August 6, 2008

Lies and Dodges

The latest round in the long-running lawsuit by Pittsburgh’s Calvary Episcopal Church against Bishop of Pittsburgh Robert Duncan and other diocesan leaders cannot but remind one of why lawyers are—at least until you need one—generally held in such low regard in this country. Calvary, remember, sued to assure that churches and other property in the Diocese of Pittsburgh would continue to be used exclusively for The Episcopal Church (TEC). Now that the bishop is about to execute the final step of his plan to liberate (read “steal”) the diocese away from TEC, lock, stock, and barrel, his lawyers have resorted to lies and dodges (with a few tautological admissions and half-truths thrown in for good measure) to forestall court action until the getaway car is safely speeding away from the ecclesiastical bank that is to be the scene of the crime.

Calvary Church, remember, recently asked the court, pursuant to the stipulation—read very carefully point 1 of the stipulation—between it and Bishop Duncan, et al., to appoint a monitor to inventory and oversee the assets of the Diocese of Pittsburgh and to allow individual parishes to pay their diocesan assessments into escrow accounts. (See “Calvary’s Cavalry Again Rides to the Rescue.”) According to the July 7 filing, “Defendants’ continuing efforts and announced intentions [to take the diocese and all its property out of The Episcopal Church] necessitate monitoring and oversight to protect the Property held or administered by the Diocese from transfer, use or disposition in violation of the Order.” The defendants have now responded to Calvary’s filing.

The new document, entered on August 4, is in two parts. The first part answers (in a manner of speaking) the Calvary assertions point-by-point. This is followed by “new matter” making the defendants’ own case against Calvary’s requests.

Answers to Calvary

It would be tedious to give a complete accounting of the response to Calvary’s requests of the court, but the overall tone can be understood by citing highlights. The strategy of this section of the filing is one of setting out a legal theory of why Duncan ought to be able to get away with his plan, to admit nothing but what is completely obvious, to deny that anything significant has happened yet, to blame others, to deny the relevance of the stipulation, to assert that TEC must bring separate suit to resolve matters at issue, and to suggest that those issues are really religious ones (and are therefore matters outside the court’s jurisdiction).

Whether now or later, the defendants need to argue for their right to remove the diocese from The Episcopal Church. This argument begins to take shape on page 1. They assert that
  1. TEC is a “federation of Dioceses.”
  2. The Diocese of Pittsburgh was carved out of the Diocese of Pennsylvania, which existed prior to TEC.
  3. TEC has no “executive department.”
  4. Neither the Episcopal Church constitution nor the diocesan constitution prohibit removing the diocese or its property from TEC.
I am at a loss to understand the supposed significance of point 3, which is something of a half-truth anyway. Point 2 is irrelevant, as was the fact, for example, that South Carolina was a colony before the formation of the United States. The real question is whether a diocese, once joined to the General Convention, becomes an indissoluble part of it. Just as the United States determined that union with a state cannot be undone, TEC would argue similarly regarding dioceses and the General Convention. The “federation of dioceses” theory is simply contradicted by all the facts, and Calvary has already put James Dator’s dissertation, which lays out the facts, into evidence. As for point 4, what is asserted is true if one is talking about explicit prohibitions. I have argued elsewhere that even the most strained argument for a diocese’s right to secede is unsustainable.

Several of the arguments that follow are repeated throughout the document, namely that property issues can only be adjudicated through legal action brought by TEC as a plaintiff, that actions are being taken for theological reasons beyond reach of the court, and that diocesan convention, not the defendants are making decisions. It has, of course, been a mystery why TEC has not become a party to the suit. The defendants assert that a new action would have to be brought by TEC, but, not being a lawyer, I am unsure what to make of such an assertion. That Bishop Duncan repeatedly blames convention for doing what he has so strongly advocated, is shameful behavior and an example of cowardly leadership. I suppose that he assumes that Calvary will not sue all 400 convention deputies. I expect—certainly, I hope—that Judge Joseph James will see through the transparent attempts to hide theft behind the first and fourteenth amendments, not to mention the members of the bishop’s flock that he has led astray.

The filing makes an interesting point about the new corporation (named “Episcopal Diocese of Pittsburgh”) registered by Bishop Duncan, and what is asserted may even be true. (See “Which Episcopal Diocese of Pittsburgh?”) The corporation was registered, it is said, “not for the transfer of any property but to protect the name of the Diocese from a competing claim to that name by any entity formed by TEC.” Eventually, of course, TEC will claim that the diocese is what it has always been—it will have no need to create a “new” diocese—except that Bishop Duncan—then no longer a bishop of TEC—will not be its bishop.

