5/26/2009

Rummaging through the Blue Book: The Title IV resolution.

In the run up to General Convention I am reviewing various resolutions coming up and would appreciate any thoughts from readers. So,

Rummaging through the Blue Book #1. Title IV.

The Title IV resolution, a rewrite of Title IV (the Disciplinary canons) of the Canons of The Episcopal Church, is a complex document and I will have to rely upon the opinions of the lawyer types as to whether or not this is a "GOOD THING."

My initial impression is that it will be of great value where the remnants of Christian hope is available to the various parties in conflict. It is less helpful where a clergy person has wilfully and knowingly done wrong, has no intention of cooperating and denies the jurisdiction or competency of those who sit in judgment.

A few specific questions:

From the proposed Title IV (lines 115-117, p 772 of the Blue Book)

"Canon 3: Of Accountability
Sec. 1. "A Member of the Clergy shall be subject to proceedings under this Title for:
(a) knowingly violating or attempting to violate, directly or
through the acts of another person, the Constitution or Canons of the Church or of any Diocese."

What does "through the acts of another person" mean? Collusion? What?

(lines 800-844)

"Canon 16. Of Abandonment of The Episcopal Church.
(line 813-14)
"During the period of such restriction, the Bishop shall not perform any Episcopal, ministerial or canonical acts."

The current canon reads, "During the period of Inhibition, the Bishop shall not perform any episcopal, ministerial or canonical acts, except as relate to the administration of the temporal affairs of the Diocese of which the Bishop holds jurisdiction or in which the Bishop is then
serving."

The change withdraws the exception of administrative acts, but does not determine that such actions are part of "Episcopal, ministerial or canonical acts." Where before a bishop, for example the former Bishop of San Joaquin, might argue that he had the right to administer the temporal affairs of the Diocese, including assigning the oversight of funds to new bodies, etc, the new canon simply drops the matter.

(line 824-827) on Abandonment by a Bishop

"If the House, by a majority of the whole number of Bishops entitled to vote..." is exactly the same as the statement in the current Title IV. If there were problems of interpretation as to exactly what constituted the "majority of the whole number" in previous instances of the use of this canon, why wouldn't it be of some value to clarify that this means, "the majority of the whole number present at the meeting," or alternately "the majority of the whole number of bishops constituting the house," or some such language?

(line 836) on Abandonment by a Priest or Deacon

"by an open renunciation of the Doctrine, Discipline or worship of the Church, or by formal admission into any religious body not in communion with the Church, or in any other way, ..."

What does "in any other way" mean? Presumably by abandonment "in any other way." This leaves the door open to the definition of abandonment being enlarged considerably and in ways that make matters of non-conformity not only grounds for accusation of disobedience to the canons, doctrines, etc, but as a sign of actual abandonment. This has the makings of dangerous stuff.

Comments?

6 comments:

  1. I think you bring up some very good points, Mark. (Is the Blue Book online? They didn't send me a personal copy. I can't imagine why that would be....!)

    "Through the acts of another person": Well, I suppose we could probably think up some instances, but it's a very fuzzy phrase and, as the saying goes, "fuzzy phrases make very bad law."

    "The majority of the whole number of Bishops entitled to vote": Did no one learn anything from the past triennial? When you consider that a substantial number of retired bishops do not routinely attend the HOB, even though they are entitled to vote, this makes the requirement unreasonably high. On the other hand, a simple majority of the bishops present and voting seems too low for such an important action. I would suggest requiring a two-thirds majority of the bishops present and voting.

    "In any other way": I agree that this is very dangerous and potentially wicked stuff. "Abandoning the communion" used to be used for obvious cases of abandoning the communion (e.g., going off and joining Rome, or Orthodoxy, or the Sons and Daughters of I Will Arise). I don't recall that these sentences were very often contested. Frankly I think it has been a serious mistake to use "abandonment" in our more recent cases. In most of these instances there was a real case of violation of ordination vows and/or violation of the canons, and although it would have required a trial the verdict would have been very much more clear. Using the "abandonment" canons has simply given the schismatics occasion to whine and moan about how they are the Only True Anglicans. My suggestion is that if a bishop or priest wants to go off and join the Southern Cone, or Uganda, or some other province that will take them (so that they become _their_ problem!), we let them do so.* "Godspeed! Don't let the door slam on your way out! Oh, and by the way, you are no longer canonically resident in TEC and are not licensed to exercise ordained ministry in any diocese of TEC unless the bishop of that diocese specifically licenses you." (And if the bishop does, then that's his/her problem, and the HOB may want to say something about that.)

    *Letters Dimissory, of course, can only be issued to a cleric who is in good standing, and if the cleric is liable for presentment for a canonical violation that would be another matter! However, peeing matches are not to be encouraged!

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  2. The Blue Book can be downloaded in whole or in part from here.

    The current Title IV is also "less helpful where a clergy person has wilfully and knowingly done wrong, has no intention of cooperating and denies the jurisdiction or competency of those who sit in judgment." With limited powers of enforcement, that will always be the case for ecclesiastical courts. The alternative is the Inquisition.

    As a "lawyer type", I believe that the current proposal is overall a good thing. I have issues with a couple of points that in my opinion give bishops more power than they ought to have without requiring corresponding accountability, but I could live with tweaking those issues in another triennium.

    As to your points:

    "Through the acts of another": Remember Bp. Duncan: "I didn't make the diocese leave TEC, it was the diocesan convention".

    Deletion of Episcopal "administrative acts": If a bishop is doing it, it is an Episcopal act, and he or she is inhibited he or she shouldn't be doing them. This looks to me like the closing of a dangerous prior loophole.

    "bishops entitled to vote": This may be indirection linked to conservative retention of language. You have to consider Resolution A020, constitutionally redefining which bishops are entitled to vote, which I understand is likely of passage on its final reading this year. With such passage, the problem goes away. (Proposed resolutions can be found here.)

    "Any other way": It has the possibility of abuse, but also consider that there is a phalanx of ecclesiastical pseudolawyers working out new ways of abandonment every day, and the canons need to be able to recognize them.

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  3. Paul A... thank you for the careful comments. Very helpful.

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  4. Mark,
    I wonder if the "acts of another person" refers to something like the case in PA where Bishop Bennison is accused of not responding appropriately to the knowledge that his brother, a priest, was having an affair with a teenager in the parish where Bennison was the rector and his brother, who was also a priest, was the youth director.

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  5. Mark,
    Your last question on this post seems to fall into the same category as "Conduct unbecoming a clergyperson", and who is going to interpret exactly what that means.
    It still looks like all this is modeled on the Uniform Code of Military Justice, which of course says, "You are guilty until proven innocent."

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  6. As a lawyer, I find that there is a significant Due Process problem with Title IV overall. If it were a secular statute, "Conduct unbecoming of a clergy member" would be held unconsitutionally vague. Clergy are entitled to know what specific conduct is not acceptable before they are subject to discipline.

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