April 14, 2009

Who Represents What

Andy Roman, chancellor of the Episcopal Diocese of Pittsburgh, filed a document with the Allegheny Country Court of Common Pleas on January 5, 2009, titled “Praecipe for Entry of Appearance.” Roman was simply saying that he was entering the Calvary Church v. Bishop Duncan, et. al., litigation on behalf of the Episcopal Church’s Diocese of Pittsburgh:
In accordance with the transcript of proceedings in this matter dated October 23, 2008 and at the request of the Court, kindly enter my appearance as attorney on behalf of The Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.
Attorneys for deposed bishop Robert Duncan and his fellow defendants in the case, filed a motion on January 20, 2009, titled “Motion to Strike Praecipe for Entry of Appearance.” Their position was the following:
On January 5, 2009, Andrew Roman of Cohen & Grigsby, P.C. purported to enter his appearance in this case on behalf of an entity called “The Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.” That entity is not a party to the litigation, and Mr. Roman’s Praecipe for Entry of Appearance must be stricken. Mr. Roman does not represent the Episcopal Diocese of Pittsburgh (the “Diocese”) that has been the defendant in this litigation since March 5, 2004 and subject to the October 14, 2005 Stipulation and Order and this Court’s September 17,2008 Order. Mr. Roman’s appearance is nothing more than attempt by the newly-created Pittsburgh diocese aligned with The Episcopal Church to circumvent the adjudication of this matter by claiming to be the Diocese that is a party to this litigation. While this new diocese may intervene to litigate the issues surrounding the property covered by the October 14, 2005 Stipulation and Order,1 it cannot enter this litigation and attempt to “resolve” these issues by pretending to be the Defendant Diocese.
Yesterday (April 13, 2009), Roman filed a response to the January 20 motion, “Response of the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America to Motion to Strike Praecipe for Entry of Appearance.” In his response, Roman points out that, in a court hearing on October 23, 2008, the court (i.e., Judge Joseph James) asked Roman to enter his appearance on behalf of the Episcopal Church diocese. The chancellor quotes what he himself said on that occasion to make it clear that the court was well aware of what each side was arguing when he was asked to enter his appearance:
Mr. Fletcher [counsel for Bishop Duncan] contends that this process did in fact pull the Episcopal Diocese of Pittsburgh outside the Episcopal Church. Their argument is that we remnants of the Episcopal Church now have to reassemble and reorganize a brand new Episcopal Diocese of Pittsburgh.

Our position is that, no, we disagree. Those attempts to remove the diocese were ineffectual because the individuals who were attending that convention didn’t have the power to cast a vote that was in violation of their obligations under the canons that they were obligated to be following at the time, which required them to faithfully perform their duties consistent with the Constitution and canons of the Episcopal Church. …

Our position is, Your Honor, there is only one Episcopal Diocese of Pittsburgh, we are — we represent that Episcopal Diocese of Pittsburgh, that it is founded on an ecclesiastical determination. And ultimately, to the extent that we have to apply to the courts to enforce that determination, we would be asking the courts to defer to that determination because it is an ecclesiastical matter.

At the bottom here, the issue is, who is the Episcopal Diocese of Pittsburgh?

That last question is, of course, central to resolving the Pittsburgh litigation. In asking the court to deny the January 20 motion by the defendants, Roman makes it clear that, by entering the case, he is not trying, as the Duncan attorneys argued, “to circumvent the adjudication of this matter.”

Recall that, when Calvary Church filed suit against Bishop Robert Duncan and other diocesan leaders on October 24, 2003, Calvary claimed it was acting on behalf of the Episcopal Diocese of Pittsburgh. The defendants objected, asking, on December 30, 2003, that the diocese be added as a defendant. (Among other things, this would justify having the diocese pay legal expenses.) The court so ordered on March 5, 2004. In its order, Roman points out, this sentence that the defendants wanted as part of the order was stricken by the court: “The interest of The Episcopal Diocese of Pittsburgh will be represented by Defendants.” On October 14, 2005, both sides in the litigation agreed to the stipulation that contains this crucial paragraph:
Property, whether real or personal (hereinafter “Property”), held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America (hereinafter "Diocese") for the beneficial use of the parishes and institutions of the Diocese, 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. For purposes of this paragraph, Property as to which title is legitimately held in the name of a parish of the Diocese shall not be deemed Property held or administered by the Diocese.
At some point, Judge James has to declare who represents “the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.” Everyone agrees what this entity was on the morning of October 4, 2008, before the annual convention of the diocese voted to secede from The Episcopal Church. Duncan claims that the convention had a right to make that decision and that the diocese actually left The Episcopal Church. The diocese represented by Roman argues that the convention acted beyond its authority and that those who left The Episcopal Church left the Diocese of Pittsburgh behind. Moreover, the diocese argues that the identity of the diocese is an ecclesiastical matter that the court can enforce but not second-guess. Common sense would suggest that, even if Duncan is correct about the diocese’s being able to leave the church—understand that I raise this only as a hypothetical—“the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America” would have to refer to a diocese in The Episcopal Church, which, clearly, Duncan’s entity is not. In the end, is there any way that Judge James could rule for the defendants? I think not.

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