May 27, 2009

My Day in Court

Today, I attended a hearing before Judge Joseph James on the October 14, 2005, stipulation in the Calvary lawsuit against deposed bishop Robert Duncan and other former officers of the Diocese of Pittsburgh. The event had been variously portrayed, but Judge James characterized it as being about the petition from the plaintiffs to enforce the stipulation. Soon after he took the bench, just after 10 o’clock, he said that the hearing was to determine whether the stipulation had been violated and needs to be enforced. At issue was only the meaning of paragraph 1 of the settlement document:
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.
Diocese of Pittsburgh chancellor Andy Roman represented the plaintiffs, and John Lewis represented the defendants, none of whom appeared to be in the courtroom.

Calvary Church and the Diocese of Pittsburgh were amply represented among the small group of spectators. At one point, I thought I saw Bishop Duncan walking down the hallway to the courtroom, but it turned out that I had seen John Lewis, someone I had never met but who bears a striking resemblance to Duncan from certain angles. (I thought this rather remarkable and mused over whether Duncan had picked a lawyer from a book of 8x10 glossies. “That one!” I imagined him saying, as he pointed to the photo of Lewis. “He looks so trustworthy!” But I digress.)

In particular, what was not being litigated was whether Duncan and his supporters had rightfully removed the diocese from The Episcopal Church. During the hearing, Lewis made it clear that he thought the point at issue was the meaning of the stipulation under the assumption that the withdrawal was proper. Roman, on the other hand, was arguing for a particular interpretation of paragraph 1 without regard to the propriety of withdrawal. Although this seems like a broader issue, since the defense has admitted that it loses the case if withdrawal was not proper, the only interesting case to consider is the one in which the withdrawal was valid. If it were, however, the defendants might still lose.

The hearing began with Roman announcing a schedule for post-hearing briefs that had been agreed to by attorneys for both plaintiffs and defendants. This was a depressing beginning; the last deadline is July 9. Judge James, also, seemed none too happy. He remarked on the quantity of reading necessitated by the Calvary case and said that he “may have to get more Murine” for his eyes. Roman then proceeded to present the case for the plaintiffs.

I don’t frequent courtrooms, and what came next was something I had not been prepared for by watching episodes of Perry Mason. Neither Roman nor Lewis presented a coherent theory of the case to the judge. Instead, they made (or tried to make) various points, presumably relying on pre- and post-hearing briefs to construct a complete story for the court.

The nearly two-hour morning session of the hearing was taken up with the testimony of Walter DeForest, the attorney for Calvary Church who filed the suit against diocesan leaders in 2003. Lewis immediately objected to Roman’s calling DeForest, but the judge allowed it after Roman said that DeForest was not there to give his legal opinion but to provide context regarding the settlement reached in 2005.

Roman introduced 16 exhibits (documents) and asked DeForest to put each of them in context. Lewis objected to the introduction of each exhibit, but he only managed to convince the judge to exclude one of them. The exhibits were mostly documents generated by one party or the other in the process of negotiating the October 2005 stipulation. The primary negotiators were DeForest himself, for the plaintiffs, and Wilbur “Joe” Otto and Wicks Stevens for the defendants. What was established in the examination of DeForest primarily was that
  1. Negotiation of the stipulation began at a time when discovery had produced a good number of documents from the defendants and, in the normal course of litigation, the taking of depositions would follow. (The implication seemed to be that the defendants wanted to avoid being deposed.)
  2. A great deal of time was spent clarifying “Diocese” in the stipulation. (I learned that capitalizing such a word or phrase that is defined in the document makes it a “defined term,” whose meaning is always that which has been stipulated explicitly. In other words, capitalization, which might not be required grammatically, can be legally significant.) DeForest explained that he did not want any later confusion or dispute over what diocese was being referred to. (Obviously, he was not completely successful in this regard.)
  3. DeForest always had the objective of maintaining diocesan property within The Episcopal Church and would not have agreed to a settlement that did not achieve that objective.
  4. Otto agreed to keeping the diocesan property with the Episcopal Church diocese and did not object when the stipulation was characterized as doing so.
I will spare you details of the discussion of each of the 16 exhibits. After a lunch break, Roman quickly finished his questioning of DeForest. Before cross-examination began, Roman announced that exhibits 17–41 were also being offered to the court without objection by the defense as to their authenticity. More on these below.

