3/20/2008

Beyond Schofield and Cox

The House of Bishops consented to the deposition of Bishops Schofield and Cox on March 12, 2008. The vote to consent was disputed by two writers, neither of them canon lawyers or members of the House, on March 14, 2008 in an article in The Living Church Online. Their article was listed as a news item, not a commentary. But the content consists of their determination that the House of Bishops, its Chancellor and the Presiding Bishop were wrong. It was not news, it made news. That same "news" now more clearly under the heading of commentary, appears on HERE and on BabyBlue HERE.

A great deal of sound and fury has followed in the wake of these allegations of a uncanonical proceedure. These voices mostly supported the position that the vote was invalid, incompetent or otherwise debased. But there was also considerable thought given to the wording of the Canons and the intent of the specifics of Title IV 9 of the Canons, and as well to the whole concept of "abandonment of the communion of this church." Much of that was quite useful in that it related not only to the specifics of this case but as well to the upcoming debate on revisions to Title IV canons at the next General Convention. So as a learning event all was not lost. In that regard I commend particularly the Living Church article, "Flaws in the Misconduct Canons" and my own comments HERE, with the title, "Abandonment of Communion, Current and Proposed."

My own commentary on the matter has met with mixed results. You can see my entries into the discussion HERE, and HERE and HERE. My basic contention was that the quorum for doing business establishes the group meeting as the group able to make decisions, and that therefore the House of Bishops (HoB) once it has established a quorum, calls on members present to vote on matters before it. To require otherwise, without directions as to how to either compel attendance or provide alternative methods for notification or voting (notification of the need for a supermajority or some means – voting by mail), would be to effectively nullify the possibility of voting on the matter at all. My sense was then that the vote was valid because the HoB was in session and had a quorum to conduct business and that the meaning of "the whole number of Bishops entitled to vote" referred to those present.

That basic argument was posted on PRELUDIUM and then more widely on the House of Bishops/ Deputies list. I received a number of supportive emails and one phone call from a former executive assistant to the Presiding Bishop. There have been a wide variety of online comments to the effect that I was wrong. More, in at least the case of a comment made by an elf at Titus One Nine, introducing a comment by my friend Nat Pierce taking me to task, the criticism was that, "Mark Harris made an unimpressive and unconvincing argument that the canons do not mean what the words on the page indicate that they mean," which translated means I was dumb as they come. Oh well.

I still believe I am right. The Chancellor for other reasons believes the vote was valid. No challenge was made to the vote at the time (some of the potential challengers had left or never were at the meeting at all). The supposed defendants did not appear. Considerable precedent for the HoB acting thusly – Bishops Donald Davies and Neptali Larrea Moreno – were deposed in similar manner, and without protest. As far as I know there has never been an instance of the use of this canon in which the supermajority requirement was raised or invoked.

One of the characteristics of these procedures is that the persons declared to have abandoned communion have not (as far as I can discover) contested the fact by appearing in the House to say so. They have not been present, have not made a plea, and generally have had no interest in the proceedings.

But I continue to be clear that my opinion is just that – an opinion. I do not do as the Church of England Newspaper and The Living Church do. They content that their investigation reveals "procedural and legal inconsistencies that may render the vote a nullity." Investigative reporting in the Church, on matters of judgment concerning the canons is a risky business. The writers are not giving us news, except the news that they themselves believe something is wrong. They even have the audacity to report as fact that the "… under civil and canon law the failed trial leaves Bishop Schofield as Bishop of the Episcopal Diocese of San Joaquin in the US Church, and Bishop of the Anglican Diocese of San Joaquin in the Province of the Southern Cone." Still, in spite of their reporting their opinion as fact, their investigations are of some considerable interest and have pretty much stirred muddy waters.

