The Memo is a regrettable effort to justify the unjustifiable. No right thinking person will be taken in by it. Perhaps the Task Force could redeem its work, however, by turning the Memo into a polemic for the amendment at General Convention 2009 of Canon IV.9.2 to require only a mere majority of those present and voting to consent to the deposition of a Bishop of TEC. On the other hand, simplifying the process of deposition for Bishops who disagree with the agenda of those in power may not be in the best interest of the members of the Task Force. After all, tomorrow”¦.

Read it all.

We, the Standing Committee of the Diocese of Northern Indiana strongly protest the failure of the Presiding Bishop, Katherine Jefferts Schori and Chancellor David Booth Beers to follow the Canons of our Episcopal Church in the depositions of Bishops John Schofield and William Cox. Deposition is the harshest punishment that can be handed a bishop. It is essential that both the letter and the spirit of the Canons be followed since, in this case, the rights of the accused are protected, in part, by the extraordinarily high level of involvement and concord called for within the House of Bishops by Canon IV.9.2. As others have pointed out, the Constitution and Canons of the Episcopal Church at various times distinguishes between a majority of the Bishops at a meeting, from a vote by a majority of the whole. Mr. Beers was incorrect in his assertion, reaffirmed by the Presiding Bishop in a letter to the House of Bishops (April 30, 2008), that the Canonical language of “the whole number of bishops entitled to vote” can be taken to mean only “those in attendance at a particular meeting.” This makes deposition an action with no higher standard than any matter of routine business. We agree with the analysis provided by the Bishops and Standing Committees of the Dioceses of South Carolina and Central Florida that the Canons plainly require a majority of all Bishops entitled to vote, not just those in attendance at a particular meeting.

Read the whole thing.

Whereas, by a vote taken on March 12, 2008, members of the House of Bishops of the Episcopal Church purported to take action deposing the Rt. Rev. John-David Schofield and the Rt. Rev. William J. Cox from the ministry of this Church, on the charge that, by affiliating with another Province of the Anglican Communion, they had “abandoned” the communion of this Church; and

Whereas, the process of deposition of a Bishop is an extraordinary one that must be approached in a prayerful manner with full cognizance of and respect for the procedural safeguards created to prevent the abuse of such a process; and

Whereas, the Canons mandate, as one safeguard, that such an action may only be taken by an extraordinary vote, that being “a majority of the whole number of Bishops entitled to vote” (Canon IV.9 (b)); and

Whereas, even if all Bishops registered at the March 2008 meeting had voted in favor of the depositions, that number would not have constituted “a majority of the whole number of Bishops entitled to vote”, as that number is defined in the first sentence of Article I.1.2 of the Constitution of the General Convention; and

Whereas, the members of the House gathered failed even to take a record of those voting in the affirmative on the issue of these depositions; and

Whereas, no reasoned explanation has been offered for the clearly non-canonical process that was followed; and

Whereas, prior failure to follow appropriate canonical procedure, as has been asserted, is not sufficient justification for these non-canonical actions; therefore

Be it resolved that the Standing Committee of the Diocese of Springfield joins the Dioceses of South Carolina and Western Louisiana in rejecting the purported depositions of Bishops Schofield and Cox; and further

Be it resolved that the Standing Committee of the Diocese of Springfield calls upon the Presiding Bishop, her staff and the House of Bishops to acknowledge publicly that the depositions of Bishops Schofield and Cox were not validly procured, and, should it be their desire to continue to seek depositions in these questionable circumstances, to revisit this issue at a future meeting of House of Bishops, conducting any further proceedings in accordance with the clear language of Canon.

–Approved and adopted, May 22, 2008

–Officially endorsed by The Rt. Rev Peter H. Beckwith, May 23, 2008

–Officially endorsed by Diocesan Council, May 23, 2008

The Most Reverend Katharine Jefferts Schori
Presiding Bishop
The Episcopal Church Center
815 Second Avenue
New York, NY 10017

Dear Bishop Jefferts Schori,

Grace and peace from our God our Father and the Lord Jesus Christ.

