Two Priests Dialogue about the Dennis Canon (I)

The Rev. Canon Kendall Harmon has done a good job of chronicling the departure of the congregation of St. James in Penn Hills, Pittsburgh from their physical buildings, by which act they surrendered possession of the property to a group which calls itself the "Episcopal Diocese of Pittsburgh." He linked to five different viewpoints on the story: the announcement by the Anglican Diocese, the announcement by the so-called "Episcopal Diocese", a story about the transfer in the Pittsburgh Post-Gazette, a blog post by stalwart Episcopalian Lionel Deimel of Pittsburgh, and a rejoinder to Mr. Deimel's post by Father David Wilson, a priest in the Anglican Diocese of Pittsburgh.

It is the last link to which I wish to draw your attention (after you have read or familiarized yourself with the preceding four). Indeed, the rejoinder is so succinct that I can quote it here for you in its essential entirety (assuming I may presume on Father Wilson's good will to allow that):

St James Anglican Church in Penn Hills vacated their building and moved out, it was announced by our Diocese yesterday. . . . Ann Rodgers of the Pittsburgh Post Gazette covered the story in her usual very balanced way in this morning's edition of that paper here. The TEC Diocese weighs in their own way here; interestingly they announce an "evangelical" priest, Vicente Santiago, a former rector who stayed in TEC is returning. I'd love to see a report on how many folks actually show up on Sunday. My bet [is] it will [be] mainly folks from other TEC parishes who attend to show their support of the TEC Diocese. And TEC blogger Lionel Deimel gives his pravda-esque spin here (scroll down) especially note that he implies they may have vacated because of money problems "they couldn't afford it" -- heifer dust! They walked because they weren't going to pay [again] for a building they paid for once already. They believe their money would be better spent on mission, not on maintaining a fifty-year-old building that is failing apart and that has no visibility in the community. And Deimel's headline is a laugher as well, "Third Congregation Settles with Episcopal Diocese"; they didn't settle anything with TEC - they vacated their building rather than settle. Talk about doublespeak!

The beat goes on! And it looks like it'll be a long hot summer.

But readers of Father Wilson's blog did not have to stop with his comparison of the facts with what Lionel Deimel asserted in his post -- they had the benefit of the interchange that followed between Father Wilson and Father Bruce Robison, a staunch Episcopalian who heads the parish of St. Andrew's, in Highland Park (another suburb of Pittsburgh). Dr. Robison's comments on all of the Episcopal blogs where I have encountered them are uniformly irenic in tone, and attempt to scale down the adversarial rhetoric that all too often passes between the Episcopalians and the members of ACNA in these days. And while I can appreciate Dr. Robison's attempts at peaceful dialogue between the two camps (ECUSA and ACNA in the Diocese of Pittsburgh), I feel constrained to point out the real differences between them which render attempts at such an interchange ultimately fruitless, given the current status of Fr. Robison's group. I will have more to say about this gloomy conclusion after I have quoted from, and commented upon, the dialogue between Fr. Robison and Fr. Wilson.

Before I begin, I must emphasize that the gulf that I see between the two groups is a consequence entirely of two factors: (1) the Episcopal Church (USA)'s General Convention in 1979 may (but with conflicting evidence to show for it) have enacted what it calls the "Dennis Canon"; and (2) despite its questionable adoption, ECUSA has ever since insisted that the Canon alone, without any accompanying actions by local parishes in every State, was sufficient to impose upon all those parishes' real and personal property (including their bank accounts), ipso facto, a sudden and permanent trust in favor of both the national Church and the local Diocese.

By way of analogy (somewhat inexact, I admit), the current position of ECUSA on the Dennis Canon is akin to the notion that if Mr. and Mrs. Jones, who owned a home in (say) Decatur, Iowa, registered with the Democratic Party, and used their home for meetings of the local Democratic campaign committee, the latter would suddenly be empowered to adopt legislation which made the Jones' home -- and their bank accounts, family silver and other heirlooms, and other property of whatever kind, no matter where or how held -- forever subject to a trust in favor of the Party, such that if Mr. and Mrs. Jones should ever register as Republicans, they would have to surrender their home and all their personal property to the Democratic Party -- or to its local chapter -- neither of whom had ever contributed a single penny to the Joneses, while gratefully accepting the Joneses' contributions to them all along.