The article itself makes several errors: there is no "trial" when the House of Bishops meets to consider the certification of abandonment that comes from the Review Committee. They meet to consider consent and do so with discussion and prayer. There is no formal system for examination. The assumption is that the persons so certified have in fact left the building. What the voting bishops are charged to do is "consent" to the Presiding Bishop's decision. The writers of the article simply misstated the case of what happens when they wrote, "The two hour trial in absentia began with a reading of the charges, followed by prayers from the chaplain. The bishops then broke apart into small groups and then gathered in a plenary session for debate." This was not a "trial in absentia." It was not a trial at all. It was a debate and consideration on the matter of consent. The bishops meeting do not sit in judgment of the bishop, rather they considered giving consent to something already known to be the case.

There have been considerable arguments that the abandonment of communion is an accusation or offence that requires a supermajority because it is such an important decision. Quite to the contrary, it is a finding of a Committee that then recommends to the Presiding Bishop that the bishop in question has indeed abandoned communion, and the HoB is consenting to the PB's actions in removing the bishop in question from the ministry of this Church. It is not a matter of such incredible importance as to require supermajority. Still, this read is a matter of interpretation.

There is, as a result of all this carrying on, a considerable cloudiness regarding the vote taken. What indeed did the canons mean, require, suggest, hope for?

I would suggest the various commentators return again to the matter of giving consent. In the matter of consent to the election of a bishop, the canon reads, "the consent of a majority of the Bishops of this Church exercising jurisdiction" is required. Why would we require more to consent to a finding of abandonment? There are a wide variety of contexts in the canons where consents are required, the rules governing who consents and how vary. But the consent governing the election of a bishop seems to me to be the nearest parallel to the consent regarding the determination of abandonment. But of course the parallel is not exact.

After all the huff and puff of various opinions by commentators, news reporters, hounds of heaven and the like, the matter finally rests, it seems to me, with the bishops themselves. I see very little commentary by bishops who were present at the meeting about the legality or competency of the vote. Barring such objection, and given the seeming weight of precedence, I think it is time to let the matter go. Bishops Schofield and Cox have left, they know it, we know it. The consent to deposition stands.

The problem continues, of course, because precedence does not make necessarily make right. I think a good argument has been made that the intent of the canon on abandonment was precisely to require overwhelming consent. As Fr. Pierce suggests, the parallel to this for priest requires a 75% agreement by the Standing Committee of a diocese for consent to be given. Requiring 50% of all bishops of the House seems more in order with the spirit of this. I don't agree with this argument, but I do acknowledge that it has considerable weight.

But again the consents for ordination of a bishop involve only those bishops with jurisdiction. If (i) only bishops with jurisdiction gave consent for the finding of abandonment or (ii) if the canon did not require an actual meeting of the HoB to consider the matter of consents, then there would be a practical way out: a majority of bishops with jurisdiction is required for the House to do business and if the canon did not require an actual meeting consent by mail would suffice. As it is, the canon asks not simply for a supermajority, it asks for a meeting of the House of Bishops with an unreasonable expectation of attendance. The practical matter is that sufficient bishops for the matter of such consent are available only at General Convention, and then often only when a matter before the House (say the election of a Presiding Bishop) requires.

The Bishop of Pittsburgh:

In to all then comes the Bishop of Pittsburgh, who, unlike Bishops Schofield and Cox, has presented himself for further examination, has offered a response to the Presiding Bishop's query, and has continued to be part of the House of Bishops and the General Convention is a variety of ways even while absenting himself from distasteful occasions – communion with the Primate, etc – and making it clear that he believes the Episcopal Church is defunct. He has made it clear that he does not consider himself subject to the abandonment provisions of the Canons, at least on the face of it. He has not abandoned, rather he is in full contention with, the Episcopal Church. Contention is not abandonment.

Contention is more difficult to prove as a basis for deposition. In matters of contention it must be shown that in some way the person has acted in ways contrary to the doctrine, discipline, or worship of The Episcopal Church so as to have crossed the line from being "the loyal opposition" to being in a position exclusive of the Church to which he purports to belong.

