An ENS article on the question of the canonical validity of the HOB deposition vote

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.

Posted in * Anglican - Episcopal, Episcopal Church (TEC), TEC Bishops, TEC Conflicts, TEC Polity & Canons

143 comments on “An ENS article on the question of the canonical validity of the HOB deposition vote

  1. Brian from T19 says:

    I knew this had to be the answer!

  2. Kendall Harmon says:

    Brian in #1, are you saying you find this convincing? You would expect the system to be defensive and to defend itself. But notice there is no published rationale quoting original sources to explain why the chancellor’s interpretation is correct.

    The key phrase is “whole number of bishops entitled to vote.” I do not see this phrase quoted above, or explained above. Why use this phrase if what is meant is a majority of those actually present at the meeting?

  3. Anonymous Layperson says:

    This is it? The explanation is worthless. “because the vote… had to be taken at a meeting” So? How does that have any bearing on the canon requirement that the vote pass by “a majority of the whole number of bishops entitled to vote”. There is the issue of how many votes are required to depose a bishop and there is an issue of how the voting takes place. Beers falsely manufactures a conflict between the two to justify ignoring the canons…

  4. jamesk says:

    From MCJ:
    [blockquote] Hold the phone, it’s all ok. The chancellor has pronounced the situation doubleplus good! Read it here:

  5. Kendall Harmon says:

    jamesk in #4 have you had your morning coffee? You are citing in your comment the article I posted above.

  6. Brian from T19 says:


    Yes. I think that this is open to interpretation. The reason I find it convincing is that the vote is expected to be taken at a meeting when there is absolutely no doubt that you won’t have all bishops eligible to vote present. In addition, if you look back st resignation votes when Bishops have left for the Roman Catholic Church (or elsewhere) there was only a vote of those present. The argument from language (made by D.C. in another thread and reproduced below):

    There’s an old legal maxim of statutory construction whose name I forget, but it’s essentially a species of the argument from silence: If a legislature used particular express language elsewhere in the document, it weighs against reading another phrase in the document to implicitly mean the same thing. The reasoning is that the legislators knew how to use the express phrase when they wanted to do so, therefore their failure to use it is significant.

    can be seen two ways. For example: there is a very specific requirement for the polling of bishops eligible to vote on matters of consent. Since the drafters used particular express language elsewhere in the document, it weighs against reading another phrase in the document to implicitly mean the same thing. So therefore a majority of those present makes just as much sense.

    Finally, it was not only David Booth Beers, but also every bishop present and the House parliamentarian that support this reading. No minority report or statement from bishops present has come out saying this was not constitutional. We only have the bloggers protesting and the partisan Living Church.

    So all of these things convince me that this is a convincing argument. Whether it is constitutionally legitimate remains to be seen.

  7. Mike Watson says:

    One would think his responsibility in this case would be not to take an advocate’s position, but to get it right.

    But then if he thought that, what about his positions on asserting property interests against member dioceses and parishes? Guess he’ll need to stick with advocacy.

  8. billqs says:

    Notice, Beers didn’t even state what he was saying was true. He said, “It is our position”. This was completely expected. The only question is if anyone who has the authority to call 815 on this actually has the intestinal fortitude to fight this.

  9. Brian from T19 says:

    BTW, who does have standing to challenge? +Cox and +Schofield? Anyone else?

  10. Cennydd says:

    In answer to your question, Brian: Obviously at this point, no one among the liberal bishops will challenge the votes, but if any of them had even a semblance of decency left in their souls, they would. But that really doesn’t matter now, does it? These two faithful men have gone from the House of Baal to a Church which hasn’t departed from the Faith of Christ Crucified, and we are truly thankful for that.

  11. Kendall Harmon says:

    Brian, arguments from silence are notoriously inadequate.

    Also, your statement “every bishop present and the House parliamentarian that support this” is simply false. They were not all questioned on this matter specifically, and you are assuming that participation equals consent to a support of the reasoning supporting parliamentary procedures. You know how meetings function. They work on assumptions and trust, and that was the case here. Everyone voting at every meeting is not directly supporting the legality and canonical validity of the reasoning to support the action, they are assuming that the proper authorities have done their due diligence and proceeding on that basis.

    The key flaw in your reponse, however is your failure to address the key language I quoted in #2, namely, “whole number of bishops entitled to vote.”

  12. Eugene says:

    I guess it would have been nice if Bishp Duncan and other “conservatives” would have been present. Who knows, maybe the vote would have been different. But Bishop Duncan had no plans on attending; no wonder the leaders fo TEC think he has abandoned the Church!

  13. FrJake says:

    The phrase “the whole number of bishops entitled to a vote” is obviously referring to those present at the meeting, as is clear from the sentence that precedes that statement.

    “The whole number” would include all bishops at the meeting, active, resigned and retired, and clarifies that the separation of the two, as is allowed in the calling of a quorum, for instance, is not appropriate in a matter as important as deposing one of their members.

  14. carl says:

    [blockquote] Yes. I think that this is open to interpretation. [/blockquote]
    As with Scripture,Liberals vitiate the authority of the text by appealing to a conflict of interpretation. Thus those in power can act in their own interest without constraint. For if a text has “conflicting interpretations”, then those in power get to decide which interpretation is correct. And the imperative in this case for those in power was obvious: The bishops were going to get removed, and they were going to get removed at this meeting, and any interpretation of the canons which facilitated that outcome was acceptable. I would have expected Liberals to fear this institutionalization of “The Pesiding Bishop is Law.” I was wrong.


  15. In Texas says:

    This brings into question the Dennis Canon for all of the lawsuits going on, doesn’t it? If the TEC can disregard, misapply, and ignore canons at will, then how can the TEC use the Dennis Canon in court? +KJS and Beers have handed the CANA folks in Virginia a wonderful Easter gift.

    I am not a lawyer, but in my work, 75% of what I do is reading and figuring out rules, regulations, pre-ambles, court decisions, enforcement cases, etc. The words in the constitution and canons have specific and precise meanings. You just cannot ignore “the whole number of bishops entitled to a vote” because it is inconvenient.

  16. wildfire says:


    It is almost certain that this will never be directly challenged in civil court by anyone. This is true for many reasons, not the least of which is that the two bishops, having resigned, will never seek such review, nor should they. However, and this is important, the purpose behind this deposition is to install Lamb as new bishop and sue Schofield in California state courts for the property. Any good lawyer will undoubtedly point out that this deposition was invalid under ECUSA’s own rules and the court will readily see that. It likely will conclude that ECUSA is a rogue “hierarchy” to which no deference should be paid. So, although the issue is not directly reviewable in court, it will be highly prejudicial in the property litigation. I suspect 815 would rather have Schofield back than lose that lawsuit, but they made this bed.

  17. Eclipse says:

    Nothing really surprising here – then it comes to actually applying cannon to themselves, TEC is notoriously slack – however, when it comes to ANYONE ELSE – including Anglican bishops in other dioceses, they think they can dictate and drive by their interpretation.

    It’s just more conformation, of why TEC are ‘ineffective’ in their Faith because they lack goodness, knowledge, self-control, godliness, kindness all resulting, of course in a lack of love. (2nd Peter). All the more reason the faithful are abandoning them in hoards.

  18. Brian from T19 says:

    The key flaw in your reponse, however is your failure to address the key language I quoted in #2,

    The language “whole number of bishops entitled to vote” has been addressed by the Chancellor, the Parliamentarian and by me. The “whole” refers to those members (a) present and (b) entitled to vote. This comment from the Chancellor was made in response to an article claiming the interpretation that you advance – that “whole” refers to the entirety of bishops eligible to vote regardless of their presence. The response is that it requires both presence and eligibility. The argument flows from logic and is supported by previous actions and language that can legitimately and concincingly be read that way.

    arguments from silence are notoriously inadequate

    and yet that is precisely your argument. Couching it in the terms of plain meaning does not allow for contextual interpretation. Your argument is that “whole” left silent must mean eligible and can not therefore mean present and eligible. That is an argument from silence. It is impossible to conceive of a meeting of the HoB where all eligible memebers are present. This is why, when all eligible memebrs are required to vote (as in the matter of consent), their presence is not required.

    Also, your statement “every bishop present and the House parliamentarian that support this” is simply false. They were not all questioned on this matter specifically, and you are assuming that participation equals consent to a support of parliamentary procedures. You know how meetings function.

    My statement is an assumption supported by the evidence that even with the massive publicity of this article (so popular the server for Living Church could not handle the traffic) no bishop has come forward stating that there were any irregularities. So far, only Chancellor Beers has made a statement. Even +schofield and +Cox remain silent. So you can not claim that my statement is false, only that it is an asuumption – as is your assumption that something unconstitutional has occurred. The only difference is that my assumption is supported by at least some evidence.

    Everyone voting at every meeting is not directly supporting the legality and canonical validity of the reasoning to support the action, they are assuming that the proper authorities have done their due diligence and proceeding on that basis.

    True. And they have recourse – protest, public statements, etc. None of which they have chosen to use yet.

    The bottom line is that we are both making assumptions based on what we know. The difference is that you do not find my assumptions convincing. Time will tell.

  19. FrJake says:

    Who is ignoring it? Read the canon. The progression of events is pretty clear. The PB presents the matter at a meeting. Every bishop at that meeting (“the whole number”) votes. If there is a majority, the Bishop is deposed.

    It’s not all that complicated, folks.

  20. Bill Cool says:

    Some comments above have decried the appearance of Beers as an advocate.

    Of course, Beers is an advocate. He is not some sort of legal ombudsman. If I were TEC leadership, I would not want him sending me bills if he did not work as my advocate. I do not agree with his interpretation of this canonical question, but we do need to be clear that he works for the actual, real TEC leadership, not some other group such as, for instance, “all Episcopalians everywhere in TEC”. That is not who hired him, authorizes his invoices, nor who can fire him. “All Episcopalians everywhere in TEC” are who ultimately provide the money to pay him, but they have no standing in directing his path through the canons and civil litigations.

  21. VaAnglican says:

    Fr. Jake, then where is the “present and voting” language that is used throughout the “General Rules for the Meetings of the House,” but notably absent here? The language is plain. And the House of Bishops’ vote restored both bishops to their uninhibited status, and declared that they had not abandoned communion. It would be most interesting to find any RP, PRP, or CP that would support this tortured and bizarre application of parliamentary law that you suggest. (And it’s interesting, too, how the explanation from your side about this vote is now shifting.)

  22. anglicanhopeful says:

    It would be simpler if the requirements stated ‘present, and entitled to vote’, but the requirements do not for whatever reason. Have any prior votes been invalidated due to a failure to achieve a majority of bishops entitled to vote?

  23. carl says:

    [blockquote] It’s not all that complicated, folks. [/blockquote]
    No, it’s not complicated at all. The powers that be wanted the depositions to happen, and the depositions were [i]darn well going to happen.[/i] Everything else is just detail.


  24. wildfire says:


    The phrase is “bishops eligible to vote.” The meaning of that phrase is clearly specified in Article I of the Constitution. When the canons intend “present and voting” they say “present and voting.” When Lamb and 815 sue Schofield in civil court they will have the burden of proof that he has really been deposed. And the judge will be a real judge who deals with questions like this all the time. They cannot be spun in a court of law.

  25. D. C. Toedt says:

    Brian [#18], I certainly wish +Schofield’s deposition had been effective, but the facts in evidence seem to indicate otherwise.

