led by its Presiding Bishop, ECUSA is in the middle of being transformed by a small group from within, and the average congregation and their clergy as yet have no awareness of the scope of the changes. It will be the purpose of this series of articles, drawing on previous posts which I shall reference, to lay out the big picture clearly enough for anyone to form their own conclusions from the facts presented.

1. A Short Institutional History of ECUSA

The crisis stems from the fact that certain parts of the Church are exceeding their authority under the Constitution and Canons, and that there is no check on what they have done, and are in the midst of doing. (Remember that, unlike the United States of America, there are no checks and balances within the structure of ECUSA. Nor is there any highest body with any power to declare the actions of any other part of the Church "unconstitutional.")

The Church at bottom is a voluntary association of sovereign, or self-governing, member dioceses. Originally separate churches, each in its own colony, they joined together after the Revolutionary War by mutual contract, which was the Constitution of the "Protestant Episcopal Church in the United States of America" (PECUSA -- now more commonly without the first word, or ECUSA). A Diocese -- which is also a voluntary association of member parishes and their clergy -- at first joined the national Church by attesting that it agreed, or "acceded", to the Constitution. Note that there was no accession required to the canons adopted in General Convention, or to General Convention itself. Nor was there any requirement that the accession so attested be "unqualified"-- a word first added to the Constitution in 1982. (See this earlier post for the text of the original Constitution adopted in 1789, and see in particular Article V thereof.)

Article I of the original Constitution established a "General Convention" -- a representative body composed of delegates ("deputies") elected and sent by the member dioceses, and (in a separate chamber, or "House") the bishops who headed up each member Diocese. To General Convention was given the legislative power of the dioceses assembled in the persons of their respective bishops, and clergy and lay representatives. Its principal purpose was to establish and maintain a uniform liturgy, through the Book of Common Prayer (derived from its equivalent in the Church of England), and through a body of rules, or canons, for the Church's governance (again modeled on the canons of the Church of England).

From its outset, the national Church has had neither an executive body, nor a judiciary body -- other than for episcopal disciplinary matters. (That is why analogies between the Constitution of the United States and the Constitution of ECUSA are inapt.) Its member dioceses come together in convention only once every three years, for only a number of days. ("Special Conventions" have occasionally been called to address pressing issues which arose between scheduled Conventions.)

The bishops were a necessary part of an "Episcopal" church, but America had none before the Revolutionary War. It took some convincing on the part of the new Church, and a change in the law by Parliament, before the Archbishops of Canterbury and York could be persuaded to ordain the candidates from America (Bishop Seabury of Connecticut grew tired of waiting, and was ordained in Scotland). Once there were three such bishops ordained in the apostolic succession, they ordained later bishops in America, who were each elected by their respective dioceses.

The only requirement in the first canons for the ordination of a new bishop was that he present two certificates to those bishops ordaining him: one from his own State's convention, attesting to his due election and episcopal character, and one from the members of General Convention itself, who thereby evidenced their consent, and attested to the lack of any impediment to his ordination. (These requirements derived from the conditions which the English Archbishops had established for the ordination of candidates from America.) For its first decade, the new Church performed its episcopal ordinations during sessions of General Convention. In 1799, General Convention adopted a requirement that any episcopal consecration not occurring during one of its triennial sessions receive the approval of a majority of the diocesan standing committees; the requirement for the consent by a majority of bishops in the interim between Conventions was added in 1820, after the House of Bishops had become more numerous.

Other than procedures for the approval of episcopal elections during and between Conventions, and some minimal requirements at the national level, the rules governing a bishop once confirmed were derived mainly from the constitution and canons of his own diocese. The national Constitution did limit the exercise of his powers conferred by ordination to the diocese electing him. The Constitution, however, was not seen as the source of episcopal powers, which stemmed instead from ancient tradition. The powers of General Convention, on the other hand, were viewed as having been delegated to it by the respective dioceses, in accordance with the sixth (and final) fundamental principle first given expression by the Rev. William White of Philadelphia, in a pamphlet published seven years before the adoption of the first Constitution (emphasis added):
VI. That no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations.
As explained in this previous post, the position of Presiding Bishop at first rotated among the Church's original three bishops, but then devolved by consent upon the most senior member of the House of Bishops. It was not until 1925 that the Church had its first elected Presiding Bishop, and it was not until 1948, with the installation of the Most Rev. Henry Knox Sherrill, that the office began to acquire a significant staff of permanent employees -- which, over the ensuing years, became the bureaucracy now headquartered at 815 Second Avenue, in New York.

Despite giving him complete control over an extensive staff, the Church steadily rejected proposals to give the Presiding Bishop the powers of a metropolitan archbishop, with authority to command and discipline inferior bishops under his jurisdiction. General Convention in 1982 rejected a proposed constitutional amendment to change the title of the office from "Presiding Bishop" to "Archbishop", precisely because of concerns that such a change might imply the conferral of metropolitical authority. (To give the Presiding Bishop standing with the other primates in the Anglican Communion, Canon I.2.4 was changed in 1982 to describe him as the "Chief Pastor and Primate of the Church." However no additional authority was thereby conferred, since to do so would have required an amendment to Article I of the Constitution, such as the one that the assembled deputies and bishops rejected.) That description of the office has remained unchanged since.

In summary of the foregoing brief history, ECUSA is a voluntary association of sovereign (i.e., self-governing) member dioceses. Together in General Convention (or individually, in the interim between its sessions), they approve the elections of new bishops prior to their consecration, and every nine years they elect a new Presiding Bishop. The latter has no see of his own, and just like any other bishop in the Church, has no authority to act within any Diocese except with the consent of the Ecclesiastical Authority of that Diocese (either the diocesan or his acting successor, or in default thereof, the diocesan Standing Committee).

2. Encroachments on Dioceses by the Current Presiding Bishop

With the election of the Rt. Rev. Katharine Jefferts Schori to be Presiding Bishop in 2006, the authority claimed by that office began to expand considerably. The first woman to be elected to that office, she began by abusing the terms of the Abandonment Canon. That rule had been adopted in 1853 to provide a means of removing from the rolls bishops and clergy who left the Church to join non-Anglican denominations (such as the Roman Catholic Church), without bothering to resign their orders first. In five sequential violations of Canon IV.9, Bishop Jefferts Schori (1) trumped up charges (which did not satisfy the Canon's requirements) against the Rt. Rev. William J. Cox (at 86 years old, the Church's most senior bishop); (2) delayed informing him of the charges while she unsuccessfully tried to obtain the canonical consents required to inhibit him (i.e., restrict him from performing episcopal acts); (3) rammed through the House of Bishops a resolution "deposing" him even though, since he had not been first inhibited, the Canon made no provision for such a vote; (4) declared that the resolution had passed, even though the number of votes required by the Canon had not been achieved; and (5) blatantly signed a false certification that he had been duly deposed in accordance with the Canon!

