3/16/2008

One Last Look at the Canon on Abandonment

In a previous post "A Whole Lot of Shaking Going On: The Canons and Deposing Persons" I argued that

  1. The quorum for conducting business in the House of Bishops is measured by 50%+1 of the whole number of bishops in the House of Bishops, excluding those who are resigned. That number at the 2006 General Convention was 63. Sixty-three members of the house constituted enough of the membership to do business. At each meeting of the House of Bishops such a quorum number is devised and the House is declared on that basis to have sufficient members to undertake actions on behalf of the House. In actual voting there could be considerably more than 63 persons present and normal voting would mean that 50%+1 of the whole number of bishops in that meeting would decide on any issue.
  2. There being no requirement that the whole house (all 300) be polled on deposition, either by directing some form of vote by mail or by compelling attendance, and indeed no mechanism to require that the House, when meeting, would have to exercise a second opinion as to whether the vote could go forward, the assumption that vote by a majority of the whole membership of the house, present or not, was required is just that, an assumption.
  3. My sense was that the necessary quorum was present and that the House was thereby empowered to act regarding deposition, and that the language was there to make sure it was understood that voting members could include bishops who were not counted in the decision to establish a quorum. That is, the quorum was established by the number of bishops less those who were resigned but the vote was vested in the whole. The matter of the size of the voting membership was determined by being bishops on the roll of voting bishops and actually present in the House at the time of the vote.

Since then there have been a number of comments to that posting and some of those provide some helpful insight. Much of what has been offered seems to think I misunderstand the clear warrant of the canons. Actually I believe that I may underrate the exactness of canon phrasing. Requiring that half the potential voters vote for one side or the other of the decision in order to make it stick is essentially requiring a different quorum and a separate declaration that the House is open for business regarding deposition.

There it is. And, as in all things of this sort, I could be wrong.

Fr. Tobias Haller, a notable contributor to the internet world, remarked that the House was only a few votes shy of being able to meet the test of a supermajority. While I don't interpret the canon in the same way he does it did make me wonder just when the House of Bishops might have in the past met the test of having present more than half the full membership list of the HoB present. For a quick reference point I took the meetings of the HoB between GC 2003 and GC2006. The numbers present for business (legislative) sessions were between 122 and 144 and the over all number in the full HoB was between 285-300. Over all the number hovers around the 50% mark of the whole number of bishops on the rolls. Now business was conducted on the basis of a much smaller quorum. No where can I find any call for a second counting of a quorum based on any other accounting.

At General Convention 2006 it was noted that the full house consisted of 285 members. In order to have a quorum based on that number there would have had to be 143 members present. The first day there were 123 bishops present (pg 62 Journal GC 2006). In fact the quorum was based on the 125 total members with jurisdiction, namely 63.

So neither GC 2006 or any of the meetings of the HoB since GC 2003 had sufficient membership to make it possible to have a quorum large enough to meet the test of the a supermajority based on the full count of the House. More importantly it was never raised as an issue.

The need for a supermajority was not raise in the case of the Deposition of The Rt. Rev. Neptali Larrea Moreno, Bishop of Ecuador Central, in the Spring of 2004 (thanks to another comment on the blog for this memory jog.) (see pg 715 Journal GC2006) That business took place under the quorum basis for the meeting as a whole. There were 144 bishops listed as present but no determination as to whether all of these bishops were voting members. Supposing they all were, they would constitute an absolute quorum of a group of 289 bishops. This being the meeting next after the GC 2003 we would have to know the number of bishops part of GC 2003. That number is 288. The number of bishops present in the meeting deposing Bishop Larrea was precisely half the list of the bishops at GC2003, which list may have actually changed by several members since the General Convention. So it just may be that there was a sufficiency for a supermajority. There is no record of any negative votes, but even one would have meant that there was not the required majority.

More importantly no issue was raised as to the quorum or the vote being based on the membership of the whole house.

After all the exploration of numbers I find no reason to suppose that at any time any quorum was called for on the basis of 50%+1 of the whole membership of the HoB roll. Rather the quorum was always based on the standard 50% +1 of all the bishops excluding those resigned. It did not come up in 2003, it did not come up in 2008.

Having said all that, Fr. Haller may be right. I include his remarks on my previous post. They are most instructive.

