March 11, 2009

Another Motion from the Duncan Camp

Defendants in the Calvary lawsuit filed another motion with the court March 9, 2009. This one is titled “Amended Motion to Restore and Preserve Status Quo and Motion to Establish Procedure for Adjudication of Challenges.” (You can read it here. It is a long download, more than 7 MB, but it has the advantage of being searchable, which the file provided by the court is not.) The motion being amended is that of January 20, 2009, which was titled “Motion to Restore and Preserve Status Quo and Preclude Interference with Diocesan Property.” (You can read that motion here. This file, also searchable, is slightly smaller.)

What this motion is about is best seen by simply reading its beginning paragraphs:
On January 20, 2009, Defendants filed a Motion to Restore and Preserve Status Quo (the “Motion for Status Quo”) to stop Plaintiffs and a newly-created diocese aligned with The Episcopal Church (the “New Diocese”) from interfering with the Diocese’s ability to hold and administer Diocesan property. Plaintiffs and the New Diocese have asserted that the Diocese’s withdrawal from The Episcopal Church (“TEC”) is invalid. Rather than seeking a judicial determination of this issue, Plaintiffs and the New Diocese have proceeded as though it has already been resolved in their favor and thus demanded that the New Diocese be given immediate access to all Diocesan property. This conduct has caused the Diocese's investment accounts at Morgan Stanley (the “Morgan Stanley Accounts”) to be frozen, despite the Court’s prior determination that Diocesan property should not be encumbered, but administered as it always had, pending the resolution of the major issues in this litigation. Since Defendants filed the Motion for Status Quo, it has become apparent that absent immediate relief from this Court, Defendants will be unable to defend themselves in this litigation, and the Diocese's continued operation will be threatened.

In addition to this relief, Defendants request that the Court establish a procedure to resolve the procedural issues raised by the recent filings of the New Diocese and TEC and bring this litigation to an efficient and orderly conclusion. The Court must put an end to the New Diocese’s attempts to circumvent the adjudication of this matter by claiming to be the Diocese that is a party to this litigation. Defendants request that the Court schedule a hearing on Defendants’ Motion to Strike Praecipe for Entry of Appearance, strike Mr. Roman’s entry of appearance [Andy Roman is the chancellor for the “New Diocese”], and set a deadline for the New Diocese to become a proper party to this case. Moreover, Defendants request that the Court schedule a hearing on the Petition to Intervene of the Right Reverend John C. Buchanan, as trustee ad litem for TEC. Once these issues have been addressed, Defendants request that the Court hold a hearing to establish a procedure for addressing the substantive issues in this litigation, including (I) whether the Diocese’s withdrawal from TEC is valid; and (2) if it is valid, the impact of that withdrawal under the October 14, 2005 Stipulation and Order.
The first thing to notice here is that “Diocese” represents the entity headed by deposed bishop Robert Duncan, and “New Diocese” is the diocese of The Episcopal Church. The irony here, of course, is that the defendants (Duncan, et al.) complain that the Episcopal Church diocese is acting as though issues have been decided in its favor. The motion, meanwhile, makes its own assumptions, namely that the defendants represent the proper successor to the undivided Episcopal Church diocese, and the diocese that is now part of The Episcopal Church is “new.” (See “Duncan Letter Decoded” on this point, which I will say more about below.) Lawyers probably engage in this sort of thing all the time, I suppose.

The first request being made of the court, which becomes clearer as one reads on, is that the defendants should be given immediate access to the millions of dollars of diocesan funds administered by Morgan Stanley. The Episcopal Church diocese did not tell Morgan Stanley to freeze these funds, as the motion implies; it informed Morgan Stanley that ownership of the funds was in dispute. Prudently, Morgan Stanley decided on its own not to risk being sued for giving money to other than its rightful owner, and it chose to wait for a definitive judgment as to who that is. The Defendants want the court to order Morgan Stanley to act in a way that may put it in legal jeopardy.

The second paragraph quoted above has its own ironies. No doubt everyone involved would like to “bring this litigation to an efficient and orderly conclusion,” though perhaps not if it means their side will lose. The defendants, I suspect, are fearing that defeat is imminent, and therefore they are pressing for the indicated hearings. Whether this can postpone the inevitable is unclear, but it might allow opportunity to bring pressure on the Episcopal Church diocese to settle on terms outside those of the 2005 stipulation. This strategy is unlikely to work, but drawing out the litigation is a way of wearing down the opposition, assuming your own side has a sufficiently large legal war chest.

The defendants want hearings on the participation of the Episcopal Church diocese and of The Episcopal Church itself in this litigation. The defendants then want a hearing on whether the vote to remove the diocese from The Episcopal Church was valid. Specific requests of the court are listed in §V, “Conclusions,” beginning on p. 13, and, more formally, in the proposed court order that begins on p. 179.

There is a surprising admission in the motion regarding the question of the validity of the withdrawal from The Episcopal Church, which is dealt with in ¶49–56. In ¶56 we find:
If the challenge to the Diocese’s withdrawal is sustained, and that withdrawal is deemed invalid, this litigation is effectively ended. If the challenge is rejected, there remains only the specific issue of the impact of withdrawal on the Stipulation and Order.
In other words, if the withdrawal of the diocese from The Episcopal Church was invalid, as asserted by the plaintiffs, the original diocese continued, though without the “realigners,” and is the diocese now recognized by the church as its Diocese of Pittsburgh. In this case, the defendants lose. I note in passing, however, that, if the withdrawal were valid, the stipulation still poses problems for the defendants.

Likely to be overlooked as significant by the casual reader is ¶50:
Only this Court has the authority to determine whether the Diocese’s withdrawal from TEC was invalid.
Surely, the court must have an opinion on this matter before determining who is the rightful owner of the property belonging to the Diocese of Pittsburgh before October 4, 2008. I suggest, however, that the determiner of fact in this case is The Episcopal Church, not the Allegheny County Court of Common Pleas. If the plaintiffs “proceeded as though [the question of validity of the withdrawal] has already been resolved in their favor,” it is probably because they believe that the doctrine of separation of church and state prevents the court from second-guessing The Episcopal Church as to what its rules are and when they have or have not been violated. The court is not going to take the bait offered in ¶50.

The day of reckoning in Case #GD-03-020941 is, I sincerely hope, close at hand.

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