Calvary Asks Court To Appoint Monitor
On Monday 7 July 2008, Calvary Church filed a supplement to our earlier petition with the Court of Common Pleas of Allegheny County. It asks the court to appoint a monitor to inventory and oversee property held or administered by the Episcopal Diocese of Pittsburgh. It also requests that the court create an escrow account into which congregations not desirous of realignment may deposit their diocesan assessments (similar to the arrangement that Calvary has had for some time) so that monies given to the Diocese not be subject to potential diversion to uses contrary to the interests of The Episcopal Church ("TEC"). I thought it would be helpful to explain why these actions were taken.
First of all, this is not a new suit. It will be remembered that in October, 2005, the Court entered an Order, in our original action, prohibiting Bishop Duncan and other diocesan leaders from taking real and personal property of the Diocese outside the jurisdiction of TEC. That order was the result of a Stipulation to which both Plaintiffs and Defendants agreed. The recent action was taken because we believe that the continuing efforts and announced intentions of Bishop Duncan and others are contrary to the October 2005 Order. Examples include, but are not limited to a) the bishop's intention to call for a vote at the diocesan convention which purports to remove the Diocese from TEC and to realign it with the Province of the Southern Cone; b) the bishop's assertion that the result of the alleged realignment would be that every parish will no longer be part of TEC and c) the recent act on the part of the bishop of creating a new Pennsylvania corporation called "The Episcopal Diocese of Pittsburgh," which we believe to be part of his long-range plan.
Given these actions and likely use of Diocesan funds and resources to promote and attempt separation from TEC (including an appropriation of $458,000 for legal expenses in this connection) Calvary deemed it prudent to ask the court to appoint a monitor to oversee and protect the property held or administered by the Diocese. We hope that such a person will be appointed to monitor disbursements and transfers, ensuring that no diocesan assets would be transferred to an entity, such as the Bishop's new corporation or the Province of the Southern Cone, which is not entitled to them. The petition further requests that such a monitor be appointed well before the October 4, 2008, date of the diocesan convention at which a vote will be taken on realignment. It should be pointed out in this connection that under the Canons of TEC the Convention of the Diocese is not authorized to remove the Diocese from TEC.
Please note that the supplement to our earlier petition is not seeking a monitor over property which is not held or administered by the Diocese. Thus, we are not seeking a monitor over property which is held directly by parishes, and not the Diocese. The court order obtained in October, 2005, however, does contain protections regarding efforts to take outside TEC any property directly held by a parish.
We shall keep you abreast regarding developments. H.T.L.+
COURT DENIES BISHOP'S MOTION TO DISMISS CALVARY'S LAWSUIT
We are pleased to announce that Judge Joseph James of the Court of Common Pleas of Allegheny County has issued the following Order with respect to the the case of Calvary Episcopal Church et al. v. The Right Reverend Robert William Duncan et al.:
"And now, this 8th day of May 2007, upon consideration of the Defendants' Motion to Dismiss or Strike Petition and Plaintiffs' Reply to Defendants' Motion to Dismiss or Strike Petition, the Defendants' Motion to Dismiss or Strike Petition is hereby denied."
This is a significant development in the case, and means that the Court has not accepted the various arguments put forward by the Defendants alleging that Calvary's actions in the case were unwarranted or without merit. The full texts of those arguments and the Plaintiffs' reply presented by our attorney Walter DeForest, can be found on the Prothnotary's Website.
Before citing the major points in the settlement, I thought it would be helpful, since so much time has elapsed, to recap why we took legal action in the first place. At the 74th General Convention of the Episcopal Church, held in Minneapolis in the summer of 2003, that body, as has been widely reported, approved the consecration of the Reverend Canon V. Gene Robinson, an openly gay man, as bishop of New Hampshire. While virtually no one suggested that Robinson was not qualified (he was much beloved by the people of his diocese where he served for many years as canon to the ordinary) many believed that the fact that he was a non-celibate homosexual person made him unfit for the office of Bishop. The matter was hotly debated, but in the end, both the House of Bishops and the House of Deputies voted to ratify the election, and gave the church's consent to the Diocese of New Hampshire to proceed with the consecration.
But as is well known, the matter did not end there. While most bishops and deputies who were not in favor of the Convention's actions returned to their respective dioceses confident that the church could live with the tensions and differences occasioned by this development (much as it had lived with differences over civil rights, Prayer Book revision and women's ordination) a minority fervently believed that the Episcopal Church had acted improperly and without authority, and had proved to be unfaithful to Scripture and tradition. Moreover, some opined that the General Convention action was tantamount to an act of schism, by which the Episcopal Church had separated itself from catholic Christendom. Accordingly, some congregations, dioceses and provinces have sought to align themselves with other entities they deem to be "orthodox."