That was evidently just a warm-up, to practice what her fellow bishops would let her get away with unchecked. Since that initial travesty, the Presiding Bishop has gone on to:
Notice that each of these usurpations of authority has occurred in derogation of the authority of individual bishops, of self-governing dioceses, of the authority of the collective House of Bishops, or even of the authority of General Convention itself (as in her committing the Church to spend millions of dollars which it did not have budgeted). In short, without having ever been given the authority of a metropolitan, Bishop Jefferts Schori increasingly is acting like one. After filling just one-third of her term in office, she exercises more authority over her fellow bishops and the Church's member dioceses than any Archbishop of the Church of England.

3. The 2009 Changes in the Canons

In a question-and-answer session on the eve of the "special convention" she had illegally called in March 2008 to install Jerry Lamb as the "Provisional Bishop" of San Joaquin, Bishop Jefferts Schori made a remarkable prediction about some upcoming changes in the Church Canons:
When asked whether the House of Bishops will strengthen itself to deal with bishops who mistreat their dioceses, Jefferts Schori, reminding the audience of the Episcopal Church's governance structure, said such discipline is "not technically the responsibility of the House of Bishops."
. . .

Jefferts Schori said that the fact that the Episcopal Church is made up of "relatively autonomous dioceses in relationship with each other through General Convention" means that discipline in part "depends on people being able to call each other to account," as opposed to having one person able to impose penalties.

The Presiding Bishop predicted that the next meeting of General Convention in July 2009 would be asked to consider ways to change the canons to better deal with such disciplinary matters.
The revisions to the disciplinary section of the Canons ("Title IV") proposed at Anaheim in 2009 lived up to Bishop Jefferts Schori's prediction: with very little time to consider their sweeping nature, and with no line-by-line comparison of what was being changed made available to them (contrary to what the Canons themselves require), the deputies enacted changes the full scope of which no one -- not even those who had labored for years to draft them -- grasped. The extent of the disciplinary powers over other bishops alone which the new Canons give to the Presiding Bishop transform her -- in contrast to what tradition and ECUSA's Constitution say -- into a full-fledged metropolitan. Consider just these points (see this paper for the full details):
  • Currently, if the Presiding Bishop wants to bring charges against another bishop, she has to send a written presentation of just the facts, without any editorializing, to an independent "Title IV Review Committee" consisting of bishops, clergy and laity. Under the new Canons, the Presiding Bishop is empowered to refer, "in any form", information about any offense she thinks "may" have been committed to an "Intake Officer", whom she alone appoints.
  • Currently, the Title IV Review Committee screens and evaluates each potential charge against a bishop. Under the new Title IV, the Presiding Bishop, along with her appointed "Intake Officer", have two out of the three votes on the "Review Committee" which now screens the charges.
  • Currently, the Presiding Bishop may inhibit a bishop only if the Title IV Review Committee decides to present charges, and only if a majority of all the members of the affected diocesan Standing Committee consent. Under the new Title IV, the Presiding Bishop may act alone, and out of the blue, to inhibit a fellow bishop (the word "inhibit" has been replaced by the term "place restrictions on the exercise of the ministry" of a bishop).
  • Currently, any inhibition is "temporary", and is "an extraordinary remedy, to be used sparingly and limited to preventing immediate and irreparable harm to individuals or to the good order of the Church." Under the new Title IV there are no such limitations on its use -- restrictions may be imposed for any duration, and for any reason(s) the Presiding Bishop, in her sole judgment, thinks are sufficient.
There is more, but these comparisons are enough at this point to demonstrate the truth of my assertion that the new Title IV purports to confer upon the Presiding Bishop the authority of a metropolitan archbishop, despite ECUSA's history and polity to the contrary. If the changes to Title IV were now in effect, the Presiding Bishop could immediately place restrictions on Bishop Bennison again, and effectively remove him from the episcopal life of the Diocese of Pennsylvania -- she would only have to cite his "lack of repentance" as a reason. (She would have the full support of the diocesan Standing Committee, even though she would not need it under the revised canons to act.) The time he would spend in appealing the restrictions would exhaust the remainder of his term of office, and he would never visit another parish in Pennsylvania again as its bishop.

But likewise, if the new Title IV provisions were now in effect, the Presiding Bishop could use the latest whine from the Episcopal Forum of South Carolina as a basis to place restrictions on the ministry of Bishop Lawrence -- without the consent of, and against the wishes of, his Standing Committee. That is why the Diocese of South Carolina has proposed resolutions which would refuse to assent to the changes adopted by General Convention, and which would leave disciplinary procedures and structures in that Diocese are they are currently instituted. And that is partly why the Episcopal Church (USA) currently finds itself in a constitutional crisis.

4. The Clash of the Warring Factions

Bishop Lawrence has now responded very succinctly and very directly to the trumped-up charges made by the Episcopal Forum, which has been a thorn in the side of orthodox South Carolina bishops for seven years. But his appeals to ECUSA's Constitution, and the limits it places on any one bishop's authority over other bishops, are falling mostly on deaf ears. The usual enablers of the Presiding Bishop are rushing into print with their criticisms of what they regard as a challenge that comes too late: see, for instance, this piece, and this one, which has further links to like-minded thoughts. In arguing that South Carolina should have made its objections to the changes known at General Convention, the enablers parrot the line that Bishop Jefferts Schori used to justify her illegal depositions to her fellow bishops: "since there were no objections at the time, what's done is done, and cannot be undone."

The enablers believe there are no limits on the powers of General Convention, because none is expressed in the Constitution. Paradoxically, the same enablers believe that there are definite limits on the powers of dioceses (such as not being able to leave the Church) -- even though none is expressed in the Constitution.

Do you begin to see the problems here? Troubles aplenty are ahead for the Episcopal Church (USA). In future posts in this series, I shall describe them as I see them, one by one.

Friday, September 24, 2010

Virginia Case Goes Back to Trial Court; San Joaquin Case Set for Argument Oct. 20

In a one-page order entered today, the Virginia Supreme Court denied the CANA/ADV congregations' petition for a rehearing or clarification, without comment. This sends the case back to Judge Randy Bellows' court in Fairfax County, for further proceedings based on a "neutral principles" analysis of deeds, charters, and diocesan and national canons. For the reasons I gave in this earlier analysis, the Supreme Court's refusal to rethink its reading of the Division Statute essentially throws out the window the weeks of hearings devoted to its applicability and constitutionality, and the millions of dollars spent by both sides in arguing over its validity and application to the facts of the case. Until another Supreme Court revisits the issue, the Division Statute is all but dead for any but purely congregational churches, which by definition divide into two "branches" when they split. (The same was true here with regard to the formation of the ADV out of the Diocese of Virginia, but the Court simply was not interested in hearing those facts.)

The parties have already had a foretaste of what will happen now, when the case resumes before Judge Bellows. Just before issuing a final judgment in the case, he held a mini-trial on the issue of whether a two-acre parcel that had originally been given to the vestry of Truro Church went to the vestry of The Falls Church as Truro's legal successor, or whether it had reverted to the Diocese, which during the pending proceedings had quit-claimed it to Christ Church Alexandria. (His letter opinion deciding this issue may be downloaded from this link.) Resolution of this issue (in favor of The Falls Church) required Judge Bellows to go through the same kind of neutral principles analysis as he will now conduct with regard to the rest of the parishes' properties.