"The HoB meeting only fell a dozen or so bishops short of the necessary number. It is not all that difficult to get a majority of the whole number of bishops entitled to vote at a meeting -- even including retirees, who are still among the eligible.

That being said, it is more of a problem nowadays with the number of retired bishops, than it was in the days these canons were conceived, when most bishops served until mandatory retirement age, which happened to be close to life expectancy!

In addition to the high standard due to deposition without trial, the reason the language must entail a supermajority lies in the fact that it makes no sense otherwise to mention the "whole number of bishops entitled to vote" -- if it meant voting members present at the meeting. Obviously if that was what it means there'd be no reason to say anything, since that's just a normal quorum. The history of the canon also shows this was always meant to be more than just those present. Check up White and Dykman. (Also, part of the strangeness of the language lies in the fact that a number of members of the HoB are not entitled to vote: the collegial and honorary members.)

All that being said, there are several ways out of this situation (the immediate one -- the long range solution is to finally adopt the Constitutional Amendment to Article I.2, removing the vote from resigned bishops -- which should have been done long ago). Anyway, here are the options as I see them (there may be others):

* Just accept it as a done deal. This seems to be the way many are heading. Deal with the fallout later.

* Do the above but also revisit JDS's "resignation from the House of Bishops" and interpret it as a renunciation -- since there is no such thing as "resignation from the House of Bishops" it is within the power of the House to accept it as a renunciation. He clearly wants to have nothing more to do with the Episcopal Church, and since all Episcopal Bishops are ex officio members of the HoB, his resignation from the House must mean he is no longer an Episcopal Bishop. This is the course I am coming around to commending, as it accepts the ball he pitched from his own court but doesn't bat it back. He is no longer the Bishop of the Episcopal Diocese of San Joaquin.

* Do a mail ballot of the absent eligible bishops -- this is in fact what was done with Bishop Cumming in the 1870s. (Remember only a dozen or so additional votes are needed to put the lock on this beyond question.)

Anyway, it's Holy Week, and I had an epiphany in the course of the liturgy this morning that there are more important things in life than the fate of Bishop Schofield. Duh."

I find several attractive suggestions in Fr. Haller's comments.

I think it is a done deal, and one done not out of malice but in line with past actions in which the test of the presence of a super majority was not brought forward and on the basis that once the HoB is in session to do business the matter of who votes is about who is in the room. If the questions persist it might not do us great harm to redo the ballot in one way or another, but I consider the practical outcome mostly a "done deal." He has left the building, we have acknowledged it, it is official.

We really need to find some other way to clean up messes then to talk about deposition. At the same time we do need to make it legally and canonically clear that the bishop in question is no longer authorized to function in the Episcopal Church as a bishop. Deposition is what we have. Bishop Schofield could have renounced his orders IN THE EPISCOPAL CHURCH and still claimed that he is a bishop in the Church of God. That would be for God, him and the church in which he exercised his ministry to work out. But he didn't do that either. He claimed to resign, not renounce. I don't see any reason to reinterpret his intention. Still I am attracted to some way to use a different language for what is being done. Deposition has an odd edge to it.

The mail ballot idea, like the mail ballot idea in a Florida redo primary, is a very mixed bag. Still it has the attraction of settling the matter once and for all. Like the redo of the South Carolina election of bishop a redo of the vote would "settle things," or would it? There is the problem that it is extra canonical. I am sure there are ways around this.

I absolutely agree that it is Holy Week and there are better things to do at the moment. Maybe later it makes sense to think again on these things. Maybe not.

7 comments:

  1. I thought it was all a moot point because the HoB couldn't depose someone who resigned and was a bishop of the Southern Cone anyway.

    Or is that last week's argument?

    ReplyDelete
  2. And now we have +Bob Pittsburgh retaining a lawyer making the claim that the Title IV Review Committee was wrong in their finding that he has abandoned communion with the church. Do we have to wait on him to formally notify us he and his diocese have decided to go play somewhere else and TEC can pound sand? If the folks who write the canons for this church aren't working overtime to bring a lot of revisions to GC'09 Lord help us.

