Anglican Legal Advice

In its e-mail newsletter yesterday, the Anglican Diocese of Pittsburgh, led by Archbishop Robert Duncan, announced a new section on its Web site called Parish Toolbox: Moving Forward Together. Parish Toolbox is described this way:

This page is designed to serve as a resource center (or “toolbox”) for parishes and parish leaders who are effected [sic] by the ongoing litigation from the Episcopal Church diocese. You will find here links to all relevant information, resources, and upcoming meetings.

I cannot refrain from noting the irony of “moving forward together,” given that the Anglican diocese is composed primarily of people who left The Episcopal Church.

There is also a less obvious irony. Before the October 2008 vote that split the Diocese of Pittsburgh, the diocesan leadership under Bishop Duncan created a Web site called Parish Toolbox¹. The site was largely a collection of documents. Reputedly, it was intended to help people to decide if they wanted to support “realignment.” In practice, even though some anti-realignment documents were posted, Parish Toolbox was intended to promote the Duncan agenda of removing the Diocese of Pittsburgh from The Episcopal Church. Repeatedly, Duncan asserted that nothing would change after a realignment vote. For example, in a document called “Frequently Asked Questions about Realignment,” the diocese offered this:

If the Diocese chooses to realign, what would the immediate consequences be for individual a) parishes and b) clergy?

a) There would be few immediate consequences for parishes. No property would immediately change hands. Expected lawsuits would largely target the Diocese.

b) Clergy would need to enter a new retirement plan and would be clergy of the province that the Diocese joins instead of clergy of The Episcopal Church.

(This answer, in fact, concedes more than was typical.) The irony is that the current Parish Toolbox is telling parishes how to deal with the change they had previously been told would not occur.

This brings us to the first document on the new Parish Toolbox, “Legal FAQ Sheet.” Like “Frequently Asked Questions about Realignment,” this document invites commentary. It begins:

What is the difference between a parish whose deed is held by the Trustees of the Episcopal Diocese of Pittsburgh, a parish who holds their own deed, and a parish with no deed or that only acquired property after realignment?
If the deed of your parish is held by the Trustees of the Episcopal Diocese of Pittsburgh, the court has ruled that your property belongs to the Episcopal Church diocese. If your parish holds your own deed, then your property is not currently involved in any litigation. We expect, however, that the Episcopal Church diocese will try to assert that your parish is subject to the “Dennis Canon” (see “What is the Dennis Canon?” below). Because the Diocese left The Episcopal Church together, we believe that we are not subject to the Dennis Canon. In fact, ACNA canons say clearly that parish property belongs to the parish alone, not the diocese. If your parish has no deed or acquired property after realignment (October 2008), the Episcopal Church diocese has no legal claim on any of your property or assets. Likewise, if your parish joined the Anglican Diocese of Pittsburgh after realignment, the Episcopal Church diocese has no legal claim on any of your property or assets.

Remarkably, Duncan expected that he could leave The Episcopal Church and take the diocese with him. Therefore, whatever the diocese owned would be under his control. The court ruled that the Episcopalians ran the real Episcopal Diocese of Pittsburgh and were the proper trustees of diocesan property. Unlike in other “realigned” dioceses, a stipulation agreed to by Duncan determined the fate of diocesan property. It was never clear how Duncan thought he could get around the language of the stipulation, but he is still fighting the plain meaning of its wording. (See “More on the Petition for a Rehearing.”)

What is breathtaking here is the assertion that the Dennis Canon, whose legitimacy is implicitly conceded in the answer, might not apply “[b]ecause the Diocese left The Episcopal Church together.” This might seem like an argument that theft isn’t theft if there are sufficient thieves involved, but I suspect that something more complicated is being asserted. The court has not ruled on whether the realignment vote was proper. Duncan’s lawyers seem very interested in getting a determination on this matter. The argument, I suspect, is that, if the vote was proper, the Dennis Canon does not apply because parishes were properly removed from the diocese. I believe the vote was not legitimate because it was based on constitutional changes that were not legitimate. My guess, however, is that the Court of Common Pleas of Allegheny County will not find a reason to address the issue. As matters currently stand, congregations that left the diocese must negotiate with the Episcopal Diocese of Pittsburgh for parish assets. That is beginning to happen; Duncan is trying to stop it.

Next question:

How do I find out if my parish’s deed is held by the Episcopal Church diocese?
If you are concerned about the status of your parish’s deed, speak with your rector or senior warden. Every rector and senior warden should be able to tell you the current status of your parish deed.

They should. Perhaps they can, perhaps not. They may not want to.

If we are one of the twenty-four parishes whose deed is held by the Episcopal Church diocese, does that mean we have to leave our buildings immediately?
No, there is indication that the Episcopal Church diocese is interested in an orderly transition, and the court has stated that no congregation will be removed from their building without an additional review from the court. Furthermore, the Anglican Diocese has requested a rehearing of our case. If it is at all possible for congregations whose deed is held by the Episcopal Church diocese to leave their property—the Anglican diocese encourages them to do so. This will mean that your congregation will not face anymore uncertainty and litigation. There is a Board of Trustees committee ready to help any congregation examine alternatives that would strengthen their mission.