Shortly after the General Convention, a special convention of the Pittsburgh Diocese was called for the purpose of enacting several resolutions. The celebrated "Resolution 6" to which many of us in the Diocese, including the Vestry of Calvary Church, took exception read as follows:
Title To Property
Property held by the Board of Trustees of the Church in the Episcopal Diocese of Pittsburgh for the use of a Parish, Mission Fellowship or Diocesan Organization belongs beneficially to such Parish, Mission Fellowship or Diocesan Organization only. No adverse claim to such beneficial interest by any other body, by the Diocese, or by The Episcopal Church in the United States of America is acknowledged, but rather is expressly denied. All other property of the Church in the Episcopal Diocese of Pittsburgh is held by the Board of Trustees for the Episcopal Diocese of Pittsburgh for those exempt religious purposes within the meaning of the Internal Revenue Code of the United States of America. Such exempt religious purposes shall be those determined by the Convention of the Church in the Episcopal Diocese of Pittsburgh and the appropriate officers elected by it. No adverse claim to such beneficial interest by the Episcopal Church in the United States of America or any other body is acknowledged, but rather is expressly denied.
We took exception because such a resolution, in our opinion, clearly contravened the Canons of the Episcopal Church, and in particular Title I, Canon 7, the so-called "Dennis Canon," named for Walter Dennis, late bishop suffragan of New York and sometime chair of the church,s Standing Committee on Constitution and Canons, who was responsible for its drafting. The gist of the Dennis canon is that the Episcopal Church is a hierarchical and not a congregational denomination and that property is held for the purposes of the Episcopal Church of the United States of America and could not be taken outside the Episcopal Church without appropriate consent. We believe that Parishes hold property with the understanding and expectation that they exist for the purpose of carrying out the worship and ministry of the Episcopal Church of the United States of America. Historically, in hierarchical church situations, Pennsylvania courts generally have ruled against congregations or factions within congregations who purport that they may use church property for other purposes. We strongly believed, therefore, that the Diocese had no right to pass the resolution in question, and since the resolution applied to matters pertaining to church property which fall under the purview of the statutes of the Commonwealth of Pennsylvania, we deemed it appropriate to seek redress in the Court of Common Pleas lest our silence be deemed assent.
It should be emphasized that at no time was our action intended to express approval of the consecration of Gene Robinson. Indeed, the Vestry was not of a single mind on that matter. What united us, however, was the recognition that the consecration had occurred, and our conviction that the church should not split over the issue.
We believe that the settlement agreed to by all parties and approved by Judge James recognizes and upholds the validity of the major contentions in our lawsuit. While we are very pleased that ultimately an amicable resolution was finally reached, it should be remembered that such amicable resolution came only after considerable litigation in which the Defendants tried, unsuccessfully, to have our case dismissed as without merit.
The Terms of the Settlement
Property Held by the Diocese. The settlement clearly states that even if "a majority of the parishes in the Diocese might decide not to remain in the Episcopal Church of the United States of America," that property "held or administered by the Episcopal Diocese of Pittsburgh of the Episcopal Church of the United States of America" for the beneficial use of the parishes and institutions of the Diocese, shall continue to be so held. Otherwise put, this means that in the event that some congregations leave ECUSA, the remaining congregations (however few in number) would be the ones entitled to use of both real property, e.g. Calvary Camp, and personal Diocesan property, e.g. endowment funds.
Property Held by Parishes. Importantly, the settlement establishes that any parish electing to disaffiliate with the Diocese must follow a process which provides for openness and rights of both participation and objection by all interested parties. A key provision is the requirement that notification of desired disaffiliation be sent to all members of the parish in question, the Bishop, the Board of Trustees of the Diocese, and the Rector and Vestry of every other parish in the Diocese. The settlement also provides for initial mediation of property disputes regarding such disaffiliation. Importantly, the settlement also provides in paragraph 2(c) that any interested person or entity is free to lodge an objection through the courts for a judicial determination as to any Property rights and obligations in connection with the disaffiliation. Thus, should a dispute arise in the future, the Property interests relating to individual parishes can be adjudicated, if necessary, after full disclosure to all.
The Network. Another important provision in the settlement is that any parish that does not want to be a member of the Network of Anglican Dioceses and Parishes (a group, of which Bishop Duncan is the Moderator, that opposes the consecration of Gene Robinson), may withdraw from the Network (by notifying the Bishop and the Board of Trustees of the Diocese) without affecting the parish's membership in the Diocese. Until now, parishes like ours that did not support the goals of the Network might be deemed to be members of it by virtue of the fact that the Diocese is a member.