At least that makes clear the difference between the two sorts of cases: abandonment is signaled by an already established fact of disengagement, which is then certified and consented to; acting contrary to the Doctrine, Discipline or Worship gives rise to trial, a bill of particulars, and judgment.

I believe that fact that the three senior bishops were not in agreement regarding the findings of the Review Committee and the fact that Bishop Duncan responded to the question posed by the Presiding Bishop puts this finding in a different light.

Again, with the disclaimer that I am not a canon lawyer or the child of a canon lawyer, it is unclear to me whether the Presiding Bishop can proceed to ask for consent from the HoB without the inhibition being in place, that is, without the assent of the three senior bishops. I suppose the PB might argue that with or without the approval of the three bishops she can ask the consent of the bishops to the findings anyway. I suppose we will need to see what transpires.

My sense is, from reading Bishop Duncan's letter, that he presents himself as the loyal opposition and his "intention is to continue in this call for what remains of my active ministry." For that time he will indeed continue in contention with the Episcopal Church.

What happens following the next diocesan convention in Pittsburgh, I do not know. At some point Bishop Duncan can simply walk away, retire and resign from the House, and, as has been done by Bishops Fairfield and Bena and others, simply take up residence elsewhere, say in a more southerly direction. No longer active here Bishop Duncan will be active elsewhere.

He might upon retirement simply take up the mantle as Moderator of a new church, one formed from some parts of the Common Cause Partnership. He has many options. But I believe he will carefully walk so that until the time of his choosing he will remain within the Episcopal Church. It seems to me to remove him will before he ceases to be "active" require not just consents to a finding of abandonment but trial. And a trial will take more time than he needs. By then he too will have left the building.


13 comments:

  1. As a liberal who upholds the democratic principles of justice, doesn't it bother you Mark that David Booth Beers advised Bishop Jefferts Schori to remove a Diocesan Bishop with jurisdiction with the simple majority of a quorum? In principle, knowing that this is the gravest, most severe thing a House of Bishops can do, doesn't that bother you?

    bb

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  2. bb...actually there were considerably more than a simple majority of a quorum present.

    And yes, it does bother me that bishops don't attend HoB meetings and stick around for the business sessions, and if Bishop Schofield had not already indicated he was out of there and protested, etc, I would have raised the sorts of questions I raise about Bishop Duncan.

    But the Presiding Bishop is not removing a Diocesan Bishop of the Episcopal Church here. He has left and the evidence is not in the findings of the Review Committee, but in the letter sent to her, the announcements he has made, etc. She is removing a person from the list who has already removed himself.

    As to this being the gravest, most severe thing, etc.... there is a much more grave thing that can be done: to try and convict a fellow bishop of a charge for which deposition is required, making no claim that it is a matter not concerning the bishops moral character.

    We will see something of that play out in the trial of the Bishop of Pennsylvania in June.

    A lot of things bother me about the abandonment canon, but when it is applied to someone who has indeed left the Episcopal Church for different pasture it makes some sense.

    The canon needs to be reworked (although I don't particularly like parts of the new proposed canon) and the phrase "abandonment of this Church" is cold and needs to be replaced with something like "left the Episcopal Church." But what we have is what we have.

    As far as I can tell all the cases of consent to the abandonment findings have been by HoB meeting precisely as this one did, with a quorum of bishops of jurisdiction and a number of other bishops.

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  3. Let’s all agree that Canon IV.9, like so many canons, is badly worded. It is unclear on the matter of inhibition, and it is unclear (or misleading) on the question of what sort of majority is needed to approve deposition.

    Although I agree with the first part of Mark’s essay, I believe that Bishop Duncan can should be deposed as soon as possible. Admittedly, saying that Duncan has abandoned the communion of this church is not exactly what I would say the bishop is guilty of. The Title IV revision should perhaps have a canon on sedition. Abandonment, of course, offers an excuse for deposition without trial. Presumably, a sedition charge would be brought forward by presentment and would require a trial, and no one seems to have the stomach for an actual trial.