When Lewis began questioning DeForest, the conversation became a bit testy. DeForest was obviously being careful about what he said, and I think he was genuinely perplexed at times as to what Lewis was getting at. Roman occasionally objected, and even Judge James seemed surprised by some of the questions. Lewis asked, for example, if DeForest intended the “Diocese” of the stipulation to be a “constituent part” of The Episcopal Church and whether “Diocese” could refer to the same diocese or a new diocese. At one point, DeForest responded that a Lewis question “doesn’t make sense to me.” Lewis asked if DeForest saw a difference between “disaffiliating” and “withdrawing.”

Lewis introduced an exhibit, and he asked DeForest to identify it. It was apparently a document from Otto, involving the negotiations about the stipulation, but DeForest could not identify it and said that no copy of the document had shown up in the search of his files. (The first set of exhibits were largely or completely from DeForest’s files.) Lewis was trying to make a point here, but it is not clear what it was. In the end, he said he would get an affidavit from Otto that the document had been sent to DeForest. What this was about proved to be the big mystery of the day.

In any case, cross-examination of DeForest ended without any clarity as to what Lewis was trying to accomplish.

Roman then called Jacqueline Koscelnik, a partner of DeForest who had been sequestered during her partner’s testimony. Her testimony largely provided minor details about the stipulation negotiation; her role in meetings was, according to her testimony, mostly as a witness. One particularly interesting fact did come out in her direct examination, however. There was, at one time, a plaintiff request for an accounting of Bishop Duncan’s time, as there was a concern that diocesan funds were being used to support the Anglican Communion Network. According to Koscelnik, however, the defendants would not agree to this.

Lewis’s cross-examination of Koscelnik was brief. He was mainly concerned with the creation of a “new” Episcopal diocese and what would happen if there stopped being an Episcopal Diocese of Pittsburgh in The Episcopal Church.

After a brief recess, Roman gave copies of the remaining exhibits to Judge James, and the attorneys quibbled over the relevance of particular documents. During this time, the judge observed that Roman never referred to the Southern Cone group as a “diocese,” and Lewis noted that Mary Kostel and David Beers, attorneys representing The Episcopal Church and sitting silently at the plaintiffs’ table, could never admit that a diocese can withdraw because of pending litigation elsewhere. Roman seemed to have a variety of objectives in bringing in the final set of exhibits, most of which were allowed by the judge, some with questions being raised by the judge or by Lewis as to their relevance. Because many of the exhibits were not clearly identified orally, some of the discussion was hard for spectators to follow.

One concern of the defense became clear. Lewis does not want a letter from the Presiding Bishop to end the discussion as to who represents the “Diocese” of the stipulation. (Roman indicated that some of the exhibits were intended to establish the legitimacy of his client.) Eventually, Kostel, who apparently could maintain silence no longer, stood up to say that Lewis had no standing to argue about Episcopal Church polity, a point reiterated by Roman as well near the end of the day.

The hearing ended with Lewis “conceding” several points and an agreement that the two sides would indicate to the court previous briefs they believed relevant to the matter at hand by Monday, June 1. (I was relieved when the end came, as Judge James had suggested earlier that the hearing might go on for three days. I had expected it to take only one morning!)

The plaintiff position has always been clear: A diocese cannot leave the church; the diocese recognized by The Episcopal Church is the continuation of the pre-October 4, 2008, diocese; and that is the “Diocese” of the stipulation. The defendants dispute all three points, and they know they cannot prevail without winning their point on the first proposition. Their argument seems to be that (1) they withdrew properly from The Episcopal Church, leaving the church without a Pittsburgh diocese; a “new” Pittsburgh diocese therefore needed to be created; the creation of a new diocese requires action by the General Convention, which has obviously not occurred; and the only entity that could “continue” to hold diocesan property is Duncan’s.

Although Roman is trying to show that the Presiding Bishop and Executive Council recognize his client as the legitimate and continuing Diocese of Pittsburgh, Lewis is claiming that legitimation comes only from the General Convention. Of course, Roman will soon be able to argue that deputies from his client have been admitted as members of the 2009 General Convention, which will thereby recognize the diocese, at least implicitly. Here’s an idea, however: Why not introduce a resolution in the General Convention to the effect that the Convention recognizes the Diocese of Pittsburgh as the legitimate and continuing diocese, for which no additional “admission” to union with the General Convention is necessary. Such a resolution should be passable in 15 minutes or so in Anaheim. It would seriously undercut Lewis’s argument and would be timely indeed.

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