March 15, 2007

And the correct date is …, Part II

On March 12, Louie Crew provided something of an explanation for the confusion about the deadline date for sending of consents from standing committees for the consecration of the Very Rev. Mark Lawrence as Bishop of South Carolina. (See my earlier post “And the correct date is ….”) He wrote:
I called the Office of the Presiding Bishop this morning for clarification about the deadlines for consents for Mark Lawrence as Bishop of South Carolina. TEC’s canons specify that the Presiding Bishop must confirm the authenticity of all balloting, not just the balloting of bishops.

March 9th would have been the deadline, but 3 days have been added for a grace period. The Presiding Bishop consulted David Beers, her chancellor, as well as the parliamentarian of the House of Bishops. Therefore all consents must be postmarked by today, March 12th. By this evening the Standing Committee of South Carolina will FedEx to the PB’s Office for verification all of the consent forms which they have received.

Also a Standing Committee which has yet to file consent may notify the Standing Committee of South Carolina by email today that such a consent is in the mails. Paper copies of all consents must be in the PB’s office before any announcement may be made. Consent requires the majority of all members of the Standing Committee, not just a majority of all members present at a particular meeting.

Thanks to Carl Gerdau, Canon to the Presiding Bishop, for walking me through these details.

Newark deputy
Well, as it happens, I was looking into the matter at the same time Louie was. My own investigations came to similar, though not always identical conclusions. I did not learn everything I—and, I’m sure, others—might want to know. What I did learn is that the Presiding Bishop’s Chancellor, David Booth Beers, who acted in the same capacity for previous Presiding Bishop Frank Griswold, takes responsibility for the “grace period.” It was either first suggested by or somehow endorsed by the House of Bishops’ Parliamentarian, the Rt. Rev. John Clark Buchanan. I have not been able to identify the role played by Presiding Bishop Katharine Jefferts Schori in allowing South Carolina three extra days, but she clearly could overrule a decision of her Chancellor if she so desired. Beers held a briefing on the three-day extension at the Episcopal Church Center in New York sometime in February, and I have not been able to determine that any other bishop-elect has been granted the dispensation of a “grace period.”

Significance and Rationale

The effect of the three-day grace period applied to the consent process for Mark Lawrence may, in the end, make the difference between Lawrence’s becoming a bishop or not. One hundred twenty days after the Diocese of South Carolina sent its requests for content to consecrate Lawrence, that is, on March 9, insufficient consents were in hand and none appeared to be in transit. After the extended deadline, that is, at midnight on March 12, 55 of the necessary 56 consents were said to have been received. Nearly four days later, the South Carolina Standing Committee has had nothing more to say, and Episcopalians are still wondering whether Lawrence’s consecration has been, according to any set of rules, consented to. Like a close civil election, Lawrence’s fate may not be known for some time, since every vote is important. I have been warned not to anticipate the ultimate result based on the timing of its announcement. The Presiding Bishop’s office may insist on announcing a definitive tally of consents when it makes its announcement, which could occasion a delay even if Mark Lawrence’s failure to attract the required consents is already apparent. Everyone, for the moment, simply has to wait.

Whatever the outcome of the current voting, the church should look carefully at the idea of the three-day grace period. I find little canonical support for it. The consent process is described in Canon III.11.4(a), which reads, in part:
If the date of the election of a Bishop occurs more than one hundred and twenty days before the meeting of the General Convention, The Standing Committee of the Diocese for which the Bishop has been elected shall by its President, or by some person or persons specially appointed, immediately send to the Presiding Bishop and to the Standing Committees of the several Dioceses a certificate of the election by the Secretary of Convention of the Diocese, bearing a statement that evidence of the Bishop-elect’s having been duly ordered Deacon and Priest as to the Bishop-elect’s medical, psychological and psychiatric examination required in Sec. 3(b) of this Canon have been received and that a testimonial signed by a constitutional majority of the Convention must also be delivered in the following form: …

The Presiding Bishop, without delay, shall notify every Bishop of this Church exercising jurisdiction of the Presiding Bishop’s receipt of the certificates mentioned in this Section and request a statement of consent or withholding of consent. Each Standing Committee, in not more than one hundred and twenty days after the sending by the electing body of the certificate of the election, shall respond by sending the Standing Committee of the Diocese for which the Bishop is elected either the testimonial of consent in the form set out in paragraph (b) of this Section or written notice of its refusal to give consent. If a majority of the Standing Committees of all the Dioceses consents to the ordination of the Bishop-elect, the Standing Committee of the Diocese for which the Bishop is elected shall then forward the evidence of the consent, with the other necessary documents described in Sec. 3(a) of this Canon, to the Presiding Bishop. If the Presiding Bishop receives sufficient statements to indicate a majority of those Bishops consents to the ordination, the Presiding Bishop shall, without delay, notify the Standing Committee of the Diocese for which the Bishop is elected and the Bishop-elect of the consent.
(This is taken from the 2006 version of the canons. The 2003 version differs in no substantial way.) Notice that standing committees are to act “in not more than one hundred and twenty days after the sending by the electing body of the certificate of the election” (emphasis added). In other words, the 120-day clock starts running when the requests for consent are sent, irrespective of when they are received. (Notice, by the way, that requests for consents were sent nearly two months after the episcopal election. This, apparently, is typical, as there is a lot of work to do to assemble the necessary paperwork.) The wording of the canon is, no doubt, intended to make the starting date fixed and unambiguous. For complete transparency, the electing diocese should be required to declare publicly when the requests were sent, but the canon does not include this requirement. Because standing committees have 120 days to “respond by sending” the result of their deliberations, those responses must be given a few days to arrive, but it is not the time allowed for receiving consents, but the time allowed for deciding them to which the “grace period” is being applied. The passage above suggests no way that 120 days can become 123 days, and, as far as I know, no one other than the General Convention—this certainly includes the Presiding Bishop’s Chancellor—is authorized to modify a canon.