Resolution Six of the 2003 Diocesan Special Convention. The fourth provision of the settlement is especially significant, since it declares that Resolution Six, "Title to Property," the initial Diocesan action (quoted above) to which we objected in the lawsuit, "has been withdrawn and is of no effect." We think it is clear that only our lawsuit caused that withdrawal.
Amendment of Article I, Section 1 of the Diocesan Constitution by the 2004 Diocesan Convention. Another Diocesan action has been deemed inapplicable to matters of property. The Amendment to Article I, Section 1 of the Constitution of the Diocese stated:
In cases where the provisions of the Constitutions and Canons of the Church in the Diocese of Pittsburgh speak to the contrary, or where resolutions of the Convention of said Diocese have determined the Constitution and Canons of the Protestant Episcopal Church in the United States of America, or resolutions of its General Convention, to be contrary to the historic Faith and Order of the one holy catholic and apostolic church, the local determination shall prevail.
The settlement confirms that this amendment has no application to property matters. While many of us also believe that such amendment is improper even when applied to ecclesiastical matters -- that is not a matter typically addressed by the civil courts and, therefore, not covered by the settlement.
Calvary's Escrow Account. Initially, it will be remembered, that through a court stipulation, the monies which Calvary would have normally paid to the Diocese as its assessment, amounting to more than $200,000 since the initiation of the lawsuit, were placed in an escrow account. Under the settlement, $50,000 of this amount will be paid to the Diocese, while the balance will be returned to Calvary.
We expect that our suit and this settlement will have, as former Junior Warden Gordon Fisher stated last year, "a great impact upon Episcopalians across the country." As other dioceses seek to sort out differences arising from property disputes, we anticipate that this settlement may be an example for others. I believe it is not an exaggeration to say that we have participated in making history. We have taken action that we believe appropriate to protect the principles now reflected in the court-approved settlement.
I am indebted to all those who have worked assiduously to bring about this amicable resolution. In that group I want to include the Vestry and fellow Plaintiff and former Sr. Warden Philip Roberts, as well as St. Stephen's Wilkinsburg and Bud Harvey of St. Stephen's Sewickley, both of which stepped forward to join us as Plaintiffs. I also want to acknowledge the efforts of Bishop Duncan and his several legal counsel who engaged in good faith negotiations to reach this result.
Faithfully, your rector and friend,
Below are the previously posted announcements:
Episcopal Diocese of Pittsburgh Bishop Robert Duncan asked two parishes of the Diocese, Calvary Episcopal Church in East Liberty and St. Stephen's Church in Wilkinsburg, to reconsider their 13-month-old lawsuit against both bishops and 16 other clergy and lay leaders of the Diocese on November 6.
In order to encourage that process and bring the issues involved to resolution, Bishop Duncan gave notice that the union of those congregations to the diocese might properly be considered the next time the Convention of the diocese meets. Diocesan canons provide that the Convention may dissolve its connection to a parish in cases where there are egregious breeches of church faith or church order. The Bishop said that it was the deepest hope of the Standing Committee that invoking this provision might help everyone understand the gravity of what is at issue, and that there must be some better way than Christians suing one another in court. The bishop stated in making the announcement that he hoped this would actually move forward a process of reconciliation and restoration.
"It is my hope that we don't have to consider this, but on the advice of the Diocese's standing committee, we're opening up the range of tools we have to deal with the situation."
Bishop Duncan said the decision of the two churches to continue in their lawsuit has brought them into direct conflict both with right church order and the clear injunctions of scripture. "Both our Lord and St. Paul deal with this question very directly, saying that Christians don't sue other Christians," he said.
Diocesan Canon 15, section 6, gives the Convention of Episcopal Diocese of Pittsburgh authority to deal with situations that involve an egregious break of church order such as this. "By any reckoning, a congregation suing the entire leadership of the Diocese is an egregious break of the church order," explained Bishop Duncan.
"It is my deepest hope that we will never need to consider this matter at diocesan convention," said Bishop Duncan, "But this situation must be faced and dealt with. For 30 years, the Episcopal Church has avoided its disciplinary canons. Because of this, we have become a family that is terribly out of order. We are not going to become that in this diocese."