Look for lots more briefing, lots more experts testifying, and lots more being spent on attorneys' fees before this multidistrict litigation is finally resolved at the trial level. There will then undoubtedly be another attempt, by the side that loses, to appeal any final decision to the Supreme Court again (which does not have to accept the appeal). I would estimate that it will be another two to three years before there is any final outcome in Virginia.

In the Diocese of San Joaquin, the Fifth District Court of Appeal has notified the parties that oral argument on the writ from the trial court's grant of partial summary judgment will take place in its courtroom in Fresno on Wednesday, October 20, at 10:00 a.m. You may visit the links on the San Joaquin page for a full analysis of the issues that will be argued.

Wednesday, September 22, 2010

In Texas, ECUSA Es Muy Loco

The official "piling on" strategy of the Episcopal Church (USA), to which I referred in this earlier post, has now been carried to an extreme in Texas. Late last night, from the official blogs, came word of a new lawsuit filed by the Potemkin diocese of Fort Worth against Bishop Jack L. Iker. (They already have two other lawsuits pending against him.)

This new lawsuit is simply crazy, if you will pardon the expression. It is filed in federal district court, because it asserts trademark claims under the Lanham Act, a federal statute (15 U.S.C. § 1127, for the lawyers). But given The Jefferts Schori StrategyTM, it is safe to say that the suit is a non-starter. First download the complaint for yourself, then let me explain.

Notice first that the lawsuit has just two parties: the plaintiff is "the Episcopal Diocese of Fort Worth", while the defendant is none other than Bishop Jack L. Iker, personally. The plaintiff alleges that the defendant is making "unauthorized use" of its "service marks" in order "to identify religious services and works." Paragraph 2 specifically asserts:
The purpose of service marks under 15 U.S.C. § 1127 is to identify and distinguish the services of one person or organization, including a unique service, from the services of others and to indicate the source of the services.
Do you notice the 800-lb. canary that is missing in this picture sketched by the complaint? Ask yourself: just who is the "source" of the "religious services and works" which the plaintiff claims are being infringed? Who puts on religious services in Fort Worth -- is it just Bishop Iker? And who performs "religious works" -- again, is it just Bishop Iker?

To take the complaint at its word, Bishop Jack L. Iker is the sole source of all religious services and works being performed in the name of the "Episcopal Diocese of Fort Worth." And therein lies the plaintiff's dilemma.

For if the plaintiff is an "Episcopal Diocese" in Fort Worth, then what, pray tell, are the majority who voted to realign with the Province of the Southern Cone? Are they not a diocese -- an Episcopal diocese -- as well? And is it not the diocese, rather than the bishop personally, which is the source of the "religious services and works" performed by its clergy and laity -- including its bishop? In short: what does a bishop amount to without a diocese?

The plaintiff Potemkin diocese, however, cannot legally admit the existence of another -- and hence older -- diocese, because to do so would be to concede that it, the plaintiff, is a newer "diocese", formed out of the remnant of those who dissented from the vote to realign. The failure to acknowledge what I am calling the "800-lb. canary" does not, however, mean that it is not there. It should be easy for Bishop Iker's attorneys to demonstrate to the court that not only has the plaintiff named the wrong party defendant, but that the plaintiff itself lacks standing to sue.

After all, there is already an opinion from the Texas Court of Appeal holding that there is only one Episcopal Diocese of Fort Worth, "which both a minority and a majority faction claim to control." The same court went on to note:
We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction.
But that is just what is going on here. The minority faction of the diocese is suing the majority (via their bishop) for using its signs and trademarks -- which the majority by definition should be able to do, since it is the majority. In order to avoid this rather obvious conclusion, the plaintiff has to pretend that it is the whole diocesan entity, and so it has to ignore the real diocese in its pleading. Look at these allegations on page 4 of the complaint:
Defendant and His Use of Plaintiff's Service Mark

12. Defendant withdrew from The Episcopal Church and pledged his allegiance to a different denomination. He is still providing religious services and works in the North~Central Texas area.

13. Defendant has been and 18 currently providing, advertising, and marketing his religious services and works using the Plaintiffs Service Marks.

14. Plaintiff does not provide, sponsor, authorize, or control the content of the religious services and works of Defendant.

15. Defendant's use of the Service Marks is without the express or implied consent of Plaintiff.

Public Confusion and Harm

16. Defendanf s unauthorized use of the Service Marks in his provision, advertising, and marketing of religious service and works is likely to cause confusion among the public seeking to participate in, benefit from, or support Plaintiff's religious services and works.

17. Members of the public seeking religious services or works of the Plaintiff may attend or support services provided by Defendant under the mistaken belief that Defendant's services are being provided by, sponsored by, or affiliated with Plaintiff.

18. Members of the public may also associate the quality andlor content of the religious services and works offered by Defendant with those offered by Plaintiff, although, as explained above, Plaintiff does not provide, sponsor, authorize. or control the content of Defendant's religious services and works.
According to the plaintiff, it -- an alleged diocese -- is in competition with a single individual, a bishop, in the business of providing "religious services and works" in the Fort Worth area. But if an individual can do what a whole group does, then why is not Bishop Ohl the plaintiff in this Lanham Act lawsuit?

The answer is simple: it is the diocese, not the bishop, which owns the rights to the name. The Episcopal Diocese of Fort Worth has been doing business under that name openly and continuously since January, 1983. And thus we come to the main reason why the plaintiff cannot bring itself to acknowledge the existence of such an organization, except to claim that it is that organization, when it clearly cannot be -- the plaintiff began its existence as a Texas unincorporated association only in February 2009.

Once the plaintiff is forced to acknowledge the existence of the diocese from which it sprang, its rights to the trademarks of that diocese will be shown as the bogus claims which they are. Indeed, look for a countersuit to be filed by the real Episcopal Diocese of Fort Worth against the upstart group. That countersuit will make plain to the court just which group is the majority, and which is the minority. The minority will then be reduced to the same task that it has in the underlying suit in Tarrant County District Court: to convince the court that as a matter of law and covenant, a diocese which once joins the Church may never again withdraw, and not because of anything in writing stating as much, but because of other certain provisions from which such a rule may be implied.

If the Potemkin group loses that argument, as it should, it will then lose all right to make a claim against the majority under the Lanham Act. The majority has been using the mark "Episcopal Diocese of Fort Worth" daily since the group's founding, in early 1983. This is not, after all, a case like Church of Scientology International v. Elmira Mission of the Church of Scientology (2d Cir. 1986) 794 F.2d 38. In that case, the plaintiff had actually licensed the defendant mission to use the name "Church of Scientology" in its title, and in exchange for that license, the mission handed over fifteen percent of its revenue to the mother church. When the mission stopped paying money for the license, the mother church sued it in court, and successfully prevented the mission from continuing to use the name without a license.