It has been argued, on the other hand, that Canon III.11.5 does offer enough wiggle room to justify the three-day grace period:
In case a majority of all the Standing Committees of the Dioceses do not consent to the ordination of the Bishop-elect within one hundred and twenty days from the date of the notification of the election by the Standing Committee of the Diocese for which the Bishop was elected, or in case a majority of all the Bishops exercising jurisdiction do not consent within one hundred and twenty days from the date of notification to them by the Presiding Bishop of the election, the Presiding Bishop shall declare the election null and void and shall give notice to the Standing Committee of the Diocese for which the Bishop was elected and to the Bishop-elect. The Convention of the Diocese may then proceed to a new election.
Some see ambiguity in “the date of the notification of the election by the Standing Committee.” What date is that? Is this the date referred to in the previous passage on which takes place “the sending by the electing body of the certificate of the election”? One would think so, but then there is that word “notification.” If one sends a message, can it be a “notification” before the recipient receives it? (If a tree falls in the forest and no one hears it … oh, never mind.) If one’s answer is no, then notification takes place on a number of different days, i.e., on days on which the various standing committees receive the notification. Moreover, since some dioceses are overseas, a mailed notice may not arrive for many days, certainly more than three. One could further inquire as to whether one is notified once the request for consent is received, but before anyone opens the envelope. These musings only complicate what seems to be a rather straightforward matter. I believe that the only reasonable interpretation of Section 5 is that the “date of notification” is simply the date on which the Standing Committee of the the electing diocese sends its requests for consent. I believe the writers of Canon III.11 meant to be quite specific about the time frame for response, and it is perverse to suggest that any ambiguity in Section 5 is intended to override the specificity in Section 4(a), particularly because that ambiguity, if taken seriously, could lead to substantial variability in opinions about the date by which a standing committee should respond. (Should every standing committee have a different response date, based on when the request for consent is received? I think not.)

An Evaluation

It has been said that the three-day “grace period” is exactly that, a gift freely given by the church to a diocese. I have several problems with this notion. First, it is not clear that anyone is authorized to offer “grace” in this particular situation, and I personally believe that doing so is a canonical violation. In the situation in question, one must acknowledge that two positions, rather evenly matched, it would seem, are vying to be heard, and is not “grace” extended to one party an unearned impediment imposed on the other?

The three-day extension was imposed in a very manipulative manner. Even the South Carolina Standing Committee did not know of it until the 120 days had nearly expired. Apparently, this was to avoid encouraging the sloth of standing committees who, it was thought, had trouble making a decision in approximately six months! (I discovered early on that standing committees, long before requests for consent were sent, were already discussing whether consent should be given to consecrate Mark Lawrence.) Just when everyone thought the time for consent was over, the goal posts were moved, to the delight of some and the dismay of others.

Will such grace be offered in the future as a matter of course, or is it only for special cases? If a diocese elects a partnered lesbian priest bishop, for example, will an extra three days be allowed for sending consents. Or, since everyone now knows that “one hundred and twenty days” is really “one hundred and twenty-three days,” will we have to add six days next time, since the element of surprise is now forever lost?

I do not like to see our church playing fast and loose with its canons. If our church leaders do not appear to respect the letter of the law, what moral authority does anyone have to complain about the flagrant canonical violations we have seen from the “traditionalist” insurgents within our church, and what credibility do we have with our brothers and sisters in other provinces of the Anglican Communion? Is this “grace,” or are we ceding the high moral ground?

Three days over a period of four months, it might be argued, is a small thing. The extension became known at the very end of those four months, however, when the traditionalist Web site Stand Firm was encouraging, with some success, an effort to change standing committee votes. Adding three days would have seemed fairer—if not more canonical—had everyone been aware of the rules from the beginning.

It will be a constitutional tragedy if Mark Lawrence becomes a bishop only because he was allowed a special dispensation in the consent process. I pray that that does not come to pass, as it is not clear how The Episcopal Church would recover from it.

Whatever happens, the Presiding Bishop should assure the church that no such extra-canonical extension will ever be granted again, and she should appoint a small committee to review Canon III.11 with a view toward making any time limits totally unambiguous. In fact—as one who has read more of our church’s canon law that I would like to admit—I would support formation of a committee whose job it was to read through every line of our constitution and canons with the intention of suggesting changes to the General Convention to eliminate vagueness and ambiguity with “fixing” anything else. It is not surprising that the legislative process of the General Convention does not always produce clear, logical, unambiguous text. There is no reason, however, why it should not clean up after itself.

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