    If I were representing +Schofield, I would argue that the canon in question treats deposition for abandonment as a very serious matter, so much so that:

    (1) the canon requires deposition to be considered at a full-blown meeting — where it can be discussed in congress by a quorum of bishops, so that each bishop voting will have had the benefit of hearing what his or her fellow bishops had to say — and not just in limited off-line discussions followed by mail-in consents; and

    (2) the canon requires the deposition to be approved by a majority of all voting members of the House of Bishops, not just by a majority or even a supermajority of “those present and attending,” which is what the canons provide for other situations.

    I hate to say it, but IMHO Mr. Beers’ purported justification of the deposition vote doesn’t come close to being persuasive. The canon in question may be overly restrictive, but until it’s duly changed, that’s the way it is.


    Mike Watson [#7], I would argue that the chancellor’s job is indeed to be an advocate — but an effective advocate must get it right, that is, s/he must be careful to advocate only those positions that, upon critical scrutiny, can reasonably be said to be consistent with the evidence.

  26. Grandmother says:

    I would think the first thing a court might ask, is the total number of bishops who voted, plus the role call of those voting aye, or nay. But that’s just the opinion of a little old lady. What do I know?
    Gloria in SC

  27. Steven in Falls Church says:

    The Canons are replete with references to procedures requiring approval by individuals (bishops, deputies, committee members, etc.) who are “present” at a meeting. For example, Canon IV.5.30(e) states that “Sentence shall not be imposed upon a Bishop found to have committed an Offense of holding and teaching doctrine contrary to that held by this Church unless and until the said finding shall have been approved by a vote of two-thirds of the Bishops present at a meeting of the House of Bishops.” The drafters of the Canons are presumed to choose language deliberately, and therefore presumed to mean something substantively different when using phrases like “present and voting” and “whole number entitled to vote.” Unless there is some unusual legislative history behind this provision (and the ENS article does not say there is), a reasonable person cannot conclude that “whole number entitled to vote” means those present at the meeting.

  28. D. C. Toedt says:

    Fr. Jake [#13, 19], under your interpretation, the phrase “the whole number of bishops entitled to vote” supposedly means “those bishops entitled to vote who are present at the meeting.” But that would render superfluous or nugatory the phrase “the whole number.” In the absence of provisions for proxy- or absentee balloting, any issue to be voted on must be approved by a majority or supermajority of those entitled to vote who are present at the meeting. Other things being equal, statutory interpretations that effectively delete particular words or phrases from the statute, as yours does here, are not favored.

  29. Kendall Harmon says:

    My argument is precisely NOT an argument from silence but an argument from presence, the presence of the phrase “entitled to vote” right after the phrase “whole number of bishops.” If all that is needed is a majority of those present then why use this specific language? The lack of the use of the present and voting language furthers the argument, as does the use of this phrase “whole number of bishops entitled to vote” elsewhere in the canons.

  30. dovefromabove says:

    You all should check out babyblue’s comments … she states that this canon was interpreted when Bishop Righter was placed on trial. Then the canon referred to all bishops, not those at a meeting. if so we have a precedent.

  31. Mike Watson says:

    Regarding the meaning of “whole” in this context: By analogy, Google “whole board of directors”. It is very common language. Then ask a corporate lawyer what it means. Hint: it doesn’t support Jake’s reading.

  32. tjb says:

    My guess is that the courts will give a good bit of deference to history here. If there’s a long tradition of interpreting the canons in the way Beers is now — e.g., as evidenced by a string of past cases where a deposition went into effect based simply on a majority of the bishops who were present at a particular meeting — then the courts will accept this interpretation in the present case. In effect, they’ll be deferring to the church’s own history if interpreting its canons. OTOH, if it looks like this is a new interpretation of the cannons which has been cooked up for this specific case, then TEC is going to be in a lot of trouble.

  33. LTN says:

    D.C…I appreciate your interpretation of the rule of law here. If we were to only focus on the majority “present” and nothing else, then perhaps 3 people present could arguably vote to depose these bishops. However, I agree with you that we have a quorum problem written into the Constitution, Article 1, Section 2.

    I don’t know if the Living Church numbers are accurate but what would also be determinative is knowing the actual numbers of bishops entitled to vote (LC says 294) who haven’t resigned jurisdiction or position and the number of bishops who were actually registered at the House of Bishops (LC says 131). The Living Church numbers do not show the constitutional majority required to conduct any business under Article 1, Section 2.

    Do you or anyone else have different numbers (those entitled to vote and registered), if they differ from the Living Church?

  34. okifan18 says:

    Over on the House of Bishops/Deputies listserv even Michael Russell, whose disdain for reasserters nearly knows no limits, agrees with Kendall on this. Interesting.

  35. Brian from T19 says:


    I certainly wish +Schofield’s deposition had been effective, but the facts in evidence seem to indicate otherwise.

    It is effective. There is no nullification based on incorrect procedure. Someone needs to bring a complaint and then see what happens. Until then the argument is simply academic as far as the deposition.

  36. Todd Granger says:

    D.C., I appreciate your lawyer’s reassessment of the situation.

  37. steveatmi5 says:

    I would sincerely hope that in the midst of the revelation of what appears to be a pretty public mistake canonically by the leadership of TEC, that no one is under any illusions about the deeper problem which is, if they had followed the canons properly (as argued by some critics here) both depositions would still have passed.

  38. D. C. Toedt says:

    Brian [#35], if the required vote wasn’t taken, there’d be no call for a nullification proceeding, because the deposition would never have happened in the first place. (A legal phrase comes to mind: “void ab initio.”)

  39. Todd Granger says:

    [i]There is no nullification based on incorrect procedure.[/i]

    Then, Brian, what precisely is the purpose of the canons if they can be flouted with impunity?

    If there be no nullification based on incorrect procedure, then we are under mere arbitrariness, and there is no rule of canon law to order our common institutional life.

    As for complaint – I rather suspect that Bishop Schofield and Bishop Cox will not challenge this, for reasons already noted. But, as others point out, the canonical legality seems likely to become a consideration in any suits regarding property and the Diocese of SJ. That is likely to be the only test.

    As for your assertion that no bishop present has yet objected, therefore all were consenting procedurally – might it not be possible that a bishop (or more) might be consulting with his diocesan chancellor before he makes a statement or issues any sort of challenge?

  40. D. C. Toedt says:

    Mark McCall [#16, 24] correctly points out the real difficulty with the vote: It isn’t going to help the eventual TEC civil-court effort to recover the DSJ properties from +Schofileld.

  41. Mike Watson says:

    #s 20 and 25: Things can get a little complicated when the client is an organization, but in this case not very I think. If the governing body hires a lawyer to advise it on interpretation of the instruments governing the organization’s internal affairs, the lawyer isn’t supposed to act as an advocate for a position the majority of the governing body wants to take that disadvantages shareholders, e.g., or disadvantages another member of the governing body, if there’s not a reasonable, good faith basis for it (exactly what the standard is may vary but remember there can be fiduciary duties involved). Generally speaking the duty is to try to give correct advice. I think D.C. puts it about right. There’s room for some advocacy, but it is more constrained than in other contexts. What’s being discussed here is whether a line may have been crossed.

  42. carl says:

    [blockquote] It is effective. There is no nullification based on incorrect procedure. [/blockquote]
    This is an absolutely stunning assertion. Why then even have rules if you can violate them with impunity? And to suggest as a remedy an appeal to the very body which violated the rules in the first place? Amazing!


  43. LTN says:

    I’m not quite sure if acts in failure to adhere to constitutional and/or canonical requirements are outright void or voidable. Assuming just voidable (only when challenged), anyone (even laypeople) could arguably call a “special meeting” of the House of Bishop and transact business. If voidable, it would be dependent upon a challenge before such acts are to be considered ineffective.

    So here goes, I call a special meeting of the House of Bishops in the next 30 seconds. O.K…I’m the only one who showed up. I move that TEC be declared apostate and no longer Anglican or Christian and that all non orthodox bishops named be deposed. I second the motion. All in favor…I raise my hands and said “I.”

    Be it herein noticed that TEC is declared apostate and no longer Anglican or Christian and that all liberal TEC bishops named are deposed by a special meeting of the House of Bishops.

    BTW, the above action is “effective” until properly challenged. You can take this to the bank!

  44. carl says:

    [#37] steveatmi5 wrote:
    [blockquote] if they had followed the canons properly (as argued by some critics here) both depositions would still have passed.[/blockquote]
    Undoubtedly true. But 815 wanted the depositions to occur [i]before Lambeth.[/i] They want bishop Schofield disinvited so as to invalidate his separation from TEC and his claim to be a legitimate Anglican Bishop. Thus the naked assertion of power to achieve the desired result.

    These precedents will not be forgotten. Leaders do not forget the effectiveness of exercising raw power to achieve desired ends. Those cheering the application of the cudgel today will find themselves beaten with it tomorrow.


  45. Dave C. says:

    We sometimes get so blinded by asserting the rights of the side we desire to prevail that we cease to be objective–I know I have done so before. Which is why I appreciate D.C.’s comments. He seems to be the only reappraiser so far able to look on the issue objectively. And I should think his background in law lends additional credence to his views.

  46. Br. Michael says:

    As Philander Knox said to President Roosevelt, “Mister President, do not let so great an achievement suffer from any taint of legality,” in regards to the Panama Canal. Unfortunately there is no effective procedural way to seek review of this as an independent judiciary is lacking in TEC organization. Thus the action succeeds because there is no way to undue it and those who took the action are the very ones who would have to review it.

    This is a good example at to how the law can be hijacked.

  47. VaAnglican says:

    There was no incorrect procedure in the vote. There was a vote. It failed. There was no deposition, and by the language of the canons the inhibitions are lifted as well. Any subsequent acts trying to assert deposition are nullities, but not because the voting procedure was imperfect, or a quorum was lacking. They are nullities because the vote was not to depose, or to put it in terms of effect, the vote was that the two bishops had not abandoned the communion. And D.C. is right: this is a classic void ab initio situation. There is no requirement to object, there is no statute of limitations to object, there is no appeal required or to be had–because legally what the PB and chancellor say happened in fact never as a matter of law ever happened.

  48. Tired of Hypocrisy says:

    Although the legality of the vote is a concern, I am more interested in knowing exactly how this whole process went down. Most of these bishops–perhaps with the exception of the presiding bishop–have decades of experience with parliamentary procedure at the parish, diocese and general convention level. How does a voice vote on a matter such as this slip through without a challenge when there are still supposedly bishops sympathetic with the cause of the deposed bishops? How does a voice vote slip through if anyone in the building is interested in transparency and accountability? I’m baffled by this even more than by the legitimacy of the vote itself.

  49. jamesw says:

    Fr. Jake and Brian: For the reasons stated herein by Mark, D.C., Kendall, and for the rationale I have stated elswhere, this canon cannot be interpreted to mean “by a majority of those present.” Clearly neither of you have ever gone to lawschool, because any first year law student who has had a statutory intepretation class would see that Beers’ rationale is utterly fatuous.

    This is not just a conservative vs. liberal thing. Most here think that with the minimum of effort, KJS could get herself another abandonment charge and arrange for the canonically required number of bishops to show up at the next HOB. What should be troubling here for the liberals is that KJS is becoming increasingly sloppy with the canons, to the extent where she seems to be acting without much regard to whether a thing has been done canonically in order or not. Fast forward to any future court cases on the part of TEC against Schofield or anyone else. Such repeated flagrant violations of the canons by KJS herself will leave her in a very, very difficult spot to argue to the secular courts that THEY should then enforce TEC canons against Schofield, etc.

