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.
Another not-canon-lawyer observation: The last time I know of that a bishop was deposed under our canons for abandonment of communion, seems to me the same procedure was followed. At least, that's what ENS reported, and what I recall from my canon law class in seminary. And no one quibbled. From a procedural perspective, what makes this different?
ReplyDeleteMark, I devoutly wish +Schofield's deposition had been effective, but your analysis omits the crucial fact that elsewhere the canons refer to "those present and voting," implying that's not what they intended in the abandonment canon. This is a standard principle of statutory construction; it's reviewed over in considerable detail in a thread at TitusOneNine.
ReplyDeleteIn a nutshell, the HoB deposition motion simply failed for lack of the canonically-required number of affirmative votes.
Mark, you write: "The list of bishops eligible to vote at the meeting are [sic] (i) persons present and (ii) persons part of the whole list."
ReplyDelete(I assume you meant, bishops who are (i) present, and (ii) part of the whole list. Otherwise anyone at the meeting, bishop or not, could vote)
Your claim is contradicted by another canonical passage you quoted: "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." The term "entitled to vote" cannot refer solely to those present, otherwise the quorum definition would be incoherent.
Where your reasoning fails is that throughout the rest of the canons, when referring to votes of the HoB, "a majority present and voting" is specified as required. However, in this canon uniquely, "a majority of all bishops entitled to vote" is required. It's clearly a stricter requirement.
ReplyDeleteAs to your observation that that would make depositions very difficult due to the large numer of bishops required to attend the meeting -- I think that's the point of the requirement. It should be difficult to depose a bishop who has not resigned.
It's just interesting that the canons can be applied strictly in one case (Mark Lawrence consents) and then sort of fuzzed up in the next.
ReplyDeleteIt just seems curious that it works to strictly apply them in one case and not the other.
Probably just a case of whose ox is being gored, but the whole thing is clear as mud.
So if only 15 bishops showed up at the meeting, 7 could then depose a bishop? Doesn't seem right to me.
But I don't think its really bothering either of the deposed bishops, so let's move on and the lawyers can use the vagueness arguments when the property issues come to court. A judge might say that canons, which can be selectively applied, cannot be judged by a secular court.
That would be a win for the "orthodox" side.
Jim of Lapeer
As for me, (i) I'm not a Canon Lawyer, just a lawyer, (ii) I'm not dumb either. So between the two of us we've got the field covered. And I think you are spot on.
ReplyDeleteJane Ellen - My guess is that what makes it different is the role of blogs.
ReplyDeleteMark,
ReplyDeleteA couple of brief observations and then I'm swearing off this issue. It is only for the sake of the good faithful Episcopalians in San Joaquin that I want to see this thing locked up and done with.
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.
According to Bishop Pierre Whalon (Convocation of American Churches in Europe) a clarification of the interpretation was made at the last General Convention in 2006 (Journal pg 81) on 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." At Camp Allen, Bishop Kenneth Price, Secretary of the House announced the number present as 68, thus a quorum.
ReplyDeleteMark, the major problem I see with your argument (there are a few others) 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.”
ReplyDeleteIn contrast, Article 2 of the Constitution, to which you refer to, quorum being determined by a “majority of all Bishops entitled to vote” minus those that have resigned etc. 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. Those who think the depositions were canonically valid, would you please 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, you don't seem to think that phrases 1 and 3 have a common meaning, with 2 being the odd man out. Instead, you seems to believe that phrase 1 is the odd man out, with 2 and 3 having the common meaning.
I think the canons are very clear as to what the required number of consents are, the this number was simply not obtained.
What I don't understand is this - it is pretty clear that with a minimum of effort, KJS could have assembled the necessary number of bishops to do the job. Through apparent sloppiness she didn't. This failure could have serious legal consequences, because according to TEC canons, and despite what either JDS or 815 apparently want, JDS is the canonical, uninhibited, undeposed bishop of TEC's Diocese of San Joaquin. Now Mark, there is a small chance that your interpretation will be favored, but from what I read, the consensus opinion of practicing attorneys and law school graduates is that the deposition failed. Do you really want to go into court like that? Why not admit failure, recertify a charge, and then do it correctly? And perhaps you might want to inquire into how the PB and her chancellor botched this up. Because right now, if I was on death row and David Booth Beers was my defense attorney, I would be very nervous.
One last thought (really):
ReplyDeleteI checked up on two of the past depositions under this canon for which I had copies of the Journal, and it is notable that for at least the last 15 years or so a canonical majority (taking the canon in the sense I have taken it) appears not to have been present in either case. I would note that the only other matter upon which such a majority -- the whole number of bishops entitled to vote including retired bishops -- is required (Article X ¶2) achieves the needed majority due to the fact that such decisions are only taken at sessions of General Convention. A quick review of the 2006 journal shows that there were well beyond a simple majority of "all bishops entitled to vote" in attendance. (Note the distinction in Article X between matters requiring two Conventions and matters addressable at a single session; the latter requiring the higher majority -- unless this is a mistake!)
However, as far as depositions go, which often seem to come before interim meetings rather than at GC, it appears the canon has not been held to the more rigorous interpretation I and others have advanced. Whether deliberate or accidental, a good case can be made, given the antiquity of the canon and its other signs of retaining archaic features ("the three senior bishops" is a throwback to the days when the PB was "the senior bishop" ex officio), an application of the legal principle of desuetude might well be invoked.
Whatever else can be said, this canon needs to be rewritten to bring it into line with actual practice -- or even better, we need to adopt, on its second reading, the amendment to Article I.2 that removes the vote, but not seat and voice, of resigned/retired bishops.
Actually, it IS Holy Week, and I had an epiphany in the course of the liturgy yesterday morning that there are more important things in life than the canons of the Episcopal Organization. (My name is Lee Downs, and I am a rector in the diocese of Milwaukee.)
ReplyDelete