I hope you will agree with me that it would be ridiculous, under our Constitution, to allow a political party to have such power over its devoted members. With regard to the so-called "Dennis Canon", therefore, the question is: how, under our Constitution, is a national Church allowed to do what a political party could not do? What is so special about a place where its members can gather that enables a national church to claim its members' property by fiat, while no one in his right mind would ever agree that a political party could do so?

Keep asking yourselves these questions as you read the dialogue that follows. It began when Fr. Robison responded to Fr. Wilson's post with this somewhat lengthy comment (which I have edited for the sake of brevity):

Unsure, David, about the full context of this. There really is no formal record, and it's just a matter of "who knows exactly what they were thinking?" Similarly the folks up in Warrendale / Cranberry seem to have decided to opt for a fresh start and so more or less abandoned the property without an effort to find a mutually agreeable settlement.

I think it's clear that Doug+ and the congregation were anxious, but it is also clear that no one ever asked them to "pay twice" for the property--because in any event the St. James folks never sat down for such a conversation. To say that the current market value of the property is one of the pieces of information that needs to be ascertained in the course of a negotiated settlement does not mean that it will determine the terms of the settlement. . . .

. . .

So, all said, this was not a "settlement." The property of the Penn Hills church was on the roster of assets listed by the Special Master subject to the terms of the 2005 stipulation. That stipulation indicates that if congregations want to leave the Episcopal Diocese "as congregations," then they must enter into a negotiation with the diocese, and then that the terms of any settlement must be approved by the court. Doug+ and his leadership did their own calculus and decided what they decided. My prayer is that God will bless their ministry in the season ahead.

What ministry will be able to continue from the traditional site of St. James Church I guess we'll need to see. The Episcopal Diocese certainly did not want to board the place up and leave all those 12-step groups, scout troops, etc., without a place to meet, and as yet we don't really know whether a congregation of some sort may not gather. . . .

Let's stop here and look more closely at that Stipulation and Order entered into by the parties in October 2005, which Father Robison references. According to his recollection, the property of St. James was on the list of properties held by the Diocese for the benefit of of the parishes and institutions of the Diocese. And this fact required the parish, if it wished to disaffiliate, to "negotiate" with the Diocese over its property. But did the Stipulation really say that?

Here is the operative text of the Stipulation about the disaffiliation of parishes:

(a) In the event a parish in the Diocese (hereinafter "Parish Church") shall elect to disaffiliate with the Diocese, the Parish Church shall give written notice of that election to the Diocese by delivering a copy of the notice, signed by the Rector and the Vestry, to the Diocesan Bishop (hereinafter "Bishop"), to the Board of Trustees of the Diocese (hereinafter "Board of Trustees"), to each member of that Parish Church and to the Rector and Vestry of each other Parish Church of the Diocese. Upon receipt of such notice, the Bishop and the Board of Trustees shall meet with representatives of that Parish Church and any other parties expressing an interest to discuss in good faith the disposition of all Property specifically held for or in the name of the Parish Church. If agreement on the disposition of such Property, including the consideration therefore, cannot be reached among such parties, the matter shall be submitted to mediation, with each party bearing its own costs thereof. . . .

All well and good -- if a parish leaves the diocese and wants to take its property with it, it must come to the negotiating table with the Diocese first. But now look at this language in the last subparagraph of Section 2 of the Stipulation (bold emphasis added):

(d) The above provisions of this paragraph 2 do not apply to Property which is held generally by the Diocese for the beneficial use of the parishes and institutions of the Diocese. Such Property is subject to the provisions of paragraph 1.