    It’s like if A and B make a contract. A repeatedly violates said contract and acts as if it has no force or effect. B then violates part of said contract and A responds by suing B. The court will respond by looking at A’s conduct and will refuse to hold B responsible, because A’s conduct will have nullified the contract.

    What’s more, the canon in question here does not touch on points of theology or even ecclesiology. For anyone with legal training this is a pretty black and white, open and shut case of blatant violation of procedural due process.

  50. Ross says:

    I have to say that I agree with the reasserting side here: interpreting the canon to mean “a majority of those present” is a strained reading at best. It pretty clearly says “a majority of all bishops entitled to vote, present or not.”

    I’m not a lawyer, but I presume that the civil courts would have no reason to get involved in this unless and until it becomes relevant to a civil matter, e.g. property. But in that case, it would seem to me that the one thing that both sides agree on is that +Schofield is no longer a bishop of TEC — he resigned before the vote on deposition was even taken, so one way or another he’s out.

  51. VaAnglican says:

    Ross, you’re right save on one point. Bishop Schofield tried to resign but was rebuffed in his effort to do so. His resignation was not accepted, and the 815 line was that it was not effective so long as it was not accepted. It wasn’t accepted because the Presiding Bishop wanted the satisfaction of deposing him. So they are hoist by their own petard–no deposition, no resignation, and Bishop Schofield is by their own terms still the Episcopal Bishop of San Joaquin, whether he views himself as that or not. They thus can hardly install a new bishop or argue in any case that he has no authority. They declined his resignation, and then had a vote that rejected the charge he had abandoned communion, making deposition impossible (this time).

  52. TomRightmyer says:

    The Diocese of North Carolina has a “majority of those entitled to vore” requirement for the election of a bishop and I remember that the election of a suffragan was not completed at the diocesan convention because the number of clergy present – because some had left early to avoid a snowstorm – was fewer than half the total number. There were enough for a quorum, but not the larger number required to elect a bishop. The argument proposed by the chancellor does not square with the history and tradition – so what else is new.

  53. dwstroudmd+ says:

    Lawyering sunk to the level of ECUSA/TEC/GCC theology-ing! Abysmally, bathetically, pathetic. ECUSA/TEC/GCC should demand a refund of their fees paid to date…and send Beers to remedial reading classes with a side of history classes.

  54. D. C. Toedt says:

    VaAnglican [#47] cogently summarizes the status quo: “There was no incorrect procedure in the vote. There was a vote. It failed.” (Bold-faced emphasis added.)

  55. Chancellor says:

    I’m entering this debate a bit late, but I just want to reference the historical analysis of the disputed language based on White & Dykman’s treatise [url=]here.[/url] There is no basis whatsoever for the belated and self-contradictory (as shown by D.C. above) interpretation put forth by David Booth Beers.

  56. Br. Michael says:

    I don’t often agree with DC but DCs argument is supported by White and Dykman (as pointed out on StandFirm.) See pp. 1078-1084 and the post by Chancellor at
    And remember this canon was not written to deal with our present situation. Rather it was first drafted to deal with a Bishop who converted to Catholicism and a subsequent one who went to the REC.

  57. Bill Matz says:

    I concur with D.C. As he notes, the key to interpreting “entitled to vote” is that the gravity of the vote requires an assurance that there is widespread support for the action. Beers & Co. have an uphill battle to argue that such a grave action could be taken constitutionally with only 27. LTN’s reductio ad absurdum example also shows the weakness of Beers.

    Is not anyone else troubled by the apparent conflict of interest for Beers? As chancellor, he makes/recommends decisions that are resulting in millions in fees going to his firm. If the CFO was CEO of (e.g.) Goldman Sachs and all TEC’s funds were then being handled by GS, I would certainly be suspicious. With lawyers, the conflict rules are even more stringent. Curious, especially given this latest “advice”.

  58. Chris Hathaway says:

    “I don’t know what you mean by ‘a majority of the whole number of Bishops entitled to vote,’ “Alice said.

    Humpty Dumpty smiled contemptuously. “Of course you don’t — till I tell you. I meant ‘a majority of all those present and entitled to vote'”

    “But ‘a majority of the whole number of Bishops’ doesn’t mean ‘a majority of all those present,'” Alice objected.

    “When I use a canon,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.

    “The question is,” said Alice, “whether you can make canons mean different things.”

    “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

  59. steveatmi5 says:

    #49, with respect, “Clearly neither of you have ever gone to lawschool” is an unnecessary dig and does nothing to advance your argument, but shows disrespect for those with whom you disagree. Let’s stick the the texts and their interpretations, please. I am learning a lot through this discussion.

  60. jamesw says:

    Ross – VaAnglican has it correct. Schofield was not validly deposed. Schofield did attempt to resign his membership in the HoB, but Canon III.12.8 sets forth (quite ironically) the following requirement: “The House during its session shall accept or refuse the
    resignation by a majority of those present.” No such acceptance of a resignation has occured. Further, Canon IV.9 suggests that if the consents to depose are not received at the next HoB meeting, the inhibition/depositon process terminates.

    Therefore, according to TEC’s canons, Bp. Schofield is once again the proper, canonical, uninhibited and undeposed TEC bishop of the Diocese of San Joaquin.

  61. jamesw says:

    steveatmi5 – Sorry if you were offended. In lawschool, one of the things you are trained in is legislative interpretation (its sort of like becoming trained in Biblical hermaneutics). There are certain rules that you follow when determining the meaning of laws. Fr. Jake and Brian set forth some analysis which demonstrated a clear lack of knowledge about these rules of legislative interpretation, yet Jake had the gall to declare “It’s not all that complicated, folks.”

    My point was not to disrespect Jake or Brian nor take a dig at them. My point was that they might not want to take such a self-assured tone in what is essentially a debate about legislative interpretation when they don’t have the training in this area.

    [i]The point steveatmi5 was making needs no more discussion. Please, discuss the post, not the commenters. [/i]

    -Elf Lady

  62. Kendall Harmon says:

    Chancellor in #55 thanks a lot for the reference in White & Dykman.

  63. Ross says:


    I’m not so sure. It certainly seems to be the case that the canon clearly says one thing, and the chancellor and parliamentarian are reading it to mean something entirely different; which means that by the rules as they are written the vote to depose didn’t succeed.

    But in practice, rules mean what the body with final authority to interpret the rules says that they mean. This is why the secular government has an entire branch devoted to making authoritative interpretations of what the rules say, and that branch has a final authority beyond which you cannot appeal.

    The fact that TEC, despite it’s much-touted structural similarity to the U.S. government, does not have such a branch is clearly a flaw when it comes to cases like this. Here, the body that is using the rules is also the body that decides how the rules are to be interpreted, and there is an obvious conflict of interest in that.

    So yes, this is abusive — and it pains me to say that, because I like ++KJS, and I think that +Schofield actually has abandoned the communion of this church and is quite properly liable to deposition. That deposition has not been carried out in the way that the rules as written say that it should be done. But unless and until some authority with the power to overrule Beers’ and ++KJS’ interpretation of the canons does in fact overrule them, then +Schofield is deposed.

    Someone with more familiarity with the constitution and canons than I have can say whether there is any such authority capable of overruling — an act of the HOB at a future meeting? General Convention? I don’t know. But just as with a blatantly incorrect ruling by a secular court, it nevertheless stands unless and until it is overturned by a higher court.

  64. jamesw says:

    Ross – in realpolitick and within TEC you are, of course, correct. Where this action might very well cause problems for TEC is in the secular courts. When they go after JDS and claim that he was deposed under TEC’s canon law, JDS can counterclaim that he was not. Furthermore, JDS can demonstrate a pattern in TEC of not following their own canon law. That very well might cause the courts to decline to then enforce TEC’s canon law for it (which is precisely what the Denis Canon requests of the secular courts).

  65. Brian from T19 says:


    Anything later than 1853.

  66. Chris Hathaway says:

    #63The fact that TEC, despite it’s much-touted structural similarity to the U.S. government, does not have such a branch is clearly a flaw when it comes to cases like this.

    Ross, I’m sure that is a “flaw” that will be addressed and corrections for it proposed at the next GC. And i have little doubt that the right people will be picked for such a position once it is created.

  67. Brian from T19 says:

    My point was not to disrespect Jake or Brian nor take a dig at them. My point was that they might not want to take such a self-assured tone in what is essentially a debate about legislative interpretation when they don’t have the training in this area.

    Didn’t take it as a personal swipe, but I will say that I have been an attorney for 16 years and I still think that the Chancellor and the Parliamentarian have a valid reading.

    But, what counts the most is the practical application. +Schofield is deposed. +Cox is deposed. ++Venables would not have recognized it either way. The ABC will not interfere in the internal canonical structures of TEC, so he will consider +Schofield deposed. Whether he invites him to Lambeth is another matter.

    This is the same old argument we have had since the ordination of +Gene:

    Person A: You can not do that.

    Person B: We did.

    The winner is the person in power at the time. The consequences remain to be seen.

    As far as the civil case, I think D.C. is wrong because the courts will defer to the internal workings of the Church if at all practicable. To argue that a canon was violated once, so you can never use them to enforce other things is specious.

  68. jamesw says:

    Brian – in the end, I don’t think that the importance lies in the legal consequences of this. I believe that the importance lies with the fact that I am quite certain that both David Booth Beers and KJS know perfectly well that they did NOT, in fact, comply with the requisite canonical process but acted anyway. This says a lot about the dynamics of TEC’s top leadership and how they believe they can get away with anything. Typically this dynamic plays out prior to the internal collapse of an intensely corrupt organization (police department gone bad, corporation about to collapse internally) or an organization completely detached from reality (academic or government environment). Given the precarious state of any church organization in today’s society, and given TEC’s apparent serious decline over the last several years, it should be of great concern to anyone who truly loves TEC (be they liberal or conservative) to see this dynamic at play in so obvious a manner.

  69. VaAnglican says:

    Brian, they are not deposed, unless it is your position that if the Presiding Bishop says they are deposed they are–in which case any vote at all was meaningless and we are in an ecclesiastical dictatorship. She may act as if they are deposed, but legally they simply are not. And as a lawyer you can parse this as well as DBB has. He knows he screwed up, which is why he has retreated to the “it’s our position” stance, which as an attorney you should instantly recognize also. A court can deal with this without treading on matters religious one little bit. Indeed, a judge won’t have to go beyond the plain language and Robert’s Rules. I appreciate your honesty, suggesting that raw power is all that matters, and wish the Presiding Bishop was as forthright. But there is something deeply disturbing about that attitude in an organization that should, if it is a Christian organization in any sense of that word, at least have some honesty about it. And the lawlessness evident in this action, and in your defense of it, ultimately rests upon a willingness to be dishonest: to say something is what it is not.

  70. Todd Granger says:

    [i]The winner is the person in power at the time.[/i]

    I am reminded of what Dr Ephraim Radner wrote to his bishop after GC 2003: “I am a priest in a Church with no legitimate authority.”

    Brian hits upon a cogent summary of a denomination that has rejected legitimate authority (ultimately, the authority of the Word of God mediated through Holy Scripture as understood through the interpretive lenses of catholic Tradition and illuminated reason).

    All that is left is power. To that extent, the postmodernists are right.

  71. LTN says:

    Whether or not TEC believes it validly deposed Schofield and Cox as effective as my House of Bishops’ ousting of TEC from the Anglican Communion and deposition of all the liberal bishops.