How, then, can the Potemkin diocese even claim to be the holder of a trademark in the name "Episcopal Diocese of Fort Worth"? Why, look at the exhibits to the complaint! It makes that claim because earlier this year, it applied for and then was granted a registration of that mark on the Principal Register of the U.S. Patent and Trademarks Office. (It was also granted a registration for the characteristic shield of the real Diocese, which appears on its initial Web page.)

But to apply for and receive those registrations, the Potemkin diocese had to impersonate the real Diocese. Look at the registrations again: they both say that the applicant claims to have made "first use" of the marks in January 1983.

This is typical of the headlong strategy applied by the Episcopal Church (USA) in each of its diocesan lawsuits to date. It sets up a remnant minority, furnishes it with a puppet figurehead, and then tells it to act as though it were the actual diocese, by filing papers with the secretary of state -- and in this instance, by filing papers with the USPTO.

Those agencies make no inquiry into the legitimacy of the person behind the application, because they are not equipped to do so. They simply assume that the applicant would have no reason to try to falsify the application. Because under the rules of the USPTO, if another person (e.g., the real Episcopal Diocese of Fort Worth) believes it will be harmed by a registration, it files with that office a Petition for Cancellation. The matter is then referred to the Trademark Trial and Appeal Board, which is quite used to looking into pre-emptive attempts at registration to get the jump on the competition. If it finds that the applicant was dishonest, or less than forthcoming, in any aspect of its application, it can cancel the registration forthwith.

This short-term strategy seems destined to backfire, because the USPTO is not governed by any "hierarchical deference" doctrine -- and moreover, ECUSA itself is not asserting any rights in the mark. Faced with a claim by one entity which began its existence in February 2009, and by a second entity which has existed continuously since January 1983, the Trademark Trial and Appeal Board should have no difficulty in sorting out the priorities.

One has to ask: just who is funding these legal maneuvers? Is this how the Potemkin diocese is spending the money it has been given or loaned from the DFMS, through the Executive Council? If so, then because there is zero oversight of any legal maneuverings, this will be yet one more instance of ECUSA litigation run amok.

Tuesday, September 21, 2010

Oh, Good Grief, Bishops -- WHEN Will You Act Consistently?

No thanks to The Lead's Jim Naughton, but the Episcopal Church (USA)'s House of Bishops covered itself again in shame this day. As the very last act of their six-day September meeting in Phoenix, they adopted a resolution addressed to their colleague, the Rt. Rev. Charles E. Bennison, Jr., begging him to resign immediately as Bishop of Pennsylvania. (As Fr. Rob Eaton observes at T19, notice what that says about the much-vaunted "hierarchy" of ECUSA: in other words, when push comes to shove, it does not exist.) In view of the previous actions taken by this same House of Bishops against Bishops Cox, Schofield, and Duncan, and in view of their Presiding Bishop's unilateral declarations of "renunciation" by Bishops Iker, Wantland, Scriven and Ackerman, this latest action is as pathetic as it is risible.

It is pathetic, because it confesses their lack of will to address a problem which they acknowledge is a scourge of the Church: abuse of minors by clergy, and the subsequent coverup of that abuse by the clergy's superiors. Instead of addressing the problem, they mouth pious platitudes which are completely belied by their confessions of inability to act.

Equally, their failure to act is risible in light of the manner in which most of them -- from the Presiding Bishop down to the most recent to be ordained -- found it "necessary" to vote to depose the Rt. Rev. Robert A. Duncan at their September meeting in 2008. Consider these contrasts:
  • Bishop Duncan had, by September of 2008, made absolutely no move to leave the Episcopal Church (USA), yet the assembled bishops saw fit to entertain a charge that he had "thought" about abandoning it -- and just as "encompassing [i.e., entertaining the thought of] the death of the King" was deemed sufficient to charge a British subject with treason, so Bishop Duncan's alleged "contemplating" leaving the Church for another province was treated by the bishops as sufficient grounds for his removal. Bishop Bennison, by way of contrast, actually engaged in conduct unbecoming a member of the clergy, but a "thought crime" by Bishop Duncan was deemed more worthy of punishment than an actual violation of vows by Bishop Bennison.
  • Bishop Duncan was made the scapegoat for his diocese's decision to put a resolution to realign with another province on the agenda for its annual convention. Bishop Bennison, in contrast, stoutly resisted being made a scapegoat for his brother's actions, and the bishops chose to agree with him, rather than with Bishop Duncan.
  • The House of Bishops found that Bishop Duncan had violated his ordination vows by "contemplating" the removal of his diocese from the Church, and deposed him on that basis. That same House of Bishops has also agreed with the Court of Review that Bishop Bennison violated his ordination vows by protecting his brother from charges of abuse, but has excused the violation by treating it as non-actionable.
  • The Presiding Bishop announced her intention to bring the deposition of Bishop Duncan to a vote well in advance of the meeting of the House of Bishops, but this year she gave absolutely no advance notice that she would be bringing the case of Bishop Bennison up for the bishops' consideration. Instead, it was a last-minute gesture, by way of a finial fig leaf.
  • The Presiding Bishop also announced in advance what her rulings would be on any objections made to the vote to depose Bishop Duncan, thereby telling those who supported the move that they could safely vote in favor of it. She signaled no similar position with respect to Bishop Bennison, and thereby killed any plan to remove him before it could be born.
The hypocrisy does not stop there. Bishop Schofield, Bishop Wantland, Bishop Duncan, Bishop Scriven, and Bishop Ackerman each gave the Presiding Bishop a statement in writing that they were not renouncing or surrendering the orders into which they were ordained -- but she pronounced that they had "renounced" or "abandoned" them anyway. Bishop Bennison has likewise made repeated declarations that he was not resigning or vacating his see -- but the Presiding Bishop in this case takes him at his word, and does not find his statement of intent a "renunciation", nor does she bring forward a resolution to depose him. Go figure.

I have no love for what Bishop Bennison did to protect his brother, so I cannot exactly rejoice that the Church has thus far not seen fit to violate its canons in order to achieve the goal of removing him from office, as it did in the case of the bishops just mentioned. Nor can I even savor the poetic justice that would inhere in applying against Bishop Bennison the very same uncanonical procedures for which he undoubtedly would have voted (given that he was the first bishop in ECUSA to abuse the Abandonment Canon) in the cases of Bishops Cox, Schofield, and Duncan, but for his previous inhibition by the Presiding Bishop.

I find it nonetheless despicable, and wholly worthy of scorn, that these same spineless bishops can find themselves piously impotent in the case of Bishop Bennison, while viewing themselves as righteous vindicators of "the communion of this Church" in the case of their other -- far more faithful, and far less blameworthy -- colleagues. In both cases, the bishops so voting have trampled on the very communion which they profess to uphold.

And let them note that in the act of doing so, they have furnished Bishop Bennison with the means to hide behind Psalm 35, verse 26:

May those who want to harm me be totally embarrassed and ashamed!

May those who arrogantly taunt me be covered with shame and humiliation!