So property held by the Diocese of Pittsburgh in 2005 for the benefit of individual parishes, such as St. James in Penn Hills, was not subject to any "negotiations." Instead, under the terms of paragraph 1, that property "shall continue to be so held or administered by the Diocese regardless of whether some or even a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America. . . ."

Now comes the next wrinkle in the case. Did St. James decide to "disaffiliate" from the Diocese to which it belonged? No, indeed -- it never gave "Notice of Disaffiliation" to anyone, because the parish never disaffiliated. It is still, in 2011, a constituent part of the same Diocese to which it belonged in October 2005, even after it walked away from its buildings and property. That Diocese is now called the "Anglican Diocese of Pittsburgh", and it was the entity who disaffiliated -- not from itself, however, because that would be a legal impossibility -- but from the Episcopal Church (USA), to which it (and not its constituent parishes) belonged as a member. The Stipulation to which Father Robison refers says nothing about dioceses disaffiliating from the Church; only parishes doing so from their Diocese -- and that never happened here.

Why, then, could the Anglican Diocese of Pittsburgh not continue to hold St. James's property for it, as it had always done? Because Father Robison and his group of Episcopalians, constituting a minority in the Diocese, did not want to allow that to happen. In late 2008, they filed new pleadings in the litigation which had settled with the Stipulation, and claimed they wanted to enforce its terms, which they said the Diocese had violated by withdrawing from the Church. You see, according to their reading of the document, when it said that property held by the Diocese would continue to be so held by the Diocese, the word "Diocese" meant the specific entity that in October 2005 was a constituent part of the Episcopal Church (USA).

By pulling out of the Church, they said, the (now) Anglican Diocese of Pittsburgh was no longer holding title to all of its properties as the Episcopal Diocese of Pittsburgh, and so was in violation of the written terms of the Stipulation. Never mind that the Stipulation said not one word about the Diocese disaffiliating from the Church -- it was all implied in the language describing the Diocese, don't you see? And the tragedy of Pittsburgh is that this simple-minded argument persuaded a not-very-sophisticated Judge to order that yes, that is exactly what the Stipulation meant when the attorneys signed it in 2005.

I can understand how a judge might be misled into such a ruling by confusing how dioceses come into being with how they leave a church. But he still should have kept his characters straight. The Episcopal Diocese of Pittsburgh did not cease to be the Diocese of Pittsburgh when it voted to leave the national Church in October 2008. In the eyes of the civil law, the Diocese was still the same Diocese, even if it changed its name.

But where did the new Diocese come from -- the one to whom Judge James ordered Bishop Duncan's diocese to hand over all of its property? Ah, that is the question -- to which we shall return. For now, let us rejoin the dialogue between Father Wilson and Father Robison. In response to the former's comment about St. James having to "negotiate" for its property, Father Wilson wrote:

Thanks Bruce for your thoughts. I should have said "again" rather than "twice" on the money issue. And I also should have mentioned the Dennis Canon issue which Doug pointedly stressed in the Post-Gazette and which quite pointedly the TEC Diocese, Lionel [Deimel] and you have not addressed.

Which comment brought the following lengthy response from Fr. Robison, which I shall consider here in segments:

The deal about the Dennis Canon is that the Episcopal Diocese is subject to its provisions and can reach no agreement which is contrary to its basic requirement that the officers of the diocese act as fiduciaries for the diocese.

Here we have a common misunderstanding on the part of those who have benefited from the Dennis Canon in the courts: the fact is that the Canon says nothing -- nada, not a word -- about "the officers of the diocese act[ing] as fiduciaries for the diocese." (Look at its full text here.)

Instead, it is the common law of Pennsylvania which imposes fiduciary duties on the officers of a corporation or an unincorporated association organized under its laws, such as is the Diocese of Pittsburgh. And Bishop (now Archbishop) Robert Duncan and his staff did so act as fiduciaries, and continued so to act, throughout the time when the diocese withdrew from the national church, and thereafter. They were as loyal as fiduciaries can be: when the Diocese elected to change its governing documents so as to take it out of ECUSA, they elected to follow along with it, and to continue to act as its fiduciaries. (Had they chosen instead to remain in the Episcopal Church -- that was not, alas, an option the Church made possible for Bishop Duncan -- they would have betrayed their fiduciary duties to the Diocese in favor of a minority which dissented from the withdrawal. Fiduciaries owe their duties to the entity itself, of course, and not to any faction within it. But when the majority is empowered to change the governing documents, and it votes to do so in a legally called meeting, the fiduciaries are bound by the law to honor that decision, as they did here.)