    All of these procedures were done in a large part, with the intent of having a greater advantage in civil court over property issues. While I cannot speak for any other states except California, here in CA, the California Supreme Court will not carte blanche defer religious and procedural issues to the religious entity just because it was done under “religious” auspices.

    The failure by a religious entity to follow its own procedural rules is reviewable by a civil court in California (See Providence Baptist Church v. Superior Court (1952) 40 Cal.2d 55, 60).

    Providence Baptist Church, supra, 40 Ca1.2d 55 was a declaratory relief action by church members who asserted they had voted to discharge the pastor, but he had refused to vacate the position or to surrender church funds and documents. The trial court found that the pastor had not been properly discharged, and it appointed a referee to supervise an election of directors (who could then detennine if he should be). The pastor filed a petition for a writ of prohibition seeking to stop the election, in which he challenged the trial court’s jurisdiction to intervene in the matter. The Supreme Court, citing Rosicrucian Fellowship v. Rosicrucian Fellowship Non Sectarian Church (1952) 39 Cal.2d 121,131, found that the dispute involved civil and property rights: the real property of the church, the funds, and the decision as to who would be the pastor. (Id. at p. 61) This being the case, the court held that it was within the trial court’s power to decide if the church had followed its own rules and procedures in matters affecting those rights, i.e., whether a meeting to elect the directors had been properly convened and conducted.

    Unless Schori properly deposes Schofield, she and her third rate attorney Beers, will certainly be laughed out of a California court in this matter. It is better and economically less expensive to redo this process than to proceed as a laughing stock.

  72. D. C. Toedt says:

    Folks, it’s not our place to throw stones at David Booth Beers. Regardless how flawed some of us think “his” statement was about the deposition vote, we need to remember that in making the statement he was simply doing his job. We don’t know what his personal views on the matter are; neither do we know what advice he gave +KJS, and the odds are that we’ll never know, because he doesn’t seem like the sort who would ever violate attorney-client privilege.

  73. LTN says:

    D.C…the client doesn’t dictate to an attorney on how to apply legal procedures or violate legal ethics unless the attorney agrees with the client. Either Beers doesn’t have the courage and legal ethics to stand up to his client if she advises him to violate legal procedures or he isn’t a good attorney. I will give him the benefit of the doubt by believing that he does have the courage to stand up to his client.

  74. azusa says:

    “Regardless how flawed some of us think “his” statement was about the deposition vote, we need to remember that in making the statement he was simply doing his job.”
    I vos only following orders.

  75. wayfarer613 says:

    I’m by no means a lawyer, but something interesting strikes me. Say Schofield were to use the argument outlined by #71 (LTN) to claim he wasn’t validly deposed. Wouldn’t making that argument consequently undermine his argument that, as a bishop of the Southern Cone, TEC has no power over him?

  76. VaAnglican says:

    D.C., I think you would be right except for the fact that the statement ENS released had his describing his making this decision and agreeing with this conclusion. Otherwise I would have assumed in saying what his “position” was he was doing his job and trying to put the best legal face on the really daft thing his client (the PB in that case) did. But it is very interesting that there was nothing in the ENS statement about the Presiding Bishop, and it is she–and not the attorney or the parliamentarian–who makes these decisions as chair under Robert’s. Which leads me to think that DBB egged her on in this direction, she followed his counsel, and now he’s left to clean up his mistake. I know it’s unpalatable, but he really needs to tell her that the only way out of this is a complete re-do, from the very start.

  77. LTN says:

    Schofield can still argue that by his resignation, TEC has no authority over him. His procedural defense against TEC would be based on their claims that they have jurisdiction over his diocese. In order to claim jurisdiction over his diocese, TEC would have to show that they followed the proper procedures to take over that jurisdiction.

  78. wayfarer613 says:

    Thanks for clearing that up – like I said, I’m no attorney!

  79. Sherri says:

    The winner is the person in power at the time. The consequences remain to be seen.

    The consequences will be what they always are in such a situation – a loss of integrity, a loss of respect. Likely, a further loss of support.

  80. BillS says:

    Is Schori Beers client, or TEC? If TEC is his client, then he represents all members and has the obligation to fairly represent everyone.

  81. hanks says:

    I recognize that most of the discussion has centered around +Schofield because of the implications re the Dio of SJ. While there are none of those matters surrounding the attempt to depose +Cox, there is an interesting violation of Canon IV.9 in his case.

    Section 1 requires that following Review Committee recommendations for deposition, the PB must have the consent of the three senior bishops with jurisdiction before she can proceed to inhibit a bishop. Without that consent by all three, the process stops and nothing can go forward. According to the article in TLC, at least one of the three senior bishops reported that he was never even asked. Thus, in the case of Bishop Cox there was nothing for the HOB to consider. Again, the canon is absolutely clear that this is one of the gates that the PB must pass through to proceed to deposition. So in the case of +Cox, there was an apparent effort to just run him out without even making the attempt to follow the canon. Shameful behavior! If Beers is advising his client, she’s not being very well served — unless, of course, she’s simply ignoring good advice.

  82. VaAnglican says:

    In the civil case, it will be necessary for TEC to assert Bishop Schofield has no authority over the assets in question. It is much easier to do that, one would think, if he no longer has any position within the Episcopal Church hiearchy. That’s not the only question, of course, but it is a threshold question–one that might have been relatively easy had they accepted his resignation. But instead they went for the jugular–and missed. So now they can’t argue he’s without jurisdiction based on no position within the Episcopal Church. In trying, they will have to defend the sham that was the HOB’s vote, and so also pollute their entire case, as any judge will see right through this as an attempt to make an end-run around the canons and violate basic parliamentary procedure. It’s so bad it’s tawdry and embarrassing. The burden on this issue is with the plaintiff, and they’ve just horribly muddied the waters, and unnecessarily so. They will likewise argue that the real bishop is someone else and that there can’t be two bishops. But the Bishop of Alaska has feet in two provinces, presumably with TEC concurrence. In fact, Bishop Schofield may be in the best of all worlds as a result of this error, as he is bishop in two provinces, and the HOB explicitly declined to characterize his joining Southern Cone as abandonment and even refused to accept his resignation.

    Perhaps there’s no lawsuit in the offing and so 815 doesn’t care. But if there is a civil action being put together, I pity the lawyer who has to argue the legitimacy of the deposition of Bishop Schofield, and then pick up the pieces after the court calls the church on this. Surely DBB will realize how bad this is and start over. Who knows, perhaps he does realize this, and can’t convince the Presiding Bishop of the necessity for doing this.

  83. robroy says:

    VaAnglican, yours was the conclusion of the lawyer Billy Ockham (mousetalker) for DBB to swallow crow and redo everything. The Hills of the North blog, however, looks at the downsides of this strategy, [url=]here[/url]. Worth a look.

  84. D. C. Toedt says:

    Robroy [#83], thanks for the links. The Hills of the North blogger’s comments are especially interesting; s/he could very well be right.

  85. Rob Eaton+ says:

    Mark McCall made two references to Bp Lamb, and these seem to be the only references in this thread. In a couple of other threads I have presented a more immediate problem due to the failure of the deposition of Bp Schofield. Bishop Lamb is on the ground in San Joaquin (and I’m talking only in the context of TEC DSJ), and that would be without Schofield’s permission, or the Standing Committee’s permission. Not that permission might not be given! But it was not asked for. The reason he is there corresponds with the intended successful deposing of Schofield, and thus the final loose string tied up (I’m ignoring the Standing Committee issue here), and +Jerry could be in the diocese under the auspices of the PB. Lots of Canonical problems here. Voting problem in HOB is tip of the iceberg, as some have seen. But you can see that not taking care of business in the HOB now brings unplanned for Canonical fracture elsewhere, and actually makes the PB liable for disciplinary action, as well as (probably much to his surprise and dismay), Bp Lamb.
    And, I might add, the meeting that the PB is intending to chair in Stockton on March 29 will be dependent upon a vote being retaken and successful by the HOB before that date, or else she has compounded the liability for both herself and +Jerry.
    It’s not just the vote. It is the similar instances that have provided precedence before the vote, and it is the direct ramifications affecting other Episcopalians after the vote.


  86. Vintner says:

    An idea about this situation came to me this afternoon while I was out and about. If there is no recourse via Beers or 815, I would like to make the suggestion that we pursue, via our diocesan councils and conventions, motions requesting that the procedure followed at the recent HOB be revisited. Even if such a resolution did not pass our diocesan councils and conventions, it would force continued attention on the issue which is something that I imagine KJS and Beers would not wish. Lest anyone think I’ve lost my mind ~ and lest Sarah Hey jump in and declare that my moniker has been hijacked once more ~ this suggestion is not made because I am any fan of JDS. I am most certainly not. But neither am I a fan of KJS, a host of archliberal bishops, and undue process. If they goofed, apologized, and sought a “do over” that would be one thing. To goof and then say that the goof was right is another thing altogether. Put and keep the pressure on.

  87. jamesw says:

    Rob Eaton: The problem will be that every decision-making body within TEC will buy DBB’s rationalization of the HoB vote. Neither Lamb nor the PB will ever face TEC disciplinary sanctions for what they did. Much has been made about how TEC’s governing structure parallels that of the American government. The one major exception is that there is no independent judiciary.

    Now imagine how the USA would function if you removed the concept of an independent judiciary. Suppose that the final arbiter of the US constitution was the President because he is highest official in government. That is precisely the argument being made by KJS’s supporters. Furthermore, suppose that Congress was dominated by the President’s party. Under such a scenario, does anyone think that the Constitution would ever stand in the way of the President’s and Congress’s agenda?!? Surely not.

    In TEC, the final intepretation and enforcement of the canons is – by the very structure of TEC – a political decision. Brian correctly stated that in TEC “The winner is the person in power at the time.” KJS is in power, and her political allies control (for now) the HoB, the Executive Council, and most judicial bodies of TEC. Apparently the only group she does not control is the three senior bishops (and they were not appointed).

    It is my opinion that the increasingly brazen violations of the canonical procedure suggest that the TEC is in the midst of moving from an organization governed by the rule of law to one governed by tyranny (in the truest sense of that word). Legality no longer matters. It is what those in power can get away with. It is my belief, however, that organizations entering this phase are not healthy. Organizations with these dynamics tend to be seriously detached from reality and unable to deal with the challenges of real life. Such an organization in academics or government might continue to exist indefinitely as it is insulated from the marketplace. But TEC is not. The ecclesiastical marketplace in America is becoming increasingly tight. Furthermore this sort of arrogant sloppiness bodes very ill for those who think TEC victories in the secular courts of Virginia and California is a sure thing. Were I a liberal in TEC right now, I would be very, very concerned.

  88. Eutychus says:

    I sorry, the HOB is full of smart, intelligent persons.
    I wounder how many knew better.
    I wounder…

  89. Athanasius Returns says:

    OK, I defer to those most knowledgeable, but the bottom line to me appears to be a lot of blog fuss with scant potential for any change whatsoever in what occurred with the HOB deposition vote. The “progressives” won the day and consistently demonstrate that “conservatives” have no place in their plans. Am I right?

  90. hanks says:

    Exposing evil to the light is necessary and right. That’s what has been happening on various blogs the past few days. The symbolism of light is very significant (Jesus is the light of the world, etc) in Scripture. Whatever short term “victories” the PB wins will have no lasting value if they are based on lies, deceit and a fundamental lack of fairness (aka due process). Jamesw is right in suggesting that the liberals in TEC ought to be very worried about what is happening. The example of over-reaching that we all saw this week demonstrates just how unhealthy the GCC has become. We need to continue exposing evil to the light.

