From the Anglican Curmudgeon:
Tuesday, October 6, 2009
Up until now, I have reserved judgment about the legal abilities of Judge Joseph M. James of the Court of Common Pleas of Allegheny County in Pennsylvania. Based on the transcripts of the arguments before him, he had seemed to maintain an open mind in the proceedings, which placed at issue the ability of the Diocese of Pittsburgh headed by the Rt. Rev. Robert W. Duncan to hold the assets it had acquired for the benefit of the parishes which made up its membership.
Now, unfortunately, Judge James has demonstrated that he is unequal to the task before him. He has issued a decision that entirely skips over the complex issues raised by 815's formation of a Potemkin diocese out of the parishes which did not agree with the vote of the Diocese to withdraw, and which were allowed to retain their property. He concludes, without any reasoning at all, that the Potemkin diocese is entitled to all of the property and assets of the one true diocese. Clergy in the former, led by the Rev. Dr. Jim Simons, have been gifted with a temporary victory won by unprincipled means -- and thereby have managed to demonstrate the wisdom in St. Paul's admonishment to Christians who would take their disputes to the secular courts for resolution.
Judge James claims to be enforcing the language of a stipulation entered into by the parties which was intended to settle the original lawsuit, which had been brought by Calvary Church and some individuals in 2003. The Stipulation provided in paragraph 1 as follows (I have added emphasis to stress the relevant parts):
1. Property, whether real or personal . . . held 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 and 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. . . .
So now let us apply an objective lens to the quality of analysis which Judge James brings to the interpretation of this language. He seems to think that the issue was decided long before the Stipulation was signed in 2005, when he refused in March 2004 to grant the defendants' Motion to Dismiss (emphasis added):
After the filing of an answer and a number of other pleadings, on March 17, 2004, the court denied defendants' Motion to Dismiss and ordered the parties to go forward with discovery. At the hearing on that Motion to Dismiss, the court found that the Canons of the Episcopal Church of the United States of America imposed a constructive trust on parish property for the benefit of the Episcopal Church of the United States of America and the Pittsburgh Diocese of that church.
Maybe you did, Judge James, maybe you did so find. But even you characterize that earlier "ruling" as dealing only with parish property, and not diocesan property. The Dennis Canon, of course, addresses the former, but not the latter:
Sec. 4. All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.
Property held by a Diocese (a real one, at any rate) is not held "by or for the benefit of" any particular parish. To bring this point home, let us look at the rarely quoted second section of the Dennis Canon:
Sec. 5. The several Dioceses may, at their election, further confirm the trust declared under the foregoing Section 4 by appropriate action, but no such action shall be necessary for the existence and validity of the trust.
If the intent of the Dennis Canon were to apply to the property of dioceses as well as to the property of parishes, why would section 5 give dioceses the option of "further confirm[ing] the trust declared under the foregoing Section 4", but not give that same option to the parishes themselves? Such reasoning, of course escapes Judge James; he maintains he decided this case long ago, in March 2004, and is only now getting around, more than five years later, to informing the parties of that fact.
In the process of doing so, however, the honorable Judge shows that he has not mastered the basic underlying facts (emphasis added):
In fact, at the Diocesan Convention of October 4, 2008, a resolution to withdraw the Diocese from the Episcopal Church of the United States of America and align it with the Anglican Province of the Southern Cone received a majority of the votes cast.
After defendants took this action to withdraw from the Episcopal Church of the United States of America, the Episcopal Church of the United States of America removed Bishop Duncan as Bishop of Pittsburgh and named new members of the standing committee of the Diocese of Pittsburgh.
No, Judge James, the Episcopal Church of the United States of America claimed to have removed Bishop Duncan from his position before the Diocese of Pittsburgh held its vote to withdraw from the Church. But since your mind was made up in this matter in March 2004, why let the facts get in the way?
Those parishes that remained loyal to the Episcopal Church of the United States of America (including plaintiffs) are now recognized as the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.
As the Episcoleft is so fond of telling us, only General Convention can create dioceses. So what is this use of the passive voice about -- that the departing parishes "are now recognized" as a Diocese? Who did the recognizing? Again, to Judge James, the facts just do not matter.
