8/09/2007

When Christians sue in Christian courts

The Diocese of Colorado's ecclesiastical court has determined that The Rev. Donald Armstrong guilty on a variety of counts. ENS reports, "The preliminary judgment was made public August 8 by the five members of the Ecclesiastical Court who unanimously found Armstrong guilty of diverting $392,409 from the parish's operating fund and committing tax fraud by not reporting $548,000 in non-salary income and benefits to state and federal tax authorities.

On other counts of misconduct, Armstrong has been found guilty of receiving illegal loans totaling $122,479.16 in violation of Diocesan Canons; unauthorized encumbrance and alienation of Grace Church's real property; violation of the temporary inhibition placed on Armstrong; the improper use of clergy discretionary funds; and failure to maintain proper books of account."

The variety of counts on which judgment was made include several – committing tax fraud, receiving illegal loans, encumbrance and alienation of Grace Church's real property, diversion of funds – that have implications in secular civil or criminal judicial systems. I suppose tax fraud itself is not an ecclesial offense. Tax fraud is arguably conduct unbecoming a clergy person, and that is an ecclesial offense. But it is a criminal offense.

I have suggested in an earlier posting that Christians suing Christians is in itself not remarkable or necessarily immoral behavior. It could be argued that judgment in an ecclesiastical court is preferable. What happens when matters criminal come up in ecclesiastical court? The question here is, is there any obligation on the part of lawyers or the ecclesiastical court itself to report its investigative findings or judgments to state or federal authorities? At the same time, I wonder if any evidence in ecclesiastical court would or could have standing in criminal investigations.

We know that evidence that suggests a child is not safe with a particular adult – battering, mistreatment, sexual advance, etc – must be reported to civil authorities. So if in the conduct of an ecclesiastical trial such matters came to light, the court would be bound, I would think, to deliver the evidence to those authorities. Must the ecclesiastical court in this case also reveal its evidence of criminal action to the state, or is it enough that it is in the record and the state is free to follow up if it wishes?

While I find it odd to be referring to the Thirty-Nine Articles for a bit of Anglican information on the relation between state and ecclesiastical courts, the reading of article XXXVII in its original form is perhaps edifying:

"The King's Majesty hath the chief power in this Realm of England, and other his Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction. Where we attribute to the King's Majesty the chief government, by which Titles we understand the minds of some slanderous folks to be offended; we give not our Princes the ministering either of God's Word, or of the Sacraments, the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify; but that only prerogative, which we see to have been given always to all godly Princes in holy Scriptures by God himself; that is, that they should rule all estates and degrees committed to their charge by God, whether they be Ecclesiastical or Temporal, and restrain with the civil sword the stubborn and evil-doers.

The Bishop of Rome hath no jurisdiction in this Realm of England.

The Laws of the Realm may punish Christian men with death, for heinous and grievous offences.

It is lawful for Christian men, at the commandment of the Magistrate, to wear weapons, and serve in the wars."

This should provide an interesting point regarding the overlap between the workings of ecclesiastical and civil proceedings.

The Rev. Donald Armstrong has not participated in this trial and I gather makes the claim that he is no longer a member of The Episcopal Church or the Diocese of Colorado and therefore the court has no jurisdiction over him. The Diocese of Colorado to the contrary holds that he has not been released from oversight by the Bishop of Colorado and that the Bishop has inhibited him. So the verdict will be ignored by Fr. Armstrong but will be grounds for possible deposition. Perhaps Fr. Armstrong believes he is beyond the reach of the laws of this Church. Perhaps he is.

It will be harder for him to escape the reach of the civil authorities.

Fr. Armstrong has claimed he has been hounded and harassed. The ecclesiastical court proceedings suggest otherwise. What now?


19 comments:

  1. Tax Fraud is itself a criminal offense, and thus, as "Crime", is an ecclesial offense, since it is the sort of crime that would be wrong even if not prohibited by the state. (The canons make "malum in se" crimes, such as that, ecclesiastical offenses.)

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  2. The overlap between ecclesial and civil/criminal law makes for major conufusion when we are faced with ecclesial courts. In some dioceses Canon Law is likened to the Code of Military Conduct and clergy are not afforded the same rights as any other citizens.

