(Please note: this is posted here because of website issues elsewhere so that the resource may be available–KSH).
MEMORANDUM TO: Working Group April 21, 2008
RE: Canonical Violations
You have asked for advice as to whether the Presiding Bishop has violated the constitution and canons of The Episcopal Church and what procedures would be applicable for charging her with a presentable offense. This memorandum identifies at least eleven violations of TEC’s constitution and canons by the Presiding Bishop in her dealings with Bishops Cox, Schofield and Duncan and the Diocese of San Joaquin. Taken together, these actions demonstrate willful violation of the canons, an intention to repeat the violations and a pattern of concealment and lack of candor. In the case of DSJ, the fundamental polity of TEC as a “fellowship of duly constituted dioceses” under the ecclesiastical authority of the diocesan bishop has been subverted. The memorandum then addresses the procedural requirements for filing charges against the Presiding Bishop.
I. Canonical Violations By the Presiding Bishop
This memorandum does not address the possibility of charges against the Presiding Bishop for “[h]olding and teaching publicly or privately, and advisedly, any doctrine contrary to that held by this Church” under Canon IV.1(c) or the “open renunciation” of the discipline of the Church under Canon IV.9.1, both of which have different procedures than those discussed below. This memorandum is limited to whether the Presiding Bishop has violated the constitution and canons of TEC in recent actions she has taken against Bishops Cox, Schofield and Duncan and the Diocese of San Joaquin.
Canon IV.1 provides that:
“A Bishop, Priest, or Deacon of this Church shall be liable to
Presentment and Trial for the following offenses, viz.:
(e) Violation of the Constitution or Canons of the General Convention.”
This memorandum outlines several violations of the constitution and canons that would provide a basis for filing charges against the Presiding Bishop. For purposes of discussion, these violations are considered in three groups: first, those related to Bishop Cox; second, those related to Bishop Duncan; and third, those related to the Diocese of San Joaquin.
Because the issues related to Bishop Cox involve a close reading of Canon IV.9, this canon is quoted here in full for ease of reference:
Sec. 1. If a Bishop abandons the communion of this Church (i) by an
open renunciation of the Doctrine, Discipline, or Worship of this
Church, or (ii) by formal admission into any religious body not in
communion with the same, or (iii) by exercising episcopal acts in and
for a religious body other than this Church or another Church in
communion with this Church, so as to extend to such body Holy
Orders as this Church holds them, or to administer on behalf of such
religious body Confirmation without the express consent and
commission of the proper authority in this Church; it shall be the duty
of the Review Committee, by a majority vote of All the Members, to
certify the fact to the Presiding Bishop and with the certificate to send
a statement of the acts or declarations which show such abandonment,
which certificate and statement shall be recorded by the Presiding
Bishop. The Presiding Bishop, with the consent of the three senior
Bishops having jurisdiction in this Church, shall then inhibit the said
Bishop until such time as the House of Bishops shall investigate the
matter and act thereon. During the period of Inhibition, the Bishop
shall not perform any episcopal, ministerial or canonical acts, except
as relate to the administration of the temporal affairs of the Diocese
of which the Bishop holds jurisdiction or in which the Bishop is then
Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith
give notice to the Bishop of the certification and Inhibition. Unless
the inhibited Bishop, within two months, makes declaration by a
Verified written statement to the Presiding Bishop, that the facts
alleged in the certificate are false or utilizes the provisions of Canon
IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to
Deposition. If the Presiding Bishop is reasonably satisfied that the
statement constitutes (i) a good faith retraction of the declarations or
acts relied upon in the certification to the Presiding Bishop or (ii) a
good faith denial that the Bishop made the declarations or committed
the acts relied upon in the certificate, the Presiding Bishop, with the
advice and consent of a majority of the three senior Bishops consenting
to Inhibition, terminate the Inhibition. Otherwise, it shall be the duty
of the Presiding Bishop to present the matter to the House of Bishops
at the next regular or special meeting of the House. If the House, by
a majority of the whole number of Bishops entitled to vote, shall give
its consent, the Presiding Bishop shall depose the Bishop from the
Ministry, and pronounce and record in the presence of two or more
Bishops that the Bishop has been so deposed.
Facts Relevant to Bishop Cox
The Review Committee identified in Canon IV.9 certified to the Presiding Bishop on May 29, 2007, that Bishop Cox had abandoned the communion of TEC. This certification was based on a letter from Bishop Cox to the Presiding Bishop offering to resign from the House of Bishops. Upon receiving the certification from the Review Committee, the Presiding Bishop did not confer with the three senior bishops of TEC or seek to inhibit Bishop Cox as required by the canon. She took no action until January 8, 2008, seven months later, when she sent Cox a letter advising him that he would be deposed under Canon IV.9 absent a retraction or denial within two months. Unlike the cases of Bishops Schofield and Duncan, none of the above facts was disclosed publicly by the Presiding Bishop.