For, given their past inconsistencies, they are now nothing, if not absolutely covered with shame and humiliation. That is the price one pays when one chooses, out of expediency, an unscrupulous and morally incoherent path.

Monday, September 20, 2010

On Serving Two Masters: Part VII of "The Runaway Train"

[N.B.: This is the seventh of a multi-part series entitled: "ECUSA and its Attorneys: a Runaway Train". The previous posts are the Introduction, Part IPart II, Part III, Part IV and Part V.]

"No servant can serve two masters."

--Luke 16:13 (from Sunday's Gospel reading)

In the introduction to this series, I sketched the background of the question it would be addressing, by reviewing the rules of legal ethics which govern an attorney who represents dual clients. The rules require that both clients give their "informed consent" to such dual representation, or else the attorney is disbarred from representing either. Such informed consent entails that the clients understand the kind of conflicts that could arise from having the same attorney represent their individual, but varying, interests which are at stake. When the interests or goals of the individual clients clash with one another, or each demand priority, then once again, the ethical rules command that the attorney withdraw from the dual representation. And because of the confidentiality gained from representing both clients together, the attorney is thereafter precluded from representing either client further. An attorney may serve two masters, but only for as long as those two masters are in complete agreement, and have an identity of interests.

The current Presiding Bishop's Chancellor, Mr. David Booth Beers, began by representing the Presiding Bishop (originally, Bishop Griswold, and now Bishop Jefferts Schori). That original representation had to do exclusively with clergy disciplinary matters under Title IV of the Church Canons, and with the role of the Presiding Bishop in the House of Bishops and at General Convention.

Beginning in 2001 (and perhaps earlier -- but certainly in 2001, and continuously thereafter), however, the representation began to expand into litigation involving the whole Church. The unincorporated association of dioceses which constitutes the Episcopal Church (USA) was at first named as a defendant in the All Saints Waccamaw litigation in South Carolina, but soon thereafter it began appearing as a plaintiff, the instigator of a lawsuit. However, none of the lawsuits so instituted by "the Episcopal Church" was ever approved by all, or even a majority, of the Church's member dioceses -- they were simply filed at the direction of the Presiding Bishop.

This might not have become an issue if it had remained a matter of just one or two lawsuits. But as we have seen in the preceding posts in this series, the lawsuits have multiplied in number until the Church is now a plaintiff in more than two dozen of them across the country. Their total cost to the Church is in the tens of millions of dollars.

Supposedly, the costs being incurred are balanced by the value of the property and assets which are at stake. Even this assumption, however, must be questioned as the total money committed to the fights climbs and climbs -- first twelve million, and then in just two short years, twenty million, and soon -- what? Thirty million, forty million? The Church's entire budget amounts to forty-seven million dollars in one year, and the mushrooming lawsuits threaten to swallow it entirely.

There has been no informed decision-making at any step along the way in this process. Instead, there has been only the private deliberations of just three persons: the Presiding Bishop and her two attorneys (both of whom used to belong to the law firm that is earning all the millions and millions of dollars from prosecuting the more than two dozen lawsuits). Episcopalians have to ask themselves if this is the kind of leadership of their Church which they expect, and whether the goal that leadership has fixed is worth the horrendous costs.

Even more, however, the clients should be asking whether they are getting proper representation, in accordance with the ethical requirements applicable to attorneys. Over the past four years, there has been increasing evidence of conflicts between the goals of the Presiding Bishop, and the goals of the Church as a whole (meaning its 106 dioceses). Consider just these instances:

1. Hypocrisy in Virginia

In Virginia, one of the issues in the litigation was whether each of the realigning parishes had conducted a proper vote of its members before filing their petitions requesting a determination from the court confirming their ownership of their properties. Specifically, one voting issue turned on whether a "majority of the whole number" of parish members entitled to vote meant (a) a majority of all of the persons enrolled as "members" of the parish, regardless of how many actually showed up for the vote; or (b) a majority of just those members present and voting at the meeting called to vote on the realignment. The Chancellor's law firm, Goodwin Procter, filed multiple briefs with the Fairfax County Circuit Court arguing that the statutory language had to be interpreted in the sense (a) above -- so that the actual "majority" required for the vote to be effective would be much higher.

At the very time Goodwin Procter was making this argument to the Virginia court on behalf of the Episcopal Church (USA) in the pending litigation, David Booth Beers (then still a member of Goodwin Procter; he is now "of counsel"), the Presiding Bishop's Chancellor was advising the House of Bishops that those very same words -- a "majority of the whole number" had to be interpreted according to sense (b) above when it came to voting to "depose" Bishop Robert Duncan of Pittsburgh, so that a much smaller number (59 instead of 151) could approve the deposition.

In other words, when it suited the Presiding Bishop to interpret the words in their second sense, her Chancellor did not balk at advising her exactly contrary to how his law firm was advising the Virginia courts, supposedly on behalf of the Church as a whole. A more direct example of a conflict between the litigation interests of the Church and the personal interests of its Presiding Bishop would be difficult to find. (And in the end, it was the interests of the Church which had to yield -- its opposition to the manner in which the votes were conducted by the realigning parishes was later quietly dropped -- without, of course, any consultation with the member dioceses as to the reasons for doing so).

2. Establishment of "the St. Ives Fund"

The second area of conflict has to do with the sheer amount of attorneys’ fees going to the law firm with whom Mr. Beers is associated (and with whom the Presiding Bishop’s special assistant for litigation, Mary Kostel, was formerly associated, as Mr. Beers’s junior). Out of the estimated total of $21,650,000 committed to legal costs to date, as I identified in this previous post, it is a fair guess that at least half of it has made, or will make, its way to the bottom line of that one law firm, Goodwin Procter of Washington, D.C. Had the Presiding Bishop herself been sued, or had she needed to sue someone in her capacity as such, there would have been nothing improper in Mr. Beers’s recommending his law firm’s services for that purpose, given the pre-existing personal relationship between them.

However, it is another thing entirely for the executive officer of a large corporation to hire her personal attorney’s law firm to represent the corporation at large in litigation whose costs will run into millions and millions of dollars. That decision is for neither the executive nor the attorney alone, nor for either of them in collusion. The ethical rules which I covered in the first post in this series mandate that the decision be made by a disinterested person or group in authority at the corporation. Nothing of the kind was ever done at the Episcopal Church (USA). The rules also require that the same disinterested authorities remain in control of the litigation until its conclusion, so that there is accountability for the costs in relation to the benefits. Nothing like that has been done at ECUSA, either.