We, the Diocesan Board and Standing Committee and Bishop of the Episcopal Diocese of Central Florida, strongly protest what we believe to have been a failure to follow the Canons of our Episcopal Church in the recent depositions of Bishops Schofield and Cox.

Since deposition is the most severe sanction that can be applied against a bishop, it is critical that both the letter and the spirit of the Canons be followed. The Canons intentionally provide for an exceptionally high level of participation and agreement from the Bishops in order to impose a sentence of deposition. In this instance, it seems clear to us that the canonical safeguards in place were not followed.

We respectfully disagree with Mr. Beers assertion, which was reaffirmed by you in your April 30, 2008 letter to the House of Bishops, that the Canonical language of “the whole number of bishops entitled to vote” can be taken to mean only those in attendance at a particular meeting (Addendum 1). Indeed, that would leave no higher standard for deposition than for any matter of routine business. We agree with the analysis provided by Bishop and Standing Committee of the Diocese of South Carolina that the Canons plainly require a majority of all Bishops entitled to vote, not just those in attendance at a particular meeting. (Addendum 2).

We respectfully request that you and the House of Bishops revisit those decisions and make every effort to follow our Church Canons in this and all future House of Bishops decisions.

Finally, we believe that depositions are an unnecessary and unfortunate way to deal with disagreement, dissension, and even division within our Church. Those Bishops (or other clergy) who, for sake of conscience, can no longer minister as part of The Episcopal Church can be transferred at their request, or permitted to renounce their vows and join with other Anglican Provinces without vindictiveness or punitive measures. This would avoid the horrible implication that it is “abandonment of Communion” to join with another Anglican Province with whom we are in Communion, even if impaired. Further, it would be a gracious demonstration of the love of Christ to honor the service of these Bishops to our Church by wishing them Godspeed as they enter new phases of their life and ministry.

Our common desire is to conduct our common life in such a way as to build one another up in Christ and commend our Lord to all those who see us. We pray that gracious and life-giving strategies will be found as we move through this difficult season.

Yours in Christ,
John W. Howe, Bishop
Anthony P. Clark, President of the Standing Committee
————————————————————————————————

ADDENDUM 1

House of Bishops’ votes valid, chancellor confirms
March 15, 2008

[Episcopal News Service] The Presiding Bishop’s chancellor has confirmed the validity of votes taken in the House of Bishops on March 12, correcting an erroneous report published online March 14 by The Living Church News Service.

Chancellor David Booth Beers said votes consenting to the deposition of bishops John David Schofield and William Cox conformed to the canons.

“In consultation with the House of Bishops’ parliamentarian prior to the vote,” Beers said, “we both agreed that the canon meant a majority of all those present and entitled to vote, because it is clear from the canon that the vote had to be taken at a meeting, unlike the situation where you poll the whole House of Bishops by mail. Therefore, it is our position that the vote was in order.”

A quorum had been determined at the meeting by the House of Bishops’ secretary, Kenneth Price, Bishop Suffragan of the Diocese of Southern Ohio.
——————————————————————————————-

ADDENDUM 2

Under Canon IV.9.2, the House of Bishops must give its consent to depose a bishop under the “abandonment of communion” canon. “. . . by a majority of the whole number of Bishops entitled to vote.” The Constitution of the Episcopal Church, Article I.2, states in pertinent part 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 . . . has resigned a jurisdiction, shall have a seat and vote in the House of Bishops.”

Due to amendment, Canon IV.9.2, at various times, required consent under these circumstances consisting of “ . . . a majority of the House of Bishops,” “. .. . a majority of the whole number of bishops entitled . . . to seats in the House of Bishops . . .” and “ . . . by a majority of the whole number of bishops entitled to vote.” The language of the Canon has consistently required that a majority of all bishops entitled to vote, and not just a majority of those present at a meeting, must give their consent to the deposition of a bishop. Although the language itself is clear, the definition contained in Title IV is even more specific. Canon IV.15 specifically provides that “All the Members shall mean the total number of members of the Body provided for by Constitution or Canon without regard to absences, excused members, abstentions or vacancies.”

From a letter from the Bishops and Standing Committee of the Diocese of South Carolina to The Most Reverend Katharine Jefferts Schori, dated March 27, 2008.