On March 12, 2008, the Presiding Bishop presented the Cox matter to the House of Bishops and requested its consent to the deposition of Bishop Cox. Considerably fewer than half of the bishops of TEC were present when the resolution of consent was considered by voice vote. Either the resignation offer was never disclosed to the House of Bishops and voted on or it was rejected. No explanation was offered. Following the vote on consent to deposition, the Presiding Bishop pronounced Bishop Cox deposed and advised various parties, including TEC bishops and Primates of the Anglican Communion, that he had been deposed. Bishop Cox, in his late 80’s at the time of these events, was reportedly the oldest living bishop in TEC.
Violation #1 with respect to Cox
The Presiding Bishop failed to seek the inhibition of Bishop Cox as required by IV.9.1.
This canon provides that, following certification by the Review Committee, “[t]he Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop.” Although the inhibition itself is clearly subject to the consent of the senior bishops, the mandatory terms of this provision require the Presiding Bishop to take the steps under her control to impose the inhibition.
This she failed to do. According to The Living Church, the Presiding Bishop acknowledged that she did not seek the consent of the senior bishops and this fact was confirmed by one of these bishops. The basis for the certification of “abandonment” by the Review Committee was Bishop Cox’s stated intention to continue his episcopal ministry in the Anglican Communion following his move to the Southern Cone. To the extent this was harmful to TEC and its polity, it was imperative that he be inhibited so that these episcopal acts would not be performed under color of TEC authorization. That the Presiding Bishop took no action to inhibit Bishop Cox as required by the canon, and indeed, no action at all for seven months, belies the notion that this type of episcopal ministry is harmful to TEC and demonstrates the punitive nature of his eventual deposition by the Presiding Bishop.
As discussed further below, there are grounds for concluding that this was an intentional rather than a negligent omission on the part of the Presiding Bishop. Nor is this a technical issue that could be waived because it worked to the benefit of Bishop Cox. This requirement of inhibition is an important procedural protection that is integral to the application of this canon.
Violation #2 with respect to Cox
The Presiding Bishop purported to give notice to Bishop Cox under IV.9 commencing a two-month period for retraction or denial without the inhibition and consent of the senior bishops as required by the canon.
That canon only permits such notices to be given, however, of “certification and Inhibition” and the succeeding sentence makes clear that the two-month period applies only to an “inhibited Bishop.” The Presiding Bishop is attempting by these actions to create new procedures for deposing bishops under this canon that are analogous to, but inconsistent with, the explicit terms of Canon IV.9. It should also be noted that the new ad hoc procedures thus created remove procedural protections afforded to the charged bishop under the canon.
Violation #3 with respect to Cox
Assuming for the purpose of argument that the Presiding Bishop was permitted to give notice to Bishop Cox under Section 2 of Canon IV.9, she failed to do so “forthwith” as required.
The canon states that the Presiding Bishop “shall forthwith give” the Section 2 notice. In fact, the Presiding Bishop waited over seven months after receiving the certification from the Review Committee, dated May 29, 2007, before serving notice on Bishop Cox, which was finally done by letter dated January 8, 2008.
There is no precise definition of “forthwith” in the canons, but its meaning cannot contemplate a delay of seven months. This is made clear by the subsequent provisions of Section 2, which require (“it shall be the duty of”) the Presiding Bishop to present the matter to the House of Bishops at its “next” meeting. Indeed, the Presiding Bishop’s processing of the companion case of Bishop Schofield demonstrates the time frame contemplated by the duty to give notice “forthwith.” The Review Committee’s certification of Bishop Schofield was made on January 9, 2008. The Presiding Bishop then obtained the consents of the senior bishops and inhibited and gave the Section 2 notice to Bishop Schofield within 48 hours on January 11, 2008.
Once again, the available evidence supports the conclusion that the delay in giving notice to Bishop Cox was intentional rather than inadvertent. Had the notice been given in any reasonable time after the May 29 certification as required by the term “forthwith,” the requirement in Section 2 that the matter be considered at the “next” meeting would have put the Cox matter on the agenda for the September meeting in New Orleans. For obvious reasons related to the presence of the Archbishop of Canterbury and the worldwide attention given to that meeting, that was undesirable so the canonical requirements were ignored.
Violation #4 with respect to Cox
Because Bishop Cox was not liable to deposition the Presiding Bishop presented the Cox matter to the House of Bishops in violation of canon law.
