March 1, 2009

Duncan Letter Decoded

NOTE: In this post, whenever I refer to the Diocese of Pittsburgh or to any diocesan body, I am referring to the Episcopal Church diocese, as I do not believe the entity over which Robert Duncan now rules is a legitimate diocese, much less a diocese of the Anglican Province of the Southern Cone.
Discredited former Pittsburgh bishop Robert Duncan wrote to his flock February 27, 2009. (The letter can be read here, and, as I have not quoted extensively from it below, I do recommend reading all of the Duncan epistle before continuing to read this essay.) These missives seem to get progressively longer, more self-serving, and more pathetic over time. Nevertheless, this one deserves careful analysis. One might easily miss its objectives, given its wealth of detail.

Background

Recall that, in 2003, in response to initiatives by then bishop Robert Duncan following the General Convention’s consent to the consecration of Gene Robinson as Bishop of New Hampshire, Calvary Church, a large, affluent, relatively liberal (for Pittsburgh) church, sued the bishop and other diocesan leaders in order to keep church property under the control of The Episcopal Church. Calvary originally sued on behalf of the diocese, but diocesan leaders were able to have the diocese added as a defendant, thereby making it easier to justify the diocese’s paying for their defense.

The litigation and related negotiation resulted, two years later, in an agreement (stipulation) reached outside of court but enforceable by the court. All parties agreed to this stipulation, but there has been ongoing controversy as to whether the defendants were holding up their end of the bargain. Paragraph 1 of the agreement declared that diocesan property would, come what may, remain with the Episcopal Church diocese. Paragraph 2 set out procedures to be followed should a congregation want to leave the diocese. Other provisions are less important for our purposes here.

The annual convention of the Diocese of Pittsburgh voted on October 4, 2008—improperly, most Episcopalians would argue—to leave The Episcopal Church. (See “Realignment Blues.”) Not surprisingly, this eventually prompted Calvary Church to protest to the court that Duncan was violating the aforementioned stipulation by retaining diocesan assets and to ask that those assets be delivered to the diocese, which, by that time, had held a reorganizing convention to fill vacated positions and to declare the realignment vote to have been invalid. (See “Re-Established Pittsburgh Diocese Convenes” and“The Other Shoe Drops.”) Calvary was joined by the diocese in this action. Eventually, The Episcopal Church petitioned the court to join the litigation as a plaintiff. (See“Episcopal Church Asks to Join Calvary Lawsuit,” and “Further Analysis.”)

Earlier this month, Duncan’s group wrote to the Standing Committee proposing a sharing of assets. The Standing Committee replied and wrote to its own constituents explaining, but not directly communicating, the exchange. (See “Pittsburgh Standing Committee Writes to Duncan.”) According to the Standing Committee letter, the Duncan camp sent to the diocese “a two page guide to determining a division of assets of the Episcopal Diocese of Pittsburgh.”

The last bit of information needed to understand the most recent Duncan letter is the fact that, before the October 4 diocesan vote, two members of the Board of Trustees, Doug Wicker and Doug Toth, drew up and were promoting a plan to divide diocesan assets should the “realignment” vote be successful. This informal proposal received a chilly reception from Across the Aisle, the group of Episcopal Church loyalists planning for the post-convention continuation of the Episcopal Diocese, and a similar reception from representatives of the Office of the Presiding Bishop. (See “Whither Pittsburgh?” concerning the origin of Across the Aisle.)

Identifying the players in the Calvary litigation has become increasingly difficult, as some of the defendants have changed sides, and the “Diocese of Pittsburgh” appears to be both a plaintiff and defendant. In any case, many of the documents involved in the litigation are available on the Web. Instructions for accessing them can be found here.

The Letter

As has become typical of pastoral letters from Duncan, this latest letter is self-serving, as it portrays his side as having a “commitment on our part to find a charitable and non-injurious way through the dispute between us,“ while contending that “powers and principalities have been at work to confuse and to complicate” the situation in which he and his supporters find themselves. The Diocese of Pittsburgh, seemingly, is, by his lights, doing the work of the devil. Duncan also laments how he has been wounded by his former friends. This, of course, is a bit like a bank robber complaining about the lack of Christian generosity among bank tellers. Such rhetoric is contemptible and requires no further comment.