    Richard Warren

    ReplyDelete
  3. This is consistent with my wish that the issue raised had been "violation of ordination vows" and "of the Constitution and Canons of the General Convention." Presentments for those offenses are addressed differently in Canon IV; do not require consent of the three senior bishops for inhibition; and are much clearer in argument. "Abandonment of Communion" is dramatic, and may also be accurate; but isn't required to address the matters at hand.

    ReplyDelete
  4. Yes, but we must remember that we have court cases coming up over property and who is "Real" bishop.

    These things might come back to haunt us.

    Bryant A. Hudson

    ReplyDelete
  5. I agree with Marshall that initially appealing though the charge of abandonment may have seemed (at least in part because it was true!), it has carried its own set of problems. A couple of weeks ago I posted a note on my own blog reflecting a conversation a few of us clergy had with our bishop. (The Liturgical Curmudgeon: http://wsjm-curmudgeon.blogspot.com/2008/02/depositions-and-resignations.html)
    In brief summary: the C&C need to be revised to include the provision that for a bishop to publicly claim and purport that he/she is removing his/her diocese from The Episcopal Church (to another Province, or to independent status, or wherever) shall constitute resignation from his/her jurisdiction. This could be dealt with fairly quickly, I think. Resignations must be accepted by the House of Bishops, but I'm not sure it requires a meeting -- I think it can be done by correspondence (am I right about that?). It may be that down the line the bishop might also be charged with violation of the canons and of ordination vows, and if tried and convicted, be sentenced (admonition, suspension, or deposition, as may be appropriate in the case). But in the meantime the diocese (less those individual clergy and laity --not congregations -- who choose to follow the bishop to Wherever) can get on with picking up the pieces and electing a new bishop.

    The procedure of making clear that "behavior X," pursuant to due notice, constitutes resignation from one's position, and then enforcing that, is not uncommon in the academic and business worlds. I give examples in my blog posting.

    I'm inclined to think that using the abandonment provisions, except in the clear, obvious, and prima facie instances for which they were originally intended, is not a good idea. The provisions on violating the canons and/or ordination vows, as Marshall notes, are entirely adequate. They take longer, because they require trials, but the result is much less messy. It also allows much more pastoral flexibility. (For example, if Bill Cox had been convicted of violating the canons and given a year's suspension, would that not have sufficed?)

    Bill

    ReplyDelete
  6. Jim of Lapeer18/3/08 8:14 AM

    This three-ring circus belies the "it will all just go away" attitude of GC2003.
    Blame whoever you want for that, but it obviously is not all just going away. The punishment for moving ahead with a radical innovation that did not have the consensus of the Anglican Communion.
    So what we have now is this picture of the HOB beating up on a kindly old retired bishop, with a terminally ill wife, for the sin of assisting a group of Christian Anglicans outside the fold of TEC.
    If you can't see the meanness of that, it won't do any good for me to outline it here.
    Forget the Bp. William Cox, whom I have met several times, has never spoken ill of any of you and continues his godly ministry despite all the slings and arrows of TEC.
    So continue to run roughshod over your opposition. While at the same time you celebrate the strange teachings of Spong, Righter and Pike.
    It boggles the mind. My prayers are with Bp. Cox, who as far as I know cares nothing about what you have done.
    The HOB is beginning to look a lot like the Pharisees on Good Friday. Crucify Him! How appropriate an action on the eve of Holy Week.
    You are all in my prayers.

    Jim of Lapeer

    ReplyDelete
  7. Mark,
    Bear with me, but you are misreading the numbers of bishops present in 2006. The quorum on page 62, for instance, only refers to the 123 non-reitred bishops present. If you go to page 37f, you will see that the number of bishops is 293, of which some are not eligible to vote (giving the figure of 281). But the number of retired and active bishops present is 192 -- well beyond the "majority of the whole number of bishops entitled to vote." This meant they were also able legally to adopt the change in the lessons to the RCL, the only other canonical requirement (Article X) for this particular supermajority.

    ReplyDelete

OK... Comments, gripes, etc welcomed, but with comment moderation but with some cautions and one rule:
Cautions: Calling people fools, idiots, etc, will be reason to bounce your comment. Keeping in mind that in the struggles it is difficult enough to try to respect opponents, we should at least try.
Rule: PLEASE DO NOT SIGN OFF AS ANONYMOUS: BEGIN OR END THE MESSAGE WITH A NAME - ANY NAME. ANONYMOUS commentary will be cut.