    This needs to be clarified by the Constitution and Canons. I do not believe that the founders of the Episcopal Church expected that their clergy would be not ajudged by the same rights and laws as everyone else.

    In a CNY case, the bishop reported the instance to state and federal (IRS) authorities BEFORE he brought ecclesiastical charges. When no crime or civil case was forthcoming. He then brought ecclesial charges which were finally thrown out of the court.

    We need to have some consistant way of dealing with the civil/ecclesiastical court system.

    The provision that allows for a bishop to bring a presentment against a priest that sues in state or federal court is something that needs to be looked into also. We do need ways to call our bishops to account as well as the clergy when they misuse their authority. Often it is the only way these days that we can call bishops or clergy to account.

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  3. Mark,

    You write that "it will be harder for him to escape the reach of the civil authorities." But- what if the civil authorities do nothing? What if they conclude he has done no wrong?

    I believe he claimed, earlier in the process, that he had reviewed everything with the IRS. I may be wrong. But if the IRS and civil authorities don't bring charges, the diocese looks ridiculous, at least to me.

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  4. The standard of proof for a criminal case is, of course, proof beyond a reasonable doubt. The standard of proof for an ECT is "clear and convincing evidence." Obviously, therefore, one could lose at an ECT but prevail in a criminal case. Should a prosecutor determine that the higher level of proof is likely unavailable, he/she will not pursue the case. That would not, however, mean that the ECT decided incorrectly.

    And, Muthah+, speaking as a former practitioner of military law, the Uniform Code of Military Justice actually gives members of the armed forces who have been charged with crimes greater protection than state or even federal codes. The idea that military law is an oxymoron is outdated.

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  5. Mark - Do the "civil authorities" include a judge in a civil suit? If yes, then I think you could be right.

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  6. And that should be ETC (Ecclesiastical Trial Court), of course. I knew I should have previewed!!

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  7. "... the Uniform Code of Military Justice actually gives members of the armed forces who have been charged with crimes greater protection than state or even federal codes."

    Then what was this about Guantánamo?

    (and don't tell me it's about the clothes)

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  8. Mark - I certainly am intrigued by your reference to one of the 39 articles for some edification on this matter - especially since ECUSA seems to have relegated these articles to being of histrorical interest only, and of no other value. Very curious. I wonder if there might be anything else in the articles which are edifying in other ways. Mmmm, interesting.

    I also wonder how this ecclesiastical court managed to find Armstrong guilty of income tax fraud, when he himself did not testify. Did he provide his income tax returns to this court in evidence? If so, how were these properly examined and cross examined if he was not present at the trial? It seems as if the ECT could be overstepping the bounds of its authority. If this is the case, what doubt does this throw its other finding into?

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  9. Muthah+, there is no confusion, major or even minor. The church cannot, by passing canons, remove the protections civil law gives someone. A church judgment that someone is unfit as a minister of this church does not have any further civil effect than as that purely ecclesiastical judgment. In the case of Armstrong, the judgment is made, and it seems unlikely he will appeal.

    What the civil courts do, or don't do, is their business. They are surely aware of the whole business; whether there is a formal reporting or not as the kind Mark+ seems to suggest we might want, it seems unlikely in the extreme that the local prosecutors are unaware of a case as high profile as this one.

    And, in that criminal court, Armstrong will receive all the protections the civil law gives him as any other criminal defendant would receive.

    As for "clarified", it is clarified; the Constitution and Canons are crystal clear.

    So clergy *are* judged by the same rights and laws as everyone else, in the same courts as everyone else: the civil courts of the land. The ecclesiastical courts are a separate matter entirely.

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  10. Well, brian f, to say that something isn't binding is not to say that is is not informative. After all, we consider the books of the Apocypha informative for teaching, and even use passages in worship; but we don't consider them canonical in the same way as the four Gospels or the Pentateuch.

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  11. Crime is one of the canons definitions of a chargable offense. Until a criminal court finds Fr. Armstrong guilty of a crime the EC of the diocese can not find him guilty of such an offense. This is not to say a criminal court will not do so, but in the meantime there is no chargable offense under this part of the canons. To paraphase a bit of folk wisdom, 'One man's crime maybe another man's virtue.' Only a crimnal court can find someone to have committed a crime.