The Province of the Southern Cone has begun work to amend its Constitution and Canons to permit parishes and dioceses outside of South America to affiliate with the church.

In an address to the Diocese of Fort Worth on May 3, Presiding Bishop Gregory Venables of Argentina said his province had agreed to accept the diocese of San Joaquin into the South American church as a “pastoral” and interim response to the divisions within the US Episcopal Church. Work was now underway to alter the church’s constitution, removing language that limited membership to dioceses located in South America.

The “Anglican Communion in the United States has been hijacked,” Bishop Venables said, by a liberal clique that is less concerned with theological integrity than with power. They do not “mind what happens as long as they control it,” he said according to a report prepared by the diocese’s communications officer. Bishop Venables told Fort Worth that the question before them was “whether or not you can stand with a group of people who have denied that Jesus is the Son of God and that the Bible is the Word of God.”

He conceded that the invitation to the Diocese of San Joaquin made following its December decision to quit the Church and affiliate with the Southern Cone was irregular. However, “if we don’t do something,” he said, we would be “complicit” in their oppression.

Read it all.

The Diocese of California has overhauled its canons, saying the action will make its operations more transparent and its leaders more accountable.

At a special convention May 10, delegates voted to eliminate the bishop’s complete control over property and created an executive council to replace a more complicated, less transparent administrative structure.

The actions were the culmination of a process set in motion by California Bishop Marc Andrus about 10 months ago. But the actions of the neighboring Diocese of San Joaquin also served as inspiration, and Bishop Andrus contended that opposition to that move might have been greater had the structure of the diocese been more transparent.

“Some have said that people who might have acted to prevent the actions in San Joaquin didn’t do so because they were not kept fully aware of what was happening,” Bishop Andrus said after the convention.

Read it all.

I say “the canon lawyers have been unanimous” that Canon IV.9 must be so read, because every lawyer’s opinion I have seen on the Web reads it that way, while I have yet to read a single legal opinion, signed or otherwise, either on the Web, or published elsewhere, that defends the Presiding Bishop’s reading of the Canon (with the exception of her own recent letter to the House of Bishops, which was presumably written by, or with the help of, her Chancellor, but which she alone signed). There have been some differing opinions about the requirement in the Canon that a vote to depose be approved “by a majority of the whole number of the Bishops entitled to vote”, but there has not been a single dissenting view expressed , with reasons and logic to back it up, that the Presiding Bishop is justified by the Canon in proceeding as she proposes to do.

Read it carefully and read it all.

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.

Read it all.

(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

FROM: [Redacted]

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.
Bishop Cox

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
serving.
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.

Bishop Duncan

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
respective Dioceses.

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
canonically resident;

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.

Sufficient legal grounds exist for presenting Presiding Bishop Katharine Jefferts Schori for ecclesiastical trial on 11 counts of violating the Constitution and Canons of The Episcopal Church, according to a legal memorandum that has begun circulating among members of the House of Bishops.

A copy of the April 21 document seen by a reporter representing The Living Church states Bishop Jefferts Schori demonstrated a “willful violation of the canons, an intention to repeat the violations, and a pattern of concealment and lack of candor” in her handling of the cases of bishops Robert W. Duncan, John-David Schofield and William Cox, and that she “subverted” the “fundamental polity” of The Episcopal Church in the matter of the Diocese of San Joaquin.

Prepared by an attorney on behalf of a consortium of bishops and church leaders seeking legal counsel over the canonical implications of the Presiding Bishop’s recent actions, it is unclear whether a critical mass of support will form behind the report’s recommendations for any action to be taken, persumably as a violation of the Presiding Bishop’s ordination vows.

Read it all.

April 30, 2008
For the House of Bishops

Dear brothers and sisters in Christ:

Inasmuch as the past several weeks have involved some significant situations, I thought it would be helpful to review and comment on process. First, regarding deposition for “abandonment of the communion of The Episcopal Church,” it is important to remember that such an act is not by definition punitive, but does give formal recognition to a reality already taking place. Once the Title IV Review Committee has certified that a bishop has abandoned the communion of this Church under Title IV, Canon 9, the bishop in question is given sixty days to respond.