Canon IV.9.2 specifies when a bishop is “liable to Deposition” under the abandonment canon. It is only when an inhibited bishop, duly notified under Section 2, fails to make a specified retraction or denial within the two months. The Presiding Bishop then “presents the matter” to the House, which “consents.” A bishop who has not been inhibited is not “liable to deposition” under this canon. By “presenting the matter” of Bishop Cox to the House of Bishops for deposition, the Presiding Bishop was acting beyond her authority and subverting the provisions of Canon IV.9.
It has been suggested that the Presiding Bishop is authorized to present for deposition bishops that have not been inhibited by the following sentence in Section 2 of Canon IV.9: “Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House.” Such a strained interpretation of the canon is completely without merit. Canon IV.9 contains a series of mandatory duties in considering the possible abandonment of communion by a bishop of TEC. First, “it shall be the duty of the Review Committee” to certify the abandonment to the Presiding Bishop in precisely defined circumstances. Next, the Presiding Bishop “shall then inhibit” the bishop after obtaining the consents of the three senior bishops. Then, the Presiding Bishop “shall forthwith give notice” to the inhibited bishop giving him two months to issue a retraction or denial. Then follow two sentences specifying what is to happen at the end of the two-month period. The first provides for terminating the inhibition if a retraction or denial is offered: “If the Presiding Bishop is reasonably satisfied that the statement constitutes (i) a good faith retraction of the declarations or acts relied upon in the certification to the Presiding Bishop or (ii) a good faith denial that the Bishop made the declarations or committed the acts relied upon in the certificate, the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, terminate [sic] the Inhibition.” But if there is no retraction or denial: “Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House.”
To suggest that this sentence gives the Presiding Bishop authority to depose bishops who have not been inhibited is not only nonsensical in the context in which this sentence occurs, it renders nonsensical the entire canon. There is only one sentence in the canon authorizing the Presiding Bishop to present a bishop to the House of Bishops for consent to deposition. If that sentence applies to uninhibited bishops, there is then no provision in the canon specifying what is to be done in the normative case arising under this canon: that of an inhibited bishop who fails to make the necessary retraction or denial. A canon that is replete with mandatory duties at every step then becomes inexplicably silent at the crucial step of the typical case. Put differently, if the “Otherwise” sentence deals with uninhibited bishops such as Bishop Cox (and Duncan), there is no provision under which the Presiding Bishop is authorized to depose an inhibited bishop such as Bishop Schofield. No rule of legal interpretation permits such a nonsensical result.
There is also the possibility that misrepresentations, either overt or implicit, were made to the House of Bishops in the course of “presenting” the Cox matter. Did she represent to the House that Bishop Cox was “liable to deposition”? Did she disclose to those voting any of the canonical irregularities outlined above? Was there, by her disclosure or otherwise, any discussion of these issues by the bishops present? Although much of the information discussed here was in the public domain prior to the vote, it was not disclosed to the public by the Presiding Bishop, who is canonically charged with presenting the matter, but by others, including reporters. Indeed, although the notices sent to Bishops Schofield and Duncan were made public by the Presiding Bishop, that sent to Bishop Cox was not. (In this regard, it is noteworthy that warning letters previously sent to Bishops Schofield, Duncan and Iker were also promptly made public by the Presiding Bishop.) The notice to Bishop Cox only came to light because he reported it to David Virtue. This together with the avoidance of public scrutiny that would have accompanied this matter had it been considered in New Orleans as required suggests a pattern of concealment and withholding of information. The deposition resolution voted on by the House is notably vague in its recitation of the facts, particularly omitting the date of giving notice to Bishop Cox and the fact that he had not been inhibited as required by Canon IV.9. (It should be noted that the resolution regarding Bishop Schofield tracks that of Bishop Cox in omitting these facts. Was counsel slavishly following a precedent from ten years earlier or attempting to obscure material facts from the bishops? Surely the first instinct of any lawyer would have been to include in the Schofield resolution the recitation that he had been inhibited with the consent of the senior bishops on January 11, 2008.) To what extent was any of this made known to the bishops pursuant to the Presiding Bishop’s “presenting” of the Cox matter?
It must be emphasized that “presenting” for deposition a bishop who is not liable to deposition is a violation without regard to misrepresentations, but absent such misrepresentations, questions will arise as to whether any canonical violations were waived or “cured” by the actions of the House. Before discussing this issue further, this memorandum will address the final violation with respect to Bishop Cox.
Violation #5 with respect to Cox
The Presiding Bishop deposed Bishop Cox and pronounced him deposed without the necessary consent of the House of Bishops.
Under the terms of Canon IV.9.2, it is the Presiding Bishop who “deposes” after receiving the consent of the requisite number of bishops. The necessary consent was not obtained. The canon requires that the House of Bishops consent “by a majority of the whole number of Bishops entitled to vote.” At the time the vote was taken on March 12, 2008, substantially fewer than half the bishops were present and some of those who were present voted to deny consent. This is the majority vote issue that has been widely discussed.