The existence of this second conflict is objectively proven by the recommendation made to the Executive Council, at its meeting in Stockton in January 2009, to form a new trust fund under the aegis of the Church’s DFMS to receive donations to be used exclusively to defray legal costs -- the “St. Ives Fund.” The “explanation” given to the Council, which adopted the proposal unanimously and without any discussion, was as follows:
Trust Fund # 1033, The St. Ives Fund, is intended to provide financial support for legal costs associated with efforts to defend and preserve the Church’s rich heritage, which includes physical and intellectual property. The initial expressions of interest for the St. Ives Fund have come from members of the legal profession, including lawyers, judges and law professors. As of 12/31/08, $11,000 had been raised to fund the trust.
If the legal expenses were not a significant drain on the Church’s budget, there would have been no need, and no motivation, to establish the St. Ives Fund. But again, there is no discussion of the conflict. At any rate, now that the St. Ives Fund has been assigned an official number, interested persons may track its success (or lack thereof) in getting funded by following it in the annual editions of ECUSA's Trust Fund Book (it had grown to nearly $18,000 by the end of 2009).

3. Fees Far Exceeding Value of Properties "Recovered"

A third area of conflict is also created by the need to pay so much in legal costs and attorneys’ fees in order to accomplish what ECUSA's leaders see as their objective. Time and again, we have seen the Church go after parish properties for which it has no foreseeable use in the future, and which accordingly are placed on the market as soon as they are “recovered.” This gives the lie to the above “Explanation” offered as the raison d'ĂȘtre for the St. Ives Fund: the purpose of the lawsuits in such cases is precisely not “to defend and preserve the Church’s rich heritage,” but rather to enrich the Church’s coffers, if possible, by profiting from the sale of the property after the payment of the legal costs incurred to acquire it.

Thus far, however, the value of the properties actually recovered is many, many times less than the amounts expended to date, which total more than twelve million dollars as of the end of 2009, and which, as explained in the previous post, will top twenty million dollars by the end of 2012. The sale of the Church of the Good Shepherd in Binghamton, New York, brought in less than fifty thousand dollars to the Diocese of Central New York, and doubtless some readers of this blog could fill in some details of the handful of other sales of recovered church property which have occurred to date. The total can scarcely equal half a million dollars, and none of it is reported as having gone to the Episcopal Church (USA) itself, as opposed to going to the diocese involved. Thus if the purpose of all the lawsuits were truly as the Executive Council was told in January 2009, they are failing to achieve it -- and not only failing, but failing abjectly.

Instead, Goodwin Procter is profiting handsomely at ECUSA's expense, thanks to the lack of objectivity in its hiring and of continued oversight for its litigation objectives. This is a monumental conflict of interest, and involves a failure of fiduciary responsibilities in all branches of the national Church.

4. Aggrandizing the Presiding Bishop's Power at the Expense of the Dioceses

On a par with the foregoing conflicts of interest, but even more all-pervasive, is the widening gulf between the canonical powers of the Presiding Bishop under the Church's Constitution and Canons, and the extent of those powers as represented to the civil courts in the property litigation cases. Numerous others besides this blog (which has a whole page of links devoted to the topic) have called attention to the fact of how the arguments which the Presiding Bishop is making in the secular courts, in deposing clergy and in claiming the right to "derecognize" diocesan authority, are at odds with the position of many member dioceses about the actual structure and polity of the Episcopal Church (USA). (An excellent analysis is presented in this paper from fifteen present and former diocesan bishops.)

It should be obvious to all that there is a conflict of interest here. The Presiding Bishop's position is being pushed at all levels by the Chancellor and his former law firm -- who, as we have seen, has earned millions and millions of dollars for their efforts, all paid by the very Church whose structure they are undermining. These bills are approved only by the Presiding Bishop's staff, while the Treasurer has to keep finding new ways to come up with the money needed to pay them. Bishops like the Rt. Rev. Stacy Sauls (a former attorney himself), who are supposed to be auditing the amounts spent, instead profess not to know exactly how much is being spent.

Not only is there no oversight, but the very use of the Chancellor's law firm to represent the interests of the Church as a whole is forbidden by the Canons themselves -- which thereby recognize the inherent conflicts of interest that are involved. Canon IV.14.18 provides in part (I have added the bold emphasis):
The Presiding Bishop's Chancellor shall not serve as Church Attorney or Lay Assessor in any proceeding against a Bishop of this Church. The Church Attorney shall not be from the same law firm as the Chancellor or Vice Chancellor or as the Chancellor to the Presiding Bishop or as a Lay Assessor.
The Church Attorney is the official designated by the Canons to investigate and prosecute disciplinary proceedings against clergy in the name of the Church. Thus I ask: if the Chancellor's law firm is disqualified from representing the Church in canonical proceedings, what makes it suddenly qualified to represent the Church in civil court proceedings also involving the interpretation and application of Church canons, such as the Dennis Canon?

(This is not to forget that the Canons also forbid any members of the clergy from "resort[ing] to the secular courts for the purpose of interpreting the Constitution and Canons, or for the purpose of resolving any dispute arising thereunder" -- see Canon IV.14.2, discussed in the previous post. The Presiding Bishop flaunts this canon daily -- or rather, she delegates its flaunting to proxies, such as Bishops Lamb, Buchanan, Ohl and Price, in the service of her overarching agenda.)

I would submit that no organization can long continue in its mission once it has been so hijacked from its purpose, and bent toward satisfying the personal agenda of just one of its leaders. The failure to insist on accountability, unfortunately, is like a pernicious disease: the less accountability there is, the more the structure is weakened, and the less likely that any accountability will be exercised until it is far too late.

This concludes my series for now; I shall update it in the future, as circumstances dictate. It is my hope that somewhere in the laity and clergy of the Episcopal Church (USA) there are to be found those resolute individuals who can use the facts I have presented to call their leaders to account.

Sunday, September 19, 2010

Kudos to Springfield and Fr. Dan Martins

Traveling interrupts not only blogging, but the flow of news. Today I finally caught up with the results of the election on Saturday in the Diocese of Springfield. I can truly say that Springfield was blessed in its choices before the election, and is now blessed in its selection of Father Dan Martins to be its next bishop. Although I have met Father Dan only once, I have followed his blogging since before I began this blog, and feel as though I know him quite well. Moreover, I am in frequent contact with those who knew him well in the Diocese of San Joaquin, and they are uniformly happy for him.

Friends tell me that even the HoB/D listserv was circulating congratulations for Fr. Martins -- who, as a member of the House of Deputies, has been a frequent contributor. Indeed, there are few candidates for the episcopacy whose record is as open as is that of Father Martins, and that also speaks well of those who elected him. I trust that his confirmation by the standing committees and diocesan bishops, once the election is certified and the countdown starts, will proceed as expeditiously as did the election itself. Indeed, how smoothly it proceeds may well be one barometer (but only one, alas) of the Church's spiritual health over the coming months.

Congratulations to Father Dan and to the parishioners and clergy of the Diocese of Springfield!

Thursday, September 16, 2010

An Introduction to the Episcopal Church?

Over at Seven Whole Days, the Rev. Scott Gunn asks for help in solving a pressing problem:
For whatever reason, we’ve been encountering lots of seekers lately at the parish I serve. Often these folks are completely unchurched. Sometimes our seekers have some church experience, but almost never in the Episcopal Church. My first real conversations with people is usually by email. Maybe they write to us first, before they visit our church, to find out if it’s the kind of place they’d like to check out. Or perhaps the blinking cursor of an email message seems safer than the scary conversation in the after-church handshake line.