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  12. Brian F --

    From what I've been able to figure out, the tax fraud charges came from the church records of what the church reported to the IRS. Since the money in question apparently wasn't reported to the IRS, it violated the "inurement to insiders" and possibly the "private benefit" rules for 501(c)(3) churches -- and jeopardized Grace Church's tax exempt status.

    Near as I can tell (and this is all conjecture), this would appear to violate Canon I.7.4 regarding property held in trust for the diocese and the church (as well as the provisions of I.7.1.e). It also reflects back to Canon I.14 on vestries. Since Fr Armstrong presides over the vestry, he's responsible for vestry actions if the tax records were approved by the vestry. In this case, the forensic accountant seems to have indicated Fr Armstrong was solely responsible.

    Most of the tax info is from here:
    http://www.irs.gov/pub/irs-pdf/p1828.pdf

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  13. Anonymous said, "Only a crimnal court can find someone to have committed a crime."

    I'm not sure your point. Certainly, an ecclesiastical court's decision is not determinative for a civil or criminal court. However, practices that may be criminal, or actionable in civil court, may also be violations of ordination vows, or of diocesan and/or national constitution and canons. A cleric may well be subject to ecclesiastical penalty for acts for which he or she may also be subject to civil or criminal law.

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  14. Mark, according to KRCC-FM, "The Colorado Springs Police are investigating Reverend Don Armstrong for embezzlement, and District Attorney John Newsome says a special prosecutor may be appointed." D.A. Newsome was a member of the vestry at Grace, but resigned from the vestry in March, before diocesan charges were brought against Armstrong.

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  15. Marshall,

    Crime is one of the chargable offenses under the canons. In order to be charged with this offense it needs to be the case that the respondent has been found guilty of a crime. Only a criminal court can find one guilty of a crime. While Fr. Armstrong may yet be found guilty of tax fraud or other tax related crime by the courts he has not yet been found so or for that matter yet charged by the criminal courts with such an offense. Until such happens he can not be charged with such an offense by Ecclesiastical Court of the Diocese of Colorado much less found guilty of the offense of crime.

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  16. Göran Koch-Swahne,

    The UCMJ applies to our troops. No one incarcerated in Guantanamo is an American military offender. That does not mean I think what is going on there is a good idea, merely that comparing it to the UCMJ is illogical.


    FWIW
    jimB

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  17. Surely though, to sustain a charge of personal income tax fraud, the diocesan investigators and prosecutors would have to have access to Armstrong's personal income tax returns for the years in question, and while they might have access to diocesan and parish financial records of amounts paid to Armstrong, who knows what he has disclosed to the IRD until his personal income tax returns are produced. Does anyone know if these were submitted as evidence in the ECT? Given the nature of the relationship between Armstrong and the diocese, I doubt very much if Armstrong would have handed over his personal income tax returns to the diocesan investigators, and I doubt if the diocesan investigators have the power to subpoena them in the same way the civil authorities can. In fact in Australia it is illegal for anyone other than the proper state authorities to demand access to anyone's personal income tax records. Without those documents and the ability to examine them with Armstrong under oath, how can the diocese sustain a finding of income tax fraud?

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  18. Does anyone know how long this ecclesiastical trial lasted? I saw one report that said it was a 3 hour hearing. If this is true does it strike anyone as being incredibly short? A genuine trial of charges that are this complex would usually be expected to last at least a couple of weeks, if the evidence and witnesses are to be thoroughly examined and cross examined. It seems very dodgy to me.

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  19. W. Laatsch II12/8/07 10:48 PM

    I find the following quote in the article somewhat curious "What happens when matters criminal come up in ecclesiastical court? The question here is, is there any obligation on the part of lawyers or the ecclesiastical court itself to report its investigative findings or judgments to state or federal authorities?" To not report criminal offense that were discovered in any ecclesiastical proceeding could certainly and clearly be an element of the crime of aiding and abbetting. The only proceeding that would be exempt from reporting would be something discovered during confession. A "church court" proceeding could hardly be construed as such.

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