The conclusion that the requisite consent was not given is irrefutable. First, in interpreting legal documents, one always starts with the plain meaning of the words. The phrase “whole number of bishops entitled to vote,” not defined to the contrary anywhere in the canons, is to be understood in its ordinary meaning of all members of the House of Bishops. (Article I.2 of the constitution provides that “Each Bishop of this Church having jurisdiction, every Bishop Coadjutor, every Suffragan Bishop, every Assistant Bishop, and every Bishop who by reason of advanced age or bodily infirmity, or who,
under an election to an office created by the General Convention, or for reasons of mission strategy determined by action of the General Convention or the House of Bishops, has resigned a jurisdiction, shall have a seat and a vote in the House of Bishops.”)
Any doubt that might otherwise exist that the consent requirement in Canon IV.9 specifies a majority of all members of the House of Bishops is removed by considering other voting provisions in the canons. First, the key phrase, “the whole number of Bishops entitled to vote,” also occurs in Article XII of the Constitution (relating to amendments) in a context that makes clear that absent bishops are included within its parameters:
No alteration or amendment of this Constitution shall be made
unless the same shall be first proposed at one regular meeting of the
General Convention and be sent to the Secretary of the Convention
of every Diocese, to be made known to the Diocesan Convention at
its next meeting, and be adopted by the General Convention at its next
succeeding regular meeting by a majority of all Bishops, excluding
retired Bishops not present, of the whole number of Bishops entitled
to vote in the House of Bishops, and by an affirmative vote by orders
in the House of Deputies in accordance with Article I, Section 5, except
that concurrence by the orders shall require the affirmative vote in each
order by a majority of the Dioceses entitled to representation in the
House of Deputies.
This constitutional provision utilizes the same concept, “whole number of bishops entitled to vote,” as is found in the “abandonment” canon, IV.9, except that IV.9 is even broader in that it does not exclude retired bishops not present. The fact that retired bishops not present are explicitly excluded from the “whole number of Bishops entitled to vote” in the constitutional provision indicates that they would be included otherwise. And it is quite clear that active bishops not present are included in the “whole number of bishops entitled to vote.”
Thus when the same phrase appears in IV.9 it is clear that “whole number of bishops entitled to vote” includes both bishops present and absent, and for a vote on abandonment, absent retired bishops are not excluded from the total for purposes of calculating the requisite majority. This constitutional provision is conclusive for the interpretation of Canon IV.9. It is a fundamental principle of legal interpretation that language is to be interpreted the same way when it occurs repeatedly in the same instruments.
Second, the interpretation given to the key phrase by the Presiding Bishop and her Chancellor, that “a majority of the whole number of Bishops entitled to vote” means simply a majority of “those present,” is untenable given that the canons clearly use the term “a majority of those present” when that understanding is intended. See, e.g., Canon III.12.8(d), (requiring that a bishop’s resignation be accepted “by a majority of those present.”) (Ironically, Bishop Cox offered his resignation, but his offer was never accepted by TEC.) It is a fundamental principle of legal interpretation that when a concept is clearly stated in one place, other language is not to be twisted to convey what the drafters knew how to state clearly when that was their intention. (Note that Rule V of the General Rules of the House of Bishops specifies that a proposal to recess during a debate “to form small groups for a ten-minute conference” “to define and clarify the issues of the debate” requires a “two-thirds vote of those present and voting.” The Presiding Bishop suggests a bishop can be deposed from the church on a lower voting threshold.) Thus, in pronouncing Bishop Cox deposed, the Presiding Bishop acted without the consents required and without canonical authority.
The Presiding Bishop has defended her action by claiming that no objection was made at the time and irregularities therefore waived. Leaving aside the fact that it is Bishop Cox who was most prejudiced by this action, not the minority of bishops present at the time, this question of waiver is irrelevant as a purely legal matter when considering disciplinary action against the Presiding Bishop as distinct from that against Bishop Cox. Because there is no precedent on whether a Presiding Bishop can be subject to disciplinary charges in this context, it is instructive to consider the result in civil law in analogous cases. There the answer is quite clear. A lawyer charged with misconduct in the course of a litigated matter is subject to disciplinary action regardless of whether the conduct is penalized, condoned or ignored in the underlying lawsuit. The rationale for this result is obvious when one considers that the public interest in the lawsuit is ensuring justice for the parties to the suit, but that the public interest in lawyer disciplinary proceedings is protection of the public at large from unethical or incompetent lawyers and justice for the lawyer involved.
Although this issue of waiver would not be a bar to pursuit of discipline against the Presiding Bishop in any case, the gravity of the case against her is strengthened by evidence that she failed to disclose to the House of Bishops material facts regarding the canonical issues. Although the bishops present and voting could be charged with constructive knowledge (“should have known”) of these issues, that does not absolve the Presiding Bishop of failing to make the disclosures necessary to ensure actual knowledge by those voting. It is her canonical duty to “present” the matter to the bishops and to ensure that they have all necessary information.