  91. VaAnglican says:

    jamesw, I think your diagnosis is right. But I do think there are still some “institutional liberal” bishops who do have integrity and see the dishonesty implicit in this sort of lawlessness as intrinsically unhealthy for the organization. I also think not all of the revisionist bishops are non-Christians, and that some of these probably view such conduct as profoundly un-Christian and unholy. Finally, I think there may be some who while not Christian in any normal sense of that word, or particularly concerned about morality of what is happening, nonetheless do care about appearances–and the appearance of this is very bad indeed. So I don’t think KJS can act totally unfettered, and I suspect she will quietly be confronted by one or more of these bishops about the position she has placed them in (looking like idiots or patsies or tyrants). Remember, they are paying, and paying dearly, for this legal strategy. They are very much “stakeholders” in this and affected by what she does. The orthodox may never know what is said to the Presiding Bishop and her chancellor by members of these three groups, but I suspect there is pressure there nonetheless.

    I think at some point all of the bishops will have to ask themselves the Reagan question: Are you better off than you were before Katharine Jefforts Schori? It will be increasingly difficult for any of them to answer that in the affirmative.

  92. Paula Loughlin says:

    I think it interesting that interpertation of the canon was sought. Interpertations are not sought when there is no doubt as to the validity of the proposed action. So it was known that voting in the circumstances given would be subject to challenge. Also (and I will gladly stand corrected) are not interpertation of the canon a finding of law as opposed to a finding of fact? Is the chancellor the one who is authorized to interpert canons and if so is it permitted to be done in such an off the cuff manner?

    I would think even if his interpertation was correct the manner in which it was presented is suspect.

  93. Br. Michael says:

    89, I believe you are right.

  94. Br. Michael says:

    No, Paula, David Beers is 815’s lawyer. He is an advocate for his client. He is not a dispassionate arbiter of the law and he dos not have the authority to render a final determination of what the law (canons) say.
    As a lawyer I can give my client the best interpretation of the law that I can, but as an advocate a lawyer is supposed to present the client’s case as best he or she can. That is, the lawyer is supposed to be biased in his or her clients favor.
    Of course there are limits and a lawyer is not supposed to misrepresent the law to the court (can be disbarred for this), but it happens. In any event in a real court of law an impartial judge decides disputed questions of law, not one of the lawyers.

    It would be like your lawyer telling a court which way to decide a disputed question of law. Because he or she is your lawyer he or she would, essentially tell the court that you win and the opposing side would have no way to dispute that. I think you can see the unfairness.

  95. DavidH says:

    80, Beers is the chancellor to the PB, not the chancellor for all of TEC. I think his Va court testimony covered that.

    LTN, I think your law is out of date. See comments 40 and 42 on [url=]this SF thread[/url].

    I think there are 2 serious flaws here aside from the ones that are getting all the discussion. 1) no independent body to interpret the rules, thus the rules really do mean whatever the leadership of TEC says they mean. 2) serious votes occurring in the fog of a voice vote. Roll call everything in the HoB, I say.

  96. Paula Loughlin says:

    Thank you Br. Michael. I agree with you.

  97. Rob Eaton+ says:

    James, James, where is that cutting but positive, hopeful voice?
    Fear not, says the Lord.
    BTW, I’m leaving some room open for PB Jefferts Schori to not only recognize she acted too hastily in setting things in motion in December regarding TEC DSJ (which I believe she has recognized) but also to allow some room for the possibility that she would change her mind about plowing through, and allow the stated Canonical process go forward, with the Canonically recognized players.
    This, of course, would be the work of the Lord. You do believe that all things are possible in and for the Lord God Almighty?
    : )


  98. jamesw says:

    VaAnglican: I agree with you and I think you make some excellent points. I would agree that it is very likely that KJS is burning up significant political capital beginning with her DAR flip-flop, then her repeated flagrant abuse of the canons. Even if nobody is openly saying anything right now, it is my guess that if TEC suffers a serious legal setback in either California or Virginia, you may very well see an open institutional liberal rebellion.

    I think it was Sarah Hey who has suggested most forcefully that the real battle in TEC right now is between the extremist liberals and the institutional liberals. The Virginia situation revealed that Peter Lee (institutional liberal) was inclined to negotiate a fair seperation with hopes of an eventual reconciliation. I also believe that the institutional liberals would have supported DAR. But as Sarah has pointed out, the extremist liberals have been the politically victorious faction of late, and it is their agenda which KJS is following. I am guessing that there is some serious qualms right now amongst the institutional liberals. Not only moral qualms (arguably KJS’s attempts to pursue Duncan despite not getting the mandated consent for inhibition can be explained away by saying that KJS had to violate the canons to get Duncan since the canonical process was blocked) but also serious qualms about the basic competence of KJS and DBB (I have little doubt that with the minimum of homework they could have assembled the necessary bishops for consents to the depositions). As yet, there have been no consequences, but I would guess that once a serious defeat occurs, there will be an uprising.

    There is also one other motivator for institutional liberals and conservatives. That is, if KJS can and will flout the canonical process so flagrantly to go after JDS and Bob Duncan today, what guarantee do they have that KJS won’t do the same if they cross her tomorrow? Self-preservation can be a powerful motivator.

  99. jamesw says:

    Rob: All things are possible for the Lord, to be sure. But I also believe that none of us knows the Lord’s purposes in what is going on right now. There are any number of possible ways the Lord could intervene here to bring out positive change. We also don’t know God’s timetable. I deeply believe that what will emerge at the other end will be a renewed Anglican Communion dedicated to mission and an orthodox, catholic faith. How we get there, and how long it will take I do not know.

    Let me put it this way – if KJS does overextend herself, if she suffers some serious defeats in the secular courts, if this results in the fall from power of the liberal extremists and the rise of Communion-minded liberals and conservatives in TEC, that too would be a work of the Lord. You’ve got to admit, KJS has pretty much botched every aspect of the DSJ situation from day one.

    But who are we to say what God’s plans are? Our job is simply to “do what is right, to love mercy, and to walk humbly with our God”.

  100. LTN says:

    DavidH…I am uncertain as to your experience in practicing church property disputes in California. Let me know if you are a licensed CA attorney who practices in this area and I can go into more depths off line. However, the [i] Providence Baptist Church [/i] and [i] Rosicrucian [/i] cases that I cited above, though a bit dated, have not been overturned in California. Though admittedly, both sides use those same cases for their own purposes. However, they are still cited as authority. See TEC’s answer brief in the current [i] Episcopal Church Cases [/i] before the California Supreme Court, pages 18, 38 and 39. See also the Diocese of Los Angeles answer brief, page 52. The issues in [i] Serbian Orthodox [/i] are slightly different and have not overturned these California cases.

    A more current California case allowing the civil courts to determine whether a religious institution followed its own internal rules (among other issues) is [i] Concord Christian Center v. Open Bible Standards Churches [/i] (2005) 132 Cal.App.4th 1396. Here, the trial court had to review the procedures and religious documents of the local church as well as the hierarchical denomination to determine whether the local church had indeed followed its own procedures.

    I practice in this area, working side by side with co-counsel who won the 2004 California [i] St. Luke’s Methodist [/i] case. Ultimately, the California Supreme Court may decide against the 30 years of precedents that I am advocating, but until then, my opinion is in line with current California law and judicial application.

  101. Betty See says:

    It would be helpful it we could read the Canon instead of having to depend on Beers ambiguous explanation.

  102. Sherri says:

    If there is no recourse via Beers or 815, I would like to make the suggestion that we pursue, via our diocesan councils and conventions, motions requesting that the procedure followed at the recent HOB be revisited.

    I think Smuggs has an excellent idea. Institutionally, this may well be totally whitewashed. But I think we in the pews, through our diocesan councils, etc., ought to keep the pressure on. This is unhealthy for the entire church, whether one’s leanings are revisionist or reasserter.

  103. Irenaeus says:

    I’d suggest that anyone still in doubt about this matter give DC’s comment #25 a close reading.
    Kudos to DC for intellectual honesty as well as lawyerly clarity.

    _ _ _ _ _ _ _ _ _

    Brian from T19 [#6] seeks to bring in two principles of statutory construction, neither of which helps his case.

    One is a REQUIREMENT OF CLEAR STATEMENT. Courts sometimes take this approach towards ambiguous legislation that could be interpreted as infringing on constitutional rights or overturning fundamental legal policies. Because one proposed interpretation might have such extraordinary or revolutionary consequences, a court might reason that if the legislature had actually intended that result, it would have said so clearly. The court might then opt for an alternative explanation, plausible but not radical.

    A “requirement of clear statement” in no way helps the KJS-Beers case. The canons specifically require approval from a majority of the entire voting membership—a standard more stringent than the normal rules for HoB action. Moreover, deposing a bishop is the EXTRAORDINARY action in question here. If the canons actually intended to allow deposition by a mere majority of a quorum, then they should say so explicitly—instead of specifying a majority of the entire voting membership.
    _ _ _

    Brian also seems to refers to another principle of statutory construction, EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS: the express mention of one thing excludes other things. Thus if you tell your teenager, “You can attend the basketball game if you walk or take the bus,” you implicitly deny permission for him to go by driving the family car.

    This approach also cuts against KJS & her Beers. The canons specify a special, supermajority standard for deposing a bishop. In so doing, they implicitly exclude deposing a bishop by the standard that ordinarily governs HoB action (a majority of those voting at a meeting where a quorum is present).

  104. Irenaeus says:

    I hope no one gives credence to Beers’ protestations about how he and KJS conferred with the parliamentarian.

    Some parliamentarians are principled; others say what pleases their paymasters.

    GC 2006 provided a outrageous example of an unprincipled parliamentary ruling when the House of Deputies parliamentarian ruled the main Windsor compliance resolution unconstitutional.

  105. Larry Morse says:

    I may have missed this somewhere above, but will someone explain to me the consequences of a faulty vote? Who will do what to whom?
    Will it simply be taken again? Larry

  106. Jim the Puritan says:

    Having been at a church retreat all day, am just reading this thread now, but as a lawyer I would echo #99 LTN’s and others’ comments. Secular courts would have no problem dealing with this because it is simply an analysis of whether procedural requirements were followed. The court would not be required to inquire into or take a side on any matter of religious doctrine or practice. The court would treat it just like any other nonprofit corporation dispute. It’s probably susceptible of being disposed of on summary judgment, since it was either correct or incorrect. If indeed there are prior cases where the canon has been construed as requiring a majority of the entire number of bishops, whether present or not, that bodes quite badly for TEC, because the court would defer to the organization’s prior construction of its own canon to the extent it was “ambiguous” (and a court may very well find it is not ambiguous).

    And echoing some other comments, if the result did not comply with the requirements of the nonprofit corporation’s articles and bylaws (in this case, the canons), it would be invalid ab initio, that is, null and void from the beginning. It is not a situation where it would be considered valid until reversed.

    I would think the primary problem for TEC is that it now cannot create a new replacement bishop because it has failed to depose the prior one. Ironically, I understand he had wanted to resign voluntarily, but that was not acceptable to the presiding bishop.

  107. Jim the Puritan says:

    #104 Larry Morse: If there has in fact been an improper vote, I think there would have to be a “do over,” following whatever notice requirements are required by the canons, where the requisite number of bishops showed up and voted. If the prior vote was done contrary to procedural requirements, it is a nullity.