Throughout this section, defendants argue that the stipulation is not relevant. In the following section of the defendants’ filing, they suggest that it was defectively drawn. It was, of course, the agreement that Calvary was able to extract from the defendants. The defendants also assert repeatedly that no offenses have yet been committed by the defendants. Calvary, on the other hand, points out the statements Duncan has made and the steps he has implemented to effect his plan to take the diocese outside TEC. What an irony it is that a bishop so fond of referring to the “plain meaning” of scripture insists that the court ignore the plain meaning of his own statements and actions! Repeatedly, the answers given by the defendants begin with: “Admitted in part and denied in part.” In many cases, this simply means that they admit that a statement was made and is properly quoted, while they deny the obvious implications of the text.

A worrisome statement appears on page 6: “If and when TEC takes action against Bishop Duncan, the Bishop will determine whether to challenge that act as a violation of the Canons of TEC and/or a denial of due process.” The House of Bishops should take note. (See also below.)

The defendants dismiss both the need for a monitor and the court’s “inherent authority” to appoint one. The answers to a number of paragraphs of Calvary’s filing read as follows: “Denied. Paragraph nn sets forth legal arguments and conclusions to which no response is required. If and to the extent a response is required, the allegations are specifically denied. See also the New Matter [where defendants make their own argument].”

New Matter

The defendants’ own argument in this section is largely summed up in the titles it uses. I will spare readers most of the details, adding only those that seem especially notable. Many of the arguments repeat those in the answer section of the filing. The defendants argue
  1. Plaintiff seeks relief that cannot be supported by the terms of the stipulation: Much of the argument here addresses the diocese’s self-declared right to withdraw from TEC.
  2. Plaintiffs improperly seek relief on behalf of TEC, which is not a party to the stipulation.
  3. Plaintiffs’ request for appointment of a monitor violates the United States Constitution: Defendants argue that determining what is for “the beneficial use of the parishes and institutions of the Diocese” is a religious decision.
  4. Granting the relief plaintiffs seek would violate the United States and Pennsylvania Constitutions: The claim here is that the decision is a religious one and that 400 convention deputies can’t be wrong. The bishop is claiming that his free-speech rights would be violated if Calvary’s requests were granted.
  5. Plaintiffs’ claims regarding counsel fees are an improper attempt to end-run constitutional protections on speech and are otherwise improper: The use of “end-run” as a verb should be enough for the judge to reject the argument here, but likely won’t be. This section is more of the same.
  6. Plaintiffs’ claims constitute an improper attempt to obtain a preliminary injunction and the appointment of a receiver without satisfying the procedural or legal requirements that are a necessary predicate to obtaining such relief: My legal credentials fail me here. The defendants may have a point, but I am not qualified to judge. This is one of the rare places in the filing where there are a lot of cases cited.
  7. Plaintintiffs’ claims relating to the board of trustees are legally and procedurally deficient: Again, I have to beg off. In practice, trustees invariably do what the bishop wants them to do. This is a very striking coincidence.
  8. Plaintiff’s request for a supplemental “escrow” is procedurally improper and is barred by the United States and Pennsylvania constitutions: Various arguments are made here. My favorite is this one: “Plaintiffs have an interest that is adverse to those parish churches who support Diocesan realignment.” No kidding!
  9. Plaintiffs’ claims are constitutionally improper to the extent they rely on allegations regarding Bishop Duncan’s Ecclesiastic status: The filing actually argues that Duncan will dispute his deposition.

What Next?

As an intelligent, rational human being, I find the defendant’s filing to be mostly nonsense. It is impressive, however, that one can argue for the indefensible with such sincerity and surface credibility. So many of the arguments made are defective, but establishing the fact requires a long chain of reasoning. Just how judges keep track of such logic I do not know. I hope Judge James is good at it. That said, I have to repeat that I am not a lawyer, and there are certainly legal arguments here that legitimately may carry weight.

A hearing on Calvary’s requests is scheduled in early September, before the scheduled House of Bishops meeting at which Duncan could be deposed. (A decision could be postponed.) Pittsburgh Episcopalians of every stripe will be awaiting the outcome of that hearing with some anxiety.

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