I love encounters with those who are seeking God. I love people who have been moved by life’s vagaries to seek out a faith community. I love the open questions and the fresh desire of seekers. But there’s a challenge for me. It’s hard to give someone a sense of what the Episcopal Church is all about by email. If they want to meet with me over a cup of coffee or stop by the office for a chat, it’s pretty easy. I wish I could point folks to a fantastic website where they could get a sense of the Episcopal Church. It does not seem to exist. Alas.
Well, Fr. Gunn, while technically it may not be one site, I would modestly suggest that one could do worse than begin right here, and simply follow the links provided over to the right. Blogs (mostly) about the Episcopal Church (USA) are conveniently divided into categories, from Left to Right, and Right in the Middle, plus Evangelical and Anglo-Catholic blogs to boot. They may not be a comprehensive collection, but they are representative.

It would be misleading, however, to point prospective Episcopalians to any one or more Episcopal blogs without giving them some background, both historical and political, to help them understand where the Church is now. And for that purpose, I would refer them to the Guide to this site, where they can browse pages of links about ECUSA's structure, polity, history, and -- rather crucial these days, I would submit -- finances; about the culture wars in which it finds itself; and about the epochal events of 2003 and their aftermath, not least of which is the all-consuming litigation which is slowly bringing the Church down and tearing her apart. Then, because we must not omit to provide perspective on the larger picture, they should learn from this page about the conflicts in the wider Anglican Communion, which mirror those in the Church itself.

Oh, yes, one can certainly go to sites like Peek through the Window for an overview of what the Church professes to be. But if you gave them only that link, or ones similar, you might well run the risk of being charged with misrepresentation after they discovered the reality of what the Church is, as opposed to what it professes to be.

Honesty is the best policy. This site and its links may not make for pleasant reading, but then the truth is best taken straight, without sugar-coating.

Tuesday, September 14, 2010

Just How Much Has ECUSA Spent on Lawsuits? And How Much Will It Spend?

[N.B.: This is the sixth of a multi-part series entitled: "ECUSA and its Attorneys: a Runaway Train". The previous posts are the Introduction, Part I, Part II, Part III and Part IV.]

(H/T: AAC.) In the video above, which I believe is taken from a press conference at or following General Convention 2009, you hear Bishop Stacy Sauls addressing the question: "How much money has the Episcopal Church spent on lawsuits related to property litigation?" His answer is: "I don't know the answer to that." Then he continues: "I have seen the answer to that, as a member of the Audit Committee. But I also think -- if I'm not mistaken, it's in the budget -- as well as the financial results for last year. But I don't know the figure off the top of my head."

For Bishop Sauls, this is truly a remarkable answer to have given. Not only is he a member of the Executive Council's Audit Committee, but he also serves on the Executive Council and the Joint Standing Committee on Program, Budget and Finance as well. If there were one person who was uniquely situated to know just how much the Church is spending on lawsuits, it would surely be Bishop Stacy Sauls.

But there is another reason why this is such a remarkable answer: with all his unique access to the Church's financial data, Bishop Sauls still gives a wrong answer -- "It's in the budget." As readers of this series will know by know, the actual amount which the Church has spent, and is spending, on lawsuits over Church property is not in the Church's official budget, and never has been. The numbers shown in the budget are simple placeholders, and are constantly revised upward long after the fact.

Moreover, even when the numbers have been audited, they still are not the actual numbers. The annual audited statements swallow all the legal expenses under a line item for "Canonical and missional programs" -- see, for example, page four of the 2009 audited statements. But as explained in this previous part of this series, the Church is now also lending money to remnant groups to finance litigation against former dioceses and their parishes, and thus these sums show up as an account receivable, and do not count toward the total expense. They are misleading as a receivable, however, because they are unlikely ever to be repaid.

Moneys spent on Church-initiated lawsuits are not "missional" -- unless ECUSA has repudiated the sixth chapter of First Corinthians (which I sometimes think it has, de facto). If you make it your "mission" to steal when the Bible you espouse commands the contrary, then you are making a mockery of the word "mission." 1 Corinthians 6:5-7 says in part:

6:5 I say this to your shame! Is there no one among you wise enough to settle disputes between fellow Christians? 6:6 Instead, does a Christian sue a Christian, and do this before unbelievers? 6:7 The fact that you have lawsuits among yourselves demonstrates that you have already been defeated.
It would likewise be a mockery of Scripture for a Church to claim that the prosecution of lawsuits is an essential feature of its "mission." Are the lawsuits "canonical", then? Where, pray tell, does it say anything in the Canons about the Church taking its members or former members to court? It is surely one of the greatest ironies of the Presiding Bishop's massive resort to the civil courts in recent years to note that Canon IV.14.2 provides (with suitable emphasis added):

Resort to secular courts. No Member of the Clergy of this Church may resort to the secular courts for the purpose of interpreting the Constitution and Canons, or for the purpose of resolving any dispute arising thereunder . . .
"Any dispute" should mean "any dispute" -- including a dispute arising under the meaning and application of the Dennis Canon. But as we shall see in a minute, the Presiding Bishop has caused the Church to spend millions and millions of dollars in open violation of this Canon. It is thus a failure on the part of the Church's independent auditors to accept management's characterization of lawsuit expenses as part of its "canonical and missional programs." Such expenses are neither regular, canonical, nor missional, and ought to be called out for separate identification as the extraordinary expenses they are.

With the information gained from the previous posts in this series, let us see if we can make a stab at answering the question which Bishop Sauls avoided answering. Just how much has the Episcopal Church spent to date on lawsuits relating to Church property? Here are the pieces we have identified thus far:

Item: Amounts spent under Presiding Bishop Griswold in aiding property litigation in the Dioceses of Los Angeles, South Carolina and Long Island:

For the years 2001-2004, we must estimate these amounts, as the detailed monthly statements of operations for those four years are no longer online, and the audited financial statements for the same period do not break out expenses in any detail. Nevertheless, we know from the year-end 2005 statement of operations that the total so expended in that year was $ 453,013. (There were not any significant proceedings under Title IV at the national level in that year, so we may take this amount as reflecting nearly all litigation expenses incurred in the lawsuits pending in the three dioceses named above.) Based on this number for just 2005, when the Los Angeles lawsuits were incurring a good deal of expense, we probably would not overestimate too much the total expenses for the previous four years combined if we assumed it was another $ 450,000, for a total for all five years of $900,000.

Item: Amounts spent on "legal support to dioceses" for calendar 2006 -- thus mostly spent on Bishop Griswold's watch: $ 443,519; amounts spent on Title IV litigation (deposing bishops and clergy): $ 430,648 (the source is the year-end monthly statement for 2006).

Item: Amounts spent on "litigation assistance to dioceses" under Presiding Bishop Katharine Jefferts Schori, 2007 to 2009 (the source is the same year-end monthly statements):

2007 - $ 902,921

2008 - $ 2,060,211

2009 - $ 2,346,452

This three-year total comes to $ 5,309,584. But wait - we are not done yet.