  108. robroy says:

    Jim, a lawyer brought up [url= ]Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)[/url] where an Orthodox church didn’t follow its canons but the SCUSA let it ride.

  109. LTN says:

    In my opinion, the [i] Serbian Orthodox [/i] (1976) case has to be read in light of [i] Jones v. Wolf [/i] (1979) 443 U.S. 595. Even in [i] Serbian Orthodox [/i], the dissenting Rehnquist opinion was setting a deference to the state court to determine disputes between religious entities under neutral principles. A few years later, the Rehnquist dissent became the majority in [i] Jones v. Wolf [/i]–allowing the state courts to utilize neutral principles of law to determine disputes between religious entities.

    Hence, in California, as long as the courts can use neutral principles to resolve disputes (without taking a side on doctrine and theology), it is allowed to do so–and it has been doing so for the past 30 years. The [i] Episcopal Church Cases [/i] now before the California Supreme Court seeks a ruling on whether neutral principles should continue to be applied in California or to revert to a hierarchical principle of deference to the national church. I suspect that California, being as liberal as it is, will likely continue under a neutral principles application–however, anything is possible.

  110. w.w. says:


    This thread has been one of the best ones I’ve been privileged — and pleased — to read. Very informative and thought provoking. Special thanks to the cool-headed, constitutionalist-minded lawyers who have engaged in enlightening exchanges — in understandable English! Much appreciated.

    The United Methodists and Presbyterians (U.S.A.) have layered court systems, including a supreme equivalent. I wonder what accounted for such a glaring omission when PECUSA’s fathers organized their denomination.

    Anyway, thank you, all. Good stuff.


  111. Jim the Puritan says:

    #107 robroy–I believe the case you cited was subsequently clarified/modified by Jones v. Wolff, which limited the Serbian Church case by saying that the secular courts could still decide disputes where they could reach a result by applying purely neutral principles of law.

    Reading those two cases together, I would say that where the inquiry requires the court to get into a detailed examination of church polity, belief and practices, or a “he said-she said” dispute that involves having to interpreting the facts of the situation, the courts should not get involved. If there is an unclarity to the situation that could lead to improper entanglement of the court with religious belief, the court should determine the case is “non-justiciable.” (The Serbian Church case involved a lengthy trial, as I remember, and the lower court having to weigh which perspective of the dispute it believed.)

    However, where the dispute can be resolved by applying purely neutral principles of law, the courts can get involved. Here, as I see it, it doesn’t matter who was involved and what decision was made, who was on whose side or who was the church and who was the schismatic. It is simply a question of: Did the vote follow the procedural requirements of the canon? To me that seems to be a pure neutral question of law which, again, I think would be disposed of on summary judgment without the need for a trial. You either have a record of a proper vote being taken or you don’t. As I understand the argument, there were simply not enough bishops present to take a valid vote. Thus, even if you assume all bishops present voted for deposition, you didn’t have enough.

    Again, I think it would be difficult for TEC to argue ambiguity, etc., if there was a clear record it had previously interpreted the canon in a certain manner. However, the more TEC could point to it somehow being unclear, the more that may argue for nonjusticiability.

  112. Jim the Puritan says:

    [blockquote] The United Methodists and Presbyterians (U.S.A.) have layered court systems, including a supreme equivalent. [/blockquote]

    One thing I appreciate about the Presbyterians (which is where I went after leaving ECUSA) is that they do have a big emphasis on due process which has actually carried over into our system of government. I believe it partly comes from the Calvinistic belief that we are all fundamentally flawed, and thus there must be a system of checks and balances for proper governance and accountability.

    Thus, as part of our elders retreat today we did have a formal meeting of session. Careful minutes are kept by the Clerk of Session as to whether we have quorum, whether motions are properly made, seconded, and approved, etc. At least in our congregation, open and proper governance, along with going the extra mile to assure financial responsibility, are big matters. And there is a church judicial system to resort to if something improper occurs.

    This is not to say we don’t have our problems, the most recent being the adoption by the General Assembly of an “authoritative interpretation” which supposedly allowed congregations and presbyteries to ignore the ordination standards of the Book of Order. Fortunately, our system worked, and the highest judicial body of the denomination has invalidated the “authoritative interpretation.” Of course, this just starts the battle again, but at least makes clear that people cannot do an end run around the denomination’s fundamental governing documents.

  113. robroy says:

    Thanks, Jim. By the way, it is Jones v. Wolf (one ‘f’), could not find the result with two f’s. The relevant discussion is [url= ]here[/url]. It is very pertinent, involving a Presbyterian church who voted to leave the existing branch of Presbyterianism and affiliate with another. The SCUSA agreed that the majority voters acted procedurally correctly and asserted that the denomination should follow its rules.

  114. VaAnglican says:

    Larry (#104), there’s no evidence the vote was faulty. There was a proper vote and the the vote failed to garner sufficient votes to cause the bishops to be deposed. The only thing faulty is how the Presiding Bishop and chancellor are now characterizing that vote. What happened in fact was that the House failed to depose the bishops and they are thus restored to their previous uninhibited status. The PB and chancellor are declaring that something happened that was a legal and factual impossibility, given the numbers. There was a separate lapse in the case of Bishop Cox which made his a nullity also, as the Presiding Bishop did not even seek the consents she was obliged to seek. The effect? Well, the bishops can know they weren’t deposed. Bishop Cox presumably could start attending and voting at HOB meetings and force the issue (but he won’t). Both bishops can vote on matters like the attempted deposition of Bob Duncan and force the issue. Etc. But the real effect could be in California when they attempt to sue Bishop Schofield, since they’ve rather robbed themselves of the argument he has no authority there. And the courts can look the basis for that argument, and will see that the deposition never happened. There could also be an effect on Lambeth invitations, if the Archbishop realizes that in fact there was no deposition of Bishop Schofield.

  115. drummie says:

    Saying that the vote is constitutional because of the majority of Bishops present is like saying it would be constitutional for the US Senate to vote on a bill when only one third of the senators were present and saying it passed because two thirds of those present voted to pass the bill. That would mean only 21 Senators voted to pass a bill. Would the citizens of the US accept that? NO. Someone should challenge this vote if for no other reason to get a ruling on the constitutionality of the vote before Ms. Schori calls a special meeting of 10 of her cronies and has them vote on giving her absolute power. By the reasoning of “those present at the meeting”, she could do this and have 7 out of 10 vote to give her absolute power and suspend all rules and that would be OK. I don’t think that would fly do you? What is the difference since a majority of “those present” voted to affirm?

  116. DavidH says:

    Trying to catch up on the late night posts…

    99, LTN, I am not a California attorney. I should clarify what I said earlier — I was not saying that Serbian Eastern Orthodox overruled the cases you cited. Given that one of the issues in the Episcopal Church Cases is the development of California law over time, I would fully expect a discussion of older California cases.

    I would also concede that First Amendment jurisprudence in general, and the religion clauses in particular, is often messy and unclear. You’re almost always going to be able to make arguments both ways, and courts are always hesitant to explicitly discard past cases, so they continue to be cited. But as someone said on another thread somewhere (I’ve lost track), one way to approach it is to think how many times out of 10 a court would rule in your favor on a particular issue. Here, largely due to the squarely-on-point rule of Serbian Eastern Orthodox, I’m suggesting that 8 or 9 times out of 10, a court is not going to look behind +Schofield’s deposition.

    Now, to the specific points raised by you and later posters:

    Your citation of the 2005 Concord Christian case is interesting because although the court there did look to see whether certain actions complied with the local and national bylaws, it specifically deferred to the denomination (i.e. refused to get involved) on the issue of whether the minister had properly been removed:

    [blockquote]we conclude the trial court correctly determined that Open Bible was a hierarchical church as to which a civil court must defer with respect to its ecclesiastical decisions. Having found the ecclesiastical rule appropriate to the circumstances, the trial court appropriately applied it to abstain from making a determination as to only one issue: namely, the propriety of Open Bible’s revocation of Mashore’s ministerial credentials.[/blockquote] (at 1413)

    Thus, that case does not question the rule of Serbian Eastern Orthodox at all; it buttresses it.

    In post 108, LTN, you quite rightly bring up Jones v. Wolf, the last U.S. Supreme Court church property decision. I think you incorrectly conclude, however, that Jones v. Wolf is inconsistent with Serbian Eastern Orthodox. Certainly the majority in Jones v. Wolf never drew that conclusion. I would suggest, and I think this was the Court’s view in both cases, that the use of “neutral principles” to resolve ownership of property is very different from using “neutral principles” to determine the validity of ecclesiastical discipline (or other such doctrine and polity issues). For a court to do the latter, as people are suggesting with respect to this vote on +Schofield’s deposition, Serbian Eastern Orthodox would have to be overturned. And that, I think, has no chance of happening.

    It should also be noted that it is far from clear that Jones v. Wolf results in less deference to hierarchical churches. Indeed, it was an explicit invitation in Jones v. Wolf that resulted in passage of the Dennis Canon, and a number of courts have enforced the Dennis Canon under neutral principles since Jones v. Wolf.

    Also relevant here to any civil court would be Canon IV.14 sections 2 and 3, which explicitly forbid what many here want to have happen — resort to and review of a Title IV decision by civil courts. Perhaps LTN and Jim the Puritan believe that the courts would disregard these provisions. I don’t think so.

    Finally, I don’t think +Schofield’s resignation letter helps. A court could easily avoid all of this by observing that, under both TEC and +Schofield’s view of things, +Schofield is no longer an Episcopal bishop. Thus, the court doesn’t need to wade into the sticky issue of the validity of +Schofield’s ecclesiastical discipline. All it needs to determine is whether one has to be an Episcopal bishop to lead the DSJ corporation sole / whether the DSJ can depart from TEC with property. (Not that those questions are terribly easy.)

  117. hanks says:

    Betty See (#100), you can find the Constitution and Canons at:

    Canon IV.9 is at page 154-5

  118. DavidH says:

    Cross-posting a thought from SF, for those looking to see competing interpretations of [i]Jones v. Wolf[/i], the Va court briefs are a good place to go.

  119. Larry Morse says:

    I must say, this HAS been instructional. Is this evidence that the covenant now under discussion should contain its own Anglican court system? Or is such a proposal a redundancy? Larry

  120. Brian from T19 says:

    Kendall+ and others have asked for ‘specific language’ that explains why “whole” does not mean all 300 bishops. Here is an article by Mark Harris at Preludium:

    I make two provisos in what follows: (i) I’m not a Canon Lawyer, just a Canon, (ii) I’m not dumb either.

    The great CANON ISSUE of the week is the one raised by The Living Church (TLC) about the deposition of Bishops Schofield and Cox. As near as I can tell, the outline of the issue is brought up by two very intelligent men who are not experts in Canon Law either. They determined that the votes taken by the House of Bishops were not in accord with the Constitution and Canons of the Episcopal Church.

    TLC thinks the House of Bishops did not act in accord with the Constitution and Canons. The Chancellor to the Presiding Bishop and the Parliamentarian to the House of Bishops ruled otherwise.

    Here’s yet another read on the matter: The quorum determines the actual body of voters. Members not present are not, for that time, part of the decision making. If you are not present your vote, your absence, you personal wishes, and so on are not relevant.

    Here is the wording from the Constitution: Article 1, Section 2 regarding quorum for the House of Bishops Meetings as part of General Convention.

    “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. 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.”