The purpose of the letter, I suggest, aside from making a self-pitying plea for sympathy, is to increase the likelihood that Duncan and his supporters will be able to hold on to as much property (real and personal) as possible. The strategy employed is twofold. On one hand, the letter is intended to advance the legal theory by which Duncan hopes to avoid an adverse ruling in the Calvary lawsuit. On the other hand, it seeks to sidestep the property agreement already in place as a result of that litigation in favor of negotiating something else that might not leave the Duncan faction empty-handed.

There is actually a refreshing forthrightness in the letter. Duncan clearly identifies issues critical to the current litigation, even if he misrepresents them in order to promote the tortured legal theory that represents his only hope of avoiding an adverse and embarrassing judgment by the Allegheny Court of Common Pleas—should it come to that—that would strip him of control of millions of dollars of diocesan assets and remove him from his comfortable quarters in the Oliver Building in downtown Pittsburgh.

In his first paragraph, Duncan uses the phrase “new Episcopal Church Diocese” to refer to the Diocese of Pittsburgh in The Episcopal Church. He goes on to use such phrases as “new diocese” 15 more times. (I beg your indulgence if my count is off by 1 or 2, but I think 15 is the correct number.) This usage and repetition is not an accident, nor is it an accident that one of his minions, the Rev. David Wilson, used the phrase in a recent letter to the editor of the Pittsburgh Post-Gazette. On the face of it, it is odd that a disgruntled faction of an organization could leave that organization and argue that what has been left behind is “new,” but that is what has happened in Pittsburgh. Duncan believes, of course, that the diocese had the right to vote to remove itself from The Episcopal Church—more on this below—requiring those who did not want to go along with the “realignment” to form a new group, i.e., diocese. Those who now lead the diocese do not share this view and do not admit that the vote had any organizational significance. They claim that, after the vote, individuals chose to leave the diocese. Individual leaders were asked personally, after the October 4 convention, whether or not they were still in the Episcopal Church diocese.

The October 2005 stipulation to which all parties in the Calvary litigation agreed, declares, in paragraph 1, that diocesan property is to stay with “the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.” For the stipulation to work in Duncan's favor, his diocese must have controlled property and kept control of it. A “new” diocese obviously cannot be one with which property is “staying.” Duncan freely asserts in his letter: “There is only one way that Diocesan assets could ‘stay in the Episcopal Diocese of Pittsburgh of the Episcopal Church’, and that is if the ‘Episcopal Diocese of Pittsburgh of the Episcopal Church’ was a continuing entity, i.e., the Diocese’s realignment was invalid.”

This, of course, is exactly what Calvary Church, the diocese, and The Episcopal Church assert. I offered my own argument for the inability of a diocese to leave the church in “Unqualified Accession,” but others would reach the same conclusion by different (and, I suspect, more transparent) arguments. In any case, if The Episcopal Church asserts that a diocese cannot leave the church, as it now has in the Calvary litigation, the court will run afoul of the First Amendment should it hold otherwise.

Duncan contends that paragraph 1 of the stipulation does not address “realignment,” and, in this, he is correct. The conclusion to be drawn, however, is not that the provision is irrelevant to the current situation, but that the attachment of diocesan property to the diocese in The Episcopal Church is absolute, “realignment” or no. That paragraph 1 is not contingent on “realignment” strengthens its provisions; it does not make them inapplicable.

Having argued that the stipulation does not apply to the current situation, Duncan creates a smokescreen regarding diocesan property just in case someone thinks it does. According to the letter: “Applied to our current situation, it is plain that we are not violating the Stipulation. The Diocese [Duncan’s group] ‘continues’ to hold and administer Diocesan Property, and does so ‘for the beneficial use of the parishes and institutions of the Diocese.’” This statement, of course, ignores what Duncan has just quoted from the stipulation, namely that “the Diocese” everywhere in the stipulation refers to “the Episcopal Diocese of the Episcopal Church of the United States of America.” Bob Duncan, despite his use of Orwellian doublethink, cannot have it both ways. For the purpose of church polity, he cannot be outside of The Episcopal Church while at the same time claiming to be part of it for purposes of establishing his compliance with the stipulation.