Item: Amounts billed for legal services in 2007-2009 by Goodwin Procter, but then donated to ECUSA in exchange for tax deductions for the charitable contributions so established. We have these exact amounts thanks to the Notes to the Audited Financial Statements for these three years, under the heading "Contributed Services" (see, for example, Item 11 under Note B to the 2007 financial statements, at page 9):

2007 - $ 1,136,000

2008 - $ 1,015,000

2009 - $ 932,000

This adds a further $ 3,083,000 to the total for legal services in the first three years of the Jefferts-Schori era. (Even though the Church in effect received a donation with which to pay for them, it still incurred those legal services, and as noted in its audited financials, it booked them as expenses in order to offset the corresponding donation.)

Thus, from 2001 through the end of 2009, the Episcopal Church spent the following amounts on attorneys' fees to sue other Christians:

2001-2004 (estimated): $ 450,000
2005 - $453,000
2006 - $444,000
2007-2009 (paid): $5,309,584
2007-2009 (incurred additional [donated] fees): $3,083,000.

This comes to a total for the nine years of $9,739,584. And we still are not done, because the Episcopal Church has budgeted another three million dollars for the next three years:

Amounts spent or budgeted for litigation with other Christians, 2001-2012: $12,739,584.

To that princely sum we now should add the accumulated $ 2,133,000 spent on Title IV proceedings since 2006, when Bishop Jefferts Schori began her savage campaign to depose bishops and clergy without following canonical procedures. As the proceedings had were all illegal under the canons (or, as in the case of Bishop Bennison, futile), she should be charged with the full amount. And next, we add in the $1,003,000 she has budgeted for further depositions and Title IV proceedings. So that brings the total thus far to $ 15,875,584.

And (sigh) we still are not done! For now we have to add in the amounts loaned by ECUSA to the remnants in the former dioceses, so that they can continue to maintain their lawsuits to recover diocesan property. These amounts are not recorded as expenses, but as receivables -- even though they likely will be repaid only if the lawsuits are successful -- and even then, only if willing buyers are found for the properties (if any) recovered.

From the minutes of the Executive Council, we know that a total of $575,000 has been made available thus far to Bishop Lamb's group in San Joaquin, on top of the $1,200,000 in grants for "clergy salaries" in San Joaquin, Pittsburgh and Quincy. Because those grants replace money from pledges and plate collections, they represent at the same time money spent on litigation, and so it is appropriate to add them to the total as well. And while we are adding money spent by the dioceses, we should add $2 million spent thus far by the Diocese of Virginia, and a similar amount spent by the Dioceses of Los Angeles and San Diego.

We thus arrive at an estimated total of some Twenty-one Million, Six Hundred and Fifty Thousand Dollars ($ 21,650,000) dedicated thus far by the Church of Katharine Jefferts Schori to lawsuits and illegal disciplinary actions. That is quite a negative achievement for someone who has been in office for not even four years yet. If the spending continues at the same rate, by the time her term is up in November 2015 (and assuming her last budget is like those before it), she will have committed the Church to an impossible-sounding Sixty-Four Million Dollars in legal costs.

Those in the positions of power in the Church who are standing idly by and allowing this to happen are just as responsible as is the Presiding Bishop for this debacle. To continue on the current course may result in some victories, but they will be Pyrrhic ones, because the Church itself will be unable to bear the final cost of such a ruinous policy.

There is only one word for what has gripped the Episcopal Church at its highest national and diocesan levels since Bishop Jefferts Schori came into office, and that word is madness.

Quos deus vult perdere, prius dementat.

Saturday, September 11, 2010

A Simple Reminder on This Day: We Are Americans

On this ninth anniversary of the murderous attacks on our country, I find it somewhat queer that the public discourse is all about mosques and Qurans. Does this not suggest anything? Why, on September 11 of all days, should the media stage be so obsessed with just these topics, of all possible topics?

Could it be that what passes for the media's heartstrings in this day and age are actually being manipulated? Are those who propose to build a mosque near Ground Zero, as well as those who propose to burn Qurans in public, simply pushing the media's buttons? And is not the media building up the stories in a perfectly predictable way?

This is America, not an outpost of Riyadh or Cairo. There is far more worthy news out there than anything that may happen today in Gainesville, Florida. The sense of the country which I get -- if not all the media types get it -- is best expressed in this monologue delivered four years ago on 9/11 by Late Late Show host Craig Ferguson, who though a naturalized American retains his wonderful Scottish brogue, which lends a poignancy to his words (there is a transcript of them, and more about his show, at this link).

In short: America is still here. And we are not going anywhere. Period. America is greater than any single religion, or any single political party, or any single philosophy, or any point of view. To focus on just one, on this day of all days, is to be untrue to what is true. It is to allow those who want to seize the center stage, to their narrow benefit, to succeed in their petty goal. (And in that sense, I suppose one could say, it is also very American to let the petty ones have their day, to strut their stuff before it is forever forgotten.)

Let us keep our eyes focused, however, on the main objective: to celebrate what makes this country great. The memory of those who died on September 11, 2011 has not faded away; the heroism of the police and firefighters, of those on Flight 93, still inspires us, and strengthens our resolve that they not have died in vain. Their deaths were fully American, because the only reason they were marked for death on that fateful day was that they were Americans.

Think about that for a minute: what does it mean to be American, such that others in the world want to kill you for it? It is false to say that America deserved it, because of its hateful foreign policies and slaughter of innocent civilians (read about what motivated Al Qaeda, if you wish, in this book). No, Americans were murdered on 9/11 because of what they stood for, because of what the Twin Towers stood for: where Jews worked side-by-side with Muslims, where there was even a Muslim prayer room, for heavens' sake. America is a country whose people are still free, and their freedom provides an example to those who are not as free, as well as to those who would deny others their right to be free.

All the tumult and shouting about the coming elections, about the Tea Party, about returning to fundamental values versus staying the collective course -- that is what makes America American, and is the real character of our country. Our character is not what we are, or what we do, under any given President or Congress. Our character is that we can have different Presidents, and different Congresses, and that we change a good part of them every two years. That is the essence of America, what makes her enviable, and what makes her great.

Look into the eyes of those who are trying to occupy the center stage on this day of all days, listen to their words, and watch what they are doing: they are not being open to contrary views, they are not willing that their viewpoint might be defeated democratically, that it might lose out in the free competition of ideas. In short, they do not accept what it is to be American.

A pox on both their houses, I say. Let us look past their narrowly crafted scenarios, designed only for media appeal, but not for any real American dialogue. Leave them to babble on to themselves for the time being -- don't buy any newspapers with their manufactured headlines, and turn off any radio or TV shows which are prating on about what is going on in Gainesville or at Ground Zero. Turn to what is truly important. On this anniversary of America's tragic witness to her values, let us most of all celebrate those values, and show the rest of the world that America is still here, and that as much as others might want to make it into this or that in their image, it is not going anywhere. It remains America -- because we are Americans.