To continue with Father Robison's response, he immediately repeats the same misunderstanding of the law and the Dennis Canon:

There is of course no prior assumption that fiduciaries must place financial concerns ahead of concerns about mission, ministry, spiritual integrity, values of Christian charity. Only that in the end they must affirm their belief that they have as officers of the Episcopal Diocese acted in what they understand to be the best interests overall of the diocese--which is what is required by the Dennis Canon.

No, it is not, as we have just seen, required by the Dennis Canon that fiduciaries act in the best interest of the entity which they serve -- it is required by the common law which Pennsylvania inherited from England. Ah, you might say -- but don't bishops of dioceses owe fiduciary duties to the Church which ordained them, as well? (Of course, that point will not work here, because the Church "deposed" Bishop Duncan, and so freed him from all fiduciary duties to it, before the Diocese of Pittsburgh voted to leave the Church.) Well, yes, they do -- but not at the expense of the Diocese which elected them. If there is a conflict between the Diocese and the national Church, the Bishop cannot serve two masters: he must either stay with the Diocese, and resign from the Church, or stay with the Church, and resign from the Diocese.

The same dilemma faced those who, like Father Robison, could not agree with the Diocese's vote to leave the Church. He, too, had a fiduciary duty to the Diocese, but his primary duty was to his parish. And so when the Diocese voted to leave, Father Robison chose to put his duty to his parish ahead of his duty to the Diocese -- as was all good and proper.

But what, then, of the Diocese to which his parish belonged? Well, since neither he nor his parish wanted to go along with it, they needed to find another Diocese to which they could belong, that was still in the Episcopal Church. But did they do that (join another Episcopal Diocese)? No, they did not -- instead, they formed a new unincorporated association, met early in 2009, and adopted as governing documents ones that derived from those of the old Diocese, without the changes approved in 2008.

Then, however, they did something for which it is very difficult to forgive them. To further the litigation needs of the national church (it would not do for it to concede that its member dioceses could lawfully withdraw from it), they collaborated with that body to concoct a preposterous legal fiction: that they were the same diocese in the eyes of the law as the one which had held the vote to leave in October 2008. For if dioceses in ECUSA cannot leave, you see, then the "Diocese of Pittsburgh" must never have left in fact, but remained in the Church all along.

To think that the law would agree with such an outlandish tomfoolery is nothing short of chutzpah, of the highest degree. The sad thing for the law everywhere, for Bishop Duncan and his Diocese, and for (yes) The Episcopal Church (USA), is that the law (in the person of the Hon. Judge James) did agree to go along. He allowed not just ECUSA itself, but the new Diocese -- which had never gone through the steps to get itself formally admitted to ECUSA -- to intervene into the Pittsburgh lawsuit just so they could assert claims based on the Dennis Canon to all of the Anglican Diocese's property.

And here is the precise problem with that maneuver -- never addressed by Judge James or any of the Pennsylvania courts. Consider first the timeline, as follows:

September 18, 2008 - The Episcopal Bishops, assembled for their fall meeting, disgrace themselves by holding a kangaroo court session that expels ("deposes") Bishop Robert Duncan from the Church. Bishop Duncan does not contest the expulsion, but receives an appointment as Vicar General from the Anglican Province of the Southern Cone.

October 4, 2008 - The Episcopal Diocese of Pittsburgh, acting through its clergy and lay deputies by overwhelming majorities, votes final changes in its governing documents which render it impossible for the Diocese to continue as a constituent member of the Episcopal Church (USA). A small minority of deputies walk out after the vote. The "Episcopal Diocese of Pittsburgh" is still an episcopal diocese under the protection of the Anglican Province of the Southern Cone; later, it changes its name to the "Anglican Diocese of Pittsburgh."