During this sixty day period, Title IV has a provision for temporary inhibition of the bishop by the Presiding Bishop with the consent of the three senior active bishops of the Church. These bishops who must consent to the temporary inhibition do not, however, have a veto over consideration of the merits of the deposition by the House of Bishops, any more than those who must consent to temporary inhibitions in other circumstances have a veto over consideration of the charges by a trial court. This understanding of the canon is held not only by my Chancellor, but also by members of the Title IV Review
Committee including an attorney who is an original member of the Committee, the chancellors of several dioceses who have been consulted, and the former Chair of both the Standing Commission on the Constitution and Canons and the Legislative Committee on the Canons at the General Convention.

Read it all.

No matter how thin Occam’s razor slices the voting at the recent HoB meeting, one thing is painfully clear.

This vote does not pass the…[impropriety] test. It stinks.

It is so…[poorly done] and weak to go forward on voice vote only, for of course, there would be No recorded vote, so:

1) No one knows how many were in the house to vote on the motion.
2) No one knows how many in the house were entitled to vote.
3) No one knows how may voted for the motion.
4) No one knows who voted for the motion
5) No one knows if any of the bishops who were present but not entitled to vote, voted anyway, for one mumbled “Aye” sounds much like another.
6) …[It appears] the bishops there made sure that they have their political shelter of plausible deniability in place.

—Scottsreb in a comment on a previous thread about San Joaquin

As for a proposed alternative course, I would respond, “What [another name deleted] said,” only raise him a level. I don’t think a telephone poll is a good enough response. It doesn’t address the root problem, which is that, technically, there was a valid vote on the question of deposing Bishop Schofield, and the motion failed. That question is therefore settled: He is not deposed, because the number of Aye votes was less than a majority of “the whole number…entitled to vote”. (This, BTW, is precisely what prevented the legitimate Standing Committee of San Joaquin from stepping in an assuming the role of Ecclesiastical Authority; I have it on good authority that they were within a hair-trigger of doing so when the procedural fiasco was revealed, preventing them from acting.) What the PB needs to do is invite the Title IV Review Committee to provide a finding of abandonment with a fresh date (this should not be too difficult), get the three Seniors to consent to an inhibition, serve said inhibition, and bring the matter before the September HOB meeting in Utah, with the understanding of the level of consent needed for a valid deposition. The case of Bishop Cox is more complicated, because the PB neglected her canonical duty of inhibiting him before brining the question before the House, so there was no valid vote, whatever the outcome. So, once again, we need a fresh finding from the Review Committee (a five-minute conference call should suffice), and then the whole rest of the process. Yes, this sounds fastidious to an onerous degree. But nothing other than this course of action will serve to restore trust that the leaders of this Church are committed to abiding by the rules of this Church. Anything less will only hasten the political meltdown that we are in the middle of.

Read it all.

TEC’s Bishops who are taking these extreme actions maintain they are simply defending their diocesan territories. The problem, they say, is that when a priest withdraws from their jurisdiction to join, say, the Anglican Province of the Southern Cone, he or she does not leave and go to Argentina, but stays and conducts services (say) in the Diocese of Los Angeles, just as before. Pardon my impertinence, but so what? They cannot prevent that from happening, can they, with all of their thunderbolts? How do their threats and depositions change the situation by one whit for the better? It is the souls of fellow Christians that are at stake here, not medieval concepts of territoriality. (Depositions do not prevent the breakup of diocesan territory; they most likely exacerbate it.) Given that realization, one might think that TEC’s bishops could take the Christian route, and issue letters dimissory . . . .

In all of these inhibitions and subsequent depositions, we see the results of treating the joining of other provinces of the Anglican Communion as equivalent to “abandoning the communion of the Episcopal Church.” What TEC and her bishops are saying by these actions is that the only communion that matters to TEC is a communion subject to TEC’s Constitution and Canons—the rest of the Anglican Communion can go hang, for all the comity that TEC cares to show to it. And as for the care of souls—the less said, the better.