    Anyway, we are where we are in the Duncan matter. I have written three essays on Duncan’s response to the PB, which you can read on my Web log. The final one addresses some of the canonical questions that have been raised.

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  4. It seems clear from the canon that a majority of those present was needed, with "the whole number" referring to no distinction between active and retired/resigned Bishops for that particular vote, even though that distinction would have been made when calling a quorum.

    The two precendents you mention are also helpful. This is not a "new" reading of this canon, as some are suggesting. It has been understood this way before. As you mention, that does not make it the right way to read it, but does correct the slanderous statements made elsewhere that Bp. Katharine is manipulating the process.

    The distinction between "consents" and "trial" is also helpful.

    Some good points, Mark. Thanks. I'll be referring folks to this article as the "final word" on the matter after Easter.

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  5. I ask this question as a liberal who believes that the HOB has done the right thing, and the answer to my question may be obvious, but have _all_ bishops that have been "removed" been of the conservative stripe? I still don't understand why the hew and cry is so strong. Is it another case of "say it loud enough and long enough and it will be truth"?

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  6. I am normally a lurker, but I'd like to thank you, Mark, for making the distinction between giving consent and conducting a trial. And I think it's also very helpful to point out that there is precedence in the way other depositions were handled by the HOB, and which didn't stir up so much as a squawk.

    There's a lot of hand wringing about all of this, but actually - in my truly unimportant opinion - the HOB simply recognized what already exists: Bishop Schofield no longer considers himself to be a bishop in TEC.

    Your work is tremendously valuable, Mark. Thank you


    Mr. Arabin

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  7. (Dan)
    Bishop Schofield resigned from the HOB. It was the PB who said that is not possible. In her opinion, he had to be deposed. If he had to be deposed, then he could only be deposed in accordance with the canons, ths source of the authority to depose a bishop. HOB either did or did not follow its own canons. As I read them, it did not, but that won't be finally resolved until the civil litigation takes place. When TEC tries to seize the assets and Bp. Schofiled defends, saying among other things, I have never been deposed by the HOB, so I remain the diocesan bishop.

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  8. It seems there are really only two questions left ih the case of Bishop Schofield. Will the secular courts recognize the deposition when folks start arguing over the property? Does Canterbury recognize the deposition as valid? If both figure the deposition stands, then there doesn't seem to be much urgency in readdressing Bishop Schofield's particular case, although his case demonstrates the need to fix the canons.

    Jon

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  9. Mark Harris wrote:

    ...in at least the case of a comment made by an elf at Titus One Nine...

    Don't be so coy, Mark. The comment was clearly written by Kendall himself.

    And he didn't say or mean that you are, to use your words, "as dumb as they come". That may be what it sounded like to you, but it was not close to what he said or meant. He just said your argument was "unimpressive and unconvincing".

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  10. dr.primrose21/3/08 11:45 AM

    A couple of comments indicate that the property issues will be at least partially dependent on the civil courts resolving the issue of whether the House of Bishops properly followed the canons in deposing Schofield.

    Actually, under the U.S. Constitution’s bar of the civil government’s interfering with the free exercise of religious freedom, the American secular law courts are very likely barred from second-guessing the House of Bishops' decision.

    Similar claims were considered in the 1976 U.S. Supreme Court case of Serbian Eastern Orthodox Diocese v. Milivojevich. In that case, the diocese removed and defrocked a bishop, who then sued the church, claiming that he was the true bishop. The lower courts found that the bishop’s removal and defrocking were improper because the proceedings against the bishop were not in accordance with the church’s constitution and canons. The U.S. Supreme Court, however, held the civil courts were constitutionally barred from deciding matters of internal church governance.

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  11. This comment has been removed by a blog administrator.

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  12. Mark - I notice that my comment was removed after several hours. Am I having difficulty with my new blog procedures or did you discover something further about the content? Thanks. Bob

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  13. bob...drop me a note at poetmark@comcast.net so I have your email address and I'll get back to you off blog. Thanks. Mark

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