Summary with respect to Bishop Cox
Although the canonical violations are presented above individually and in detail, they should also be considered together as a whole. Taken together, they demonstrate a pattern of willful violation, an intention to repeat the violations and a pattern of concealment and lack of candor. On this last point, it is significant that the Presiding Bishop gave different and mutually inconsistent accounts of the Cox process after the vote when questioned at the press conference by The Living Church. The fact that the violations were willful rather than merely negligent is indicated by the obvious motivation for them, the number of individual violations in one proceeding, and the determination to repeat them. The likelihood of repetition is demonstrated by the fact that some of these violations have already been repeated in the cases of Bishops Schofield and Duncan, and the Presiding Bishop herself has stated in a broader context that she intends her recent canonically questionable actions to be a “pattern” for future cases.
Facts Relevant to Bishop Duncan
On December 17, 2007, the Review Committee certified, at the request of the Presiding Bishop and others, that Bishop Duncan had abandoned the communion of TEC. The certification did not specify “the acts or declarations which show such abandonment” as required by Canon IV.9. The Presiding Bishop attempted over the succeeding weeks to obtain the consents of the three senior bishops to inhibit Bishop Duncan. But having been notified by January 11, 2008, by two of the bishops that such consent would not be given, she nonetheless sent Bishop Duncan a letter on January 15, 2008, advising him that he would be deposed absent retraction or denial within two months. Unlike the similar letter sent to Bishop Cox on January 8, the letter to Bishop Duncan was promptly released by the Presiding Bishop and publicized by the Episcopal News Service.
Violation with respect to Duncan
The Presiding Bishop purported to give notice to Bishop Duncan under IV.9 commencing a two-month period for reply without the inhibition and consent of the senior bishops as required by the canon.
The reasoning here is identical to that involved in Violation #2 with respect to Bishop Cox.
Although this memorandum does not identify further violations with respect to Bishop Duncan at this time, the Presiding Bishop has demonstrated through specific statements and actions that she intends to present the Duncan matter to the House of Bishops and to depose him in violation of Canon IV.9. There is ample precedent in the law that repudiation of a specific future duty is a current breach of that duty. The threat to engage in future ultra vires (unauthorized) actions could be viewed in that light, but this memorandum follows the more prudent course of relying on actual violations or repudiations of specific duties.
Again, although it is not a basis for a charge, the Presiding Bishop with the consent of the Review Committee has abused Canon IV.9 in the case of Bishop Duncan by using it for a purpose for which it was not intended. The certification by the Review Committee, which in any event is defective under the plain terms of the canon, was made at the request of the Presiding Bishop. That certification may foreclose action against the Presiding Bishop for abuse of this canon in the case against Bishop Duncan, but it does not absolve her for failure to comply with the canon’s procedural terms.
Diocese of San Joaquin
Facts relevant to San Joaquin
In December 2007, the Diocese of San Joaquin convention voted by an overwhelming majority to disaffiliate with TEC and to join temporarily the Province of the Southern Cone. Subsequent to that decision by the DSJ convention, Bishop Schofield and the majority of parishes, clergy and laity elected to join the Southern Cone. By January 2008, however, it had been disclosed publicly that the majority of the duly elected DSJ Standing Committee had remained in TEC. The Presiding Bishop was notified of this fact by the members of the Standing Committee. In January 2008, the Presiding Bishop announced that she would not recognize the duly elected Standing Committee of DSJ, including the majority who then remained in TEC.
On January 9, 2008, the Review Committee certified that Bishop Schofield had abandoned the communion of TEC. By January 11, 2008, the Presiding Bishop had obtained the consents of the three senior bishops to inhibit Bishop Schofield and advised him that he was inhibited and subject to deposition absent retraction or denial within two months. Unlike the letter to Bishop Cox of January 8, the letter to Bishop Schofield of January 11 was promptly released by the Presiding Bishop and publicized by ENS. Pursuant to the inhibition, Bishop Schofield remained a bishop of TEC, and under TEC’s interpretation of events in DSJ, the diocesan bishop with administrative, but not sacramental, authority in the TEC diocese.
On March 12, 2008, the Presiding Bishop presented the Schofield matter to the House of Bishops and requested the consent of the bishops present to the deposition of Bishop Schofield. Considerably fewer than half of the bishops of TEC were present when the resolution of consent was considered by voice vote. Following this vote, the Presiding Bishop pronounced Bishop Schofield deposed.