TEC’s Bishops have now rewritten Canons IV.9 and IV.10 so that they equate “abandonment of communion” not only with joining the Roman Catholic or Greek Orthodox Church, but also with joining the Anglican Church of Uganda, or the Anglican Province of the Southern Cone. This turns the canons into measures like those of the Anglican Church of Canada, which do not differentiate between joining another religious body that is in communion with the Canadian Church, and one that is not—both acts are equally subject to inhibition and deposition for “abandonment”. (Most recently, the Canadian canons were used in this way to threaten the 82-year-old evangelist Dr. J. I. Packer with inhibition.)

We should truly be cautious before proceeding down Canada’s path. What is happening in front of our eyes with all of the inhibitions and depositions is the balkanization of the Anglican Communion, in violation of the very principles of the Chicago-Lambeth Quadrilateral which lie at its heart. Soon, each province of the Communion will have two classes of clergy: those who are licensed to practice in that province, and those who cannot, but who are licensed elsewhere, even though they live and minister in the province in question. Once that happens, what can one say is left of the Anglican Communion? It will have become a tradition, in Hamlet’s sad words, that is “more honor’d in the breach than the observance . . .”.

Read it all.

The recent deposition of bishops John-David Schofield and William J. Cox lends credence to those who say two sets of rules govern The Episcopal Church, according to Bishop D. Bruce MacPherson of Western Louisiana.

At a diocesan standing committee meeting on April 14, all six members approved a statement that noted that the deposition votes of the House of Bishops on March 12 failed to achieve the canonically required number of votes for enactment. A pastoral emergency prevented Bishop MacPherson from attending the standing committee meeting, but he endorsed the statement and urged its approval the following day at a meeting of diocesan council. All 19 members of council present also approved the resolution.

“The purpose is to express displeasure and concern, to encourage everyone to obey the canons” Bishop MacPherson told The LivingChurch. “Right now there is a disparity. It appears there are two different sets of rules for one church.”

Read it all.

We, the Standing Committee of the Diocese of Western Louisiana, make this statement that we do not recognize the depositions of Bishops Schofield and Cox as having had the requisite canonical votes necessary for the deposition of a bishop. We would refer the Church to the March 27, 2008 letter from the Standing Committee and Bishop of South Carolina to the Presiding Bishop, which we believe to be correct in its recitation of the applicable canons and their history.

The Constitution and Canons of the Episcopal Church have been held up by some church leaders as part of the way forward for our broken church, in that these governing documents provide a procedural basis for our common life together. One of the main justifications for the actions taken at General Convention 2003 regarding the consents to the Bishop of New Hampshire was that the Diocese of New Hampshire had followed the canonical process in electing a bishop. We also note that the Diocese of South Carolina was held to an exacting standard in obtaining consents for the consecration of Bishop Mark Lawrence, while such exacting standards as to form of consents have not been applied to any other Episcopal election to our knowledge.

Read it all.

The inhibition against the Rt. Rev. Edward H. MacBurney, retired Bishop of Quincy, has been temporarily lifted following an announcement on April 14 from the canon to the Presiding Bishop.

“In light of the personal tragedy that Bishop and Mrs. MacBurney are facing, Presiding Bishop Katharine Jefferts Schori wishes to offer the bishop the opportunity to function liturgically in any services for his son if he desires to do so,” said the Rev. Canon Charles Robertson in an e-mail message.

read it all.

Once again, because of the need to deal with historical and expository details, I will divide this post into a further two parts. This one explains how the abuses of the Abandonment Canons (Canons IV.9 and IV. 10) came about; the next post (after a short hiatus while I am away) will chronicle the instances of abuse that have so damaged the polity of The Episcopal Church in recent years. (Since these abuses are well known to all, I hope that this post, by providing the canonical background, will allow others to draw the appropriate conclusions for themselves, without waiting for the details in the next post.)

Read it all.

AAC: Was any progress toward reconciliation made at this House of Bishops’ meeting?