Calvary Files Complaint in the Court of Common Pleas
Calvary Episcopal Church, Pittsburgh, Pennsylvania today filed a Complaint in Equity in the Court of Common Pleas of Allegheny County. The legal action states that it is brought under the laws of the Commonwealth of Pennsylvania, to preserve and protect the unity and integrity of the property of the Episcopal Church, the Episcopal Diocese of Pittsburgh and those parishes, missions and other institutions and organizations of the Episcopal Church which are part of or affiliated with the Episcopal Diocese of Pittsburgh. This lawsuit does not relate to or take a position on the anticipated consecration of the Reverend Canon Gene Robinson as Bishop of New Hampshire, an issue as to which Calvary understands and respects the deep-felt differences of opinion.
The action is brought by Calvary, its Rector and its Senior Warden. The Complaint designates Calvary as a plaintiff in its own right and also designates Calvary as Trustee Ad Litem for the Episcopal Diocese of Pittsburgh. Calvary, which has been a member of and a major contributor to the Episcopal Diocese of Pittsburgh since the inception of the Diocese of Pittsburgh in 1865, believes the Trustee Ad Litem term is appropriate because Calvary seeks a court order requiring compliance by officials of the Diocese with the Constitution and Canons of the Episcopal Diocese of Pittsburgh relating to property issues. The Diocesan Constitution accedes to, recognizes and adopts the Constitution and Canons of the Episcopal Church.
Calvary believes that a resolution-Resolution Six-passed by the Diocese's Special Convention on September 27, 2003, as well as another resolution proposed for the Diocese's Annual Convention on November 7-8, 2003, are contrary to the governing rules of the Episcopal Church. Those rules provide, in the "Dennis Canon," that "[a]ll 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." There is a similar requirement in the Diocesan Canons.
Calvary believes in the American and Episcopalian principle that members of an organization are bound by the previously agreed-upon rules of the organization, which in this case are the Constitution and Canons of the Episcopal Church and of the Diocese.
Because of the importance of the litigation, we took the unusual step of asking that a Judge, referred to as a Chancellor in Equity, be appointed at the start of the litigation to handle our case through trial. Judge Joseph M. James, then the Administrative Judge of the Civil Division of the Court of Common Pleas of Allegheny County, agreed to hear this matter and to act as Chancellor through the trial of this action. Judge James has now become the President Judge of the Court of Common Pleas of Allegheny County, but he will remain as the Judge on our case.
We also requested that Calvary, while the litigation is pending, make payments (of what would be the Diocesan assessment) into escrow, rather than to the Diocese. With the encouragement of Judge James, the Defendants in the case have agreed that such payments would be made into the escrow account of counsel for Calvary, to be held in escrow subject to a later order of court, which we anticipate will come after the trial of our suit. The Judge has advised that our suit can be tried in the Spring of 2004. This would be a very prompt disposition of our action, and a development which we find to be quite important.
Also, we have been joined in our suit by Herman S. Harvey, Esquire, a long-time member of the Episcopal Church and since 1956 a member of the congregation of St. Stephens Church in Sewickley. Mr. Harvey, in prior times, served as a member of the vestry and as junior warden of St. Stephens. Mr. Harvey petitioned to intervene in our suit to assure that the property utilized by St. Stephens Church in Sewickley remains a part of, and to be held in trust for, the Episcopal Church and the Episcopal Diocese of Pittsburgh, and that such property not be used for any purposes inconsistent with the interests of the Episcopal Church. Mr. Harvey's Petition for Intervention set forth provisions of the deed to the property upon which St. Stephens Church sits, which deed was executed in May 1864 and specifies the use to be made of the property. Mr. Harvey's Petition for Intervention asserts how the deed provides that such property be held in trust for the sole use and benefit of the Association of the Protestant Episcopal Church at the Borough of Sewickley, noting that St. Stephens Church was about to be incorporated. Mr. Harvey's petition sets forth that, consistent with the deed to the property, St. Stephens was incorporated on November 5, 1864, and that those 1864 articles of incorporation acknowledge it to be "a member of and to belong to the Protestant Episcopal Church in the State of Pennsylvania, and the Protestant Episcopal Church in the United States of America." The current Articles of Incorporation of St. Stephens similarly provide that:
This corporation acknowledges itself to be a member of and belong to the Diocese of Pittsburgh in the Commonwealth of Pennsylvania and the Protestant Episcopal Church in the United States of America. As such it expressly adopts and recognizes the authority of the Constitution and Canons, doctrines, discipline, and worship of the Protestant Episcopal Church in the United States of America.
Mr. Harvey's Petition for Intervention was filed on December 18, 2003. On December 23, 2003, Judge James granted the Petition for Intervention of Mr. Harvey, so Mr. Harvey has now joined us as a Plaintiff in this case. We greatly appreciate Mr. Harvey's assistance and support.