In January and February, the Presiding Bishop appointed vicars and representatives to act in DSJ without the consent of Bishop Schofield or the Standing Committee. Without consulting Bishop Schofield or the Standing Committee or following DSJ canons, the Presiding Bishop and her representatives announced that a special convention would be held on March 29, 2008, to give approval to Bishop Lamb as provisional bishop and to elect a new Standing Committee and other diocesan representatives. On March 28-30, 2008, the Presiding Bishop entered DSJ without consulting Bishop Schofield or the duly elected members of the Standing Committee and met with members of the clergy and laity, presided over what purported to be a special convention of the diocese and installed Bishop Lamb as provisional bishop. The special convention, which was not called in accordance with DSJ canons, purported to “waive” any canonical violations. One duly elected member of the Standing Committee and members of the laity objected to these actions.
Violation #1 with respect to San Joaquin
The Presiding Bishop announced that she does not recognize the duly elected Standing Committee of the diocese in violation of Articles IV and II.3 of the Constitution and in repudiation of her duty under Canon I.2.4(a).
Article IV of the Constitution provides that:
In every Diocese a Standing Committee shall be elected by the
Convention thereof, except that provision for filling vacancies
between meetings of the Convention may be prescribed by the Canons
of the respective Dioceses. When there is a Bishop in charge of the
Diocese, the Standing Committee shall be the Bishop’s Council of
Advice. If there be no Bishop or Bishop Coadjutor or Suffragan
Bishop canonically authorized to act, the Standing Committee shall be
the Ecclesiastical Authority of the Diocese for all purposes declared
by the General Convention. The rights and duties of the Standing
Committee, except as provided in the Constitution and Canons of the
General Convention, may be prescribed by the Canons of the
Article II.3 of the Constitution provides that:
A Bishop shall confine the exercise of such office to the Diocese
in which elected, unless requested to perform episcopal acts in another
Diocese by the Ecclesiastical Authority thereof, or unless authorized
by the House of Bishops, or by the Presiding Bishop by its direction,
to act temporarily in case of need within any territory not yet organized
into Dioceses of this Church.
Canon I.2.4(a)(3) provides that:
The Presiding Bishop shall be the Chief Pastor and Primate
of the Church, and shall:
(3) In the event of an Episcopal vacancy within a Diocese,
consult with the Ecclesiastical Authority to ensure that
adequate interim Episcopal Services are provided;
The firing (nonrecognition) of the Standing Committee undoubtedly violated their rights under the diocesan canons (and thereby the TEC Contitution) and constituted an attempted exercise of jurisdiction in DSJ without the permission of the Ecclesiatical Authority (Bishop Schofield and/or the Standing Committee). She also thereby repudiated her duty to consult with the Standing Committee in the event Bishop Schofield were to be deposed.
Violation #2 with respect to San Joaquin
The Presiding Bishop appointed representatives and vicars to act in DSJ on her behalf in violation of Article II.3.
Violation #3 with respect to San Joaquin
The Presiding Bishop deposed Bishop Schofield and pronounced him deposed without the requisite consents of members of the House of Bishops as required by Canon IV.9.2. This is the same issue concerning a majority vote that was discussed under Cox Violation #5.
Violation #4 with respect to San Joaquin
Assuming for the purpose of argument that there was an episcopal vacancy in DSJ, the Presiding Bishop failed to consult with the Standing Committee as required by Canon I.2.4(a)(3).
Violation #5 with respect to San Joaquin
The Presiding Bishop entered DSJ on March 28-30, 2008, and convened a purported convention in violation of Article II.3 and applicable DSJ canons, consulted with clergy and laity of DSJ in violation of Article II.3 and Canon I.2.4(a)(6), and installed Bishop Lamb as provisional bishop in violation of Article II.3 and Canon III.13.
Canon I.2.4(a)(6) provides that:
The Presiding Bishop shall be the Chief Pastor and Primate
of the Church, and shall:
(6) Visit every Diocese of this Church for the purpose of: (i)
Holding pastoral consultations with the Bishop or Bishops
thereof and, with their advice, with the Lay and Clerical
leaders of the jurisdiction;
Canon III.13 provides in part that:
Sec. 1. A Diocese without a Bishop may, by an act of its Convention,
and in consultation with the Presiding Bishop, be placed under the
provisional charge and authority of a Bishop of another Diocese or of
a resigned Bishop, who shall by that act be authorized to exercise all
the duties and offices of the Bishop of the Diocese until a Bishop is
elected and ordained for that Diocese or until the act of the
Convention is revoked.
Sec. 2. Any Bishop may, on the invitation of the Convention or of the
Standing Committee of any Diocese where there is no Bishop, visit
and exercise episcopal offices in that Diocese or any part of it. This
invitation may include a letter of agreement, shall be for a stated period
and may be revoked at any time.