It would appear that the plain meaning of paragraph 1 of the stipulation offers Duncan little wiggle room. In fact, one must wonder why he agreed to the stipulation in the first place. Duncan takes exception to the phrases “good faith” and “Bishop Duncan’s attorneys” in the letter from the Standing Committee. I suspect the Standing Committee did indeed conclude either that Duncan’s attorneys acted in bad faith or, more likely, that they acted in good faith, but their client did not. I am inclined to give the benefit of the doubt to the attorneys.

My working theory as to why Duncan agreed to the stipulation is that (1) it was expedient, and (2) he hoped it would not matter in the end. He probably made a serious legal blunder. Duncan was already committed to a path of action, and he may have just been willing to roll the dice—“trust in God,” as he would, no doubt, have expressed it. He wanted to get the lawsuit out of the way and get Calvary contributing its assessment to diocesan coffers once again. (Calvary’s assessment was being paid into an escrow account while litigation proceeded.) Beyond that, it is possible that he somehow thought that the stipulation would be irrelevant because he would work out an agreement with The Episcopal Church or the Anglican Communion that would somehow deliver victory into his hands. He seriously miscalculated and is now trying to escape total defeat.

This brings us to the second (and probably more promising) objective of the letter, namely, to try to induce the diocese into ignoring the fact that negotiation over property has put an agreement in place (the stipulation) and to draw the diocese into new negotiations that, ultimately, would supersede that agreement. The bishop sets forth his case in this paragraph near the end of the letter:
On this point, too, we have been consistent and clear with Calvary and with the court. Our withdrawal is valid and proper, and the Stipulation imposes no requirement on the Diocese to transfer any property to those parishes that leave the Diocese and work together to form a new diocese, aligned with TEC. Despite this legal position, we have repeatedly stated to the court that we would prefer, and that we would agree to, an equitable distribution of Diocesan property, as the leaders of the new diocese are well aware. Moreover, a “first draft” proposal for such a distribution prepared by pre-realignment Trustees Douglas Wicker and Douglas Toth was in circulation even before the vote to realign. The statement of the leadership of the new Episcopal Church diocese that “no proposal has been tendered until February 5, 2009” is misleading in the extreme. Regretfully, the timing of proposals is irrelevant because the Simons/Ayres letter makes clear that the leaders of the new diocese do not want an equitable division; they want all of the Diocesan property. The letter of February 18th unequivocally rejects the offer made by our Standing Committee and embraced by our Board of Trustees to mediate equitably.
By this time, Duncan has asserted that the diocese had the right to leave The Episcopal Church. He never explains how that could be true, but, for the record, he has said elsewhere that the General Convention is a confederation of independent dioceses and that the accession clause required of diocesan constitutions is not required to be left in once a diocese is accepted into union with the General Convention. (This reading of the church’s constitution and canon suggests that Duncan thinks that the General Convention has been populated by incompetents or idiots.) Happily, Duncan does not, in this letter, expound on this theory, which runs contrary to all church history and practice. I will say no more about it here.

Getting back to the paragraph quoted above, “an equitable distribution of Diocesan property” is already in place. Duncan simply does not like it, so, having asserted that the stipulation is irrelevant (or, if read properly, has no implications for him), he calls for new negotiations and faults the diocese for its intransigence. Yes, the diocese does want all of the property. Duncan has already agreed that it is proper that this should be the case. He is reneging on his promise, however—hardly a Christian virtue, I should think—and complaining that the injured party isn’t happy about it. The Wicker/Toth proposal is not, and never was, relevant.

It is time to end all discussion with Duncan and his followers. The plaintiffs should insist on an immediate hearing leading to a judgment that diocesan property must be turned over forthwith. Such a judgment could be appealed, but, in the end, Duncan cannot and will not win. His latest letter suggests that he knows that.

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