October 10, 2008 - the Rev. Dr. James Simons, the only dissenting Episcopalian who had (up until the October 4 convention) been serving on the Diocese's Standing Committee, connives with the Presiding Bishop to have her "recognize" him and a few of his cohorts as the "Standing Committee" -- but of which Diocese? The fictional "Diocese of Pittsburgh", to which this equally fictional "Standing Committee" is "recognized" as being attached, does not yet exist under Pennsylvania law, because it has neither members nor governing documents.

November 7, 2008 - at a specially called convention the Diocese of Pittsburgh (the only one in existence at this time) elects the Rt. Rev. Robert W. Duncan as its new bishop.

December 12, 2008 - without any authority under the Constitution or Canons of the (only existing) Diocese of Pittsburgh, the Rev. Dr. Simons purports to convene a "special convention" of the Diocese, to which only Episcopalians will be admitted. At this meeting, called without proper notice, the assembled deputies adopt a "Constitution and Canons" which are the version that existed before the vote in October 2008 to amend them.

Do you have that? The amendments voted upon in October 2008 by the required majorities in each order were approved in a legally called and noticed meeting, at which quorums of both orders were present and voting. The votes in December 2008 to "undo" what the Convention lawfully did two months earlier were taken at an illegally noticed meeting which met without any authority under the existing Constitutions and Canons. (To take just one example, the "Standing Committee" which purported to call the special meeting was not the Ecclesiastical Authority of any Diocese at the time it issued the call, because by definition the "Diocese" of which it wanted to be the "Standing Committee had not yet come into existence. The deputies present simply passed resolutions "waiving" those requirements.) So guess which action the Episcopal Church (USA) chose to recognize as the legitimate one (for church purposes)? You have that right -- irregularities in abiding by the Constitution and Canons never count when it is the "faithful Episcopalians" who commit the irregularities. In fact, they positively define themselves by their contempt for both the Constitution and the Canons when it suits their grander purposes. They are never willing to revisit the issue and do things by the book, because that would be to admit that they did it wrong the first time.

Now, back to Fr. Robison:

When I was president of the Standing Committee back in the early 2000's the diocese "sold" property in Aliquippa to the Church Army for use in its ministry. I think the price was $1. Now, an argument could have been made, even in Aliquippa, that the diocese could have gotten a better financial return on the open real estate market. Maybe $10, given the specifics of that case. But the principle is there. We decided that the best interests of the diocese would be served by this because the "best interests" of the diocese included a desire to provide Christian ministry and outreach in a distressed community. If we weren't equipped to do it, we were glad to see that someone else was, and to support them in that effort.

Unwittingly, Father Robison has just provided proof that the "trust" purportedly imposed by the Dennis Canon is not a real trust in the eyes of the law. For if it were such a real trust, then property which was subject to it could never have been sold outright to a third party without the consent of the beneficiaries for which it is held in trust (at least, unless there were an express power of sale in the trust instrument -- and there is no such power in the language of the Dennis Canon). Yet here the Diocese "sells" the property without getting ECUSA's consent -- do you remember, ECUSA is the other beneficiary who comes into court all the time asking to enforce the Dennis Canon? So how is it possible that the Aliquippa property which Fr. Robison describes was sold free and clear of the Dennis Canon "trust" in favor of ECUSA?

Answer: because, as already noted, the Dennis Canon trust is not a real trust -- it is not of record on the title to any church property, in Pennsylvania or elsewhere. So the record title owners are free to sell the property at any time, without having to consult ECUSA or obtain its consent. The Dennis Canon "trust" is a highly selective trust -- it becomes an enforceable trust only when those who can benefit from it want to invoke it. Otherwise, it is routinely ignored all the time when dioceses and parishes sell their property to others.

Here ends Part I of this post, which has become long enough already. I will take up the rest of the two priests' dialogue in the next installment.