Again assuming for purposes of argument that there was an episcopal vacancy in DSJ, pursuant to these canons, the designation of a provisional bishop could only take place by act of “its Convention,” i.e., the convention duly called according to the canons of DSJ. That was not done as demonstrated by the objection made by Fr. Rob Eaton, a priest of the diocese and member of the Standing Committee at the purported convention. And on the assumption of an episcopal vacancy, episcopal acts could only be performed by the Presiding Bishop and Bishop Lamb without violating Article II.3 and Canon III.13.2 “on the invitation of the Standing Committee,” which was not given. Under Canon I.2.4(a)(6), consultations with lay and clerical leaders could not take place without the advice of the bishop or Standing Committee, which was not given. This constitutes a violation by both the Presiding Bishop and Bishop Lamb.
Conclusions with respect to San Joaquin
The violations with respect to Bishops Cox and Duncan, although willful and repeated, pertained primarily to individual bishops. The violations with respect to DSJ, however, subvert the governance of an entire diocese and go to the heart of TEC’s polity as a “fellowship of duly constituted dioceses” governed under Article II.3 by bishops who are not under a metropolitan or archbishop. Hereafter it will be difficult to speak coherently, whether in the councils of the communion or a court of law, of the integrity of TEC’s polity or the inviolability of diocesan boundaries.
As a matter of logic and consistency, it is impossible to charge the Presiding Bishop for her most egregious acts in DSJ without also charging Bishop Lamb. This raises certain procedural questions to which this memorandum will now turn.
II. Procedures for Making Charges Against the Presiding Bishop
There is no canon dealing specifically with offenses or presentments against the Presiding Bishop. The Presiding Bishop is a bishop, however, and is subject to the same provisions in Title IV of the canons as any other bishop. In particular, Canon IV.3.49 removes any doubt that might otherwise exist as to this question by specifying that “if the Presiding Bishop is the Respondent [defendant], is disabled, or otherwise unable to act, the duties of the Presiding Bishop under this Canon shall be performed by the presiding officer of the House of Bishops.” Therefore, the general provisions of Canon IV.3 related to charges against bishops are applicable.
Section IV.3.23 provides in part that:
A Bishop may be charged with any one or more of the
Offenses other than Offenses specified in Canon IV.3.21(c) [related to doctrinal issues] by
(1) three Bishops; or
(2) ten or more Priests, Deacons, or adult communicants of
this Church in good standing, of whom at least two shall
be Priests. One Priest and not less than six Lay Persons
shall be of the Diocese of which the Respondent is
It is clear that the violations outlined above do not relate to the diocese in which the Presiding Bishop is now canonically resident. Given her responsibilities as bishop with jurisdiction for the Convocation of American Churches in Europe and possible questions about her canonical residence, it is appropriate that charges should be brought by three bishops. Note that they need not be (ten) bishops with jurisdiction as is required to bring doctrinal charges. Additional parties could be signatories as well, and it would be desirable to have priests and others from DSJ if charges related to that diocese are made, but they are not necessary. While it might be desirable for other reasons to have additional bishops as signatories, as well as prominent clerical and lay leaders, this is not required.
A “Charge” shall be in writing and verified (notarized) and contain a clear and concise statement of the nature and facts supporting each alleged offense. Canon IV.3.49 provides that in a case where the Presiding Bishop is the respondent (defendant), the charge should be addressed to the presiding officer of the House of Bishops (vice chair) or secretary if the presiding officer is unable to act.
The presiding officer forwards the Charge to the Title IV Review Committee. No time limit is placed on the presiding officer except that IV. 3.26 provides that the presiding officer “shall” do so after 90 days “when requested in writing by the Complainant or Respondent.”
The presiding officer thus has the discretion to delay sending the Charge to the Review Committee for at least 90 days. It is at this point that the question of bringing charges simultaneously against Bishop Lamb becomes significant. The expectation is that Bishop Lamb will very shortly file civil litigation against Bishop Schofield for control of DSJ assets. That litigation likely would be stymied, if not dismissed without prejudice, while ecclesiastical charges are pending against Bishop Lamb questioning his authority as provisional bishop of DSJ. The institutional incentives therefore would shift from delay to expedition in the handling of the disciplinary charges. Although this reasoning applies primarily to Bishop Lamb, it is likely that the charges against the Presiding Bishop would be dealt with simultaneously by the Review Committee since they involve the same facts and legal analysis.
A Charge against Bishop Lamb has the same procedural requirements as those already discussed with respect to the Presiding Bishop. It could have the same complaining signatories, i.e., the same three (or more) bishops. A question would arise whether it should be sent to the Presiding Bishop or the presiding officer. Canon IV.14.13 provides that:
Any Bishop exercising authority as provided in this Title shall
disqualify himself or herself in any proceeding in which the Bishop’s
impartiality may reasonably be questioned.
