Calvary Lawsuit Heats Up

After more than a month of public inactivity, the Calvary lawsuit has seen four court filings in three days.

Recall that Calvary Episcopal Church brought suit against then Bishop of Pittsburgh Robert Duncan and other leaders of the Diocese of Pittsburgh in October 2003. In the wake of the General Convention’s consent to the consecration of Gene Robinson as Bishop of New Hampshire, Bishop Duncan had begun talking about the need to separate the diocese from The Episcopal Church and had a special convention pass a resolution intended to facilitate the removal of parish property from the diocese. Calvary Church, with no help from the parent church at the time, acted to prevent such alienation of property.

Two years later, all parties agreed to a stipulation that asserted that, come what may, diocesan property would remain with “the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.” (There were other provisions in the stipulation, but the focus, for now, is on the disposition of diocesan assets.) In October 2008, at the urging of Bishop Duncan, who had been deposed the month before by The Episcopal Church, the diocesan convention voted to leave The Episcopal Church. As a result, Duncan now claims to head a diocese of the Southern Cone, a South American Anglican church. Those Pittsburgh Episcopalians who remained with their church claim to represent the continuation of the Pittsburgh diocese. Their group, however, although it made a legal request for Duncan and his supporters to hand over diocesan property, has received nothing from Duncan’s entity. Since the split in the diocese, the ongoing Calvary litigation has seen the entry of the Episcopal Church diocese and The Episcopal Church itself as plaintiffs in the case. We are now seeing the bizarre contention of two entities calling themselves “the Episcopal Diocese of Pittsburgh” vying for property worth millions of dollars, as well as for diocesan records, diocesan archives, and the like.

The recent filings are clarifying the legal strategy of the two sides: the defendants are stalling for time, trying to draw out the legal proceedings as long as possible, probably hoping for a settlement that does not strip them of all the assets they have removed from the control of Episcopalians. The plaintiffs, on the other hand, claim that the stipulation is clear: events anticipated by the stipulation have occurred, and the continuing Episcopal Church diocese is immediately entitled to assets controlled by the defendants. There is, say the plaintiffs, nothing to litigate.

Two days ago, I wrote a post about one of the filings, a response by the chancellor of the Episcopal Church diocese to the objection by the defendants to his entry into the litigation. The defendants are asking for a hearing on the matter. Yesterday, the defendants filed an objection to the entry of The Episcopal Church into the case in the person of the Rt. Rev. John C. Buchanan. Defendants want the judge to deny Bishop Buchanan’s entry into the case.

Although I do not want to analyze at length the defendants’ objection to the entry of The Episcopal Church, it is worth noting that the pleading reiterates the contention that

TEC is a confederation of equals formed by the joining in association of existing dioceses. Because TEC was created by existing dioceses, its Constitution is controlled and limited by the power conferred on it by those dioceses. Power not specifically delegated by the dioceses and enumerated in the Constitution of TEC was, and is, retained by the dioceses.

This claim is wrong in a number of ways, but the defendants have found at least one obscure reference to support their position. In a “Memorandum and Decision on Motion for Modification of Sentence,” a document related to the recent trial of the Rt. Rev. Charles Bennison, Jr., (Exhibit 1 in the filing), the following sentence occurs: “Rather, the Diocese of Los Angeles, a wholly autonomous entity [emphasis added] which is not a party to these proceedings, chose not to produce the documents notwithstanding entreaties from the Court.” The sentence comes from the Court for the Trial of a Bishop, of course, and is hardly a definitive statement by The Episcopal Church regarding its polity.

The remaining two recent filings are from the plaintiffs. One is a response to the defendants’ objection to the plaintiffs’ filing of January 8, 2009, which essentially said that diocesan assets should be handed over to the Episcopal Church diocese in conformity with paragraph 1 of the 2005 stipulation. (My post about that filing can be found here. When I wrote that post, the document itself was not yet available. It is now and can be read here.) This latest reply is a mere four pages long and can be read here. Of considerably more interest is “Opposition to ‘Amended Motion to Restore and Preserve Status Quo and Motion to Establish Procedure for Adjudication of Challenges’,” to which I now turn. (Note that some of exhibit pages in this document are copied badly.)