+Lawrence: We spent a day and a half on what was called a reconciliation retreat. What makes it difficult to answer that question is that, based at our table discussion, the table I was at, I thought we began to talk about the difficulties that are connected with that whole area of reconciliation. So in that sense, on a table level, I would say, yes, we made some progress. But once we got to the legislative portion of the meeting”¦reconciliation is always costly and the question is, who it’s going to cost and who wants to sacrifice in order to reconcile. Once we got to the legislative portion of the meeting and the deposition for Bishop Schofield and Bishop Cox, I wouldn’t describe the mood of the house as conciliatory to those who, for issues of faith, don’t feel like they can conform to order of the church.

What we have in The Episcopal Church (TEC) today is that many people feel like the faith of the church has been compromised or violated and in order to deal with what they feel is a profound compromise or denial of the faith of the church historically and biblically, they feel like they have to do things contrary to the order of the church. At that point, many in the House of Bishops and in various other formats of the church desire to impose the order of the church upon them. That is, if Bishop Schofield believes the faith of the church has been denied, he has to go beyond the order of the church as in the canons and constitution of TEC, and those who are in the forefront who are quite comfortable with the new faith of the church, so to speak, feel like they have to impose the order upon him or upon Bishop Cox.

The difficulty we have, then, is the very way we went about imposing the order of the church. That is, after the House of Bishops’ meeting, after the voting on the canonical depositions of Bishop Cox and Bishop Schofield, it seemed to be revealed that those depositions were done in a way that was contrary to the order of the church…

AAC: What is your next step?

+Lawrence: I know that Bishop Howe has recently called for a re-examination of this. The Standing committee and Bishop of South Carolina, myself, have issued a letter of protest that the canons were not followed. I don’t know where we will end up with all of that.

Read it carefully and read it all, noting that there is more to come later.

One notes that the requirement that a full majority of all the Bishops entitled to vote in the House of Bishops—both active and retired (or “resigned”, as they now say)—has been with us since the very first abandonment canon was adopted in 1853. I shall return to this legislative history in a later comment about the procedural violations that have occurred in the cases of Bishops Schofield and Duncan. But my next post (when it is ready) will show how the (ab)use of the abandonment canons has lately been greatly expanded, to the detriment of the Church and its polity.

Read it all carefully.

In case you had not seen it.

The following editorial originally appeared on page 10 of the April 13, 2008 issue of The Living Church, an independent weekly magazine supporting catholic Anglicanism. It is reprinted by permission. If you wish to cite it, could you please include this heading and this blog as a source–KSH.

Inconsistent Treatment

The unusual occurrence of the House of Bishops voting to depose two of its members [TLC, April 6] has pointed out some inconsistencies in the application of canon law. Following the decision by the bishops to depose bishops John-David Schofield and William Cox, questions arose as to whether canon law was followed correctly. At issue is whether there were enough bishops present to be able to take action against these two bishops. The matter is complicated. Title IV, Canon 9, Section 2 of the Constitution and Canons of The Episcopal Church states that a vote to depose requires “a majority of the whole number of bishops entitled to vote.”

Because only 131 bishops registered for the gathering held last month at Camp Allen in the Diocese of Texas and at least 15 of them left before the vote to depose took place, and because there were 294 bishops entitled to voted on March 12 when the decision was made, it would appear that the depositions are invalid, for those in attendance were only about a third of the number of those entitled to vote.

Since the voting took place, several bishops have said that those present on March 12 were told that canonical procedures were being followed, and that there were no challenges to the procedure that was used. Later, David Booth Beers, the Presiding Bishop’s chancellor, said the vote conformed to the canons. He said the canon meant a majority of those bishops present rather than all of the bishops eligible to vote.

We are concerned about an apparent inconsistency by some church leaders in dealing with canons. When the Diocese of South Carolina sought consents for its bishop-elect to be consecrated, the canons were applied with great detail when it was decided that procedures had not been followed correctly. The same diligence to canon law should have been given to decisions as important as these depositions.

The casual treatment of canon law in the depositions does not bode well for the future. With the possibility of similar action to be taken against more bishops and other clergy, it is necessary that all involved have a clear understanding of how the Title IV canons are to be applied. If the canons are unclear in their language, then someone needs to take the lead in getting them clarified, for there is much at stake.

Is there anyone out there who can show, based on the language of the canons themselves, and the language of the history and explanation of the Canon in White and Dyckman, the standard reference work on the canons, that the canons were followed in these two depositions?