    At the last General Convention in 2006 (Journal pg 81) a understanding of the meaning of Article 1, Section 2 of the Constitution and how to count the quorum was given in a note. It reads, “Note: A quorum is defined by Article 1, Section 2 of the Constitution as “a majority of all bishops entitled to vote (281), exclusive of bishops who have resigned their jurisdictions or positions (156)” Thus the present quorum is 63.”

    The total membership able to vote includes all bishops. The quorum is based on the list of those who have not resigned their jurisdictions and who are present. The actual voting membership of a meeting of the House consists of all those present who are empowered to vote.

    The Constitution recognizes one occasion for a “special meeting” of the House of Bishops, namely when the death or resignation of a Presiding Bishop takes place between Conventions. There are no provisions for meetings of the House of Bishops outside General Convention in the Constitution.

    The Canons, specifically Canon I.2.4 (a) (4), in spelling out the duties of the Presiding Bishop, notes that the Presiding Bishop may call together the bishops as either the House of Bishops or as a Council. There are also canons related to a special meeting of the House of Bishops for purposes of electing a new Presiding Bishop between regular meetings of General Convention.

    The Rules of Order for the House of Bishops refers to special meetings of the House of Bishops – meetings held separately from the whole of General Convention. It sets out an agenda but does not stipulate what constitutes a quorum. The house seemed to have often used a registration list as the basis for showing that a quorum was present.

    What sort of vote is required in the case of deposition for abandonment of communion? The canon (IV.9.2) states “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.”

    Every session of the House of Bishops, either at General Convention or otherwise, determines to do business on the basis of the bishops entitled to vote and determines that there are enough present to conduct business by determination of a quorum. At that point the “whole number of Bishops entitled to vote” consists of those present and the “whole number” makes it clear that bishops other than those with jurisdiction may vote on the matter. 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.

    What is the reasoning for thinking that the “whole number” refers to some group of bishops larger than that present at the meeting? 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.

    The reasoning of the Living Church fails. Were it right the Constitution and Canons would have presented us with a disciplinary procedure that simply would have no use in a church where less than half the whole number of bishops on the voting rolls come to any meeting save General Convention.

    The argument that deposition is a matter so great that a supermajority is required may or may not have merit, but none is to be found in the canons. Those who believe that the Constitution and Canons have this in mind need to show it.

    For now I remain unconvinced.

    The actions were valid. It is time to move on.

  121. D. C. Toedt says:

    Brian [#119], I greatly admire Mark Harris. And it pains me to be arguing that +Schofield wasn’t deposed, because he so richly deserves deposition.

    But in this case Mark 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, the existence of a quorum would entail counting up those bishop-voters who happened to be present, and determining that a majority of them were present. That, however, implies that the remaining minority of bishop-voters is somehow both present and not present simultaneously. (Insert your favorite joke here about boring meetings.)


    I’m among those who 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: As Mark McCall aptly put it, the deposition motion failed for lack of the required number of votes. Period, paragraph, end of story. To pretend otherwise will only hurt future efforts to reconstitute the DSJ’s leadership structure.

    As I said in an earlier comment: The canonical deposition procedures may well be too restrictive. But those are the rules we’ve agreed to live by. Until those rules are duly changed, all of us are entitled to assume that TEC’s leadership will follow them.

  122. Mike Watson says:

    In #115 DavidH writes:

    [blockquote]Indeed, it was an explicit invitation in Jones v. Wolf that resulted in passage of the Dennis Canon, and a number of courts have enforced the Dennis Canon under neutral principles since Jones v. Wolf. [/blockquote]

    That the Supreme Court invited passage of the Dennis canon is the 815 party line, and corresponding positions are taken by the leadership of other denominations that introduced trust clauses around the same time. But there are a couple of problems. First, the language cited as the “invitation” is [i]dicta[/i], not part of the precedential holding of the case. More importantly, a response that complies with what the language suggests would require action by “the parties” to a potential dispute, not unilateral action by one party only. Further, to comply the action would need to be “embodied in some legally cognizable form,” indicating that there must be not only consent by the parties intended to be bound but also compliance with other applicable legal requirements (e.g., the formal requirements necessary for creation of a trust).

    Granted, the sentence that says the constitution of the general church can be made to recite an express trust stands as a separate sentence and the use of the passive voice leaves the necessary actors unspecified within that sentence. But it only makes sense read in light of the general statement preceding it — the action has to be by the parties to the dispute so there would have to be consent to the amendment by the party to the dispute other than the general church, as well as embodiment in a legally cognizable form.

    It is interesting to see how the Diocese of California struggled with this problem (which of course was pointed out by counsel for the appellants) in its answer brief filed at the end of January. They quoted from the language of [i]Jones[/i] but inserted a paraphrase between direct quotes that substituted “the church” for what should have been “the parties.” (page 47 of the brief) Now someone will say, and the Diocese does on page 30 of their brief, that St. James parish effectively consented because they were represented at the General Convention where the Dennis canon was adopted. That argument doesn’t seem to need much response.

    There is a reason why 815’s usual argument doesn’t rely on the Dennis canon being effective by its terms to create a trust. What they usually argue is that it somehow “codifies” or is “declaratory of” ECUSA canons and / or polity prior to adoption. That has its own set of problems.

  123. Mike Watson says:

    D.C. [#120] Another analogy would be the corporation statutes. A number of actions require for approval the votes of a majority of the shares entitled to vote. For example, the default rule on required vote for removal of a director in Delaware is a majority of the shares then entitled to vote at an election of directors (typically the outstanding voting shares). The default quorum requirement is a majority of the shares entitled to vote. Entitled to vote doesn’t (and couldn’t) mean only shares present or represented.

  124. Mike Watson says:

    I think my #121 may be straying from the topic, but allow one correction, please. The reference to Diocese of California should have been the Diocese of Los Angeles (in The Episcopal Church cases).

  125. wildfire says:

    One thing that is clear from the Beers’ comment that began this interesting thread is that the matter is closed as far as 815 is concerned. So the only question now is whether this issue will affect the civil litigation, and here the really difficult question is whether the upcoming DSJ litigation will impact the consolidated Episcopal Church Cases now before the California Supreme Court. The clear intent of the court in consolidating the existing cases for appeal was to deal with the cases together. To have the most important case in the state, one involving an entire diocese, left out of the decision would seem to undermine the court’s purpose.

    But it is hard to imagine two cases with more different procedural postures. The DSJ case is still to be filed and the existing cases have been briefed at the Supreme Court. Appellate courts, however, especially Supreme Courts, have many creative ways of dealing with this problem, including expedited appeals, reargument and dismissal of appeals. I don’t know about California jurisdiction, but in federal jurisdiction, the Supreme Court can take any case pending in the federal courts. We tend to think that appeals must follow the normal pattern of final judgment in the district court, decision in the court of appeals and then appeal to the Supreme Court, but that isn’t always the case. I worked on a case early in my career in which we got the U.S. Supreme Court to take a case directly from the district court, and even in that lower court the case had not yet even gone to trial. It is a very rare case, but it happens.

    So one can conceive of circumstances in which the Schofield/DSJ case and the debacle about his deposition become joined with the existing cases. My sense is that in such an event, it would be highly prejudicial to TEC and provide further impetus (as if Jones v. Wolf were not enough) to apply neutral principles to property disputes. Beers and TEC are counting on this to blow over and that might happen, but there is still a possibility that it could become a major disaster in the courts.

  126. Irenaeus says:

    Here are two secular examples of supermajority rules similar to the House of Bishops rule in question here:

    #1: In the United States Senate, a motion to limit debate (i.e., end a filibuster) requires the affirmative votes of “three-fifths of the Senators duly chosen and sworn”
    —Standing Rules of the Senate

    #2: “No bill may be passed unless, by rollcall vote entered in the journal, a majority of the membership of each house concurs”
    —California Constitution

    You can’t satisfy these rules merely by support from a majority of those voting at a session with a quorum present.

    That is also the effect of the HoB rule at issue here.

  127. Kendall Harmon says:

    From LTN (who is having trouble posting comments and asked me to post this)

    DavidH…I do not want to bog this thread down by recitation of detailed legal matters. If you think that Schofield (when he is sued) will lose and that the civil courts in California will not entertain his legal defense that TEC has no jurisdiction over his diocese due to a failure to adhere to their own procedures, that is certainly your right. You will be in good company with Beers and others that will advocate the same rationale.

    My reference to Jones v. Wolf was to indicate that California has in the past 30 years, adopted a neutral principles application to resolve disputes among religious entities. The Concord Christian Center case that I cited is just one among many in the past 30 years that consistently shows a civil court utilizing the religious documents of both the local and national church to determine, among other things, whether proper procedures were followed in the process of disassociating. Since there are precedents that California appellate courts would look at one religious entity’s documents (say the local parish) to determine if that religious entity followed proper procedures, why would they not also look at the national religious entity to see if they followed proper procedures—if that issue is relevant?

    Thus far, the California case laws do not show a challenge by the local religious entity against the national entity for failure to abide by that entity’s procedural rules. From my review of all of these cases, it would appear that up to this time, the national entities have exercised proper parliamentary and internal procedures in rendering their “ecclesiastical judgment.” However, there’s always a first time mistake for everything.

    Even under neutral principles of law, a California church like Concord Christian Center could lose and did. They loss not because the court deemed that the property did not belong to them under neutral principles. They loss because of no legal representation when they amended their articles and bylaws. In their bylaws, Concord Christian Center failed to remove all references to the disciplinary “rules/canons” of their national church. As such, their bylaws incorporated the procedures of the national church and thus were bound to follow those procedures. The national church, after properly followed their procedures, rendered an “ecclesiastical judgment” against Concord Christian Center by removing the pastor and replacing him. By the time legal representation came in, the legal death blow had already been dealt against Concord Christian. An off track moral to this story is to obtain proper legal representation from the start, not after the fact. This is not to say that one is guaranteed to win, however, one will likely have a better fighting chance if all the “I’s” are dotted and “T’s” are crossed.

    Concord Christian Center wasn’t the only case to lose under neutral principles because of failure to adhere to their own procedural rules—there are a number of others in the past 30 years. A California civil court has no legitimate reasons to discriminate in favor of one entity against another just because that entity happens to represent the national church as opposed to a local church. To a civil court, both are non-profit religious corporations (most of the time). If a California civil court can review the articles, bylaws and pertinent religious documents of one corporation to determine if it followed its own procedures, it should have no issues in examining the other.

    Bringing it back to the Schofield situation, if a California civil court can examine the relevant Constitution and Canons of the Diocese of San Joaquin to determine if DSJ followed proper procedures, there is no reason not to apply that to the national church suing them also. Failure to apply the standards both ways would be discriminatory, abuse of discretion by the court and certainly not application of the neutral principles that has been adopted by California courts thus far.

  128. Irenaeus says:

    Some commenters argue that the deposition canon doesn’t require a majority of the HoB’s voting membership because many bishops don’t attend HoB meetings.

    Until the last few decades, the House of Bishops met only infrequently—indeed (as I understand it), only at triennial general conventions. There’s no difficulty getting bishops to attend general conventions.

    If KJS wants to have any old off-year meeting of the House of Bishops do her dirty work, then getting bishops to attend is her problem.

  129. DavidH says:

    I think this will be my last post in this thread because although I don’t mind the debate, I’ve said what I had to say and there’s no way to settle what disagreements remain.