Thus we come to the heart of the honorable Judge's decision. Notice the appeal to "clear and unambiguous language", instead of legal reasoning:
Many pages of the parties' briefs have been used to explain what Paragraph One means. However, I find that the language is clear and unambiguous and, therefore, requires no further explanation. The property is to be held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America. Regardless of what name defendants now call themselves, they are not the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America.
"Many pages", Judge James? How about hundreds and hundreds? And over fifty separate exhibits? All to elucidate the meaning of a paragraph which you say is "clear and unambiguous" on its face?
Judge James then justifies his conclusion with these words:
Credible evidence establishes that the entity now represented by Attorney Andrew Roman has been recognized as the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America. Defendants contend that this designation is invalid and that they are entitled to continue to hold and administer the subject property. There is no basis in law or fact for their position. The Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America did not cease to exist when the defendants chose to withdraw. The defendants could not extinguish an entity that was created and recognized by the intervenors. The action to designate a subsequent board of governance and appoint a successor to Bishop Duncan is further evidence that the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America never ceased to exist.
There's that passive voice again -- "has been recognized". By whom, Judge James? Not by General Convention enacting a resolution admitting the Potemkin group into union with it, that's for sure. If you take the word of the Church's expert, Dr. Bruce Mullin, that is the only "recognition" that counts. (Oh, wait -- Dr. Mullin did not testify in Pittsburgh; no need to, since the case was apparently resolved in March 2004, long before the Potemkin diocese was created.) And then we come to this startling statement:
The Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America did not cease to exist when the defendants chose to withdraw. The defendants could not extinguish an entity that was created and recognized by the intervenors.
Extinguish? Who said anything about extinguishing? I have used a word search on all of Bishop Duncan's legal briefs submitted to the court, and I did not find that word anywhere in them. This has all the appearance of ignoratio elenchi, the setting up of a straw man in order to show how he can be knocked down.
And what becomes of the Diocese headed up by Bishop Duncan? If the group that chose to leave the Convention after the vote remains "the Diocese" because it could not be "extinguished", then I guess the vote taken was not to amend the Diocesan Constitution, but instead to create an entirely new Diocese. Because that is the only way one can conclude that the group that walked out of the Convention suddenly became "the Diocese" (but only after it was "created and recognized by the intervenors", of course).
So let us try this reasoning on for size. Here are the steps which logically must have occurred, according to Judge James:
1. The Episcopal Diocese of Pittsburgh, a lawful entity under Pennsylvania law and a defendant in the Pittsburgh lawsuit, voted in October 2008 to amend its Constitution so as to remove the language which made it a constituent part of the Episcopal Church (USA). Certain delegations to the Convention walk out after the vote.
2. The same Diocese meets in a Special Convention two months later and elects the Rt. Rev. Robert W. Duncan as its bishop. Both it and he continue to be defendants in the lawsuit before Judge James. However, according to Judge James, they are not the same entities any more.
3. Thus, the vote in October did not amend the diocesan Constitution, despite the fact that everyone there though that was what was happening. No, by some legal magic, what happened was that a new entity was instantly created and constituted under Pennsylvania law, and that new entity was the one who met in Special Convention a little later.
4. Because, you see, the group that walked out of the Convention, and who opposed the vote to amend, remained the original Diocese, which the group voting to amend could not "extinguish". So if they remained the original Diocese, then Bishop Duncan's group must somehow have instantly become a new legal entity which called itself a Diocese.
5. But there is no need to substitute that new entity into the lawsuit, as would normally be done when any new entity is formed in the place of an old one. No, instead, we will let that new entity continue as a defendant in the lawsuit, even though it is not the same entity it was before the vote to amend.
6. And the entity that remained in place, that was not "extinguished", must now be allowed, once it has first been "recognized" by those who "created" it originally, to intervene in the legal proceedings as an intervening plaintiff -- even though, before the vote to amend, that same entity was a defendant.
All perfectly clear? That settles that. Next case!
Posted by A. S. Haley at 10:53 PM
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