The assertions of fact here are indeed true. It is interesting that Duncan is encouraging congregations in buildings owned by the Episcopalians to leave. He is concerned that his diocese is melting away and needs to get out from under debilitating litigation. (Again, see “More on the Petition for a Rehearing” on Duncan’s request to Commonwealth Court.)

If we leave our building, what happens to our parish records?
The TEC diocese is claiming ownership of the parish records. Although the matter has yet to be determined, it would be prudent to copy them.

There is every indication that the Episcopal diocese intends to make records available to all interested parties.

I see no reason to quibble with the next two questions:

After realignment, we filed new papers of incorporation with the state of Pennsylvania. Does this protect us from any future litigation from the Episcopal Church diocese?
No, reincorporation is only one step in a multi-stage process required to ensure freedom from TEC. The Diocesan leadership would be happy to give you guidance on this.

Who owns the ashes in a columbarium? What happens to cremated remains if our parish moves to a new building?
Pennsylvania law clearly states that any remains of a deceased loved one belong to the family of the deceased. If your parish moves to a new building, family members will be able to move the remains to the new location.

The next question is less straightforward:

Are we allowed to have an Anglican priest in a building owned by the Episcopal Church diocese?
Yes, there is nothing to prevent an Anglican priest from continuing their ministry in a parish whose deed is held by the Episcopal Church diocese.

The Episcopal Diocese of Pittsburgh has chosen not to disrupt the operation of such congregations. As landlord and under the Dennis Canon, it would seem to have every right to throw congregations in buildings it owns out on the street, not merely prevent “Anglican” priests from working there. There are two reasons, other than Christian charity, for this policy. First, Judge Joseph James would have to approve, and, legitimately or not, he does not want to see congregations dispossessed. Why would the diocese want to upset a judge who has been ruling in its favor? Second, everyone’s interest will be served by reaching negotiated settlements. Dealing harshly with one congregation will only stiffen the resolve of others, including those having a stronger legal claim.

If I give money to my parish (e.g. tithe, offering), will my money go to the Episcopal Church diocese?
For the most part, any money or property given to your parish after realignment will remain with your parish. However there are circumstances which could limit this. Please ask if you have questions about this.

There is nothing wrong with this answer. The exceptions are mostly mortgage and loan payments. Note, however, that the Episcopal diocese is about to consider churches not paying their assessment as in arrears and subject to a property claim by the Board of Trustees. (See the February 17, 2011, letter from Bishop Price.) I have no idea how the diocese might enforce such a claim.

What is the ‘Dennis Canon’?
The “Dennis Canon” is a name used to refer to Title I.7.4 of the Canons of The Episcopal Church. It claims to establish an implied trust by The Episcopal Church on all parish property. Because the Diocese left The Episcopal Church together, we believe that we are not subject to the Dennis Canon. It is important that no parish acts or makes statements which would imply that they are subject to the Dennis Canon.

See my comments above on the Dennis Canon. The Dennis Canon was passed to establish an explicit trust in parish property, as courts had held that an implied trust might not be enforceable. In the agreements made by the Episcopal diocese with departed congregations, the congregations have had to acknowledge the legitimacy of the Dennis Canon. Good luck, Bob, on this one.

Do the recent settlements with St. Philip’s Church and Somerset Anglican Fellowship effect us?
The Body is always affected when one member acts independently of the whole. Because the details of both settlements are still being kept secret, it is difficult to determine what the impact of these settlements will be on the Anglican diocese and its member parishes.

There is certainly a psychological effect. Moreover, the agreement with St. Philip’s will result in a substantial loss to the Anglican diocese in the form of the parish’s assessment.

Is the Anglican diocese attempting to reach a settlement with the Episcopal Church diocese?
Yes, the Anglican diocese is continuing to work on a “global settlement” with the other diocese. We have tried to do this in a number of ways; we are hoping that this can be accelerated.

Again, good luck. The Anglican diocese may be working on a “global settlement,” but there is no reason to think the Episcopal diocese is working with them on this. (The committee negotiating settlements with parishes is doing so under the terms of the stipulation—the administration of the Anglican diocese has no part in this procedure—and has maintained absolute secrecy as to what it is about.) The Episcopal diocese has indicated that each congregation has its own unique situation, thus making a global settlement unlikely, if not impossible.

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¹ The URL of the site was http://parishtoolbox.com. The site was taken down sometime after the 2008 convention. Progressive Episcopalians of Pittsburgh (PEP) built its own site, A Pittsburgh Episcopal Voice, which was intended to bring balance to the realignment discussion. One of the PEP documents posted there was “Realignment Reconsidered,” which responded to the answers provided in “Frequently Asked Questions about Realignment” point-by-point.