I have seen much special pleading, dodging, and sophistry, but I have seen not one case of such a defense from anyone including the presiding Bishop’s Chancellor.

People who claim to speak for justice and polity continue to undermine their own witness and credibility in this matter and the clock is ticking–KSH.

At Preludium, the Rev. Mark Harris offers an argument why the deposition is supposedly effective. I greatly admire Mark, but in this case he appears to be abandoning judgment in favor of wishful thinking. Mark writes:

To read “whole number” as meaning a reference back to all the possible bishops (300 or so) absent or present would provide the parliamentary boondoggle of making some votes based not on those present but on those possibly present. One might suppose it would be a virtue of any democratic system to insist that a majority vote ought to be on the basis of the whole body of voters on the rolls, but it would be a virtue that would either require compelling voters to be present or it would be increasingly unmanageable.

Nonsense. Requiring certain actions to be approved by a stated percentage of an entire body is a common procedural safeguard. For example, if the U.S.
Senate wishes to remove a president from office (after impeachment by the House), a full 2/3 of all sitting senators must vote to convict, not just 2/3 of those senators present. If the Congress wishes to override a presidential veto, a full 2/3 of the entire membership of each house must approve the override. These requirements are hardly parliamentary boondoggles.

Mark writes:

The whole number of persons eligible to be present at the meeting is the list of 300. The list of bishops eligible to vote at the meeting are (i) persons present and (ii) persons part of the whole list.

If this were true, then the definition of a quorum in Art I.2 would be incoherent: ”A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.”

Under Mark’s argument, testing whether a quorum was present would entail counting up those bishop-voters who happened to be present, and then determining whether a majority of them were present. That, however, implies that the remaining minority of bishop-voters were somehow both present and not present at the same time. (Insert here your favorite joke about boring meetings.)

I would like nothing better than to see +Schofield defrocked and, independently, stripped in civil court of every stick of diocesan property he controls. But we need to face the facts: The deposition motion failed for lack of the required number of votes.

Read it all.

Then on the Stand Firm thread Commenter “Chancellor” adds this very helpful history of the applicable Canon:

A little history may be helpful here. From White and Dykman (1981 ed.), Vol. II, pp. 1079-80 (with emphases added):

The first canonical enactment on the subject of the “Abandonment of the Communion of the Church by a Bishop” was Canon 1 of 1853, which read as follows:

In all cases where a Bishop, Presbyter or Deacon of this Church . . . has abandoned her Communion . . . either by an open renunciation of the
Doctrine, Discipline and Worship of this Church, or by a formal admission into any religious body not in Communion with the same: such Bishop, Presbyter
or Deacon . . . shall thereupon be pronounced deposed; . . . and if a Bishop, by the Presiding Bishop, with the consent of the majority of the Members of the
House of Bishops.

. . .

This canon was enacted to meet the case of Bishop Ives of North Carolina, who, on December 22, 1852, renounced the communion of the Protestant Episcopal
Church and submitted himself to the authority of the Church of Rome. No canon on this subject had before been enacted, as there had been no need thereof . . . .

It was recognized that the canon, hastily enacted to meet an emergency, was far from perfect . . . . In the revision of the canons by [the] Convention [of 1859],
Canon 1 of 1853 was made Title II, Canon 8, and amended to read as follows:

If any Bishop . . . abandon the Communion of this Church, either by an open renunciation of the doctrine, discipline, and worship of this Church,
or by formal admission into any religious body not in communion with the same, it shall be the duty of the Standing Committee of the Diocese to make certificate
of the fact to the Senior Bishop . . .

Notice shall then be given to said Bishop . . . that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, he will
be deposed from the Ministry of this Church.

And if said declaration be not made within six months as aforesaid, it shall be the duty of the Senior Bishop with the consent of the majority of the House of Bishops,
to depose from the Ministry the Bishop so certified as abandoning . . . .

It has thus been the case ever since the first version of the “abandonment” canon was adopted that a majority of the House of Bishops was required to consent to the
deposition of a Bishop.

Read it all carefully.

