March 17, 2008

Legal Matters

In an earlier post, I analyzed Bishop Robert Duncan’s letter to the Presiding Bishop intended to prevent him from being deposed by the House of Bishops. That letter, I am afraid, will not accomplish what it was intended to do.

Duncan’s Philadelphia law firm is doing better work on his behalf. As I noted in my first post on the material that the Diocese of Pittsburgh released today, the letter from Montgomery, McCracken, Walker & Rhoads, LLP, to David Booth Beers, the Presiding Bishop’s chancellor can be read here.

In this essay, I want to consider the letter to Beers and some of the canonical issues raised there and elsewhere.

The letter from attorney John Lewis first asserts that Duncan’s affirmation in his letter (“I state that I consider myself ‘fully subject to the doctrine, discipline and worship of this Church.’”) has fulfilled the requirement of the Presiding Bishop’s letter of January 15 (“I would, however, welcome a statement by you within the next two months providing evidence that you once more consider yourself fully subject to the doctrine, discipline, and worship of this Church.”) and therefore puts the matter of Duncan’s abandonment of the communion of The Episcopal Church to rest.

This is a strong opening move by Mr. Lewis, but the Duncan letter surely does not provide the sort of evidence Bishop Jefferts Schori was seeking. It may seem that the Presiding Bishop actually asked the wrong question, but I want to revisit that matter below.

Mr. Lewis’s next point is perhaps his strongest. He maintains, as others have done, that Canon IV.9 assumes that a bishop found to have abandoned the communion of the church must be inhibited before he or she can be deposed. Duncan has not been inhibited. The recent deposition of Bishop William Cox suggests otherwise, but a case can be made for Mr. Lewis’s point of view.

According to Canon IV.9, once the Review Committee has certified to the Presiding Bishop that a bishop has abandoned the communion of the church:
The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. 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 canon seems to assume that the three senior bishops will, in fact, consent to inhibition. It is possible that, in writing this canon, it occurred to no one that inhibition might not happen. Why would the bishops overrule the Review Committee? Lewis would have us believe that the matter is ended if the three senior bishops do not agree to inhibition. It is certainly possible to interpret the canon in the case where they do not consent to inhibition, however, and I plan to do that. I note, however, that the notion that the three senior bishops can interrupt the disciplinary process by not agreeing to inhibition is at least a little crazy. In practice, this means that a single, elderly bishop—if consent from three bishops is required, the lack of consent from one can prevent inhibition—can override the work of the Review Committee and possibly the entire House of Bishops, which, by this reasoning, has no say in the matter.

How do we interpret the part of the canon cited above if the bishop charged is not inhibited? Logically, everything after “During the period of Inhibition” is irrelevant. No restrictions apply to the actions of the non-inhibited bishop.

The canon continues:
The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false or utilizes the provisions of Canon IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement constitutes (i) a good faith retraction of the declarations or acts relied upon in the certification to the Presiding Bishop or (ii) a good faith denial that the Bishop made the declarations or committed the acts relied upon in the certificate, the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, terminate the Inhibition. 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.
If there is no inhibition, presumably, “certification and Inhibition” in the first sentence is equivalent to “certification,” as if the sentence ended with “certification, if any.” The next sentence refers to “the inhibited Bishop,” and so is irrelevant. Because this sentence is null and void where the bishop has not been inhibited, we can see that we may ignore everything in the canon up to the sentence beginning “Otherwise.” Without inhibition, it appears that the process by which the bishop offers a defense is short-circuited. This might explain why the Presiding Bishop did not actually ask for a “Verified written statement” as described in the canon. She asked for something a bit different, seemingly as something of a courtesy.

Is this reading reasonable? Why not? If the senior bishops think the case is not strong, perhaps it should just go to the House of Bishops, where it may be quickly dealt with or the bishops may initiate their own investigation in any way they see fit. This seems to be what the Presiding Bishop intends to do.

Lewis next suggests that the certification should not go to the House of Bishops because the charges are similar to charges brought against Bishop John-David Schofield before San Joaquin claimed it had left The Episcopal Church. No certification was forthcoming from the Review Committee in that case. Presumably, the current Review Committee either sees a difference in the two cases, or its members believe that the former Review Committee erred. I suspect that both are true. That the church made one honest mistake is no reason to repeat it.

The rest of Lewis’s letter simply argues for as many rights for his client as he can get. There is no need to discuss that here.

Two questions have been raised about the recent depositions of Bishops Schofield and Cox, and, since those objections might be brought in Duncan’s case, I would like to mention them here. First, there is the question of whether the spring meeting of the House of Bishops had a quorum. The parliamentarian and the Presiding Bishop’s chancellor say that it did, and this is a commonplace enough issue for the House for me to assume that these people know what they are talking about.

More complicated is the matter of what sort of majority is needed to agree to deposition when the House of Bishops votes on the matter. Consent to deposition must be given by “a majority of the whole number of Bishops entitled to vote” (see above). What exactly does that mean? Those who have suggested that the depositions of Schofield and Cox, all of whom seem to be on the staff of The Living Church, was improper contend that a majority of all bishops that can vote in the House of Bishops is meant. On the face of it, however, the canon could as easily refer simply to a majority of those present at the meeting entitled to vote. A follow-up story in The Living Church offers various reasons for accepting this interpretation.

I will offer additional reasons to think that no sort of supermajority is intended by the canon. First, since the Review Committee has already offered a judgment—in most cases, a judgment in which the three senior bishops concur—the House of Bishops is really just validating what is, presumably, a strong case. The history of the canon, however, suggests a reason for the presence of the confusing words “whole number of Bishops.” This canon, the first version of which was enacted in 1853, has been changed a number of times, usually in response to particular problems encountered in its application. An earlier version included the wording “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops.” This wording clearly is intended to refer to all bishops who could attend a meeting, rather than those who actually do so. On the other hand, “a majority of the whole number of Bishops entitled to vote” could conceivably refer to all bishops who can vote or to all bishops at a meeting who can vote. Admittedly, the “whole number” locution suggests something special, but there is reason to believe that this odd phrase was merely carried over from the earlier canon. The interpretation of the Presiding Bishop’s chancellor seems as good as anyone’s here. If the General Convention believes that the effect of the canon should be otherwise, it can change it in 2009.

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