The plaintiffs argue that it should be clear that, in light of the departures that resulted from the vote at the October annual convention, paragraph 1 of the stipulation demands that the Episcopal Church diocese be given the assets of the pre-split diocese forthwith. Rather than holding a hearing on whether the vote of the convention was proper, the court should first decide if the plaintiffs’ interpretation of the stipulation is correct. If it is, there is no need to consider the validity of the vote.

The argument made by the plaintiffs’ attorneys displays a certain frustration with the delaying tactics of the defendants, who are portrayed as, well, disingenuous. It begins with this analysis:

The Amended Motion filed by Robert Duncan and his followers is in some ways analogous to the bemoaning of a person who signs a prenuptial agreement then later breaks up their home, establishes a budget at the same time as the break-up, based upon an assumption of use and access to the same resources as had existed before the break-up and then complains that by reason of the prenuptial agreement and the break-up, he/she cannot now pay for all the things he/she used to be able to pay for. The title on the Defendants' present Motion is, indeed, ironic. The status quo before the separation of Robert Duncan and other persons from the Episcopal Church was that assets of the Episcopal Diocese of Pittsburgh were within the control of leaders who were members of the Episcopal Church. That is the status quo, if any, that should be preserved.

You can see where this is going.

The defendants had complained that, without access to assets frozen by Morgan Stanley, it would have trouble paying bills, particularly legal bills. On the contrary, however, the plaintiffs argue that the defendants’ attorneys are indeed being paid, and the Duncan organization has access to a checking account that had a balance of over a million dollars a year ago and, presumably, is not yet depleted. Citing obvious evidence, the plaintiffs state: “Whatever Robert Duncan and his followers may claim to be, they cannot claim to be ‘the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.’”

The document then moves to establishing that the split that took place last October was indeed the sort of event anticipated in the stipulation. In particular, the plaintiffs argue that Duncan’s former attorney, Joseph Otto, clearly indicated that property would stay with the Episcopal Church diocese “regardless of the separation of Robert Duncan or others from the Episcopal Church of the United States of America.” (The assertion is backed up with exhibits.) The most interesting argument then follows. In 2007, when plaintiffs pressed for enforcement of paragraph 1 of the stipulation, “Defendants stated that there had been no violation of the Order
because ‘[t]he Diocese is a constituent member of The Episcopal Church of the United States (hereinafter “TEC”), has not withdrawn from TEC, and continues to be a constituent member of TEC.’” The plaintiffs assert that two “judicial admissions” are made here: (1) that retaining diocesan property after leaving The Episcopal Church would violate the terms of the stipulation, and (2) the phrase “the Episcopal Church of the United States of America” refers to The Episcopal Church. These admissions cannot later be contradicted by the defendants’ attorneys—replacement attorneys, as it happens—according to the pleading. An 1853 Pennsylvania case is cited here, which offered the following logic: “Where a man alleges a fact in a court of justice, for his advantage, he shall not be allowed to contradict it afterwards. It is against good morals to permit such double dealing in the administration of justice.” The argument concludes

Thus, the above quoted judicial admissions in the present case absolutely bar Defendants’ effort to introduce evidence or argument that the phrase “the Episcopal Church of the United States of America” did not refer to TEC or that use or retention of Paragraph 1 Property after withdrawal of the entire diocese (even if it could validly occur) would not violate Paragraph 1.

More arguments follow, but the foregoing might be considered the climax of the argument. Before asking the court to agree with the plaintiffs’ logic, this final point is made:

The current counsel for Defendants are creating a straw man by attempting to divert the Court into the ecclesiastical endeavor of divining whether a diocese can withdraw from the entity of which it is a diocese. As we have just shown, all of that is irrelevant under the Stipulation, which was entered to avoid just that prolonged inquiry with ecclesiastical “experts” and years of litigation. If required, we will litigate these issues; because we do not agree that a diocese or parish can unilaterally separate itself from the Episcopal Church. However, we should not have to do that. Our protection of the Paragraph1 Property is the one solid thing Plaintiffs obtained in the Stipulation—it should not and properly cannot be taken away. It is now time that the deal reflected in the Stipulation be lived up to. Robert Duncan can never prove that there is not an Episcopal Diocese of Pittsburgh which is part of the Episcopal Church. The Stipulation and Court Order specifies that is the entity to hold Paragraph 1 Property.