I’m a reappraiser. Heck, I’m a lefty/liberal who usually posts here to point out weaknesses, inconsistencies and bigotry in re-asserter arguments.

The process used against Bishop Cox stinks to high heaven. The canon was willfully misread. We progressives are right about a lot of things, but we’re dead wrong if we defend this proceeding.

Not only that, but this was stupidly handled and unnecessary. The PB had Cox dead to rights–he was proud of what he did–but now he’s been railroaded and given his health he’s been made a potential martyr. Not a good moment for a group that claims to seek (social) justice within (and without) the church.

The HOB should admit it is wrong, repent and either

A. Do it correctly, or

B. Just forget the whole thing

–Dan Ennis in an earlier comment on this blog

Read them both carefully.

Update:
There’s a second article now online at Episcopal Life, which goes into more detail about the ruling and the legal strategy that TEC intends to pursue in the second portion of the trial in May.

An attorney representing Bishop William J. Cox has accused Presiding Bishop Katharine Jefferts Schori of defaming the bishop, and has demanded that she publish a correction of her announcement concerning his deposition.

In a letter dated March 27, Wicks Stephens, a lawyer representing Bishop Cox, said that since the deposition failed to achieve the canonically required majority of “the whole number of bishops entitled to vote,” the deposition is “without effect and void.” The Presiding Bishop has previously been made aware of the canonical deficiencies in the vote deposing Bishop Cox, the retired Bishop Suffragan of Maryland and assisting bishop in Oklahoma. Therefore, Mr. Stephens said she may be guilty of defamation if she continues to make public statements to the contrary about his client.

“In light of the foregoing, demand is hereby made that you right the wrong by which you have defamed Bishop Cox by immediately withdrawing your pronouncement of deposition and that you publish your withdrawal in the same manner and to the same extent you have published your wrongful actions,” Mr. Stephens wrote.

I want to be quite clear on this point. It is beyond a shadow of a doubt that the canons were not followed in the deposition of Bishop Cox. Efforts of some to try to wriggle out of it, or to pretend that there “might” be something there and that is all, or that this is somehow straining at gnats, or any other such embarrassing chicanery and casuistry simply will not do. The absence of shame and outrage from those who claim to care about justice and about polity and the importance of the canons in this matter reveals a glaring double standard for all the world to see. A number of prominent people in the Episcopal Church, by their sophistry or their silence, are robbing themselves of any credibility whatsoever to speak for “justice” in the future until and unless they speak out clearly and boldly and see that this uncanonical action be corrected. The fact that it is pastorally cruel, and that there were other possible avenues to pursue, only adds to the sad spectacle that this represents.

Read it all–KSH.

[i] From the elves: This thread was thrown off topic and a number of comments have been deleted. [/i]

I have to interrupt my planned sequence of posts to deal with recent events. They have become too outrageous to ignore.

Let us begin to catalog here the manifold abuses by Presiding Bishop Katharine Jefferts Schori of the Constitution and Canons of The Episcopal Church. For having occupied her office for such a short time, it is truly a remarkable record—and this post will deal with her violations in just one case!

Read it all.

[i] From the elves: This thread was thrown off topic and a number of comments have been deleted. [/i]

Some supporters of Katharine Jefferts Schori, now confronted with the call for investigations by the Bishop of Central Florida and the Bishop of South Carolina regarding the recent activities by the Episcopal Presiding Bishop and her lawyer, are now waving off those actions a mere “technical error” when Bishop Schori lead a majority of a quorum of the House of Bishops to depose the Bishop of Diocese of San Joquin and 88 year old retired Bishop William Cox.

Oops?

A “technical error” did not impose the equivalent of an ecclesiastical death sentence by manipulating the process to remove opponents with the majority of a quorum. That’s not a technical error – that is either duplicitousness or incompetence.

Earlier today she reiterated this point that she authorized the removal of her opponents through a majority of a quorum. 815’s press office reported that she said in a press conference that “We believe that we did the right thing,” and added that the consent came from “a clear majority of those present.” Yes, that’s what a quorum is. So she just stated the obvious – and it’s obviously what’s wrong here.

Read it all.