On December 29, 2003, we received answers to our complaint by the various defendants. One of the more remarkable aspects of those answers is the assertion therein that Resolution Six, passed by the September 27, 2003 Special Convention of the Diocese (which convention was called for the purpose of passing that resolution as well as five other resolutions) has now been declared null and void ab initio (which is Latin, meaning from its inception) and withdrawn at a December 9, 2003 meeting of the Board of Trustees of the Diocese. It is quite clear that Calvary's complaint which challenged, among other things, Resolution Six was the cause of any such action.
As you may recall, the "Brief Commentary on Resolution Six" provided by the proponents of that resolution made clear that one purpose of Resolution Six was to refute any claim by the National Church that a parish which left the Episcopal Diocese of Pittsburgh would forfeit its interests in property. It is quite interesting that--although Bishop Duncan, and others, urged the original passage of Resolution Six with great fanfare and at public meetings--there has been no publicity, of which we are aware, regarding the supposed actions on December 9, 2003, to declare that Resolution null and void. Furthermore, in light of the September 27, 2003, vote of the Special Convention of the Diocese, passing such Resolution, we question that a withdrawal could occur, in a legally effective manner, absent a Court Order, as we are seeking, that such Resolution was, in fact, invalid. However, we believe that the actions apparently taken by the Trustees clearly substantiate our position that Resolution Six should be declared by the Court to be legally invalid. We certainly do not want any future Resolutions of similar effect nor any action by the Bishop or others contrary to the interests of the Episcopal Church or the interest of those who are loyal to the Constitution, Canons, and decisions of the Episcopal Church. Furthermore, not only is Resolution Six still in effect as a Resolution of the September 27, 2003 Special Convention (we do not know of any power of the Board of Trustees to reverse resolutions of a Diocesan Convention), but, to our knowledge, nothing has been done to disavow the first passage (at the November 7-8, 2003, 138th Diocesan General Convention) of the amendment to the Constitution and Canons of the Diocese (effective upon second passage in November 2004) purportedly giving local determinations (by the Diocesan Constitution and Canons, or a Diocesan Convention) the power to overrule the Constitution and Canons of the Episcopal Church and resolutions of the General Convention.
In addition, the Bishop apparently continues to be active in organizing a "Network" of dioceses and individual parishes supposedly sympathetic with the views which he espouses. We believe this is the latest evolution of an effort to use property and assets in and of this Diocese that were dedicated to the purposes of the Episcopal Church in ways we believe to be inconsistent with, and contrary to, the interests of the Episcopal Church. The Pittsburgh Diocese is one of ten dioceses that is listed as part of this "Network." Since Calvary is, and remains, part of the Diocese, ostensibly Calvary has been moved into the "Network" along with the other parishes in this Diocese. We are not aware of any Diocesan body which authorized such actions. Therefore, while support of Resolution Six has purportedly been withdrawn (albeit in a manner which, to our knowledge, was not publicized), the Bishop appears to be continuing with his long-range plan. Interestingly, the Bishop is reported to be the "Moderator and Convener" of this new "Network." An American Anglican Council ("AAC") press release on December 17, 2003, announced the details of this "Network," which is apparently entitled Network of Anglican Communion Dioceses and Parishes and which is scheduled to have its charter meeting on January 19-20, 2004. The AAC press release quoted Bishop Duncan as stating: "The formation of the Network is an historic step forward. The network will provide a way for orthodox Episcopalians to stand together in a new unity to proclaim the Gospel of Jesus Christ and to begin to build a new future for Anglicanism in North America." "The Network of Anglican Dioceses and Parishes is a crucial component of Anglican realignment in North America," said the Rev. Canon David C. Anderson, President and CEO of the AAC according to that same press release. According to the press release Anderson advised: "It will serve as a lifeboat for orthodox dioceses and parishes who feel abandoned and betrayed by ECUSA as well as for those faithful Episcopalians enduring harassment and intimidation by their rectors, bishops, or both." The press release further quotes Anderson as stating: "Realignment is real, it's here, and it's now." Calvary, of course, opposes the inclusion of the Pittsburgh Diocese in the Network.
A petition seeking to intervene in our suit was filed on December 30, 2003, purportedly on behalf of the Diocese. The Diocese (or at least a leader or leaders thereof, who may be one or more of the Defendants) apparently wants to intervene in support of the actions of the various Defendants since its petition seeks to intervene on the side of the Defendants. Because we believe the true interests of the Diocese are already being represented by Calvary in seeking to require compliance with the Constitution, Canons, and discipline of the National Church and the Diocese, Calvary will generally resist that petition except, perhaps, for a few limited respects.
As you can see, much has already occurred in our suit and we anticipate a great deal more will happen in the coming months.