And Canon IV.14.24 provides that the presiding officer shall exercise the duties of the Presiding Bishop in the event the Presiding Bishop is disqualified. Because the conduct of the Presiding Bishop is necessarily challenged in a charge against Bishop Lamb, her impartiality is necessarily questioned. In light of these provisions, a Charge against Bishop Lamb should be addressed to the Presiding Bishop with a request that she disqualify herself as provided in IV.14.13.
Once the matter is forwarded to the Review Committee, time limits become lengthened and more flexible and mandatory duties are largely replaced by discretion. Time periods of over six months are clearly provided in Canon IV.3 and discretion is provided to extend these periods further. To generalize, the canonical language often becomes “may” rather than “shall.” When the Review Committee finally considers the merits, Canon IV.3.43 provides that:
The Review Committee may issue a Presentment for an Offense
when the information before it, if proved at Trial, provides Reasonable
Cause to believe that (i) an Offense was committed, and (ii) the
Respondent committed the Offense.
The ability of the complainants to hold accountable the Presiding Bishop or another bishop thus ends at the Review Committee. What the complainants do have, however, is the ability to hold accountable the Review Committee and the official processes of TEC.
Three outcomes are possible from the Review Committee. It could issue a presentment and send the matter to the trial court. Second, it could decline to issue a presentment and produce a rationale that is persuasive to most objective observers. Third, it could decline to issue a presentment on grounds that are not persuasive and serve only to discredit the Review Committee and the process as well as the Respondent. For the matters discussed above, recent history would suggest that the third outcome is highly likely, but even in that event the institution of TEC and its processes are held accountable.
Addendum in light of the Presiding Bishop’s April 30, 2008 Letter to the House of Bishops:
A defense now proffered by the Presiding Bishop and her supporters is that the same procedures were followed in the recent cases of Bishops Davies and Moreno. Past violations of the canon’s clear provisions are said to justify current ones. In considering this defense, it is necessary to distinguish three senses of “precedent” in legal usage. One is the well-known sense of precedent as a formal ruling on a legal issue by a competent juridical body. This is clearly not the case here as no one has suggested that the prior cases were determined to be canonical by any body reviewing the canonical issues. These cases are not offered as reasoned legal rulings, but as a fait accompli.
A second sense of precedent is that in which the actions of parties to a contract are used to interpret terms that are vague or ambiguous. In civil law this concept is referred to as “course of performance,” and this type of precedent is often used as an aid to interpretation for vague or ambiguous contractual terms such as those relating to timeliness or quality. For example, terms like “promptly” or “standard grade” are ones that can sometimes be interpreted by the parties’ performance. The applicability of this principle can be seen in the present context by noting that the meaning of the vague term “forthwith” in Canon IV.9 is given meaning by the Presiding Bishop’s own action in giving notice to Bishop Schofield within 48 hours of receiving the certification from the Review Committee. But the requirements of inhibition in IV.9 and for consent by a majority of the whole number of bishops entitled to vote are not vague or ambiguous terms. They are expressed in mandatory language using precise terms that are clearly defined and used elsewhere in the canons. Express terms control when in conflict with arguable interpretations based on prior actions.
The third type of precedent is one that is often encountered in commercial litigation and corporate law. This is when clear contractual or legal duties are repeatedly violated. Here the past misconduct is to no avail absent an explicit waiver. Especially relevant to the current context is a pattern familiar to any corporate lawyer: that of a closely-held corporation that does not follow its own bylaws. Such corporations, owned by one or a small number of shareholders, have many of the same duties in terms of corporate formalities and procedural regularity as public corporations traded on national stock exchanges. Corporate law requires that proper procedures be followed in order for an enterprise to receive legal recognition and protection as a corporation. Often the sole shareholder of a corporation pays no attention to these formalities or the requirements of the corporate bylaws. The business is simply run as the shareholder sees fit.
But when the litigation arises and a hostile party asks the court to disregard the corporate form and permit a suit directly against the shareholder, those past “precedents” of ignoring the corporate rules are to no avail. In fact, the naked “we’ve done it this way before” becomes evidence for the other side, the primary evidence that the corporate form is a sham. The frequent result in such cases is that the law disregards the corporate form –it “pierces the corporate veil”– and the shareholder’s assets are no longer protected as intended by the corporation. Corporations that seek the law’s recognition must follow the legal requirements and their own rules. Past malfeasance is not a defense; to the contrary it is proof of a pattern of abuse that exacerbates the current violation. It is a supreme irony that Bishop Lamb is now petitioning the California courts to defer to TEC’s polity and recognize him as the bishop of San Joaquin when the clear provisions of TEC’s canons indicate Bishop Schofield has not been lawfully deposed.