    121, Mike Watson, I simply don’t think the interpretation of Jones v. Wolf that you’re offering is at all convincing. You recite the usual arguments why the Court’s invitation to have trust canons wasn’t really any such thing, but your reasons fall apart under scrutiny. (Again, I commend the actual text of the case together with the Va briefs for those who really want to get into all of this.) One thing to keep in mind is the question of why, if Jones v. Wolf means what you suggest, the vast majority of courts have not read it that way.

    126, LTN via Canon Harmon, I think any time a court examines the actions of a religious body, the court is uncomfortable doing so. There are times when courts do. It’s particularly appealing for a court confronted with a property dispute to be able to say that a local entity failed to follow its governing documents and that those documents recognize an interest of the general church. But the answer is not as simple as “get clever lawyers who’ll sufficiently white-wash your by-laws.” Simply making it a two-step process — changing the by-laws, then leaving — provides absolutely no help at all in resolving these disputes. By definition in a property dispute, the majority of the local congregation wants to leave (and therefore could amend their by-laws first). The issue is whether they can do so and take the property with them. Generally speaking, courts say no.

    California for a while has been the last best hope of breakaway churches. Virginia became promising a few years ago when the CANA lawyers began planning how to use the division statute. In both states, we’ll get the state’s highest court to resolve the issues in the next couple of years (hopefully — sometimes appellate courts do a ridiculously good job of not answering the questions they should). Ballpark it as early 2009 in California, late 2009 in Virginia. It will certainly be interesting.

  130. wildfire says:

    I have said this before, but there was a timely reminder this week from the [url=]NY Times[/url]:

    Around the U.S., High Courts Follow California’s Lead
    The California Supreme Court is the most influential state court in the nation.

    The Episcopal Church Cases, with or without Schofield, will have an impact far beyond California.

  131. Vintner says:

    Kendall, given that both reasserters and moderate reappraisers share the same opinion about the depositions not being valid by vote, would you be open to offering a prediction of what will happen next? Do you think the PB and Beers will stick to their guns or do you think they’ll admit they were mistaken and ask for a do-over?

  132. Chancellor says:

    Not to complicate the already engrossing discussion here, but I think the debate between LTN, Mike Watson and DavidH is overlooking what the real issue will be in any lawsuit between TEC and +Schofield over the assets of the Diocese of San Joaquin: does the plaintiff (+Lamb, or whomever TEC installs) have [i]standing[/i] to sue for those assets? It is a court’s constitutional duty to inquire into standing in any case where it is at issue, because without standing to sue, there is no “case or controversy” for a court to decide. When +Schofield challenges the standing of TEC’s plaintiff, that plaintiff will have to show that s/he is currently vested with the legal authority to sue on behalf of the Diocese of San Joaquin. Given the failure of the vote of deposition in accordance with Canon IV.9, s/he will not be able to do that unless TEC first begins (and correctly completes) a new proceeding under that Canon. The First Amendment issues will not prevent the court from looking into whether the canons were followed, because if they were not, the plaintiff lacks standing, and the court then lacks jurisdiction to proceed.

  133. LTN says:

    [i] But the answer is not as simple as “get clever lawyers who’ll sufficiently white-wash your by-laws.” Simply making it a two-step process—changing the by-laws, then leaving—provides absolutely no help at all in resolving these disputes. [/i]

    While I understand that current California law allowing local religious corporations to amend their articles and bylaws to disassociate from the national church does not resolve the greater religious dispute, that is how state corporations in California carry out their corporate changes. The religious dispute causing the disassociation is an ecclesiastical issue and courts applying neutral principles don’t care to be entangled in those disputes.

    California civil courts have said on a number of occasions, including as recently as the St. Luke’s (2004) case, that national churches, if they don’t like the way civil courts resolve corporate and real property issues under purely civil law between the local religious corporation and the national organization, just hold the property outright or under an expressed irrevocable trust.

    The civil courts in California have provided national churches a way out even under neutral principles. If national churches hold all the property or by way of expressed irrevocable trust, they wouldn’t have to care what the civil courts say–because they would own the property. Of course, in owning the property and everything else, comes with it the risk for unlimited liability (i.e., Roman Catholic priest scandal).

    It doesn’t bother me how national churches want to hold property–I will respect it as their organizational pattern. But if national churches want individual congregations to avail themselves of secular protection under corporate law to limit the liability (incorporation) of the national organization, it should be required to abide by the laws that govern such state corporations–however that state interprets its civil laws.

    Chancellor: I agree…while not using the word “standing” in previous posts, I stated that one of Schofield’s defense would be whether TEC has jurisdiction over his diocese if there was no valid deposition. The standing issue is a given defense if Schofield is still technically the bishop of the Episcopal part of San Joaquin.

  134. Mike Watson says:

    Chancellor (#131): There may be some skirmishing, but I don’t see that standing will ultimately be a big issue. I keep coming back to the point that San Joaquin’s position is dependent on the diocese having successfully left TEC. Bp. Schofield has resigned from the House of Bishops. Although there might be some argument about who has standing, I doubt very much that Schofield will argue that no one can have standing because he hasn’t been validly deposed.

    DavidH (#128): I have read the Jones case and I think I’ve read the relevant briefing in the Virginia cases, although I might have missed something. I have also read the California Supreme Court briefing to date in Episcopal Church Cases. If there’s something there that demonstrates my “reasons fall apart under scrutiny,” I don’t see it. Moreover, I don’t think “the vast majority of courts” have read the language from Jones in the way you’re suggesting. A number of the cases that find a trust to exist in favor of the denomination do so on grounds that don’t depend on the Dennis canon (or other trust clause) having the presumed effect. Cases that purport to apply a neutral principles analysis and go on to hold that a trust on existing property is _created_ merely by the passage of the Dennis canon exist, but they are relatively few in number. Indeed, in many cases, that isn’t even argued. In the diocese’s answer brief in Episcopal Church Cases, they argue the Dennis canon “confirmed” a trust and “reaffirmed long-standing Canons.”

    A problem with the reading that says the canon passed unilaterally by the non-owner claimant (TEC) is self operative to create a trust on existing property is that it has the Court, in endorsing the application of neutral principles, create an exception which is inconsistent with neutral principles. Also, issuing this kind of “invitation” to nonparties is not something that the Supreme Court is in the business of doing.

  135. Mike Watson says:

    Mark McCall (#124) writes, “One thing that is clear from the Beers’ comment that began this interesting thread is that the matter is closed as far as 815 is concerned.”

    Mark, you’re probably right, but especially if it turns out that in addition to the advice being bad, the House of Bishops was not even made aware that there was an issue, there could be some pushback from the bishops themselves in favor of a re-do. Even a number of the natural allies of the majority are saying this is making them look bad.

  136. Athanasius Returns says:

    [blockquote] there could be some pushback from the bishops themselves in favor of a re-do. [/blockquote]

    Based on the HOB’s prior actions I would consider this extremely unlikely, something akin to the likelihood of the Miami Heat winning the NBA championship this year. So, back to what I wrote in #88, to wit “the bottom line to me appears to be a lot of blog fuss with scant potential for any change whatsoever in what occurred with the HOB deposition vote. The “progressives” won the day and consistently demonstrate that “conservatives” have no place in their plans.”

  137. jamesw says:

    Another problem with Mark Harris’s argument, in addition to those mentioned by D.C., is that the Canons are very clear in other places, such as Canon III.12.8 when it intends to say “…by a majority of those present.”

    In contrast, Article 2 of the Constitution, to which Mark refers to quorum being determined by a “majority of all Bishops entitled to vote” minus those that have resigned etc. As D.C. says, this reference of “all Bishops entitled to vote” clearly refers to all bishops, and not just those at the meeting (otherwise this section would be an absurdity). The abandonment canon, Canon IV.9 requires a majority of the “whole number of Bishops entitled to vote.”

    Now let me list three phrases. Perhaps Mark Harris would be kind enough to point out the one phrase that is not like the others:

    1) “all Bishops entitled to vote”
    2) “by a majority of those present”
    3) “whole number of Bishops entitled to vote”

    I am not sure why Mark Harris doesn’t seem to think that phrases 1 and 3 have a common meaning, with 2 being the odd man out. Instead, he seems to believe that phrase 1 is the odd man out, with 2 and 3 having the common meaning.

  138. Irenaeus says:

    “Perhaps Mark Harris would be kind enough to point out the one phrase that is not like the others” —JamesW [#136]

    Nicely done.

  139. LTN says:

    jamesw…see also important decisions such as amending the Constitution or alterations to the Book of Common Prayer under Articles 12 and 10 respectively, requiring “…a majority of all Bishops, excluding retired Bishops not present, of the [i] whole number of Bishops [/i] entitled to vote in the House of Bishops….” Whereas, cession of diocesan territory or reunion of dioceses under Article V.6 and Canon I.10.6(a) respectively, only requires a majority vote of bishops with jurisdiction (in addition to other requirements).

    Clearly, Canon IV.9.2, in stating, “If the House, by a majority of the [b] whole number of Bishops entitled to vote,[/b] shall give its consent…,” shows an even higher threshold to depose a bishop than Articles 10 and 12 which specifically excluded “retired bishops not present.”

    Canon IV.9.2 makes no exclusion of active or retired bishops–thus the only reasonable reading must include every bishop entitled to vote from the [b] whole house of bishops,[/b] and not just a majority present.

  140. Chancellor says:

    Mike Watson (#133), you have to put yourself in the shoes of +John-David Schofield’s attorney, not in the shoes of a neutral judge presented with the issue to decide. If you, as +Schofield’s attorney, were presented with a complaint filed by +Jerry Lamb in which he alleges that he is “the duly elected Provisional Bishop of the Episcopal Diocese of San Joaquin,” wouldn’t one of your defenses be that “the plaintiff lacks standing, because the duly elected Bishop of San Joaquin has never been properly deposed”? Forget about the departure of the Diocese for a moment; that’s another issue, involving an unincorporated association which changed its bylaws. We’re talking here about the proper [i]”Ecclesiastical Authority”[/i] in San Joaquin according to TEC’s own Constitution and Canons. The last such Authority duly elected in accordance with TEC’s C&Cs;is none other than +John-David Schofield. He may have [i]tendered[/i] his resignation, but TEC has thus far refused to accept it. Since TEC’s nominee is the plaintiff, TEC is bound by its own C&Cs;to ensure that there is a properly elected replacement for +Schofield who will have the inherent authority to sue in the name of the Diocese. The deposition of +Schofield having been rejected [i]in accordance with the terms of TEC’s own canons,[/i] there is currently no representative of TEC authorized to sue +John-David other than John-David himself. Accordingly ([i]now[/i] put on your judicial robe and rule), suit dismissed.

  141. Mike Watson says:

    No, Chancellor. His argument needs to be, and I suspect will be, consistent with the position that he has already taken, that he is not Bishop of a TEC diocese any more, regardless of whether the TEC diocese has deposed him under its canons or not. He might have standing arguments to make that are based on the TEC diocese not yet having properly reconstituted itself, but that’s what I meant by skirmishing. I don’t think he can afford to argue that no one can have standing because he hasn’t been validly deposed by TEC, thereby implying that he is still a TEC bishop. Very risky. That was my point.

  142. Athanasius Returns says:

    Anybody hearing anything about a “bishop pushback” on the “deposition”? Anybody? Bueller?

  143. Pageantmaster Ù† says:

    This article does not address the issues raised by Chancellor [url=]here[/url] and [url=]here[/url]. It is pretty clear that the votes were taken and by the canons of the Epicopal Church of the USA failed.